The Study Of Sentencing Rationalization Guided By The Criminal Policy About Temper Justice With Mercy

Issuing the criminal policy about temper justice with mercy, which is of a profound historical background and far-reaching practical significance for its rich connotation and scientific formulating will have a significant impact on our justice and legislation system. The criminal policy can be seen as the guideline to measure penalty, to unify the judges' concept of the penalty, to remodel their value orientation of penalty, to impel judges' knowledge of criminal and sentence policy to a brand new high level, and to promote the reform of pre-sentence process. The core of sentencing rationalization is to make a difference between misdemeanour and felony, to balance the equilibrium of sentence, to make justified sentences and to accord with the aim of the punishment, thus, the criminal policy which is flexible to adapt and strict to prevent criminals can be put into effect.Sentence rationalization will not be realized without the improvement of judge's qualities, without reasonable instauration of sentence, without the reform of justice. However, besides these, the theoretical system of sentence is more essential and important. In this system, all the factors of sentence basis, sentence principle, sentence by circumstances, sentence regulation and sentence method are indispensable and they affect sentence rationalization in grand aspects.At present, according to our theoretical system of sentence itself, there are five obstacles to realize sentence rationalization. The first one is sentence basis limited to criminal act itself without making definite criminal's factor and special society situation factor. The second one is there is no specialized sentence principle for sentence rationalization. The two principles of punishment by law and justified sentence are concretion from the three basic principles of criminal law, which cannot meet the need of sentence rationalization. The third one is the rule of sentence by circumstances is not reasonable. For example, the functions of sentence by circumstances are loose, the concept and standard of the definition of circumstances are not unified, lack of proper principles corresponding to the circumstances and different meanings in part of descriptions of sentence by circumstances. The fourth one is that sentence regulation is not integrated, especially the probation rule and combination punishment rule. There are many problems to implement, such as probation essential requirements is more stiff than operative, it is extreme that the probation is not applied to recidivist, there is no specific law to accord when implementing several different short-term free sentence, and the process is not clear to proceed combined criminals sentence or new criminals sentence etc. The fifth one is sentence method area is still a blank. There are lacks of procedures and skills.As summarized, only after those problems are solved can sentence rationalization be realized. First of all, the sentence basis needs to be defined reasonably and scientifically. The criminals' physical danger factor and special society circumstances should be taken into consideration. Secondly, sentence principle needs to be clarified specifically. It's necessary to import individual punishment rule and punishment essential rule, on the basis of the two principles of punishment by law and justified sentence. Thirdly, the circumstance of criminal should be limited precisely. It is helpful to establish the proper principles for sentence by the circumstances and to broaden the definition of sentence by the circumstances. Fourthly, the sentence system should be reformed and to be integrated and to be made more practical and operative. Finally, sentence procedure needs to be strictly standardized according to an open, democratic and efficient principle. There are some suggestions for the standardization, such as to clarify the right of sentence suggestion of procuratorial organs, to carry out pre-court investigation system, to transpire sentence process and to import technological methods to solve the problem.