How The Motivation Influences Sentencing

The motive for the crime is an inner cause for criminal to commit a crime, reflecting the criminal’s subjective malignant, personal danger and social harmfulness. Accurate definition for motivation of crime, is the requirement by the purpose of penalty, and the base for balanced sentence and individualization of penalty. In China, there is common sense that the motive for the crime affects sentencing, but there is not sufficient discussion on the nature and specific role ol criminal’s motivation, not to say further theory based researches. While a lot of countries consider criminal’s motivation as an important factor for penalty, or even one element of crime, crime motive in China’s criminal law is not clear, without clear provisions in the penal code, nor applicable provisions in normative documents. Generally speaking, we only include motivation as a consideration for sentencing, depending on subjective measurement of the judge.Thus, the motive for the crime in our criminal law theory and judicial practice has not been given enough attention to. Therefore, this article discusses deep into the mechanism and the specific role of criminal motivation on sentencing, pointing out that China should enhance legislation for criminal motive. In the same time, I raised my own specific standards and methods to measure motivation in sentencing.In the first part, starting from psychology and criminal psychology, this article introduces the meaning of motive and the motive for the crime, making it clear in legislation. The biggest characteristic of motivation in crime law is that it comes out of crime and has a time lag. The distinction between criminal motivation and non-criminal motivation makes this clear:crime motive exists not only in the direct intentional crime, but in almost all criminal behavior. From evaluating the characteristics of motivation by the specific evaluation mechanism of criminal law, criminal motivation affects criminal law by influencing sentencing.The second part reveals that the motive for the crime in the judicial application plays an important role in realizing the purpose of penalty. To realize the purpose of penalty is inseparable from the coordination of priority of retribution and punishment, because crime motive reflects the personal characteristics and behaviors, which are factors to realize two kinds of penalty. So as to realize the purpose of penalty, the justice of sentencing is reasonable or not will be affected by motive for the crime.The third part of this article analyzes the way motives affects sentencing from two aspects of legislation and judicature. First, many countries have clearly defined crime motive in the criminal law. In contrast, the relevant provisions of our country is scanty. In order to underline criminal motive in sentencing in our country’s criminal law, we should first create more specific provisions in legislation. Second, knowing the nature of difTcrent motives of crime is the premise for its functioning. Obviously, the judicial practice need to measure whether it is crime before the plot or after the plot so that it could be used under regulation.In the fourth part, the article discusses the mechanism for which criminal motivation affects sentencing. From the macroscopic aspect, crime motive influences not only the individual crime determination and the role of the penalty. From the microscopic aspect, it affects adjustments benchmark punishment, to the concrete steps ol sentencing. In this regard, it should be specific considerations on sequence of measurement and feasible adjustment, which is also the emphasis of this part.