Study The Procedure Of Sentencing

In a society of modern legal system, determining a crime accurately and imposing sentence appropriately are two basic demands in the whole criminal administration of justice. At the present, how to guarantee the sentencing to be just in the criminal administration of justice has become a hot topic and difficult problem of common interests for scholars and trial practicing workers. However, the scholars emphasize particularly on the research in terms of criminal substantive law, and neglect to explore from the respect of perfection and reform of the procedure for sentencing. In this article, the author carries on preliminary discussion towards the procedure for sentencing, and hopes that the theory of legitimate procedure will be the commander of it in our country. This article, which is about 40,000 words in total, can be divided into three parts: the foreword , the main body, and the conclusion, the main body can be divided into five chapters, they are as follows: Chapter one, an overview of the sentencing procedure. This chapter can be divided into two parts, the first part states the definition and characteristics of the sentencing, it proves that the sentencing must be just and also analyses the significance of the just for sentencing; the second part illustrates the conception and characteristics of the procedure for sentencing, and then analyses its reason. Chapter two, a brief introduction to the procedure for sentencing in some foreign countries. In this chapter, two countries have been chosen as the research object from two legal families respectively, they are Britain , U.S.A., France, and Japan separately. The greatest feature of Anglo-American law system is that the procedure for sentencing is separate from the procedure of declaring somebody guilty, and there exists relatively perfect design of procedure for sentencing; whereas in Romano-Germanic family, there doesn't exist independent procedure for sentencing, it can only be added to as successor activity after the defendant is found guilty by the court, and is not obvious to be procedural. Some good aspects in the procedure of foreign sentencing which worth our country study and draw lessons from will be analyzed in the final part of this chapter. Chapter three, an analysis of the characteristics , problems, and origin causes of formation in the procedure of sentencing of our country. Firstly, this chapter analyses that the procedure for sentencing of our country exists procedure unification of declaring somebody guilty and measuring the penalty; the separation of interrogating and deciding; and black case work, etc; then it will analyze the lacunas of these phenomenon a, finally, it will analyze the reasons for producing these problems from idea aspect , practice aspect , and system aspect. Chapter four, mainly about the argumentation for the reform of the procedure for sentencing of our country. Seeing that there still exists some fairly serious problems in the procedure for sentencing in our country, the author makes suggestions of reforming. The procedure reform for sentencing should uphold these principles, such as, declaring guilty is as important as the sentencing,procedure is as important as entity. The main content of the procedure reform is as follows: firstly, establish the lawsuit principle with open sentencing; secondly, set up independent plea procedure for sentencing. In addition, in order to guarantee the substantial results of these two steps, some related system for perfecting the procedure for sentencing should be set up, such as perfect sentencing system , ensure that the procedure subject can participate and confront with each other effectively , set up disclosesystem for sentencing reason, etc. Chapter five, a special study of the procedure for sentencing in the capital case. This chapter first takes the procedure for sentencing of capital case of U.S.A. as an example, and analyses the particularity of the procedure for sentencing of capital case, and then analyses some problems appeared in the procedure for sentencing of capital case in our country, finally, it puts forward tentative plans which can improve and perfect the procedure for sentencing of capital case in our country.