The Research On Discretionary Circumstances Of Sentencing

Discretionary circumstances of sentencing are not only the difficult point but also the essence in sentencing system.It plays a great guiding significance for judicial practice in a fair and rational sentencing to aware and understands the concepts,the existences,the sphere of applications and the principles of discretionary circumstances of sentencing.Therefore, the article mainly from the above aspects to analyze.Besides the full citations and the epilog, the paper is divided into six chapters.Citation,the paper starts from the cases of discretion circumstances of sentencing,and briefly analyzes its research status and realistic significance.In the first part,the article mainly analyzes the concepts and function of discretionary circumstances of sentencing.The concepts of discretionary circumstances of sentencing made by scholars of criminal law was summarized,the author points out that existing concept haven't worked out the difference between discretionary consideration and discretionary application.It makes the concept of discretionary circumstances of sentencing ambiguous and the implementation difficult.The concept of discretionary circumstances of sentencing should be as follows:when there has no legal rules,the judge uses the plot to sentence.The plot is learned from judicature in the line of legislation spirit and can incarnate the danger of act and the actor.After defining it,we can analyze the function of discretionary circumstances of sentencing and sphere of application in practice.In respect of its significance to legal penalty, the function of discretionary circumstances of sentencing could be divided into deciding judgment and changing legal penalty.The regulation of "particular mitigation of penalty must request instructions from the Supreme people's court" virtually obstructs the function of discretionary circumstances of sentencing.In the second part,the article mainly analyzes the foundation of discretionary circumstances of sentencing.In order to make a thorough understanding of discretionary circumstances sentencing,its foundation should be analyzed.Firstly,it is the essential requirement for principle of criminal and liability:On one hand,discretionary circumstances of sentencing is the result of principle of suiting penalty.On the other hand,it demonstrates social dangerous of the act,principle of suiting penalty can not be reasonable without it. Secondly,it is the certain demand of the principle of suiting penalty to crime and the consistency of effect and purpose of law.In light of penalty,the consistency of effect and purpose of law cannot be gained without discretionary circumstances of sentencing.Thirdly,it is also the basis of discretionary power and the principle of deciding penalty which was put into the criminal code.Discretionary circumstances of sentencing is the most important standard for discretionary power,it is also in accordance with the nature of discretionary power.There are plenty of legal foundations for discretionary circumstances of sentencing, although the legislators make it general,besides that,the principle of suiting penalty also contains discretionary circumstances of sentencing in criminal code.In the third part,the article mainly analyzes the principles of discretionary circumstances of sentencing.In order to make the appliance of discretionary sentencing appropriate,some principles should be enumerated,such as appliance according to the law which refer to law and judiciary explanation or the spirit of legislation,composite consideration which refer to considering various facts of criminal and menace comprehensively,forbidding evaluate repeatedly which refer to forbidding the repeated evaluation on one fact in the line of the same nature and substance.In the forth part,the article mainly analyzes the range of discretionary circumstances of sentencing.It is analyzed from its appliance and practice in judiciary,and is consisted of criminal,victim and the society.The victim was divided into answerable and unanswerable. The fault of answerable victim should be taken into account while the unanswerable should not.The author pays more attention to analyze whether the intention of public opinion should be considered when discretionary circumstances of sentencing are being used to sentence.In its opinion,the judges should not take account of the reaction of populace itself in discretionary circumstances of sentencing,but the reason of it must be considered seriously.In the fifth part,the author analyzes several important problems in the appliance of discretionary circumstances of sentencing.There are two important problems such as the conflicts between cases caused by imbalance in sentencing as well as the judges prefer heavy punishment at the discretionary circumstances of sentencing in its appliance.These problems not only break the consistency of appliance of law but also go against with the target of the harmony society.In the sixth part,the author makes some suggestions.The suggestions are as following: put the discretionary circumstances of sentencing into legislation,set up case guidance system and strengthen the quality of the training of judges.