Re-thinking About The Sentencing Methods

With the reform of Sentencing Standardization moving forward continuously, ourcountry criminal law educational world and the judicial practical departments more and moreemphasis on the study of the punishment theory and sentencing practice in depth. As animportant subject of penology research, sentencing method not only is closely connected withthe penalty theory, but also closely connected with sentencing practice. Re-thinking deeplyabout the issues of sentencing method, that is in order to make up for the defects anddeficiencies of current sentencing method, perfect punishment theory system,propel thedevelopment of the theory of sentencing; prompt the judge to understand sentencing laws,apply sentencing methods scientifically; overcome the sentencing deviation phenomenon,realize the impartiality and rationality of sentencing.Based on abundant literature and survey material as the research basis, this thesis takesvalue analysis, comparative research, logic analysis, sociology of law and other methods, inaccordance with the logical thinking of “the theory in preference to the practice”,“theforeign in preference to the domestic”,“the macro in preference to the microscopic”, combsthe basic theory and practical application problems of the domestic and foreign mainsentencing methods systematically, especially the theoretical basis, practical problems andimproving measures of the Standardization Sentencing Methods are discussed in depth.The count of the word number of this thesis is about42000.Except for the preface andconclusion part, the thesis is composed of the four components.The first part is an overview of sentencing method. It mainly concerns how to definitethe concept of sentencing method and sentencing model, as well as how to clarify therelationship sentencing method and the sentencing model, and advocates the theory of “thedistinction of sentencing method and sentencing model”. This thesis mainly discusses thetheoretical value and practical significance of the sentencing method, puts particular emphasison the sentencing method how to enrich the punishment theory, understand the sentencinglaws, prevent the deviation of sentencing and promote the credibility of judicial.The second part is the comparison and revelation of foreign sentencing methods. First ofall, it is to compare the main content of American and British sentencing guidelines; secondly,it is to compare the rules of the sentencing benchmark of Germany and Japan; finally, it is to compare the reform of the sentencing methods of Anglo-American law system andcontinental law system. Through the internal comparison and external comparison ofsentencing methods of the two genealogies of law, the thesis provides the reform of thesentencing methods of our country with three important revelations: the first, it must takeactively the position of the Eclecticism; the second, it is reasonable to limit the judgediscretion; and third, it is to use scientifically quantitative analysis method.The third part is the exploration and practice of domestic sentencing methods. First of all,it is to discuss the retention and abolition of the Traditional Sentencing Methods, expoundrespectively the different views of the supporters, the opponents and the author. Secondly, itis to study the Modern Sentencing Methods, to introduce mainly the mainstream views andbasic views of the criminal law educational world and the author who think over theComputer Sentencing Methods, Mathematical Sentencing Methods, Sentencing Methods ofFoundation Punishment. Lastly, it is a review of the Standardization Sentencing Methods, toanalyses and demonstrates the historical evolution, main contents and the pros and cons ofthe Standardization Sentencing Methods comprehensively and objectively.The fourth part is the problems and improvements of the Standardization SentencingMethods. In the first place, it is the profound reflection of the theoretical basis problems of theStandardization Sentencing Methods, to expound the theoretical defects and deficiencies ofthe Starting Point of Sentencing, Sentencing Circumstances and Benchmark Punishment. Inthe next place, it is the profound reflection of the practical problems of the StandardizationSentencing Methods, to probe into the difficult judicial practical problems of the StartingPoint of Sentencing, Sentencing Circumstances and Declared Punishment. In the end, it is todissect profoundly the reasons of the above problems, to draw beneficial experience from thereform of sentencing methods at home and abroad, to assert making every effort to carry outthe position of the Eclecticism, to standardize the judge discretion, to strengthen thesentencing empirical research, to perfect the sentencing rules, etc, hope for theStandardization Sentencing Methods get amended and perfect continuously.