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On Ways Of Sentencing Standardized From Computer Sentencing

Posted on:2012-07-23Degree:MasterType:Thesis
Country:ChinaCandidate:M L ZhaoFull Text:PDF
GTID:2216330338463632Subject:Criminal Law
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The injustice of sentencing is one of the great difficulties in judicial practice at present, sentencing has also been called the "Goldbach's conjecture" in criminal field, and how to sentence accurately has always harassed the judicial practice departments. The key route for achieving the justice of measurement of penalty lies in standardizing the sentencing. However, the route for standardizing the sentencing is mainly achieved by perfecting the aspects of entities and programs.This essay consists of these following three aspects about standardizing the sentencing.Chapter one has expounded the basic information of "Computer Sentencing", "Computer Sentencing" is honored by the time, and is not originally created by our country. It is mainly about the judges quantify different kinds of plots of sentencing based on the experiences of ad judgment of judicial practice, then figure out the term of penalty on the basis of the program preestablished in the computer. It is largely because the big setting range of punishment in Criminal Laws, the low-level judicial officials and the long-term tradition of "heavy conviction and light sentencing" that leads to the creation of it in our country. However, from the perspective of the principal of law inference, computer sentencing does not in accordance with the theory of syllogism, it neglects other values which should be concerned in sentencing. In terms of law interpretation, "Computer Sentencing" cannot understand and explain the connotation of law correctly, meanwhile, avoids the process of legal argumentation. Hence it gives no help in realizing the judicial fairness, efficiency and value.Chapter two unscrambles the standardization of sentencing. For a long time past, the research of standardization of sentencing in China opens to the charge of straying off the subject, so it is necessary to elaborate the definition of standardization of sentencing. Initially, the standardization of sentencing is "the tailoring of punishment", sentencing is a process of concerning synthetically of realizing the expectation of society of Criminal Law in the light of achieving the object of it, and the process is in need of bringing the right of discretion of the judges into full play. Secondly, the standardization of sentencing is "the quantification of punishment", wide in range of punishment has led to the abuse of punishment, it would be beneficial to quantify it. Therefore, the standardization of sentencing is the complex of "tailoring the punishment" and "quantification of punishment". The experiences of standardizing sentencing in the USA, UK and some other place out of mainland China have important enlightenment for our country, such as the Independent Proceeding of Measurement of Penalty and Sentencing Suggestion System adopted in the United States, as well as the practice of the United states sentencing guidelines offer references for us, we should consider Chinese status adequately on basis of combining the successful experiences of foreign countries for standardizing sentencing in our country.Chapter three put forward the ways of standardization of sentencing. One is adopting different proceeding of measurement of penalty in different types of criminal cases. Establishing independent sentencing procedure for advocacy of innocence to keep the accused person away from the dilemma of both speaking advocacy of innocence and speaking in defense of misdemeanor. Aim at summary procedure cases, "General to Simple" cases and cases of peccavi of accused person, we should utilize comparatively independent sentencing procedure or independent one based on the condition of the cases, in summary procedure we should perfect the prosecute system of appearing in court of prosecution, moreover borrow ideas from the ad judgment mode of "unified litigation". In design of the proceeding of measurement of penalty, we should focus on solving the problems of difficulty for quoting of defendants, not good enough of the effect of measurement penalty of both sides and whether the victims can take part in sentencing and so forth to avoid the glorious design of the proceeding of measurement of penalty being a formalized performance. Secondly, perfecting the right of sentencing suggestion of procurator ate. Sentencing suggestion belongs to the characteristic of right rather the power, we should breakthrough the encumbrances in notions, rules, abilities and mechanism faced by the sentencing suggestion system. To ensure standardization of sentencing suggestion in the aspects of subject, way, range, object, extent, effect etc.. Thirdly, perfecting the sentencing benchmark of every kind. Quantifying the crimes in order to ensure the benchmark of standard punishment. To ensure the sentencing benchmark, we can adopt the way of empirical analysis, establish special survey team by the Supreme People's Court, count and analysis the ad judgment condition in each and every regions. In the process of analysis by synthesis, we should get rid of the affect of legal sentencing circumstances, take the discretionary sentencing circumstances into consideration and think over the discrepancy of sentencing of different areas.
Keywords/Search Tags:computer sentencing, sentencing standardized, the proceeding of measurement of penalty, sentencing suggestion, sentencing benchmark
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