Basic Research On Discretionary Circumstances Of Sentencing

Discretionary circumstances of sentencing of our country are referring to the absence of express provisions of the Criminal Code to be approved ,but from the trial experience summed up on the acts and conduct harmful to society of people with Personal Dangerousness and the extent of the impact of flexibility in determining the sentence, as appropriate, apply a variety of factual circumstances. The circumstances of the Penal Code because of the statutory sentencing made clear its specific provisions, in judicial practice is not in accordance with the laws and regulations exist there is too much controversy. Discretionary circumstances of sentencing is lack of the form of specific provisions of criminal law, in essence, is to give the judge discretion power.Basic research on the discretionary circumstances of sentencing, with a view to deal with the right of judicial practice and application. Introduction and the body of this article is divided into two parts, one of the main text is divided into four chapters.The first chapter is mainly about the basic concepts of discretionary circumstances of sentencing. This chapter is divided into three sections, section I, first of all the basic concept of the discretionary circumstances of sentencing ,researching on the existence of a variety of theoretical concepts in a comparative analysis to come the opinion of the writer. Section II is about the discretionary circumstances of sentencing and related concepts, including the circumstances of the convicted and the circumstances of the statutory sentencing comparison, a better understanding of the connotation and extension of discretionary circumstances of sentencing. Section III is a discretionary sentencing analysis of the characteristics of the circumstances, including the specific details of the illegal qualitative, scope and function of the breadth of the two-way.Chapter II is the analysis of the Comparative Law of the Discretionary circumstances of sentencing. The current existence of substantial sentencing discretion whether has the circumstances of the value of its existence and the basis of this chapter through the three pairs of response to this issue and analysis. Section I is ancient Chinese plot analysis of sentencing discretion. Sentencing at the discretion of the circumstances of the ancient Chinese criminal justice process to occupy an important position, and its broad scope, content as much as to give judges greater discretion. The criminal law and culture in the history of our present-day precipitation of criminal legislation, criminal justice and criminal policy has had a profound impact. Section II of Civil Law and the law of Britain and the United States, China Legal sentencing discretion to the concept of the development of the circumstances analysis, the case law are the main sources, the judges have greater discretion in the Magistrate's sentencing discretion in criminal cases the circumstances of course, to become factor in sentencing and widely applicable. And civil law has also been on the discretion of sentencing certain circumstances - the negative - the process of negation of negation, at the Sentence relativism principle that judges must have the discretion, the discretion of sentencing as a sentencing factor in the circumstances was to be considered accepted. Section III of thecircumstances of our country discretionary sentencing analysis of the rationality of existence, from the history, philosophy, such as an analysis of different angles, in the current " relief phase " against the background of criminal policy, sentencing discretion of the existence of circumstances are in line with the contemporary needs of the Criminal Code.Chapter III is mainly about the Content of discretionary circumstances of sentencing. This chapter is mainly common in practice, and even recognized its discretion to sentence the theoretical analysis of the circumstances, including the motive for the crime, the crime of time and location,the means of crime, as well as in theory the more controversial, such as social situation and discussed the public outcry . The author believes that the public outcry as the discretion of sentencing should not be circumstances, which should be a concrete analysis of social situation, law and order situation of the society can affect the sentence, have an. entirely negative or positive opinion are absolutely unreasonable.Chapter IV is about the existing problems of discretionary circumstances of sentencing of our country and how to perfect it. First section is to analyze the main existing problems,mainly include the imperfect legislation, and judicial practice in the application of arbitrary and so on.In section II, the existence problem for a perfect proposal, first, improve legislation and and the next improve judges'quality.