The Theory Of Sentencing Procedures Of Retrieval

Any country’s criminal trial procedure contains conviction process and sentencing process. Conviction process is a procedure that judicial organs resolve that whether defendant is guilty. Sentencing process is a procedure that judicial organs resolve the sentence to defendant after convicting defendants. Conviction process and sentencing process should be guided by respective rules of order as there are essential differences between them. However, conviction process and sentencing process are contained in so-called "court judge" process in Criminal Procedural Law of PRC. Conviction phase is regarded as main body while sentencing phase as attachment in that process. There are significant current problems on sentencing phase with nearly no supporting systems. Independentization of sentencing process may be a good way to resolve the problems of sentencing process.Sentencing process exist two different modes in two legal systems, those are, independent sentencing process of case law system and mixed sentencing process of civil law system. First of all, commons and differences of sentencing process of two legal systems are analyzed and connotative meaning of "independentization" is given. In addition, the necessity of setting up independent sentencing process is forwarded on analysis of current sentencing problems. Finally, some reforming suggestions in sentencing process in out country are given.The thesis is composed of three chapters.In the first chapter, the sentencing in two legal systems are compared on the introduction of mixed sentencing process mode which is represented by German, French, Italian and Japanese and independent sentencing process mode which is represented by UK’s and US’s. Similarities and differences are concluded; Connotative meaning of independentization of sentencing process is forwarded. The feasibility of independent sentencing process mode in the frame of civil law system is proved. In the second chapter, the necessity of independentization of sentencing process is analyzed. Firstly, the problems of current sentencing system are analyzed which contains violation of doctrine of the presumption of innocence, violation of principle of free participation, no reasonable explanation of syllabi, abuse of power of judges and absence of relevant system. Independent sentencing process mode and improved mixed sentencing process mode are options to resolve the problems. The former is a better choice as it is in favor of assurance of human rights of defendant, due exercises of accusation of prosecutors, the control of power of judges and effectiveness.In the third chapter, the author envisage for the future of our independent in sentencing process. Firstly, the direction of independentization reform is that sentencing process should be separated form conviction process. Secondly, the reform will be divided in three phases, relatively independent sentencing process period, transition period and completely independent sentencing process period. The referential sentencing criteria, the system of suggestion of sentence and system of explanation of sentence verdict should be set up in the first period. Specialized laws on sentence, completed adversarial system and social investigation should be set up in the second period. The independent sentencing process is achieved on the basis of accomplished of relevant systems mentioned before.