A Study On Sentencing Claim Right

Prosecutorial organ's sentencing claim right, or prosecutorial organ's right of claim for discretion in sentencing, is a kind of judicial claim, in which public prosecutor, during criminal prosecution, presents the judicial organ with the concrete claim regarding the discretion in sentencing of defendant on behalf of prosecutorial organ, while presents definite claim regarding the conviction issue of defendant. The prosecutorial organ's sentencing claim right may be divided into two types: abstract sentencing claim and concrete sentencing claim. The prosecutorial organ has hold and implemented abstract sentencing claim right by nature. This article is to discuss concrete sentencing claim right, which is not a kind of new right created by prosecutorial organ itself but a kind of deepening and developing of abstract sentencing claim. It is also a kind of criminal prosecution system which needs to be further perfected for just procedure demand. Regarding nature, sentencing claim right is a type of right to charge crime, which is a procedural right affiliated to prosecutorial organ and is not a type of material right. The main object of sentencing claim is to monitor the discretion in sentencing and to promote the discretion in sentencing to come out into the open. Although sentencing claim right cannot decide the criminal penalty of defendant at the very end, it can bring out certain affect on and positive check to the discretion in sentencing of court and assist court with accurate discretion in sentencing. There is a profound legal theory basis for prosecutorial organ to hold sentencing claim right.Regarding the criminal legal relationship as well as litigation principle, it is legitimate for prosecutorial organ to hold sentencing claim right. Regarding the right restriction, it is essential for prosecutorial organ to hold sentencing claim right.This article, by investigating and surveying the practice of sentencing claim system domestic and abroad, especially the sentencing claim system carried out by Ningbo Beilun District Procuratorate, presents a concrete statement on submission and approval of sentencing opinion, sentencing claim methods for simple procedure and ordinary procedure, and the issue about how to view the judgment; makes a summary to the practical implement of sentencing claim right. The article would like to clarify with demonstration the blurring understanding on amplitude crime sentencing claim and absolute crime sentencing claim, case scope to implement sentencing claim and viewpoint on the difference between sentencing claim and sentencing discretion. The article also gives some actual solutions to the current obstruction and difficulty in promoting sentencing claim right in prosecutorial organ.