Legislation Suggestions To Improve Our Measurement Of Penalty Procedure

Measurement of penalty is a judicial activity in the criminal trial process that the court decides if the defendant should be punished, what punishment should be sentenced and the weight of the punishment, after the defendant is convicted and the accusation is confirmed. Our current<Criminal Procedure Law> doesn’t indicate an independent procedure of measurement of penalty, it uses a mixed pattern by mixing up the conviction and measurement of penalty. Such a mixed pattern of conviction and measurement of penalty causes many disadvantages in the judicial practice, can’t guarantee fairness of criminal justice, is not good for improving our jural system. The practical and academic fields raise doubts about it. This article’s goal is to restrict judge’s free power of measurement, achieve judicial fairness, establish public legal belief, focus on judicial efficiency and achievements and set up a related independent procedure of measurement of penalty which is suitable to our current situation. Without changing our current court hearing system, such related independent procedure of measurement of penalty divides previous court hearing procedure into conviction investigation and measurement of penalty investigation. Starting court investigation from conviction, then measurement of penalty; dividing court debating into conviction debating and measurement of penalty debating. Entering into court debate on conviction issues first, then on measurement of penalty issues, in order to separate conviction and measurement of penalty in the court hearing procedure, enhance the publicness, antagonism and participation of measurement of penalty procedure, protect the defendant’s legal rights. There are four major parts in this article:The first part,raises valuable idea of setting up our measurement of penalty procedure, including restricting judge’s free power of measurement, value of judicial fairness, value of justice belief, value of efficiency and achievements.The second part, investigating measurement of penalty procedure of other countries, investigating the Continental Law System, which is represented by France and Germany. The countries of the Continental Law System use combined conviction and measurement of penalty, investigating the Angio-American Law System, which is represented by the USA and UK. The countries of the Angio-American Law System use independent conviction and measurement of penalty. Analysis of two big Law System country’s measurement of penalty procedure reference to China.The third part, analyzing disadvantages of our current measurement of penalty procedure. Our current measurement of penalty procedure is using a mixed pattern of conviction and measurement of penalty. This is a mixed pattern can’t restrict the judge’s free power of measurement, it’s difficult for victim to take part in measurement of penalty procedure, the dependence is restricted significantly to plead for measurement of penalty.The forth part, making legislation suggestions to improve our measurement of penalty procedure:firstly, setting up related independent measurement of penalty procedure; secondly, clearing triggering subject of measurement of penalty procedure; thirdly, increasing the numbers of participants of measurement of penalty procedure; fourthly, ensuring the defendant has the right to plead for measurement of penalty.