Thinking On The Basic Concept Of Just Sentencing And Its Institutional System

From January to August in 2009, the country witnessed 3920 traffic accidents due to drink driving in which 1708 people died. "Drunk driving" and its devastating results have repeatedly touched the sensitive nerve of the public, but what follows are concerns about the conviction and sentencing of those drunk drivers.The issue of sentencing is a microcosm of criminal law theory, and criminal punishment is one of the most severe disciplinary measures. Realization of just sentencing relates to the realization of retributive function and prevention function of criminal punishment, establishment of legal authority and construction of legal society. There are two levels of just sentencing, one of which is "correctness", namely, conviction and the range of the selected statutory punishment are correct, and the second of which is "appropriateness", namely, appropriate sentencing within the range of the selected statutory punishment.The opposition of just sentencing is unbalance of sentencing. It is difficult to judge unbalance of sentencing through a single case, and it is only of practical significance through comparison between comparable judgments. The technical reason for unbalance of sentencing is the improper use of discretion. On the one hand, due to the limitations of generalness and hysteresis in statute law and diversity and variability of social life, the concept of discretion must be introduced into criminal justice. On the other hand, this discretion is limited, and it can be exercised correctly only through protection from substantive and procedural measures, namely, establishing sentencing benchmarks for various crimes; after comprehensive consideration of various sentencing circumstances, sequencing the punishment among the comparable parties of the same cases and actors of similar cases according to the provisions of criminal law; and gradually establishing and perfecting the sentencing recommendation, sentencing pleading, sentencing hearings and other procedural measures to enhance the transparency of sentencing, making full use of various channels including network media to ensure the equal acquisition of case information by all social sectors so as to achieve just sentencing.However, there is no hard and fast panacea to achieve just sentencing, because the substantive reason for the occurrence of unbalance sentencing is the conflict of the binary cultural values between the political state and the civil society. This situation has profound historical and practical reasons, but as the two sides of the same contradiction they are not diametrically opposed, can and should co-exist, and achieve dialectical unity in a certain mechanism. Such mechanism is to ensure equal opportunities in judicial activities for dialogue between official knowledge upon which the political state relies and folk experience upon which the civil society relies, establish game mechanism between the two, and establish a dynamic balance system, with which criminal justice and the whole society can gradually move toward fairness and justice.