Research On The Normative Application Of Circumstances Of Sentencing

Circumstances of sentencing are an important factor in the process of penalty application. Standardizing the application of circumstances of sentencing can relieve the phenomenon of sentencing imbalance to some extent, reduce the occurrence of over-heavy sentencing on the defendant, and also avoid infringing the interests of the victim caused by over-light sentencing on the criminals, which has positive significance on realizing the balance between crime and penalty and protecting human rights. Domestic research mostly produces a brief discussion during the process of studying on relevant problems such as standardization of sentencing, sentencing benchmark, benchmark punishment and so on. Research on the normative application of circumstances of sentencing is not enough.Since the sentencing normalization reform carried out, sentencing guidelines, sentencing methods, steps on the application of circumstances of sentencing and the scale that common circumstances of sentencing influences the benchmark punishment were regulated by the relevant laws and regulations. Guiding Opinions on Sentencing by Peoples Court (Trial Implementation) promulgated by the Supreme Court and other relative regulations bases on the sentencing idea that is not quite specific. The effect of the application of circumstances of sentencing in the judicial process is not satisfied, which resulted in a series of problems which need to be answered according to criminal theories:Why particulars of a matter can be judged as circumstances of sentencing? How does the sentencing basis affect circumstances of sentencing? How to grasp the scale that circumstances of sentencing influences the benchmark punishment? How to reason on the application of circumstances of sentencing normatively in the written judgment?It means to have a standard and basis to standardize the application of circumstances of sentencing. The sentencing basis depends on legitimacy of penalty. Different understandings about legitimacy of penalty result in different judgment and application on circumstances of sentencing. Since the modern times, there are all sorts of retribution theory, general prevention theory and individual prevention theory, interpreting the legitimacy of penalty respectively from different aspects. And in recent years, the idea of restorative justice is put forward.The application of circumstances of sentencing is determined and restricted by the sentencing basis.The role played by circumstances of sentencing in adjusting benchmark punishment shall not only meet with the balance between crime and penalty, but also realize the purpose of crime prevention and the idea of restorative justice. In specific cases, the application of circumstances of sentencing shall be based on the junction between sentencing basis and the social harmfulness of criminal behavior, the personal dangerousness of offender and the restoration achieved to the damaged relation; it is only the cause directly related to the crime can be considered as the circumstance of sentencing. During the process of measurement of penalty, the theory of the doctrine of responsibility shall be used as the dominant reference for the application of the circumstances of sentencing; the purposes of penalty in various eras, such as the demand of retribution and the prevention of utility, shall be reconsidered under the guidance of the principle of criminal liability. The measurement standard of specific penalty for various circumstances of sentencing shall correspond to the penalty basis respectively. Plots of prevention influenced punishment and the ones of responsibility influenced punishment shall be distinguished apart. Besides, great attention shall be taken to the influence degree of circumstances of sentencing on basic circumstances, centered on the combination point, in order to balance the relation between responsibility and prevention properly. Responsibility provides the penalty with prerequisite and boundary; the amount of penalty out of prevention shall not go beyond the boundary of responsibility. In conclusion, the application reason of circumstances of sentencing shall be regulated in written judgments, with well organized interpretation of the application basis, function and the influencing extent on basic circumstances of the specific circumstances of sentencing; and the logistic relationship among various circumstances of sentencing shall be noted.