Comparison And Choice Of Modes Of Relationship Between Convicting And Sentencing Procedures

There are many defects in China's current judicial sentencing such as the sentencing procedure is opaque and the sentencing result is unbalanced, ect. These are related to the judge's oversized discretionary power for extensive criminal legislation, experience sentencing method which the judge adopt in sentencing process and the trial concept that attaching importance to condemnation but thinking little of sentencing which is holds by our country for a long time. Convicting is the premise of sentencing, but sentencing is the final result after the case has been condemned. Convicting is only the first stage of the whole criminal lawsuit activity, but sentencing is the ultimate ending and the foothold of it. Regardless of the defendant or the victim or the society, accurate sentence has the final decisive significance. Besides, the aim and function of penalty determine the importance of accurate sentence too.Considering that integrative mode of continental law system and separate mode of common law system both have advantages and disadvantages, our country's reform of sentencing procedure should only take middle route in accordance with China's actual situation and construct relatively independent sentencing pattern so as to find the best balance between justice and efficiency. That is, to design two sets of relatively independent sentencing procedure system according to the standard of whether the defendant pleads guilty. In the cases that the defendant pleads guilty, the convicting and sentencing process can consolidate to one procedure. We can investigate criminal facts and sentencing facts concurrently in the phase of court investigation. The prosecution and the defense debate mainly centering on sentencing problem in the phase of court debate. In the cases that the defendant pleads not guilty, we should execute the convicting procedure firstly. The court organizes the prosecution and the defense demonstrate, question and debate the problem that whether the defendant constitute a crime. If the court recognizes the defendant guilty, it should pronounce guilty verdict at court. Then the judge decides whether the convicting trial and the sentencing trial are continuous or separated for some time according to the complexity of the case. In sentencing trial procedure, both of the prosecution and the defense propose sentencing facts and publish sentencing opinions. The judge considers the two sides' sentencing opinions comprehensively on the basis of ascertaining sentencing facts and obtains the final sentencing conclusion. Only the convicting facts and the facts that are related with the crime can be proposed in the convicting program. The sentencing facts such as criminal records which are irrelevant to the crime can be displayed after entering the sentencing program.Meanwhile, a series of supplementary institutions should be implemented. Firstly, we need to authorize the power of sentencing recommendation to the procuratorate. Secondly, we have to let the victim participate in sentencing procedure and publish sentencing opinions independently. Thirdly, we must make the convicting standards and sentencing standards dualistic. We ought to distinguish aggravating and palliative sentencing facts but hold the existing standard for conviction simultaneously. Furthermore, "the facts are clearly ascertained with ample and reliable evidence" should be the standard of proof of aggravating sentencing facts and "preponderance of the evidence" should be the standard of proof of palliative sentencing facts. Only in this way, the goal of judicial reform that is regulating the judge's discretionary power and accomplishing the standardization of sentencing can be achieved.