The Identifying And Using Of The Legal Circumstance For Sentencing

Legal circumstance for sentencing as a very important circumstance for sentencing must be taken into account by the court in the process of the discretion of punishment. Although there are quite a lot of books and writings on the legal circumstance for sentencing in theory, there are few writings on its real effect from the cases of judicial practice. This paper, by making some cases study, has brought forward a few generalized principles concerning the effect of the legal circumstance for sentencing on the discretion of punishment.This paper consists of five parts.The first part is the foreword, which mainly expounds the theory on which the thesis of this paper is based and its necessity and feasibility in practice. The second part is the brief description of the legal circumstance for sentencing. It mainly illuminates its concept, character and classification of the measurement. The author holds the opinion in this part that legal circumstance for sentencing is the circumstance regulated by our country's criminal law and which can be referred to when the court decides whether a person shall or may be given a lighter, mitigated, or heavier punishment or may be exempted from punishment. Legal circumstance for sentencing has three characteristics: legality, exactness in function, and explicitness in content. According to the different quantity of legal lighter or heavier circumstance for sentencing, legal circumstance for sentencing may be classified into single-function legal circumstance and multi-function legal circumstance. Meanwhile, single-function legal circumstance may be further classified into simple single-function circumstance and compound single-function circumstance, and multi-function circumstance may be classified into simple multi-function circumstance and compound multi-function circumstance.The third part of this paper is about the identifying and using of the legal circumstance for sentencing. It mainly elaborates the four models under the simple single-function legal circumstance and the three main models under the compound single-function legal circumstance. The four models under the single-function legal circumstance are: (1) The death penalty plus a single-function legal lower circumstance may be sentenced to death sentences with a two-year suspension of execution or non-death sentences. (2) The death penalty plus a single-function heavier legal circumstance may be sentenced to death sentences. (3) Freedom penalty plus a single-function legal lower circumstance may be sentenced to lower freedom penalty or penalty type lighter than freedom penalty. (4) Freedom penalty plus a single-function legal heavier circumstance may be sentenced to heavier freedom penalty or penalty type heavier than freedom penalty. The three main models under compound single-function legal circumstance are: (1) The death penalty plus a few single-function legal lower circumstances may be sentenced to death sentences with a two-year suspension of execution or non-death sentences. (2) Freedom penalty plus a few single-function legal lower circumstances may be sentenced to lower freedom penalty or penalty type lighter than freedom penalty. (3) Freedom penalty plus a few single-function legal heavier circumstances may be sentenced to heavier freedom penalty or penalty type heavier than freedom penalty.The fourth part of this paper is mainly about the identifying and using of the multi-function circumstance. This part mainly expounds the four models under the multi-function circumstance. (1) The death penalty plus a single-function legal lower circumstance and a single-function legal heavier one may be sentenced to death sentences with a two-year suspension of execution or non-death sentences. (2) Freedom penalty plus a single-function legal heavier circumstance or the heaviest one and a single-function legal lower or mitigated one may equal to freedom penalty and the weighing of a single-function legal lower or mitigated one. (3) The death penalty plus a few compound multi-function legal one (or a few legal heavier ones and lower ones) may be sentenced to death sentences with a two-year suspension of execution or non-death sentences. (4) Freedom penalty plus a few compound multi-function ones may be sentenced to freedom penalty and weighing of the mighty legal heavier or lower ones.The fifth part is the concluding part, which has come up with three conclusions and the questions to be further discussed.