The Study On The Independence Of Sentencing Evidence System In China

This paper aims to arouse more attention of field of criminal justice in sentencingevidence and to gradually change the past trend of emphasizing collection and applying ofincriminating evidence while ignoring sentencing evidence’s role in the sentencing processthrough study on the independence of sentencing evidence system in China.In section1, the independence of sentencing evidence system is analyzed logically.Firstly, the concept of sentencing evidence system is clarified, then the sentencing evidenceis compared with the incriminating evidence from the perspectives of role, scope and typeof evidence as well as the applicable evidence rules to specify that as the role orientationsof incriminating evidence and sentencing evidence in criminal justice are different, a lot ofdifference will surely be existed between them, so it will be necessary to distinguishsentencing evidence from incriminating evidence in court trial and such two kinds ofevidences shall be ascertained separately. In section2, comparative analysis is conductedon the independent sentencing evidence system of the Anglo-American law system and theincriminating-sentencing mixed evidence system of the civil law system through themethod of comparison. Due to effect of the religious culture, individualization ofpunishment theory and social return theory, and in the countries employingAnglo-American law system incriminating and sentencing are separately put in the totallyindependent incriminating proceeding and sentencing procedure with incriminating andsentencing trial on the defendants respectively conducted by different judgment subjects,namely, the jury and the sentencing judges, a set of complete sentencing evidence systemwhich is different from the incriminating evidence system has been established in thecountries employing Anglo-American law system. While the incriminating proceeding andsentencing procedure are not distinguished in the countries employing the civil law system,and the court trial is ceaselessly conducted by the same trial organization. As the judge hasaccess to evidences before the trial, the cooperativity of public security organs is greaterthan the opposability,and the lawsuit position of the defendant is relatively low etc.,incriminating-sentencing mixed evidence system is adopted in the countries employingcivil law system where there’s no distinctive boundary between the incriminating evidenceand sentencing evidence, and the same evidence rule applies to both evidences with theinvestigation sequence in the court trial being determined by the judge at its sole discretion.Under this circumstance, more emphasis is placed on the incriminating issue in both thepre-trial evidence collection conducted by the police and the procuratorate organs and thecourt investigation, and thus due attention is not given to the sentencing evidence and itsdue role can not be played. With the development of criminal theory, all countries employing the civil law system have gradually realized that the incriminating-sentencingmixed evidence system is counted against the accuracy and fairness of sentencing and haveconducted exploration on establishing independent evidence system in succession. China isthe country employing the civil law system with the incriminating-sentencing mixedevidence system applied and some inspiration on establishment of independent sentencingevidence system in China may be obtained through comparison on the evidence system ofthe two law systems.In section3, the current situation of the sentencing evidence in China has beenintroduced firstly from the legislative and judicial aspect. Incriminating evidence andsentencing evidence are not clearly distinguished in the legislation of China, there’re up to57statutory sentencing circumstances prescribed in the Criminal Law, however, no specificdescription has been given with regard to how to determine the punishment adjustmentrange corresponding to each circumstance. And no related regulation has been provided forcommon discretionary sentencing circumstances including the purpose and motive of thecrime, the method and approach of the crime and the usual performance of the defendant aswell as how should the judge determine the impact of such circumstances in givingpunishment. To standardize the sentencing conducted by the judge and achieve balancedsentencing, Opinions on the Sentencing Procedure and Guidelines on Sentencing have beenintroduced with a lot of regulations involving sentencing evidences included. However,such regulations are not systematic; instead, they’re relatively inattentive and scattered.Take the case of Yao Jiaxin for example, many key sentencing evidences are not putforward, and this reveals the lacking of sentencing evidence system in China evidently.Secondly, reasons for the incompleteness of the sentencing evidence system in China havebeen analyzed. Specifically, in tradition, the Chinese are emphasizing team and peoplegovernance, in contempt of law and personal rights and having the punishment concept ofretribution and the national psychology of quelling litigation. Considering from a practicalpoint of view, the litigation and investigation mode which incorporating investigation anddetection emphasizes condemnation and in contempt of sentencing with the sentencingreasoning process being not opened to the public. In section4, the legal principle andrealistic basis of the urgent need of establishing independent sentencing evidence system incurrent China are discussed. With the development of criminal theory, the individualizationof punishment theory has gradually been honored by the academics, that is, differenttreatment shall be implemented on each offender based on its personality characteristics,background and other personalized features. This will require the judge to explore thedifferent criminal motive of different offenders according to numerous highly personalizedsentencing evidences with significant differences. From a realistic point of view, at present, a relatively independent sentencing procedure has been established in China, and thematching sentencing evidence system should be established to enable the judge to fully usethe adequate time and space of the sentencing evidence provided by the relative sentencingprocedure, to have maximum access to the sentencing information and fully use such insentencing judgment.Finally, as the independent sentencing evidence system in China has not been fullyestablished yet, regulations of sentencing evidence are sporadically appeared in allnormative documents, and such regulations are going through preoperation now, there willbe a lot of issues remained unsolved in the process of exploration, the author illustrates theissues should be noted in the process of safeguarding the independence of the sentencingevidence system from the perspective of giving consideration to both efficiency and equityas well as coordinating the relation between the incriminating evidence and sentencingevidence and so on.