On The Basic Criterion For Senteneing

As the imbalance of sentencing becomes grimmer, both the theory circle of law and judicature circles turn to pay all their attention on how to solving the problem to realize judicial equity. One of the causes leading to the imbalance of sentencing is lack of the basic criterion for sentencing which can restrict judges. As a result, there is no parameter criterion when judges think over senteneing and they hold exorbitant power of legal discretion. Judges have different basic criterions for sentencing because of diverse time, space, mentality, culture and understandings of Law; therefore, we must actualize the standardization of the basic criterion for sentencing in order to solving the imbalance of sentencing. Scholars both in Japan and German representing the mainland legal system and in America and England standing for the British and American legal system have done early theory and practice research on the basic criterion for sentencing. Japanese scholars advance: Japanese judicatories have developed "scopes of sentencing" in practice and achieved the "scopes of sentencing" by virtue of controlling the proceeding. Germany scholars further bring forward that there is an extent between the legal tiptop sentence and minimal sentencing, and the two respectively apply to the most serious crime and the lightest offence to which most of the law cases belong, for as much, we can find a cut-in point into the "scopes of sentencing". Although there is no concept of the basic criterion for sentencing in England and America, they precede the world in the fulfillment of the basic criterion for sentencing by means of constituting the Guide to Sentencing. Chinese Hong Kong, Macao and Taiwan regions have done certain research on the basic criterion for sentencing.Although the research on the basic criterion for sentencing got off to a late start in Chinese mainland, we have yielded great achievements. Only referring to the name of the basic criterion for sentencing, there exists Basic Law, bench mark, basic criterion for adjudicating and so on, but the current prevalence is the basic criterion for sentencing. The basic criterion for sentencing is still a disputed issue on the whole, and no final conclusion has yet been reached on its concept, necessity, verification, formation and standardization. The concept of basic criterion for sentencing gives rise to two kinds of controversies in a broad and a narrow sense. The basic criterion for sentencing in a broad sense contains the principle, criterion, case and element for sentencing, and according to this, scholars classify the basic criterion for sentencing of the application and the basic criterion for sentencing of the principle. While scholars sustaining the concept in a narrow sense think, the basic criterion for sentencing is basic consideration which a criminal should be punished under the state of completed offence. And among themselves can be divided into different contending sides, which deputes over whether the basic criterion for sentencing is an extent or a point as well as whether the heavier and lenient circumstances should be considered. Nowadays, the basic criterion for sentencing in a narrow sense is the legal parlance by consensus. The author defines the concept of basic criterion for sentencing in this dissertation that basic criterion for sentencing is "the abstract accusation which has applied determinately to the ascertained range of statutory punishment; the measurement of penalty that a criminal should be punished under the state of completed offence without considering any circumstances of sentencing, and the penalty shows itself as a point in the criminal law". Whether the basic criterion for sentencing in existence is still an open question, but most of scholars and the author agree that the basic criterion for sentencing is objective reality, whatever judges realize or not, it is the only road to judges sentencing. The ways to verification of the basic criterion for sentencing includes logical reasoning and instance analysis. Some scholars insist that we should rely mainly on logical reasoning while making instance analysis subsidiary, and the others hold the opposite side. In the dissertation the author approves the latter, that is to say, we should rely mainly on instance analysis while making logical reasoning subsidiary. As to the formation of basic criterion for sentencing, more contentions are required. Many scholars provides their own methods to the formation of basic criterion for sentencing, consisting of the midline view, the lattice theory, the situation argument, main factors theory, theory of focus, theory of harmful conduct, theory of violating legal interests, theory on the criterion of grade, the modest restraining of intermediate lattice theory mathematical model theory and so on. And the first three theories come from the 1979 criminal law while the others are the opinions from the 1997 criminal law. The author analyses different forming methods of basic criterion for sentencing and puts forwards own forming method of basic criterion for sentencing. In order to establish the basic criterion for sentencing, the author thinks that the first task is to resolving the three prerequisite problems so that we can put the basic criterion for sentencing into effect. Moreover, the standardization of the basic criterion for sentencing is also at issue, the author assents that we can and should implement the standardization of the basic criterion for sentencing, and in this dissertation the author gives the corresponding method.