The Method Of Deifning The Criterion Of Sentencing

The duties of the court is to maintain fairness, and only in the similar judgmenthas some degree of balance may be fair in a crime, between another crime. However,the sentencing imbalances occur frequently, make the public doubt the authority oflaw, hindered the progress of the rule of law, judicial practice and legal theory arethinking to solve this problem to achieve justice.Of course, solve the problem ofsentencing imbalance is not easy, because the reasons for a sentencing imbalances arecomplicated, I believe that should be starting from the core of the problem-solving,namely the establishment of a scientific and rational sentencing standards, to find aworkable method to determine the sentencing standards.The five perspectives of Chinese scholars about determine sentencingbenchmark including: centerline theory, cell theory, the situation theory, center ofgravity theory and the main factor theory. Centerline theory is fixed in the sentencingbenchmark conviction among the amplitude of the place, In the middle of theconviction and heavier is sentenced to a punishment line above, a lighter is in themiddle of the range conviction and sentenced to a punishment below the line; Pointslattice theory is artificial will be a sin of the legal punishment of abstract amplitude ofthe division of some grid, according to the weight of the sin grid level and on theone-to-one, determine sentencing benchmark; The situation theory is the stand or fallof public security situation according to determine sentencing benchmark, on thebasis of determine sentencing don’t have regular benchmark; The focus on theabstract a crime of the highest incidence of the center of gravity of the offense, thecenter of gravity of the offense is a key factor to determine social dangers size, findthe abstract of a center of gravity of the crime that the sentence benchmark;the mainfactors theory emphasizes, looking for a sin of the sentencing of the abstractbenchmark in the process of social harmfulness size should be the main effect sincefactors as the basis, and through the practice of the investigation and statistical conclusion to demonstrate.I believe that in the process to determine the sentencing standards should followcertain principles, and then based on these principles to comment these fiveperspectives. First, determine the sentencing standards should follow the principle ofincluding the first one is Sentencing benchmark be determined according to thesentencing of the subject. Sentencing benchmark theory is an important part of thesentencing of the activity, it is an abstract from legal punishment to a sin declaredpunishment of communication has been set up a bridge, sentencing benchmark existsin sentencing process, the inevitable as ontology of sentencing according to subject,sentencing based on the social harmfulness and the dangerousness of the person’sunity, while a dangerousness the role sentencing standards to determine thesentencing standards to regulate in order to determine the declared criminal, thussentencing the benchmark only subject to the social dangers of the size. Second,determine the sentencing reference point for the sentencing of criminal justicepersonnel to provide the standard of "visualization", and thus the sentencing standardsshould be determined to the operability as a precondition, rather than stay in thetheoretical demonstration phase. Secondly, to comment on these five viewpoints:1,the advantages of the Central Line theory is simple, but the disadvantage in a lack oflegislation basis;2, the disadvantages of sub-lattice theory is that through legalpunishment magnitude of sub-grid, and then in a specific case is divided into severalgrades, the implementation of the condemnation committed the error of logicalthinking upside down;3, the weakness of the situation of the theory is that theuncertainty of the sentencing benchmark;4, center of gravity theory’s weakness is thehighest incidence as abstract a focus of sin, and the said that if the legal punishment isthere are two class, grades, and between join place namely for benchmark, thisstatement and the judicial practice personality;5, the main factor theory emphasizesthe social dangers of size is the main factor affecting the sentencing benchmark,touched the core issue of the sentencing benchmark theory, and thus the authorsemphasize the application of the main factors theory.In the process of determining the sentencing standards, the most important stageis the operating refinement of the main factors on the judicial application of that to determine the sentencing standards. The major factors some degree of fixed, theauthor emphasize main factors for theory, but early main factors and scholars didn’tpoint out what factors is abstract the main factors of a sin, and no clear of the majorfactors determine the specific method, thus the author emphasizes on the main factorsof the fixed to a certain extent, that is, from the objective aspect of crime andsubjective aspects that two important factors. The objective aspects including harmbehavior and harm result, the author will harm behavior to the abstract sin is limitedto a specific legal punishment to choose to have the amplitude of the decision of thedangers of role behavior, will harm result is divided into the property results and canuse property amount of how much the size of social damage performance harm result,subjective aspect that is deliberate crime and criminal negligence two aspects as themain factors of influence sentencing benchmark. The author thinks that the generalmethod to determine sentencing benchmark is comprehensive use logical deductionmethod and empirical analysis, and should be the judicial organs and theoreticalscholars cooperation, to complete the sentencing benchmark sure work. The authoremphasizes in the comprehensive use of logical deduction method and empiricalanalysis, and on the basis of every major factors to quantify, namely for similarbehavior in harm with the property of harm results analysis, identify, arrangement,based on how many of the amount to property can be harmful to the society and thesize of the performance harm result evaluation, and the sentencing of thereconstruction method to determine the benchmark.