Research On The Independent Sentencing Procedure

Seting from the internal value of procedure, the article demonstrates that the balance mechanism between program participants is superior to control freedom of judicial discretion in material law in ensureing the results of adjudication fairness, legitimacy. So the author puts forward that solving the problem of sentencing inequality, sentencing deviation ", needs control Judger’s freedom of discretion in material law passively, but also needs the power control value coming with procedure, which turns the balance mechanism between program participants to advantage actively. And then, from the feasible and reasonable point of view, the author sets forth the necessity of establishing independent sentencing procedure for China.This paper consists of three parts, introduction, text, conclusion. And the text consists of four parts:The first part:Justice of sentencing from procedure dimension:Litigation mechanism of sentencing procedure. First of all. from the theoretical point of view, the author elaborates the value of procedure and some examples, and explains that to control freedom of judicial discretion in material law will bring mechanization. Then the author puts forward making up the entity control defects should rely on intrinsic value of the procedure; and further expounds two functions of fairness penalty from procedure dimension, explains that solving "sentencing inequality" needs procedural regulation more than substantive law regulation. Secondly, from the practical point of view, from the present judicial situation, responsing in the voice of practice, the author puts forward the need of introducing litigation mechanism for fair sentencing fom procedure dimension.The second part:Realization of justice of sentencing from procedure dimension: mode choice. First of all. through listing typical representatives of sentencing procedure model, the author introduces in two different sentencing procedure mode. Secondly, through the analysis, the author confirms that traditional of the law cannot be the obstacle factors for the countries of continental law system to construct the independent sentencing procedure.The third part:Sentencing procedure reform of China. First of all, the author introduces three kinds of typical sentencing procedure mode of the local court’s sentencing procedure reform, and give a comprehensive evaluation. Secondly, seting out from the current official mode of sentencing procedure of China, the author puts up that our country is walking in a dissimilated way, not jumping out from" syncretic " category, and not a complete "separation". This system improvement cannot really make sure "justness", but just district court’s response to sentencing procedure reform call of the Supreme Court. Finally, through the value analysis, theory analysis and demonstration of feasibility, the author confirms that China should construct the independent sentencing procedure.The fourth part:Design for sentencing procedure and the proof of sentencing facts. Firstly, the author emphasizes the specific linkage of conviction procedure and sentencing procedure, and divides the sentencing procedure into five stages: sentencing procedure before trial, sentencing hearing procedure, the final statement by the accused, court discussion, sentence. In the part of proof of sentencing facts, include the definition of sentencing facts and the difference between related concept. And then, the author elaborates the rules of evidence of the sentencing procedure stage, the allocation of burden of proof of sentencing facts, and the standard of proof.