Research On Compensation As A Circumstance Of Sentencing

Since twentieth Century, the victim’s legitimate rights and interests has attracted great attention. Victimology got unprecedented development. The status of the victim in criminal policy constantly improve. Criminal reconciliation system in the concept of restorative justice flourish. As the main way of the specific implementation for the criminal reconciliation, compensation began to get rid of the fate of being ignored and are active rapidly in the field of criminal law. In China, the rationality and feasibility of the compensation’s impact on sentencing have become the focus of scholars. But few scholars research its status of judicial application in practice.Not only the Supreme People’s Court’s relevant provisions affirm compensation’s impact on sentencing, but also treating compensation as a circumstance of sentencing in judicial practice. The compensation in judicial application resulted in a series of problems which need to be answered according to criminal theories such as how compensation impact on punishment, how to balance the impact, can "refusal of compensation" be a circumstance of sentencing. Legitimacy of sentencing decides Sentencing’s circumstance’s identify and apply the legitimacy of sentencing depand on legitimacy of penalty. The paper bases on the merger doctrine which the fit of offenses and penalties is main, individualization of penalty is secondary and the concept of restorative justice, analysis the legitimacy of compensation as a circumstance of sentencing.The justification for the penalty is retribution justice and the reasonableness of crime prevention purposes. Therefore, sentencing not only be balanced with the seriousness of the crime itself. but also accord with the purpose of crime prevention. The compensation has the dual function of retribution and prevention, compensation is the modern retribution to some extent, compensation for the loss of the victims and their families achieve retributive justice to a certain degree. At the same time, the compensation for increased cost of the perpetrators of the crime to avoid the offender to obtain benefits from criminal conduct, reached a certain degree of general preventive purpose. The penalty is not necessarily the inevitable result after the crime occurred, is not the only means of crime prevention. In some cases, by way of compensation or compensation co-exist with other forms of liability can achieve the purpose of crime prevention, there is no need to impose tougher penalties on offenders, circumstances of sentencing have the direct relevance to the seriousness of the crime and personal dangerousness of offender, otherwise the subject is a kind of reason for judging circumstances of sentencing. Compensation be able to show that the offenders’ personal dangerousness is reduced, the necessity for prevention is reduced. Compensation repaired the losses caused by the criminal acts and the damaged social relations to some extent. These attributes of compensation laid the foundation for its status in law, provided the basis. Compensation requires a certain premise condition to become a circumstance of sentencing, namely the losses caused by the criminal acts can be repaired by compensation to a certain extent, there is subject that can accept the compensation. Although compensation’s impact on sentencing has the rationality, but that does not mean that offenders must be given a lighter punishment in all criminal cases by compensation. The money can not be used to buy punishment. The compensation is only a factor that measure offenders’ repentance. Compensation as a circumstance of sentencing to have a reasonable impact on sentencing must rely on the bond points between compensation and sentencing and combined with other factors in cases:the offender’s personal dangerousness, the necessity for prevention, the restoration of material damage and social relationships. To refuse to compensate can’t be taken as the circumstances for more severe punishment. Otherwise it will lead to the error to repeat the evaluation, lost retributive justice and utilitarian justice.