Research On Defects And Their Perfection Of Judicial Application Of The Discretionary Circumstances Of Sentencing

In the theories, discretionary circumstances of sentencing belongs to the scope of Sentencing, in the judicial practice, The discretionary circumstances of sentencing applies a creation great influence to justice sentencing.Considering judicial precedents of bribery and corruption of Lou de Intermediate people's court in 2006-2010 years, author try to analysis the present situation of the application of discretionary circumstances of sentencing. For the different accused persons in the case of similar amount of crime, the different accused persons in the joint offense case and the same accused persons in the same case, they will get different penalty because of whether they have discretionary circumstances of sentencing.Such situation in the judicial practice has already brings about a series of problems. Theoretically, it breaks three basic rules of criminal law:the rule of legality, the rule of appropriation between the crime and the penalty, and the rule of equality. In the practice, it deviates from the purpose of the criminal code, stirs up further judicial corrupt and has a bad effect on public confidence force of judicature, and interferences the judicial independence.Currently, the deviation of the criminal judicial ideas, the defects of Sentencing legislation and system of investigating into misjudged case, obstacles of judicial intervention and corruption, the lack of specialized quality of judges, are the important causes of the situation.For solving these problems, we should regard crime policy of temper justice with mercy as the guiding idea of sentencing. we should appropriately understand the relationship between the legally prescribed circumstances of sentencing and the discretionary circumstances of sentencing, In the same time, we should make the common discretionary circumstances of sentencing legally prescribed, establish science and reasonable standards of sentencing, perfect the system of investigating into misjudged case, set up the normal sentencing procedures and guiding mechanism, allocate court prosecutors the power to make sentencing suggestions, give judges jurisdictional immunity, control the judge's power of sentencing freely, enhances the judge's specialized quality.