The Research Of Discretionary Circumstances Of The Crime

The discretionary circumstances of the crime are those details of crime which should be separately weighted in the measurement of penalty, such as the motivation, criminal purpose, means, consequences, objects, capacity of the subject and so on, though these are not expressly provided by the Criminal Law. The discretionary circumstances of the crime are the most important factors affecting the measurement of penalty. However, there are many difficulties in applying them for many reasons. They are difficult to be identified and distinguished from the legal circumstances of the crime and therefore cause a lot of confusions in judicial practice. This proves the need to clarify the circumstances in theory from the negative side. In this regard, this paper discussed the basic problems concerning the discretionary circumstances of the crime existing in the criminal law theories and practices.This paper contains five parts, approximately 30.000 Chinese characters in total.Part one: The position of the discretionary circumstances of the crime. Firstly, this part begun with distinction between discretionary circumstances and the discretion of the circumstances of the crime and explains the three characteristics of the discretionary circumstances of the crime, namely the space-time quality, discretionary quality, duplicity; then defines the concept of discretionary circumstances of the crime. Secondly, this paper analyzes the differences and relations between the discretionary circumstances of the crime and the basic facts. Thirdly, this paper stresses the key role of the circumstances of the crime in the system of the circumstances of sentencing by comparing the relations in the role of the circumstances of the crime and the circumstances of the crime t before and after.Part two: The contents of discretionary circumstances of the crime. This article reflects the discretionary circumstances of the crime are classified as the circumstances which are explained the degree of intentional and negligent of criminal, objective hazards of the behavior and the capacity of the criminal. Lastly this article preliminary analyzes the process of sentencing apply in those different types of single plot.Part three: Extraction of discretionary circumstances of the crime. This part focus on discussing how to extract these details that should be separately weighted in the measurement of penalty, such as the motivation, criminal purpose, means, consequences, objects, capacity of the subject and so on. Part four: The problems of the process in extracting and applying such discretionary circumstances of the crime. First, China's criminal law is not specific enough to require such circumstances. Second, Judge misunderstands the role of such discretionary circumstances in judicial practice. Third, it is more disadvantages than advantages in "Criminal Law" provisions of Article 63, paragraph 2. Finally, the intensity standard for discretionary circumstances is not clear.Part five: The suggestions that apply to discretionary circumstances of the crime. First, some discretionary circumstances of the crime should be provided in the criminal law. Second "Criminal Law"63, paragraph 2, should be removed. Last, by typical cases, judicial interpretation and the guidance on sentencing apply to discretionary circumstances of the crime.