The Way Of Standardized Sentencing In China

Sentencing mechanism refers to a series of norms and rules guiding the sentencing process, which generally involves the so-called in/out decision and the concurrent/consecutive sentence decision. The sentencing mechanism is typically formed of six parts, namely the sentencing mode, the basis of sentencing, the procedure of sentencing, the subject of sentencing suggestion, penalty sentencing discretion of the methods and results.The sentencing mode adopted by China is basically the judicial mode. The judge enjoys a lot of discretion to impose a punishment within the applicable statutory range of punishments while the prosecutor and the defense can do little to shed influence to the sentencing decision. Thus it is not surprising that unwarranted disparity in sentencing is resulted in together with the unbalance of qualified judges. What's more, there exist some other outside factors such as improper administrative interference which could also lead to disparity.Since the criminal procedure law came into force, the legislative circles, judicial circles and scholars concerning the criminal law have been embarking on fruitful researches and practices. All these achievements , however, basically focus on those prevailing topics of criminal law procedure, such as in/out decision, the relationship between crime and punishment to crime, evidence, procedure for review of death sentence, procedure for trial supervision and procedure for court hearing, while the sentencing system involving sentencing rules and sentencing procedure has been neglected ever since. People might suppose that the disparity in sentencing was not so vital to fair judgment, but the fact is it often happens that similar cases got extremely different sentences. Actually, for the convicted, appropriate sentencing is to some extent more important than correct conviction. Therefore, the establishment of a scientific and rational sentencing mechanism not only guards the judicial justice but also manifests the improvement of the legality of a state.Compared with the traditional sentencing mechanism, the emerging one tends to be more accurate and comprehensive. In other words, the new sentencing mechanism will adopt a set of complete and flexible guidelines rather than the highly free evaluation of evidence through inner conviction favored by the old one to guide sentencing, i.e. the normalization of sentencing activity. In the author's view, it is rather difficult to quantize kinds of circumstances of sentencing, for they are too much complicated and diverse/complex. It is also unscientific to set a sentencing standard for those rare crimes for there are not sufficient statistics to be researched. In current circumstances, we'd better develop the quantization of crimes and the normalization of sentencing by beginning with those common crimes that have sufficient sentencing statistics and relatively sound judicial interpretations. To achieve the normalization in the context of China, we should pay attention to the following four aspects.First, the perfection of the provisions concerning sentencing by amending the Criminal Law. On the one hand, we need to prescribe the circumstances of sentencing, optimize the establishment of the measurement of punishment and develop the theory of crime through identifying the basic elements of a crime as well as all the aggravating and mitigating factors. On the other hand, we need to develop a more deliberate and operative sentencing grid to ensure all the circumstances of sentencing will be matched with an according punishment. Moreover, we also need to improve the "concurrent/consecutive sentencing".Second, we should develop a set of detailed sentencing guidelines, quantizing various sentencing factors. The sentencing guidelines involve the basic principles of sentencing, the specified sentencing manners and sentencing standards which deal with how to impose an appropriate sentence to a crime. As for quantizing sentencing factors, there exist two kinds of sentencing factors, namely the economic-related factors and non-economic factors.Third, we should also develop and promote the computer-aided sentencing system. This brand-new system can not only reduce significantly the disparity in sentencing and stop the "black case work", but also help improving the efficiency of the judicial braches. In this thesis the author presents the development, background and significance of computer-aided sentencing system.Forth, it's necessary to expressly provide the sentencing suggestion system which will play a positive role in safeguarding the fairness of sentencing, saving judicial resources, enhancing working efficiency, and in strengthening the function of litigation of all parties. First, the essay will discuss the nature of the sentencing suggestion system. Then, as for the current status of the sentencing suggestion system in China, the existing Criminal Procedure Law does not prescribe on this point. In terms of the construction of the sentencing suggestion system, the following three respects should be took into consideration, i.e. the elementary principles of the system, including the principle of division between accusation and trial, principle of procedural participation and defense principle, the time to propound and the effect of the suggestion, and the significances of the system.Fifth, the defense counsel shall engage in the sentencing. As a inevitable requirement of the reform to achieve the normalization of sentencing, it will not only greatly improve the impartiality and transparency of sentencing activity, but also can protect soundly the rights of the accused. Unlike the procurator organs and the courts, which might work jointly against the accused, the lawyer will be much more independent on behalf of ordinary citizen. The essay will tell the background and the legal basis of the defense lawyer's participation in sentencing. Then, as for how a lawyer participate in sentencing, he shall have the rights to suggest and defense a sentence without violating the principle of division between accusation and trial, principle of procedural participation and defense principle in both criminal summary procedure and criminal general procedure. However, other defenders than lawyers do not have the right to suggest a sentence. In the last part of this paper, the author will discuss the effect and significance of lawyer's participation in sentencing.