A Research On The Independent Sentencing Procedure In China

For a long time, the sentencing of criminal proceedings has been faced with two problems in China: On one hand, the judiciary despises the position of sentencing during the criminal proceedings and considers it as a problem of dependency on conviction; on the other hand, there are no relevant provisions of the sentencing process in Chinese legislative system. The reality of "focusing on conviction rather than sentencing" and "focusing on the body rather than the procedure" brings a series of negative consequences to Chinese criminal justice activities:The defendant's rights are not duly protected; judicial resources are properly consumed; the judicial efficiency is hindered; the judicial authority is questioned by the public, etc. During the 21st century, the problem of sentencing procedures has been paid more and more attention by the practitioners and the theorists. In theoretical circles, many scholars began to study the reform of the sentencing process; in practice, the Supreme Court carried out research on the standard sentencing procedures in 2010, which is seen to be the beginning of the official sentencing reform in the country. This article is base on the basic theory of sentencing procedures and the research on current situation of sentencing in China. By studying the sentencing pattern in the common law and civil law countries, the article tries to describe a independent sentencing process model with Chinese socialist characteristics.The body of this article is divided into four chapters:Chapter One is an overview of sentencing and sentencing procedures. This chapter is divided into three parts:the first part outlines the concept and characteristics of sentencing and it discuss the dual natures of sentencing (substantive and procedural); the second part introduces the concept of the sentencing process and describes the broad and narrow sense of sentencing procedures; the third part probes into the connection of process and the justice/efficiency, and then describes the possibility of establishing sentencing procedures with both efficiency and justice, which is set out as a target for our legal system.Chapter Two is the study and research on foreign sentencing procedures. This chapter is divided into two parts:the first part introduces the separate sentencing procedure mode and the hybrid sentencing procedures in major countries, including the Great Britain, the United States, Germany, France, etc; the second part discusses the difference between the two sentencing process models, which provides references for the exploration and transformation of our sentencing process in the following chapter.Chapter Three is the implications to our reform of sentencing procedures. This chapter is divided into three parts:the first part introduces the negative impacts of sentencing process under our system; the second part introduces the sentencing reform has been carried out during the year, and the changes and significance it brought by the reform of the sentencing process; the third part proposes the idea of building sentencing procedure:to build an independent sentencing process, and to explain the connotation of independent sentencing process, by comparing the connotations of the separated sentencing process model in common law countries and the mixed sentencing process model in civil law countries. At last, it discusses the significance of building independent sentencing process.Chapter Four is the specific idea of building independent sentencing process in China. This chapter includes four parts:the first part is to explain the basic principles of the independent sentencing process; the second part proposes procedures for building the independent sentencing process, including sentencing procedures in the prosecution and the court; the third part discusses the burden of proof in the independence sentencing process, including the allocation principle of the burden of proof; the fourth part discusses the standard of proof in the independence sentencing process, issuing the necessary of different standard of proof should be applied to for the defendant under different circumstances.