On The Reconstruction Of Chinese Sentencing Procedures

Problems arising in Chinese sentencing procedures have raised wide concerns both in legal academic and practical fields as heated issues, and along with the advance of sentencing reform, have leaded to a newly appearing body of study in the research of Criminal Procedure. It is worthwhile mentioning that the current research on the issues presents certain proposals to or draws relevant conclusions on Chinese sentencing procedures from the prospective of the comparison between common law and civil law systems, or interprets and reconstructs the due process of Chinese sentencing process on the theory of due process per se. Although the necessity of reconstructing the sentencing process has been touched upon, the systematic analysis and particularly feasible proposals are lacking. Therefore, with the research's object of Chinese sentencing procedures, this thesis focuses on the necessity and possibility of reconstructing the procedures, based on Chinese current legislative state and related judicial practice, with the aim to present reasonable suggestions to build up relatively independent sentencing procedures in accordance with the status quo and operating rules with Chinese characteristics. The thesis consists of three parts, with 40,000 words, which are introduction, main body, conclusion. The main body includes four parts as following:First part, the overview of sentencing process. Based on introducing the definition of sentencing and the sentencing process, the characteristics of sentencing procedures and analysis of its unique features, this part summarizes the principles and values that sentencing procedures should have in order to build a theoretical foundation for the following discussion. Meanwhile, this part also clarifies the historical evolution of sentencing procedures of the different models of common law and civil law systems, as well as discussing characteristics of our sentencing patterns, providing a useful and historical reference for the reconstruction of sentencing procedures.Second part, the necessity to reconstruct Chinese sentencing procedures. Dependent upon the research on the judicial status quo in China, it has been pointed out that there are generally three shortcomings existing in Chinese sentencing procedures. First, the lack of the right to sentencing proposals of Chinese public prosecution authorities, leads to the absence of foundation for judges to sentence under the criminal procedures, which is contradictory to the theory that no indictment would be no trial. Second, the procedure of sentencing in China is performed by judges only, without other social parties taking part in. Public procurators do not have the right in terms of sentencing proposals with the outcome of overlooking sentencing procedures; lawyers for the defense mainly pay attention to acquitting the defense of the charge, and which type of crime will be convicted so that the sentencing issue is relatively less concerned; victim does not participate in the sentencing process, and is incapable to make a statement to influence the determination of judge on sentencing to protect its own benefits. Third, the lack of systematic sentencing process, sentencing investigation and debates, and regulatory and systematic process to restrict judges'sentencing, will result in undue and unbalancing sentencing problems which seriously affect and obstruct judicial judge to be realized. In this sense, whether from the level of judicial system or practice, it can be concluded that there needs to reconstruct sentencing procedures in China.Third part, the feasibility of reconstruction of the sentencing procedures. Through summarizing relevant theoretical preparation in term of sentencing procedure, and demonstrating the investigation system on the personality of the accused, the sentencing consultation system, the normative documents and the practice pilot reform activities as to the independent sentencing process and the right to sentencing proposal, it has been proved that, whether on the academic and legislative or practical level, the full preparation for the reconstruction of sentencing procedures is probable.Fourth Part, reconstruction of the sentencing procedure. To be consistent with three main problems currently existing in Chinese situation of sentencing procedures, discussed in the second part, the thesis presents three recommendations with regard to the foundation of sentencing procedures, the participation mechanism of sentencing procedures, the procedural system of sentencing, providing a useful reference for Chinese sentencing reform.