On Criterion For Imposing Penalty

The purpose of determining the legal Sentence in lawmaking is to establish the limits for judges sentencing and prevent the arbitrary sentencing. Because the provisions of China's Criminal Law Sentence is normally relatively wide, Sentence can't play the role of the basis for punishment. Therefore, it's need to established benchmarks separately in Sentence range. With the criterion for Imposing penalty, the judge can determine the pronounced sentence in sentence range. Similarly if there is no definite benchmark, the so-called lighter or heavier penalty will be no basis. So the clear concept of criterion for imposing penalty and establishment of datum mark will provide extremely effective basis for the judges.Foreign and domestic scholars have different views on criterion for imposing penalty. At this stage in our country's criminal law theory study, there have been different points of view on the concept of criterion for imposing penalty, setting standards, the relations between criterion for imposing penalty and related concepts . On the concept of differences, there are different understandings from factions, points and ranges. The scholars have different views on how to establish the standards of criterion for imposing penalty. In this paper, based on the studying contrast between domestic and international research and distinguishing the concepts, the author summarized that the concept of criterion for imposing penalty should be a reference point not the margin. The author analyzed the existing shortcomings of the criterion and pointed out the direction for improving criterion for imposing penalty.To establish criterion for imposing penalty will be not only helpful for the theoretical study of the criminal law, but also contribute to the scientific imposing penalty. So the author puts forward the concept of criterion for imposing penalty and analyses the practical importance to establish criterion for imposing penalty in the judicial sentencing practice combined with Xuting case. At the same, we should draw on the advanced experience of foreign countries. For example, the United States sentencing guidelines is a good example. The author believes that it should be further refined from the legislation, and a more feasible option is to set up a system which is similar to Sentencing guidelines of the United States. The other means is strengthen judicial interpretation to play the role of the Supreme Court. We also can learn from case guidance rule of the common law. We have to make great efforts on judicial practice, for example to improve the quality of judicial personnel, to train high-quality judges. We also need to carry out the reform of the judicial system. So the author think that we should make efforts from the theory of legislation, judicial practice, and other different aspects to perfect the criterion.This paper is divided into six parts except for the preface and the conclusion, and it is as follows:Part 1: The triggered thought of Xuting case. This part on the following four parts: Xuting case review, the character of Xuting case , sentences of Xuting and the thought of Xuting case.Part 2: The concept of criterion for imposing penalty and the meanings to establish criterion for imposing penalty. In this part, the author respectively discussed the differences of the concept from foreign and Chinese scholars and then definitely stated the concept of criterion for imposing penalty used in this article.Part 3: The methods to establish criterion for imposing penalty and remarks. In this part, the author discussed several existing methods in theoretical field and comment on the advantages and disadvantages of these several methods.Part 4: Current situation of criterion for imposing penalty at home and abroad. The author respectively discussed the current situation of the civil law and the common law and our country on legislation, judicial and practical aspects. Part 5: The flaws of our criterion for imposing penalty. Combined with Xuting case mentioned before, the author discussed the consequences without the clear criterion from theoretical and practical aspects.Part 6: Establishment and perfect. The author stated the general direction and measures from theoretical legislation and judicial practice. The author pays more attention to make guidance rules In legislation and strengthen judicial interpretation in judicial practice. This is fit to our country's Current Situation.