The Research Of Discretionary Circumstances Of Sentencing

The discretionary circumstances of sentencing is the circumstances which the court are handling the process of criminal cases encountered, and the law was not prescribed definitely, and closely related to the criminal and their behaviors, indicated the levels of the action's social harms and personal dangerousness, and thus by the court to decide whether or not use the application of the penalty or sentence or exemption from punishment specific factual circumstances. The discretionary circumstances of sentencing is an important component of circumstances of sentencing, in the entire activity of sentencing plays an important role, but theoretical pay little importance on it, and has different standards of judicial in practice. In this paper, the main line is the discretionary circumstances of sentencing. I used the methods such as semantic analysis,comparative analysis,comprehensive analysis. Basic overview of discretionary sentencing, the representative country in civil law system and system of AngloAmerican law' discretionary sentencing cases, the application of its principles and specific application and the future of the discretionary circumstances of sentencing. To do a more thorough and detailed analysis and discussion, I hope the research on discretionary circumstances of sentencing in this article can play a positive in theoretical and practical significance.This article about 36000 words, composed by four partsThe first part summarized the discretionary circumstances of sentencing. In this section, first of all, through the analysis of basically conception such as consider,circumstances of sentencing, and then come to our own conception about the discretionary of the sentencing. Secondly, through three aspect analysis on the discretionary circumstances of sentencing characters .Once again, from analysis the relationship between the discretionary circumstances of sentencing and the legal circumstances of sentencing. Obtained that it's impact on sentencing have considerable status like the legal circumstances of sentencing. Finally, through the four cases revealed open out role of the discretionary circumstances of sentencing in the sentencing, refuted the viewpoint in theory and practice of judicial that the discretionary circumstances of sentencing is dispensable.The second part introduces some representative country's discretionary circumstances of sentencing in the common law system and civil law system. Firstly, summarized four country's legislation about the discretionary circumstances of sentencing. secondly introduced several well-known jurist's theory about the discretionary circumstances of sentencing. I hope through introduced the legislation and theoretic about the developed countries, draw its essence and in order to achieve the purpose that rich our theory and guiding the practice.The third part mainly introduces the application of the discretionary circumstances of sentencing. In this section there are two aspects, one is about the principles of the discretionary circumstances of sentencing, I think we must establish the balanced for the application of the principles of sentencing discretion to be the general principles of the discretionary circumstances of sentencing. Under the general principle, there are other three principles: prohibit the duplication of evaluation principles, comprehensive consideration of the principle and specific evaluation of the principle to guiding the practice. The other one is meticulous analysis the material discretionary circumstances of sentencing. In this section I divided material discretionary circumstances of sentencing into five categories .They were: victim fault,the relationship between the victims and criminal,criminal's subjective factors,criminal's objective factors,behaviors after the crime.The fourth part prospect the future of the discretionary circumstances of Sentencing. If the discretionary circumstances of sentencing want have a favorable future, I think the following aspects have to do : First, that must be solved the problem of guiding ideology, established the liberality and strict policy of economic criminal to be the discretion of the guiding ideology of the discretionary circumstances of sentencing; followed by a number of prevailing circumstances of the statutory discretion of sentencing; third, established sentencing guidelines for Chinese; fourth, the establishment of sentencing procedures; fifth, improve the quality of judges.