Restriction Of The Liberal Measurement Right In Penalty Measurement

The judge's liberal measurement right is benefit for the judge to deal with cases, resolve disputes and safeguard the justice of law when they are facing complicated cases and what is not concerned in law. As a part of the judge's liberal measurement right, the liberal measurement right in penalty measurement has positive effect and value for its existence. However over right of it will inevitably lead to the abuse of liberal measurement right in penalty measurement. Once power is abused it will have great harm, so does the liberal measurement right in penalty measurement. The abuse of the liberal measurement right in penalty measurement, lead to the unbalanced measurement of penalty, has taken place in each country of the world. So the restriction of the liberal measurement right in penalty measurement has become the trend of criminal legislation and reform. All the countries have restricted the liberal measurement right in penalty measurement from different degrees and aspects with the purpose of playing its positive role and overcome its negative effect. Our country's Criminal Law 1997 has more restricted the liberal measurement right in penalty measurement to considerably large extent, compared with Criminal Law 1997. But the criminal judge's liberal measurement right in penalty measurement is too big and it is still necessary to restrict it. The author considers that we should restrict the liberal measurement right in penalty measurement in proceeding and system by improving the criminal judge's quality, regulating circumstances application in penalty measurement and from the penalty measurement system of cumulative punishment, the determination of death penalty's criterion and the condition of the application of reprieve, making the reason of penalty measurement public, introducing judicial precedent system, improving the method of criminal legislation and strengthening judicial explanation.