The Sentencing Prevent The Penalty Imbalance In The Production And Sale Of Fake Medicines Crime

The concept of imbalance of criminal penalty is proposed on the basis of the theory of balance between crime and punishment, and the theory of individualization of punishment, it is different from the reasonable criminal penalty differences due to both of the above two theories, but the concentrated reflection of inequality in crime and punishment in respect of declared sentence, and reflects the issue of standardization of legislative and judicial punishment. The imbalance of criminal penalty should be prevented with great efforts, because it concerns the construction of the rule of law, social stability, safeguard of human rights and other major issues."The (Eighth) Amendment to Criminal law" does play a major role in the sense of protection of people’s livelihood, but also deepens the degree of imbalance of criminal penalty of the crime of production and sales of fake medicine (hereinafter referred to as "fake medicine crime"). The harm is objectively manifested as the imbalance of criminal penalty in legislation and the sentencing imbalance in judicial application, which may cause vague of the criterion for sentencing and injustice of sentencing of the fake medicine crime; the harm is subjectively manifested as limitation of ideas and rigidity of the way of thinking, which may produce the thought of heavy sentence and be lost in the misunderstanding of subjective culpability.The apparent reason of the imbalance of criminal penalty is the defect of legislation technology and anomie of judicial discretion, which is reflected in the uncertainty of unlimited pecuniary penalty, dysfunction of punishment against competence, lack of accountability system and inaccuracy of exercise of discretion; the implicit reason is the lack of occupation accomplishment and conflict of legal rights, which is reflected in the legislators’and judicial personnel’s lack of understanding of the spirit of the criminal law and the imbalance between the legislative and judicial powers. Whether the measuring sentencing pattern represented by the United State or the logic sentencing pattern represented by the United Kingdom, both patterns are intended to get rid of the imbalance problems; the standard of sentencing whether made by the sentencing council, bar association or made by the people’s courts, all of them are intended to establish a system for prevention of sentencing imbalance. Based on the current judicatory situation in our country, the prevention of sentencing imbalance should focus on the two aspects of substance and procedure. At the substantial level, to emphasize the reasonable determination of the criterion for sentencing and standardization of the circumstances for discretionary sentencing, so as to achieve a unified, scientific methods of sentencing and realize the purpose of prevention of sentencing deviation; at the procedural level, to emphasize weakening the authorities of trial subjects, strengthening the powers of the complaining subjects, and conferring corresponding rights upon other participants, so as to achieve the effect of safeguarding the legitimate rights and interests of the parties and regulating discretion.