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The Conviction Of Normative Analysis And The Multi-dimensional Sentencing On Xu Ting Case

Posted on:2011-01-15Degree:MasterType:Thesis
Country:ChinaCandidate:Y J LiuFull Text:PDF
GTID:2166360305482298Subject:Law
Abstract/Summary:PDF Full Text Request
"The case of Xu Ting"is a significant sample of cases with the rule by law. According to a retrial based on the same facts and laws, Xu Ting was sentenced to life imprisonment by the first instance and commuted to five years in prison by the second instance. The modification on the results of judgments and rulings vividly reflected the conflict between laws and reasoning, the degrees of strictness misconduct, the mismatch between the conviction and sentencing, the gap between public opinion and judicial and so on.This article has mainly adopted the research methods, such as the deduction (apply theory to reality), the induction (summarized in the focus of legal disputes), the comparison and the speculation research technique; This thesis has adopted the research ideas with the normative research and the ultra-normative analysis. As far as the characterization of the Xu Ting case was concerned, adopting the norms of criminal law analysis method. with reference to the measurement of penalty, Xu Ting's sentencing is not limited to the criminal jurisprudence relating to sentencing in accordance with the provisions of the plot to launch the normative analysis, but launched an acute analysis on Xu Ting case from the jurisprudence, criminal policy, ethics of law, science of criminal procedure law and other dimensions and so on.This article consists of three components.The first part gives a general overview of the subject. Immediately, starting from the case, this part focuses on the existence of legal disputes and thus proposed the following questions: Firstly, in reference to the relationship between the law and reason, how to achieve the unity of law and reason in the case? Secondly, How to achieve the criminal policy of combining punishment with leniency relative to the guiding role of the criminal justice. Whether the ruling in the first instance and the retrial of the case to achieve the degrees of strictness referee properly? Finally, at the judicial level, from the legal and judicial awareness of ethical point of view, in the case of the original Xu Ting inner conscience among the judges of first instance, whether the Xu Ting was sentenced to life imprisonment and excessive sentences that have awareness?the second part: normative analysis of the conviction of the Xu Ting case. By analyzing the malicious acts of withdrawal from the civil law and criminal law, the author pointed out that there are some differences between the civil offense and the criminal act. Xu Ting's malicious act of withdrawal has serious social harm and criminal illegality, his behavior was not innocent. Except that Xu Ting′s malicious withdrawals behavior belongs to the civil law for the first time , the others belongs to the criminal law criminality. Although Xu Ting's behavior belongs to the civil law invalid transaction behavior, it does not affect the composition of crime under criminal law. Similarly, the victim does not constitute an offence under the act. Based on the criminal law crime constitution theory, the behavior which the Xu Ting evil intention draws money does not belong invades the crime, the crime of fraud and the credit card crime of fraud, but belongs to the criminal law larceny, and belongs to the burglary financial organ, amount specially huge situation.The third part: the multi-dimensional analysis of sentencing of the Xu Ting case. Firstly, the relationship between law and reasonable terms, the original first-instance ruling is a sentence in conformity to a law but it is unreasonable. Secondly, in the case of applying the lenient and strict criminal policy to the case, it is inappropriate for the judge to change the accusation, but to exercise discretion in sentencing. Furthermore, it pointing out that there is a stringent problem during the original decision of first instance, and it is too lenient during the judgment of second instance. Finally, it pointed out that good sense paly a important role for the judge to apply the criminal law to the factual situation.Finally,It pointed out that the main problem lies in the case of legislation, but not confined to this. when the criminal law and relevant judicial interpretation does not change, we should establish such rules and judicial systems. Namely, in order to achieve"the same cases , the same sentence", we should establish Case Guidance System; in order to reverse the conception"emphasizing conviction,neglecting sentencing", we should formulate sentencing rules and regulations to apply across the country,and reform sentencing procedures as well; in order to narrow the gap between the popular will and the judicature, we should reconstruct the jury system.
Keywords/Search Tags:Xu Ting Case, Circumstances, Criminal Policy, Temper Justice With Mercy, Conscience, Unification Of Criminal Law
PDF Full Text Request
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