On The Construction Of The Independent Sentencing Procedure

From today’s major countries in the world of criminal legislation and the judicial practice, conviction and sentencing procedure mixed and conviction and sentencing procedure independence is the treatment of conviction and sentencing the relationship of the two main modes. Separate process of sentence patterns are generally found in the countries of Anglo-American law system, and convicted sentencing procedure program phase separation, through independent sentencing procedure to solve the criminal punishment on the defendant problem; mixed model general sentencing procedure in civil law countries, sentencing procedures and convicting procedure mixed, in court trial phase resolved defendant’s conviction and sentencing. Our country adopts the conviction and sentencing procedure in solving the mixed mode, whether the defendant constitutes a crime and constitute what crime and guilty defendants penalty problem.However, China’s current criminal trial pays much attention to the facts of the crime investigation, and ignore the sentencing facts of the investigation, the defendant is unable to fully explain may influence the judge sentencing plot and the fact that the judge in the trial, the sentencing judge not, sentencing is the collegiate bench judges in the Office or collegiate interior done in secret, in the after such a " background ", conviction and sentencing, released results, outside cannot witting collegiate on sentencing sentencing how to consider, the results is reasonable or not. But " the fair sentencing, the pursuit of equality, human based just on the simple idea of criminal law the permanent impulse. In spite of criminal law have occurred in the history of the imbalance of the criminal legislation and criminal justice, but the human yearning for a better balance between crime and punishment is never stopped." Due to the lack of independent sentencing procedure in the criminal law of China, together with the wide range of statutory penalty, leading to the discretion of the judge is too big, people in the evaluation of sentencing fairness is reasonable or not is always fair and reasonable doubt, even if the measurement result is also difficult for the public trust. People to build a transparent sentencing procedures, standard sentencing methods are increasing, but also triggered a lot of scholars and the local court for sentencing procedure exploration. The Supreme People’s court established the independent sentencing procedure, but in the judicial practice, there are still some problems to be solved, and cannot be solved from the system of sentencing is not open, the opacity problem. The judicial practice shows that, compared with the mixing procedure of measurement of penalty, the independent sentencing procedure can guarantee the entity justice and procedure justice of sentencing sentencing realization, also represents the development direction of sentencing procedure."From practice to practice " is the research route, to China’s conviction and sentencing procedure program status as the logical starting point, to the two legislation status, legal status as the sample for analysis, summarized the problem of existence, clarify the cause of the problem; with our country penalty procedure construction the logical starting point, focus on solving problems in judicial practice. In the course of the study, the thesis adopts the method of comparative analysis, historical research method and system research methods, namely two kinds of sentencing procedure mode to undertake comparative study, draw lessons from the construction of our country’s sentencing procedure to provide material; China’s sentencing procedure reform undertakes combing, is an independent sentencing procedure was constructed to provide a train of thought; on this basis, proposed target-oriented suited our country court status independent sentencing procedure, and puts forward the related suggestions.The basic idea is:in our country, the sentencing procedure from trial procedure in isolation, it accords with our country’s judicial system and judicial reality independent sentencing procedure. The program to the power of sentencing proposal as the basis, to the defense equal participation in decision-making, the full exercise of sentencing sentencing debate right as security, giving the victim and defendant equal and independent legal status, and enjoy independent sentencing claim right, judicial organs on the basis of discretion, make a sentence results.The innovation of the thesis is on the basis of the different cases, construction of two yuan of independent sentencing system:namely the peccavi of the accused, for a case in summary procedure, the establishment of simplified conviction link special sentencing hearing procedure; the defendant not guilty, to apply the ordinary procedure cases, convictions and sentencing hearing procedure establishment, guarantee the defendants, defender, the victim to sentencing procedural participation, realize the goal of sentencing justice.