On Elements Of The Criminal During Sentencing

Sentencing is the final footstep of all criminal law theories, while the elements of the criminal is a key concept of criminal legal science. How about the status of the elements of the criminal? What kind of elements of the criminal should be considered? And how to measure this kind of elements of the criminal? These questions always cause much argument in criminal law theories, and also trouble the judicial practice. This thesis tries to study on the elements of the criminal during sentencing in three aspects.　In the introduction part, the thesis introduces the history and significance of sentencing, which leads to the topic of elements of the criminal during sentencing.　The main body of the thesis is divided into three parts, discusses respectively the problems of whether the criminal's elements should be considered, what kinds of criminal's elements should be considered, and how to consider the criminal's elements during sentencing.　Chapter One, on academic arguments of the elements of the criminal during sentencing. The academic arguments of criminal's elements during sentencing have a long history and still remain nowadays. Section One of this chapter discusses the negativism which introduced by the classical criminal law school towards the elements of criminal during sentencing. The classical criminal law school holds the position of justice and retribution, and insists on the principle of absolute balance between crime and sentence; consider criminal acts as the only element that should be considered during sentencing, or otherwise would lead to injustice. Section Two discusses the positivism, which introduced by the demonstrative criminal law school; this law school considers criminal's elements as the only element during sentencing, on their basis of utility and prevention. Section Three discusses the compromissary theories of modern days –theories of the normal responsibility, the new social defenses and the personal responsibility. All of these theories focus on both justice and retribution of criminal law and utility and prevention of criminal law, with different emphasis each. So that these law schools think both the criminal acts and the criminal's elements should be considered during sentencing. After introducing all of the points of view, the writer analyses positive and negative values thereof, then concludes that besides criminal acts, we should also consider the criminal's elements during sentencing.　Chapter Two, on content of the criminal's elements during sentencing. This chapter mainly focuses on which respects of criminal's elements shall be considered during sentencing. First, the writer introduces the concept of criminal's elements and main viewpoints of domestic scholars, then concludes that the criminal's elements should include three aspects which are personal dangerous nature, responsible ability and ability of punishment-taking. Coming next is concepts of these three aspects and why should we take them into consideration during sentencing. The writer concludes, the personal dangerous nature can only refer to possibility of recommitment, in order to fulfill the utilizable and preventive function of criminal law we should take it into consideration. The responsible ability is not only the elements during conviction but also an important aspect during sentencing. Then the writer discusses the responsible ability of aged criminal and insane criminal, and its function in the progress of sentencing. The ability of punishment-taking is the physical and mental condition for criminals to take punishment. Taking it into progress of sentencing can fulfill the needs of special prevention and individual justice of punishment, on the other hand, can show the humanism of punishment also. On this point, the writer focuses on the ability of punishment-taking of aged criminals, minor criminals and physically disable criminals.　Chapter Three, on criminal's elements in judicial practice of China. This chapter mainly focuses on difficulties about criminal's elements in our judicial practice. In Section One, the writer discusses the current situation of criminal's elements in our sentencing practices, and analyses the causations. In Section Two, the writer holds that, in order to change such a situation, we must form principles by legislation to confirm key position of criminal's elements during sentencing, then the writerpresents his legislative advices. In Section Three, the writer provides his own points of view about how to measure criminal's elements during practical sentencing, especially on how to control the uncertainty of criminal's elements.