Construction Of Independent Sentencing Procedure In China

Crime and punishment are always the concerns of the criminal law, however, the criminal procedural law must be involved in order to combine punishment, criminal facts and the situation of the defendant to reify conviction and sentencing. The traditional criminal procedural law focuses on the scope of the criminal convictions procedure, and sets the sentencing procedure as the attachment of the criminal convictions procedure instead of the procedure with the independent status. However, the sentencing procedure plays the pivotal role in criminal lawsuit, and to the defendant, it is the center of attention because of more realistic significance compared with the sentencing conviction; to the victim, sentencing procedure gets more concern, since it is directly related to the right of the victim. The incongruous relationship between the position and the importance of the sentencing procedure has captured the attention of many scholars and practitioners. The author of this paper has no intention to slide over the discussions from the academic, but only hopes to make her own efforts for the scientification of the sentencing procedure and the further improvement of the criminal suit law in China through her own discourse. Therefore, the author set the construction of the independent sentencing procedure of our country as the title of the graduation thesis based on the consideration above.The paper is divided into five chapters:Chapter 1:the concept of the independent sentencing procedure. The author plans to make precise definitions of the denotation and connotation of independent sentencing procedure through studying sentencing, sentencing procedures and concept of independent sentencing procedure step by step.Chapter 2:studies of worldwide sentencing procedures. The author starts with the introduction of the current sentencing procedures of the two types of law systems, pointing out the independent sentencing program mode of Anglo-American legal system and the mixed sentencing model of Continental Legal System, and makes a detailed introduction of the sentencing operation programs in Britain, the United States, Germany, France and Japan. Eventually, the author makes comparative analysis of different sentencing models of the two types of law systems based on the introduction above.Chapter 3:Current situation, reform and existing problems of sentencing procedures in China. Through the general introduction of current situation of sentencing procedures in China, the author points out that the current type of the the sentencing model in China is sort of mixed which means that the sentencing procedure is contained in the conviction procedure. At the same time, the researches and reform of sentencing procedures made by grass-roots courts and procuratorates around China currently have obtained some positive results, but a number of problems remain to be solved.Chapter 4:Reasons for why independent sentencing procedure should be practiced in China. The author analyzed the causes and conditions on which the independent sentencing procedure should be carried out in China now through three main aspects of theoretical basis, necessity and feasibility. The part of theoretical basis focuses on the difference between the foundations of conviction procedure and sentencing procedure; the part of necessity deals with restricting the powers of judges and safeguarding the rights of the defendant; the part of feasibility is mainly about the current practice at grassroots and relevant foreign practice.Chapter 5:Construction of independent sentencing procedure in China. In this chapter, the author hopes to make detailed conception of the potential independent sentencing procedure in China in the multi-angled and integrated way from the discussions of these parts that contain the participation of accusing party, the participation of defense, the participation of judges, the participation of society and the establishment of special evidence system.