On The Sentencing Procedure Of China

Sentencing procedure reform is carrying out throughout the country, in which two domains are covered: the reforms in sentencing regulation and measurement, and inclusion of penalty measurement into the court procedure to construct"relatively independent sentencing procedure". The reform has aroused great interests among the theory and practice fields because of the difficulties and the efforts people make. Even though some achievements have been realized, more and more troubles occur which require still detailed and complete researches. Through investigations, the author discovers that the following five aspects still wait to be perfected. Firstly, since the relatively independent sentencing procedure doesn't classify the cases if the defendant admit guilty or not, so the defendant might be trapped into a paradoxical situation when he denies his guilt. Secondly, the procuratorate's practices in penalty are not in consistence with standards. Thirdly, the court's suggestions on penalty measurement turn out to be rigid and vague. Fourthly, the court is not able to obtain full and complete information on penalty measurement. Finally, equal defense can not be achieved because the rights of the defense are constrained.Through careful studies and comparisons of the sentencing procedures in the two main law systems, the author tries to propose some measures for the perfection of the reform, based also on the law practices and the reality of China. First and foremost, separate procedures should be set to distinguish the different cases of the defendant, that is, present modes should be adopted when the defendant admit guilty; if not, sentencing procedure and penalty measurements can be relatively independent. Secondly, standards in sentencing suggestion and process should be made. Thirdly, confirmation on evidences of the sentencing facts should be unmistakable, that is, object, responsibility and criteria of the evidences must be precise. Fourthly, complete information should be obtained for sentencing. More importantly, personality investigation system of the defendant must be constructed and perfected. Fifthly, the rights of the defendant must be guaranteed so as to improve the position of the defendant and to assure fair defense.Finally, the author concludes that the reform of sentencing procedure is a systematical project, and difficulties and challenges always occur in this process. More scientific designs, sufficient financial supports, perfected systems, personnel supports and social recognitions are always needed for its successful performances. There is still a long way to go in sentencing procedure reform.