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Research On The System Of Sentencing Proposal Of Prosection Agencies

Posted on:2007-03-12Degree:MasterType:Thesis
Country:ChinaCandidate:Y LiuFull Text:PDF
GTID:2166360212957933Subject:Law
Abstract/Summary:PDF Full Text Request
As a national judiciary, prosection agencies have the legal obligation to indict the criminal and meanwhile exercise the right of public prosection. Subject to the context of power, the powers and functions of public prosection can contain the claim of conviction,the claim of discretionary action of sentencing.In the realm of substantive law system,the premier meaning and significance of public prosection lies in the exertion of national power of punishment. And the right of suggestion to the measurement of penalty is one of pivot points to realize national powerof punishment in the course of transition from penal enactment to concrete measurement. Hence,the right of suggestion to the measurement of penalty should be included inside the scope of public prosection.Criminal procedural laws in many other countries have provisions and stipulations relevant to the right of suggestion to the penalty measurement,which can realize powers and functions the author mentioned above. However,in terms of different culture history,legal culture and specific system of litigation, the regimes of suggestion to the penalty measurement in different countries have their own traits. When China's criminal procedural law was amended in 1996, prosection agencies was adjusted to be customized to the amendment of criminal procedural law and meanwhile strenghen the reform of prosection.In 1999,our country was first time to pioneeringly practise the system of the right of suggestion to the penalty measurement, which sparked a hot debate inside and outside of legal scholarship circles over a succession of issues such as the existing ,the reasonableness and inplementation of the right of suggestion to the penalty measurement .The author thinks that the right of suggestion to the penalty measurement is the essential part of public prosection. The regime of suggestion to the penalty measurement endows the right of public prosection with complete meaning.It ensures the concrete formulation of the principle"The law is equally applicable to all citizens"to criminal appilication and practise actually"the equal punishment for the crimes of the same kind and the prevention of parity for equal victimization".In theory, the right of suggestion to the penalty measurement, In line with the check and balance doctrum, limits the abuse of discretion, which makes the procedure increasingly meticulous and accurate ,in favor of procedural. justice the content of which provide reference for the penalty measurement and contribute to inprove the procedural justice. Besides,it reflect the justification of principles of criminal procedura,in the quest of principles of articipation and openess. In pracice,the context of suggestion to the penalty measurement provides reference to the discretion of the judge,which contributes to promote the positive function of substantive justice.Through the pilot practice of regime of the right of suggestion to the penalty measurement in prosection agencies ,the existing problem remains that how to enunciate in theory and virtually buid a viable regime framework and accordingly ensure the appropraite exertion of the power and playing a due part through the legislative approach .Based on the experience and achievement from the experiment of reform, the dissentation which is combined with setbacks and difficulties along the way analysises and discusses the rationality and justification in the regime of the right of suggestion to the penalty measurement,in terms of jurisprudence, principles in the science of criminal proceedings and legislative doctrum. In line with status quo and the request of development,the author proposes a refreshing idea about the regime of the right of suggestion to the penalty measurement,by means of bringing on the similar regime from other countries.The author also hopes to restructure the regime of suggestion to the penalty measurement by means of enacting principles and area of application,listing subject,date and category, in the purpose of ever-improving triangle structure of criminal procedure and stepping up the function of adjudication supervision.
Keywords/Search Tags:the right of suggestion to the penalty measurement, status quo, theorization, the research of foreigh system, the regime of suggestion to the penalty measurement, system restructure
PDF Full Text Request
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