On Discretionary Circumstances Of Sentencing

Discretionary Circumstances of Sentencing is a tool that law grants to the judges and can lead them to make specific sanction in the light of specific conditions of cases. Besides introduction, this paper is constituted of four chapters.In chapter one, on the base of analyzing the concept of discretionary circumstances of sentencing of the academic circles, the writer reveals the concept of discretionary circumstances of sentencing through the sides that whether discretionary circumstances of sentencing is legal, the characteristic of discretionary circumstances of sentencing and its impact on the sanction. The writer points out that discretionary circumstances of sentencing are various subjective and objective facts which are used as the basis of concrete penalty measurement, which the criminal law does not stipulate definitely, but acknowledges, which can reflect the harmfulness of the actions and dangerousness of the actors. Also, the writer introduces the function of discretionary circumstances of sentencing.In chapter two, the writer clarifies the existing foundations of discretionary circumstances of sentencing from the three angles that the justification, the utilitarian foundation and the actual foundation of discretionary circumstances of sentencing.In chapter three, the writer analyses the extent of discretionary circumstances of sentencing. It is impossible to illustrate all application of discretionary circumstances of sentencing, so only nine types of discretionary circumstances of sentencing which are common in legal practice are illustrated in this chapter. Also, the writer discusses the long-disputing question that whether the public's indignation and social circumstance can be parts of discretionary circumstances of sentencing.In the last chapter, by the investigation of the course of applying discretionary circumstances of sentencing, the writer points out the problems lying in it, and tables the proposals in order to provide some reference to the practice of our legislation and justice. The proposals includes the establishment of for the defendant doctrine and the doctrine of retribution restrict the top limit of utility, the legislation of the extent of discretionary circumstances of sentencing, and the raise some types of discretionary circumstances of sentencing up to legal sentencing circumstances.