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The Analysis Of Sentencing Balance In China

Posted on:2015-04-12Degree:MasterType:Thesis
Country:ChinaCandidate:K DuanFull Text:PDF
GTID:2296330431497223Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
In the background of the modern society with the rule of lave, accurate conviction and reasonablesentencing is the most basic requirement to the judges and the judicial activities. Accurate conviction is thebasis and premise for reasonable sentencing, and reasonable sentencing is the goal and effect for accurateconviction, and it will also bring the most intuitive experience and deepest feelings to offenders, victimsand the social public, and it will show fairness and justice to society directly. However, in judicial practice,the sentencing imbalance is increasingly serious. Sentencing imbalance is a worldwide problem actually,and the theories and practices of all countries in the world have made many useful explorations andattempts since a long time ago.This paper is mainly divided into the introduction, the body, which includes four small parts, and theending.In the introduction, firstly, the author describes the significance of the topic, and pointes out thenecessity and importance of studying the sentencing balance; furthermore, reviews the current research ofthis topic, introduces the study results of sentencing balance in academia and the further directions, andsummarizes related research; at last, pointes out the research methods, that is, using demonstration researchand comparative analysis and other research methods.The first part is an overview of sentencing balance, including the definition of the concept, thecontents, the theoretical foundation and the basic principles of sentencing balance.With differentunderstandings of the word "balance",there is not yet a unified and authoritative explanation for the conceptof sentencing balance. Sentencing balance essentially includes a case sentencing balance and the wholesentencing balance. The ideal state on sentencing balance is to achieve the sentencing balance in both timeand space. The direct theoretical basis of sentencing balance is the principle of the balance of crime. In ourcountry, the following principles of sentencing balance have been controversial.The second part describes the present situation of the sentencing balance,that is,sentencing imbalance,mainly including the forms, harms and causes of sentencing imbalance. The forms of sentencingimbalance is that different judges from the same court,and different courts in the same grade, and courts in different grades dealing the similar cases with different sentences. The harms of sentencing imbalance isthat it violates basic principles of the criminal law, and it is not conducive to the realization of the aim ofpenalties, and it destroys the value of the criminal law, and it is unconstitutional and a waste of legal, and itwill put a premium on the formation of a degenerate atmosphere, and it is harmful to penal justice, and itchallenges the judicial authority. Through the analysis of the causes of sentencing imbalance appearingconstantly in our country, it can be found that it is a mixture of many reasons. For example, the legislationis abstract, vague and indeterminate. The statutory sentence is too broad. The traditional idea of valuingconviction and neglecting sentencing is deep and profound. Neglecting the inspection and comparisonbetween the cases, the whole sentencing imbalance is more serious. With special trial system in China, thecourt internal authority division is unreasonable, separating the trial from the judgment. Different judgeshave different specialty levels and abilities individually, and the judge’s right of discretion is abuse. Inaddition, the development situation of our country and the security situation of our society are absolutlydifferent in different historical periods, so criminal policy will change accordingly, and the social public areputting pressure etc. All of those reasons can cause sentencing imbalance.The third part mainly discusses the Anglo-American law system and the continental law system withwhat kind of sentence patterns and the significance to our country. Through the comparison it can be foundthat the Anglo-American law system focus on the pursuit of the fairness of sentencing,and the properoperation of the procedure, and the individual justice. The continental law system pays more attention tothe results of entity justice. With the pursuit of finding the facts of cases, not enough attention is paid toprocedural issues. However, the current development trend is that,with learning from each other, theAnglo-American law system and the continental law system gradually merge in sentence patterns.The fourth part proposes suggestions to achive sentencing balance from the legislative level and thejudicial level.There is an including in the end. hoping to make some contribution to the sentencing balance in ourcountry, the theory will be developed in the criticism, and tested in the practice. And looking forward to myfurther study.
Keywords/Search Tags:sentencing balance, judge’s right of discretion, sentencing imbalance, sentencing pattern
PDF Full Text Request
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