Research Discretionary Sentencing Issue

Discretionary circumstances of sentencing as one of the most difficult problems incriminal sentencing system, has been hot continuously, especially in recent years with thegradually thorough of the standardization of sentencing reform，because of its unique positionand function in the sentencing procedure, this problem has caused scholars’ further attentionand thinking. Proper definition and understanding to its connotation, grasp its content,features and functions, and thus to correct apply and perfect, is of great significance for therealization of judicial justice and the rule of the criminal law. Therefore, based on theintegration of criminal thought,firstly, concept, characteristics, function, content of it arediscussed, then as the standardization of sentencing reform as the angle of view, theapplicable principle is established. Taking " sentencing guidelines (Trial)" as a reference, theapplication about it is discussed, then highlighting the analysis to relationship of a variety ofcircumstances of sentencing under the condition of coexistence. Finally, some suggestionsabout the discretionary circumstances of sentencing are put forward. This article except theintroduction and the conclusion is divided into three parts.The first part is the explanation of the concept, connotation and extension about thediscretionary circumstances of sentencing. This part is divided into three sections, the firstsection is based on the analysis of the domestic concept of this problem, clearly its legalproblem, form source, and scope, so that the author puts forward his concept about it, andthen defines the connotation, limit its extension. The second section is divided into two parts.Firstly, its three characteristics are expounded: universality, illegal qualitative content,independent function of two-way; Secondly, it is the system analysis about its independentfunction, including making up for the defects of legislation, regulating the criminal discretion,under the relative crime punishment legal principle, the function is to adjust the legalpunishment and declare the punishment decision; consideration and application of it is therequirements of the realization of retribution restricting utility penalty concept. The thirdsection is about its content. First of all, some common discretionary circumstances ofsentencing that existed in the judicial practice are listed. Secondly, controversial issues aboutits content were interpretated, mainly consists of three parts: the public opinion, the socialsituation and the criminal policy. The second part is about the problems of standardized application to the discretionarycircumstances of sentencing. This part is divided into two sections. Firstly, it is about theestablishment of the applicable principles of discretionary circumstances of sentencing. Thissection putting the sentencing principles as the breakthrough point, efforts to reconstruct:applied in accordance with the law, balance between criminal responsibility and penalty,prohibiting repetitive assessment as its three principles of application.The second section isabout the standardized application. This section is divided into three subsections. The firstsubsection is about to advocate reforming the current penalty method. On the basis of theempirical analysis, to further clarify the quantification of body, to make the circumstances ofsentencing have numerical, to construct the penalty method that the quantitative analysis forthe basic principle and qualitative analysis as a supplement. And taking this as the premise,using " sentencing guidelines (Trial)" as the model to discuss its quantitative application inthe sentencing process in the second subsections.The third subsection is about the analysis ofthe relationship among the multiple circumstances of sentencing, including: the statusrelationship between legal circumstances and discretionary circumstances of sentencing in thesentencing process, the competing application problem about a variety of circumstances ofsentencing and caused special problems, namely the concurrent application of a number ofadverse circumstances of sentencing whether or not exist the sequence of application.The third part is about the legislative and judicial perfection to discretionarycircumstances of sentencing. This part is divided into two sections. The first section is aboutthe legislative perfection to it. In order to define its position, the author takes the principle ofentity and procedure of synchronization for guidance to put forward the suggestion. In thecriminal procedure law, by the independent sentencing procedure, the statutory of sentencinginvestigation system, the institutionalization of sentencing proposal, to achieve the purpose ofstandardize、perfect the discretionary circumstances of sentencing. Section two is about theimprovement: In order to strengthen the mandatory and standardization, case guidance systemshould be established; improving the occupation training of judges, enhancing the depth of thejudgments and the degree of trial openness; strengthening the construction of the procuratorialsupervision and internal supervision mechanism of court.