The Discretionary Circumstances In Criminal Law

The problem of circumstances of discretion in Criminal Law is very controversial. Though there have been a lot of achievements on the study of circumstances, the circumstances of discretion has not been given enough attention. Every people has his own opinion on the conception, character, position, functions, range and application for circumstances of discretion, so in different areas, courts, even the different judges in the same court take different standard of punishment fits the crime. Then it is necessary to inquire on the problem of circumstances of discretion.This text is composed of three chapters, about 32000 words.ChapterⅠ: the basic category of circumstances of discretion. In this chapter, the author fist analyses the existing conception, then point out its defects such as the following cases: those conceptions is incompetent, not reflect the essential characteristic. So the author gives his own conception of discretion: all facts existing in the criminal and influencing conviction, measure punishment and execution of penalty, regulated by the Penalty Law which reflect the dangerousness of the person and social harmfulness, should be taken into account by judges when they apply the law. Subsequently, the author emphasizes the essential characteristics, status and functions of the circumstances of discretion.ChapterⅡ: the comparative research of the circumstances of discretion. Firstly, the author introduces the foreign regulations about this item, such as the US, France, Germany and Japanese law. Then quotes the relevant articles from Taiwan, Hong Kong and Macao. Lastly, analyses the current stipulations in PRC Penalty Law and suggest we should reference the related law making of other nations and areas. The circumstances of discretion should be definitely regulated in our penalty Law and make it different from legal circumstances.ChapterⅢ: the range and application of current circumstances of discretion. The author firstly summarizes the traditional range of circumstances of discretion and suggests that if should not only include the faults of victims, contrition and/or confession of offenders, but also it should be extended to all facts which may influence the conviction, measure punishment and execution of penalty. Then, analyses the application of circumstances of discretion: application in discrimination, conviction, measurement, execution of penalty and the application where there are conflict facts. The author especially accentuates the comprehensive application of circumstances of discretion and thinks it could be divided into three stages: the facts before conviction, during conviction and post conviction. The three different circumstances of discretion could be repetitively evaluated during the execution of penalty. The reason is that all crimes are not isolated. Any crime exists a sequence of time and place. If we regard it as a whole, then we can avoid the judicial randomicity.