The Study On Judicial Practice Of Equilibrium Of Sentencing

There are a lot of causes of unbalance of sentencing and as far as the author concerns, the key to realize the equilibrium of sentencing in judicial practice lies in the judges' reasonable and impartial exercise of jurisdiction, which should be performed rationally and positively and in a both restrained and active way. In this essay, the author comes up with a system of equilibrium of sentencing and thus focuses on the discussing of the realization of the equilibrium of sentencing from the points of the entirety and individuals respectively.There are three parts in this essay, namely, the summary of the equilibrium of sentencing, the judicial realization of entire equilibrium and of individual equilibrium. The author holds the idea that there should be two parts in the equilibrium of sentencing: one is the equilibrium of sentencing as a whole, which means to comply with the principle of similar case with the same applicable law; the other is the individual equilibrium of sentencing, which means to find a favorable bonding point between the specific punishment and the entire balance under the above mentioned principle. These two parts are inseparable. The basic theory of the entire equilibrium is that the degree of punishment shall be commensurate with the crime committed and the criminal responsibility to be borne by the offender, which gives full express to the proportion between individual freedom and social order and thus plays a guiding and decisive role. The basic theory of the individual equilibrium mainly comes from the particular punishments with different cases, which requires us to pay equal attention to the personal danger of the offenders as well as to the social harmfulness of crime behaviors. Only by the combination of the entire equilibrium and the individual equilibrium can the equilibrium of sentencing be fully realized.The author advocates that there should be two steps in realizing the entire equilibrium.The first step is to select a standard uniform punishment according to the abstract criminal facts in the completed state and on the basis of excluding statutory and discretionary details as well. The second one is to unify the way of how to apply the details while sentencing on the basis of the first step.The following parts of this essay will cover specifically the characteristics, methods and applicable conditions of the standard uniform punishment and come with the conclusion that a standard uniform punishment should be within the scope of statutory punishment. Judges should reach an abstract sentencing scope according to the known abstract criminal fact in judicial activities, which is by no means a slipshod decision but a thoughtful conclusion on concrete evidence. Furthermore, we should make this standard uniform punishment institutionalized so that the judges can apply directly while making criminal sentences. As coming to appliance of sentencing details, the author maintains that a declared punishment should fluctuate according to the standard uniform punishment in a way with its own regularity. Meanwhile, by introducing a few methods of appliance of the sentencing details, the author advocates that judges should make punishments with regarding to the different accusations and respective scopes of statutory punishments, and should not make repeated evaluations to the same details while sentencing.As come to the realization of individual equilibrium, the priority should be given to ensuring the rationality and impartiality of the exercise of jurisdiction within a certain scope or under some particular circumstances. The author argues that it should primarily unify the rules of the exercises of judges' jurisdiction and take full considerations of both the judgmental punishments and purposive punishments with the concept of judgmental punishments refining the latter ones. During the process of exercising the jurisdiction, judges should unswervingly comply with the applicable law and fully considerate the principles of both substantive and procedural justice and legal affect and social affects as well. In addition, it is also adoptable to standardize the exercise of jurisdiction by demonstrating cases and court verdicts. On top of the above ones, the realization of individual equilibrium still cannot be achieved withouta mature judicial mechanism and in this respect, the author comes up with her advices on how to improve and perfect both the relationships between the judicial departments and other departments and the internal relationships within the judicial system.