On Discretionary Circumstances Of Sentencing

Abstract:Discretionary circumstances of sentencing is a sentencing plot.because of the provisions in the legislation is not clear and in theory does not attach importance to the discretionary circumstances of sentencing, many problems have appeared in the practice and theory. This paper studied on the discretionary circumstances of sentencing, first from the discretionary circumstances of sentencing and related theories, analyzes the concept, application of discretionary circumstances of sentencing, and the function, principle, and then compared with the world’s advanced legislative experience of the countries and regions, found that China’s current legislation and application of discretionary circumstances of sentencing the insufficiency, finally combining some of their own thinking, then summarizes the specific forms of action may be involved in sentencing plot further put forward a sound proposal.The structure of this article, except the introduction and conclusion, is composed of four parts.The first part through the comparative study of the concept of discretionary sentencing controversy, clearly the concept of discretionary sentencing, that discretionary sentencing is defined according to the spirit of law, criminal law, although not expressly provided, but it is extracted from the trial experience, and legal relative sentencing, reflecting the behavior of the perpetrator’s social harm and dangerousness and subjective vicious, both flexibility in sentencing by the people’s Court, and universal plot. Further analysis from the concept of a discretionary sentencing possess the specific characteristics and functions arising in practice, and finally briefly discusses the principles of sentencing discretion should be applied.The second part is the use of a comparative analysis, each of the countries and regions in the world advanced legislation on discretionary sentencing applicable for analysis, comparative analysis of the two legal systems, mainly through the country, to find some inspiration for the later sound discretionary sentencing and learn.The third part is mainly based on comparative studies, summarizes the current situation of discretionary sentencing legislation. Analysis of the existence of rationality, but also introduces the deficiencies that exist. Including discretionary sentencing does not pay attention, the applicable arbitrary, discretionary emphasis on the application of aggravating circumstances, reducing, eliminating incompatibility and undue influence of public opinion on issues such as plot trial practice, the reason can be classified as country for discretionary sentencing judge sentencing legislation is imperfect and not standardized.The fourth part is a combination of the author’s own thinking, put forward a sound discretion of the sentencing applies ideas from a legislative perspective, including a clear outline the specific form of discretionary sentencing may be involved, to provide theoretical support for the improvement of legislation, and proposed a be part of discretionary sentencing statutory and explain its reasons and some ideas. Finally, from sentencing to proceed, proposed to improve the quality of judges on sentencing perfect elaborate planning of specific content, as well as to establish a correct outlook sentencing. To improve through discretionary sentencing to fully protect the legitimate rights and interests of our citizens, to accelerate the realization of the goal of the rule of law.