Research On The Discretionary Of Sentencing Circumstances

Discretionary Circumstances of Sentencing refers to various circumstances and factors which the criminal law does not stipulate concretely and definitely, but acknowledges, which can reflect the degree of the conduct's social harms and criminal's personal dangerousness, thus affecting the level of concrete penalty measurement, which should be taken into account in sentencing and applicated discretionarily by judges. In the auther's view,discrctionary circumstances of sentencing occupys a noticeable position in penalty discretion. The most important value of discrctionary circumstances of sentencing lies mainly in the following two areas:Firstly, it is in favor of implementing the individualization of punishment principle; Secondly, it is conducive to help judges exercise their sentencing discretion power reasonably.Firstly,this thesis investigates the legislation about the discretionary circumstances of sentencing at home and abroad, then, by comparison, We can find there are obvious legislative defects of the discretionary circumstances of sentencing in our country. We should draw lessons from foreign country's legislative achivements. This thesis explores the status quo in the application of discretionary circumstances of sentencing in our country, and points out there are some striking problems such as neglecting the application of discretionary circumstances of sentencing; the arbitrary application of discretionary circumstances of sentencing in judicial practice; the unbalanced application of discretionary circumstances of sentencing,and so on. Then , this article analyzes the reasons.In oder to solve the existing problems during the application of discretionary circumstances of sentencing in our country, make it play a proper role and achieve fair sentence , the author brings forward some proposals to perfect discretionary circumstances of sentencing from both legislation and justice. In the aspect of legislative perfection,the author makes relevant suggestions to improve: Firstly, defining the leagl status of discretionary circumstances of sentencing clearly. At the same time, defining the range of the discretionary circumstances of sentencing in the criminal law; Lastly, transforming some discretionary circumstances of sentencing into legal circumstances of sentencing. In the aspect of judicial perfection, the author advocates it very much. The project of judicial perfection is demonstrated from four aspects: introducing criminal legal precedent; announcing normative judicial interpretation; establishing relative independent system of sentencing procedures;standardizing the exercise of judges'sentencing discretion power.