On Sentencing Balance

It's a unity that the value targets which the law purchased and the goal which penalty followed. The basic values that specifically social ideology pursuits are justice, freedom, order and benefit. The multiplex values get balanced in practice, which means the aim of law is the unification in different levels. The realization of the aim of law shows the basic values of the existence of law. Only do we know more of the essence, functions and values of law, can we have a more clear recognition of the concept and content of the aim of law. The sense of this aim lies in just punishment, effective precaution and prevention of rights uttermostly.Penalty purpose plays a decisive role in the application of penalty. It decides the results of penalty measurement. Different understandings to the content of penalty purpose can lead to different measurement of penalty to the same commitment. Measurement of penalty must be beneficial to achieve the purpose of penalty most extensively. The theoretical basis of penalty measurement lies in the realization of penalty function and purpose. The function of penalty is the positive effects that may happen to the society, the criminals and the victims, which are caused by the state's creation, appliance and execution of penalty objectively. The purpose of penalty is the objective effects, which are pursued through the formulation, the appliance and the execution of penalty. The normal application of the penalty function has an important insurances to realize the purpose of penalty, while the premise and the base of the normal application to the function of penalty is to apply the penalty accurately.The count's task of measuring the penalty is to choose the most appropriate declaring penalty in order to achieve the penalty purpose. The court must obey the given principles when they measure the penalty and ensure its justice. The principle that the commitment depends on the law and the responsibility of the commitment should be suitable to each other is the basic principle which is not only stipulated by the criminal law, but also the standard of penalty measurement. Penalty measurement should take diversification elements into consideration. The concrete principles of penalty measurement are: the principle of crimes must be measured by law, the principle of penalty must be suitable to the crime and combine them respectively, and the principle of necessity. The court must set a sense of modesty, the sense of human rights protection and the coordination between justice and efficacy. The sense of modesty in the penalty measurement is that during the course of measurement, the penalty which was apply to should be enough to reach an effecting of preventing and against crimes. Human rights are protected on both conception and activity level during the course of measurement. The judge should enhance the human rights protection sense in the law, and the measurement must be taken in the scope of the Criminal Law. During the course of measurement, we should coordinate the relationship between justice and efficacy to keep the balance of penalty measurement.analyzing the matter of measurement balance in the point of the balance theory. The penalty measurement balance includes: inner balance, crosswise balance and longitudinal balance, which is resulted from the unsuitable use of free penalty measurement right, while the reasons that lead to the unsuitable use of free penalty measurement includes the shortcoming of the criminal legislation, the ununity of criminal justice, the imperfection of the judge selection system and the dependence of justice and so on.The main approaches to fulfill the penalty measurement balance are the follows: Perfect the legislation reformation and control the free measurement rights. Perfect the justice system reformation of penalty measurement in order to guide the free measurement rights. Reform the judge selection system to improve the comprehensive quality of the judges. Establish the criminal judicial precedent system with our Chinese feature. Guarantee the justice individual to achieve the judge's individual measurement rights.