On Penalty Discretion Regulation

In the criminal law domain, discretion exists widely, but this paper studies the judge on penalty discretion. Some people say that justice is the last defense of social justice, that is, the judge is presiding social justice judge. The conflict between the stability of criminal law, the abstract of legal concept and the fresh changes of the social life, is the discretion of the judge's legitimacy sources. Because our country is in a period of social transition at present and social conflicts tense, causing people's high expectations on the criminal judicial fairness and balance, the judge's discretion is pushed in the teeth of the storm of the moral opinion. The debate on the purpose of punishment and the principle by theory circles and the people's needs of the judicial openness, promote judicial practice to reflect and reconstruct the traditional penalty discretionary mode, to moderate regulation penalty discretion in the expansion trend. According to " The people's court sentencing guidelines (Trial)", "On the norms of sentencing procedure the issues (for Trial Implementation)" issued by the Supreme People's court, either alone or in conjunction with other departments, the two judicial documents as the breakthrough point, the writer questions, conducts research using the hermeneutic research methods from the following several aspects, to regulate the penal discretion at the same time, making criminal law rules and discretion benign and interactive, in order to meet the people's requirement of justice law emotion.First, the concept, connotation and the necessity of regulating of penalty discretion. The discussion on penalty discretion, is often limited to criminal quantity's discretion in sentencing, but ignores the facts of judges' discretion, which is the legal fact basis and the safeguard of justice, but also major causes of the judge circumventing the law applicable, so the author elaborates the concept, connotation and the necessity of regulating of penalty discretion.Second, the regulation on criminal law by the purpose of punishment. The purpose of the penalty directly guides the Penalty Principles and concepts, and our purpose of penalty is uncertain, causing doubts and challenges on the penalty for a fair degree. The author proposes penal teleology on the punishment of crime and crime prevention, and expounds guidelines and constraints of the purpose of punishment on criminal discretion.Third, sentencing guidelines on criminal law. The right to exercise discretion is inseparable from the sentencing guidelines and regulations, but what is our sentencing guidelines have been inconclusive, the author will consider " according to fair sentencing, the crime punishment adapts, combining punishment with leniency and balance between crime and punishment" as China's sentencing guidelines, and analyze the effect of right from the principles of penalty.Fourth, the scientific method's regulation of penalty sentencing discretion. China's traditional" appraise pile type" experience of criminal law for judges sentencing in the black-box operation provides a convenient, but cannot satisfy people's requirements of open, fairness, balanced sentencing and was criticized. The author discusses the effective regulation of the discretion in sentencing methods by establishing scientific sentencing benchmarking method.Fifth, the regulation of relatively independent sentencing procedure on criminal law. The traditional conviction and sentencing regardless of the trial procedure, led to the prosecution's negative coping with sentencing debate and sentencing evidence, which caused the problem of sentencing in court to public defense, causing judges'improper exercise on discretion. The author setting up relatively independent sentencing procedure as the angle of view, puts forward the open sentencing procedures' regulation of the proper exercise of the discretion.