Study On The Special Mitigated Punishment System

Xu Ting case offers a rare research specimen for investigating the contemporaryrule of law, public sentiment and the science of law ecology in China, finally savedby the special mitigated punishment system, it should be said that the system cancontribute to suiting punishment to crime and sentencing justice in the value of thetheory, helping to rectify a deviation of the punishment constitution, keeping themoderate elastic of the criminal law, improving the response ability of the criminaljustice to the public sentiment. However, the operation state of the system in thejudicial is so pessimistic, presenting to be laid aside. This makes the rescue work tobreak the running barriers and recovery the vitality of the system urgent.In view of this, in the paper I will carry out the research and discussion on thespecial mitigated punishment system, hoping for making a little contribution forimproving the system. By exposing the embarrassment of the system, namely thequantity of the case is small and on operation level the system is evaded technically,exploring the causes which leads to the dilemma. The provisions of substantive law istoo abstract, the special case is unknown, so this is not conducive to the identificationby the judge. And the procedure which is approved by the Supreme People’s court istoo harsh, the operation cost is too high. Lack of specific approval procedures isunable to realize the benign interaction between the entity and the procedure. At thesame time, the judge who is osmotic and enveloped by the penalty concept whenapply the system will not be conscious to join the ranks of the severe punishment. Theinternal performance evaluation mechanism give judges much pressure, making thespecial mitigation system one disaster after another and surviving in the cracks.The legitimacy innspection of the special mitigated punishment system aims ataffirming the value of the theory’s function.The relationship with the principle ofstatutory crime and penalty is the basic lifeline about its survival. The possibility ofsubjective discussion and criticalness is the meaning of the legal interpretationobjectivity, the special mitigation system helps to enhance the response capability ofthe criminal judgments to the public sentiment; Certainly, it will also benefit to thereconstruction of the penalty structure, suiting to build the light punishmentmechanism. In addition, the system also has the legal basis. Then, normativeinterpreting the system components such as below the legal punishment and mitigatecan make the system operating smoothly. Finally, it is the enquiry of the specialmitigation system. The entity obstacle of the system’s running is difficult to graspthe provision, so categorizing the typical cases which have been approved beforeamending the law is the best choice. It is urgent to moderate decentralization the approval authority because of the harsh procedure. At the same time, we shouldimprove the specific provisions of the approval procedure. Only in this way, can wetruly release the vitality of the special mitigated punishment system.