Sentencing Benchmark Established Methods Of Research

Sentencing imbalance to some extent is hidden behind the criminal jurisprudence mature crisis. It is this mature tied the hands of the legal theory and practical circles, left unchecked, resulting in unmanageable. Solve the sentencing imbalance is not an overnight thing, nor is perfecting a system can be solved, but always take measures to solve. Sentencing standards established is one of the solutions. Sentencing Standards in China is still in its infancy, the performance from the concept to the established method in the sentencing standards are not conclusive, the research field in practice almost no effect on the practitioners Sentencing benchmark also need more in-depth study and need more attention. It is for this reason, the author choose sentencing reference as the research object. In order to do a bit of sentencing reference research contributions, though it is my own standpoint but at least provide a different research perspectives and ideas.The first part, establish sentencing reference theory and practice basis. The first is to extraterritorial sentencing reference theory, practice and elaborates the enlightenment respectively, the civil law and common law as well as our country Taiwan area about sentencing reference theory and practice the basic introduction.This article mainly through to Japan, Germany. British and American and Taiwan and other legal research and practice is in the leading level in the countries and regions is introduced, such as, Japan’s referee in practice formed a "sentencing of amplitude variation value"."Sentencing of amplitude variation value", is actually after years in the case of all kinds of punishment accumulated experience, the development for all kinds of cases of sentencing a prediction quantity, that is to say a certain case corresponding certain punishment amplitude, the judges, the heart is a benchmark. Through the introduction of such order from which can be found in our country is established where sentencing reference reference. Secondly, to establish the theory basis of sentencing benchmark is discussed, this paper mainly based on at present our country Taiwan, Japan. Germany,the United States and other countries on the aim of penalty, the mainstream of new classicism, on the theory basis of sentencing reference to carry on the analysis. Again, analysis to establish the theory basis of sentencing benchmark. Mainly from the judge’s discretion need constraint, sentencing reference existence is inevitable, traditional Chinese sentencing is taken GuDui sentencing and in the judicial practice, the perpetrator’s appeal and complaint or procuratorial organs in protest for sentencing part is.often difficult to successful four aspects is discussed.The fourth part, sentencing reference standard way. Sentencing reference standard refers to the sentencing benchmark unification. According to whether to the judge have mandatory standard force this standard, can put the sentencing benchmark standardized way is divided into formal way and informal ways. In a formal way there are three:one is the lawmaking Angle. That is the legislature to formulating relevant legislation documents, put all the charges and concrete legal punishment sentencing benchmark corresponding provisions one down, forced the national judicial staff to do. The second is the court Angle. Namely the court trial committee summarized this court trial experience, and then through the "sentencing guidance" sexual normative documents, used to regulate this court the judge’s sentencing. Three is a judge Angle. Namely by the judge in the trial practice slowly summary, make specific abstract a sin sentencing reference in a number of senior judges experience under the interaction of spontaneous formation. The so-called sentencing datum standardization of informal way is to criminal law theory workers opinion research. Although informal way to establish the sentencing benchmark for the judge not binding, but the criminal law theorists still can’t give up for sentencing reference research, because theoretical research to practice the influence of boundary is of exert a subtle influence on.