On Discretionary Circumstances Of Sentencing

Although discretion on sentence is not stipulated by law, it is widely recognized. It is summarized by the judicial organs from the judicial practice based on criminal law, related criminal policy and social reasoning. They are different kinds of subjective and objective facts or situations which can reflect social harm caused by the criminal and their dangerous degree and should be taken into consideration during sentencing and even has effects on sentencing. However, why it is recognized since the law did not stipulate clearly. As far as I am concerned, the reasons are as follows: firstly, from the technical side, discretion on sentence has been included in the law stipulation, secondly, law is the formal expression of social reasons, and therefore, its essence is social reason or certain social value system. This is the so-called"law originates from society". Social reason will be changed as history and needs to be seized. The so-called"law is blue while life tree will keep green all the time", therefore, the existence and application of discretion on sentence have foundations. Besides, studying abour discretion on sentence has great significance to judicial practices. The paper consists of three chapters except for introductory part. The first chapter mainly introduces the discretion on sentence. The author starts with the definition argument on discretion on sentence from theoretical perspective, then introduces these definitions one by one, analyzes their advantages and disadvantages and finally draws his own definition or opinions regarding discretion on sentence. After that, the author discusses the legal foundation of discretion on sentence which includes value foundation, practical foundation and humanizes foundation. These foundations are the source of its existence and development. At last, the author elucidates the position of discretion on sentence in the law application.The second chapter mainly centers on the categories of discretion on sentence. Firstly, the author makes categories for the possible discretion on sentence existing in one case, which includes discretion on sentence of perpetrators, discretion on sentence of the victim, and discretion on sentence on criminal environment. These three aspects are the superficial demonstration of the essence of discretion on sentence, which offers references for justice during the application of discretion on sentence in legal practice. Besides, the author briefly analyzes two kinds of arguable sentencing factors: criminal policy and public anger.The third chapter puts forward solutions to the problems with regard to discretion on sentence in the legal practice and some suggestions for improvement. Based on these problems, the author gives three suggestions: 1) make part of discretion on sentence legalized. 2) Make part of discretion on sentence judicialized. 3) Apply the discretion on sentence properly in the form of research report. These suggestions are hoped to be valuable to legal practice.