Study On The Judicial Sentencing Discretion

The measurement of penalty is called “Goldbach conjecture” in the criminal lawarea, thus we can see how difficult it is to decree a suitable penalty to the criminals.Because of this, from a worldwide perspective, many countries in the world set up aseries of system to provide the justice of sentencing. Among the system of sentencing,the rules of the sentencing discretion is very important. In our country, there emergedmany unfair sentences in the judicial area in recent years, many people began to paymore attention to the sentencing discretion. So in order to reach an accuratecomprehension of the sentencing discretion, this article intend to analyze the relatedproblems of the sentencing discretion, including the position of the sentencingdiscretion in theory and the ways to regulate it in practical judicial area。The first part of this article is about the definition of the sentencing discretion.Because discretion is the basic of the sentencing discretion, one must have a clearrecognize of it before analyzing the sentencing discretion. The author spend a lot oftime on the definition of the discretion before define the sentencing discretion.The second part of this article is about the discrimination between the sentencingdiscretion and other related conception.To do this, it can help us to hold the accurateposition of the sentencing discretion in the criminal procedure.The third part of this article is about the Historical evolution of the sentencingdiscretion. The author elaborates this from two aspects, one aspect is about theevolution of the sentencing discretion in western country, and another aspect is about itsevolution trajectory in our country. Then analyze its development trend in bothContinental law system country and Anglo-Saxon law system country.The fourth part of this article analyzes the basis of existence of the sentencingdiscretion and its judicial value. Through the author’s analysis, we can see that thesentencing discretion exists on the inherent defect of criminal law clause.The fifth part of this article analyzes how it works for the basic principle of thesentencing discretion to confine the performance of the sentencing discretion.The sixth part of this article analyzes the main body of the performance of thesentencing discretion. Reach an agree that we must give this judicial power to theOccupation judges rather than the assessor in our country.The last part of this article is about the reformation of the standardization of sentencing. Divided into three parts: before the reformation、in the reformation and thedevelopment trend of the reformation. Then puts forward some suggestions ofimprovement through analyzing the defects of the standardization of sentencing.