The Studying Of Independence On Sentencing Procedure

The indepentence of sentencing procedure is the special trial procedure in which judges realize the sentencing of the accused according to both probatio, cross-examination and debate in the criminal proceedings,that is "the independent sentencing procedure". It is based on the accused's being accused of guilty, and it realizes the separation of conviction procedure and sentencing debate procedure.The independent sentencing procedure is one of the hot topics our country has been holding about the reform of criminal trial,because it has so many overriding values the experts in academic circles canonize it when they provide advice for the reform of our criminal proceedings. However, the independent sentencing debate procedure is not carried out in every morden country under the rule of law, because it is only applied in common-law countries. So is it the inevitable way to construct independent sentencing debate procedure to realize judicial justice? What is the basic problem of our independent sentencing debate procedure? Can the independent sentencing debate procedure adapt to our traditional administration of justice?How to construct independent sentencing debate procedure that is suitable to our juridical practice? These questions are puzzling our theory circle and pragmatic circle.This article has five parts:Partâ… :Summerise Independence of the sentencing procedure.Firstly,expound the meaning and characters of the sentencing procedure,and analyse the loss of the sentencing procedure in our country.Then introduce exhibition and character of independence on sentencing procedure,the background under which our country puts forward the independent sentencing procedure to realize the standard sentencing procedure. Finally expound three typical views about individual penalty procedure.Partâ…¡:Analyse the capital value function of independent sentencing procedure. The independent sentencing debate procedure has four capital functions:substantive justice function, procedure justice function, gurantee of human rights,and restriction of powers. Part III:Study comparatively oversee's program-independent procedure of Sentence debating. Present legislation and justice of sentencing program schema in England and America. In these two countries, besides traditional justice concept which conforms to thire own nation,there are many other auxiliary syetem which are the key to operating sentencing procedure well.In civil-law countries,though lacking independent sentencing procedure, they often add special court hearing to the common procedure to embody independent sentence debating procedure. Moreover, setting independent sentence debating is the tendency to sentencing refom.Partâ…£:Analyse the deficiency and the academic and operational puzzledom of the adverary procedure:the concealment in the process of weighing of punishment; the extreme and unrestained discretionary power of judges; the absence of personality investigation system; the contridiction in the legislative and judicial postions of the victims. the academic and operational puzzledom also exists:the difficulties facing judges in the processof ruling caused by the confusion about proof standards, the failure to set the appiled scope of evidence rules and the confusion between conviction and sentence evidences, defense lawyers' embarassing and helpless situation caused by the unitary mode of trial; the absence of great accassions where sentence proposing system of the prosecution organ can be executed, which is now in the experimental process.Partâ…¤:The construction of the independent sentencing procedure in our country. First,the instituional handcaps in the independent sentencing procedure is to be analysed:trials in the form of making records and taking depositions; the imperfect separate system before the trial; the setting of the judicial committee system; the lack of penalty facts and universial pretrial detain. Second, three principles in the independent punishment adversary procedure are put forward:sentence individalization, cooperative justice and limeliness. In addition,put forward to design concretely the independent sentencing procedure, this paper will propose that our country should give priority to entity reform while making procdure reform complementary and claim that we should establish entity rules, in order to achieve a equilibrium in the measure of penalty.Finally,several corresponding measures to ensure the punishment adverary procedure functions well are emphatically provided.