On The Defining The Criterion Of Senteneing

Along with discretion of punishment unbalanced question more serious day by day, the emphasis of sentencing and similar cases challenging the imbalance of China's sentencing of criminal justice. If you can not guarantee fairness and justice in sentencing, avoiding cases of imbalance, so what is the legal authority, so what is the rule of law society? It should be said that only the first on the realization of the sentencing justice, only to explore the premise of criminal justice. Of course, solve the imbalance in sentencing is not an overnight thing, due to the impact of the numerous and complicated reasons, I think it should first grasp the basic things - that is a reasonable benchmark to determine sentencing to break through the problem.The text falls into three parts:The fiest part : China's a reasonable benchmark to determine the need for sentencing. Sentencing was selected baseline approach to sentencing, the main reason is that theoretically need on the one hand, that earlier affirmed the discretion of the judge, there is still a necessary, also proposed should be reasonable restrictions on them, while sentencing the baseline methodology and be able to better control of the discretion within a reasonable range; the other reason is that China's traditional sentencing methods forming part of a comprehensive estimate pile-type sentencing approach, which relies mainly on the experience and the trial staff their own understanding of the law. Although its has some reasonable,However, due to the subjective understanding of individual differences and theoretical shortcomings, apt to sentencing imbalance results. Method for assessing the shortcomings of the heap, for which a number of scholars have also proposed new sentencing methods, and non-openness. Among these are divided into absolute and relative methods of punishment-oriented sentencing approach. Absolute sentencing ways summed up as a unified mathematical sentencing methods, characterized by a certain standard will be based on the various effects of the plot of the level of penalties through their own way to give value, make it more accurate, then according to different formulas and the penalty for conversion out of quantity. The main representatives of modern, computer-sentencing methods, mathematical sentence method, sentence-level analysis methods. However, these methods most of the scholars in the negative, that does not have the scientific nature, likely to cause the consequences of rigid, can not achieve a balanced sentencing purposes. Relative-based approach is characterized by sentencing will be a crime in the broad Statutory Sentence reduced by a certain method of,That is a reasonable restrictions on the discretion of the judge. In sentencing the base of which method is more feasible, it's obvious advantage is the standardization of sentencing have found a practical way, but also makes the heavier, lighter, mitigating circumstances and we have a certain frame of reference. From this we can see that the baseline methodology sentencing balance of crime in our country as soon as possible the best choice.The second part: Discretion of punishment datum method concrete narration and determination. How does a discretion of punishment datum this method's big difficult problem lie in determines its datum reasonably. At present the educational world determined that the datum the method mainly has: Long-base method, scale division theory, formalism and main theory of factors. And the long-base method is refers to the discretion of punishment datum determination in above legal punishment scope 1/2, take this as the basis, above the median line is the severe sentence, below the median line is the light punishment. The long-base method and the correlation theories are truly easy and feasible, but brings the serious defect divorceds from the reality, too mechanizes, easy to have the unfair result. The scale division discusses looked that resembles discusses compared to the median line has progresses, but with the discretion of punishment datum theory's basic concept is theoretically mutually contradictory, this definitely will walk into arguing in a circle the strange circle, this in logic will be not feasible. Meanwhile also does not have the illustration certificate judicature practice department in the real diagnosis to use this method to carry on the discretion of punishment, therefore does not have the feasibility. The situation discusses, regardless of practices in the theory on is invalid. The author compares the support main theory of factors, but primary factor's concept is more general, did not have a definite standard, Mainly includes the threshold to discuss, the center of gravity to discuss, the harm behavior to discuss, the empirical analysis to discuss and so on. And the threshold discusses is refers to, in the supposition crime author's behavior not any severely, leniently and reduces the absolution punishment plot in the situation, its behavior's social hazardous nature just well achieved the constitution crime the standard, then this kind of situation is this crime's discretion of punishment datum. This method not only has not brought any convenience to the discretion of punishment datum's determination, instead also in disguised form challenged the criminal law to decide after deliberation punishes the plot existence leniently the necessity. Therefore may realize clearly discusses to the threshold in the real diagnosis is violates in the legislative fact, in logic is also only in one kind of pure significance supposition deduction, does not have what theory value. The center of gravity discusses may understand that for the abstract crime's center of gravity was equal to this crime's discretion of punishment datum was equal to the social hazardous size is equal to the abstract crime's maximum incidence rate of cases. But should discussing not explain that the center of gravity is the discretion of punishment datum reason, why can the happening rate height take the appraisal criminality society hazardous size the primary factor? This is this discusses does not have the reasonable explanation. Harm behavior discussing thought that in consideration affect society hazardous size's each kind of factor, the viewpoint connotation which the main theory of factors and the center of gravity discuss is not clear, the harm behavior is the primary factor which must consider, is also the discretion of punishment datum definite foundation. Empirical analysis discussing thought that above method the general character lie in are summarize the discretion of punishment datum from the abstract crime. They argued the focal point is what is the primary factor, as well as how to convert the appropriate announcement punishment through certain method.The third part, discretion of punishment datum determination method operation refinement. In the above theory viewpoint, author approves of the harm behavior to discuss with the empirical study theory, but simultaneously thought that the empirical study discusses cannot calculate alone one independent discretion of punishment method, exactly said it must be in one kind of choice discretion of punishment datum process mentality. Must carry on the further revision and the refinement to it. The discretion of punishment datum definite general method is take harms the behavior to discuss as the central determination discretion of punishment basic scope, then carries on logic in empirical analysis's foundation to deduce again, determines guilt firmly finally announcement punishment. In the discretion of punishment datum seeks for in the process, the author suggested that take various provinces, the autonomous region, the municipality Higher People's Court as the main body, the theory scholar for auxiliary, undertakes the collection and collation leading case by to determine the discretion of punishment datum together the work。...