The Classification Of The Sentencing Plot

According to the criminal law of the article61of our country:in accordance with the provisions for the criminal decided to punish,shall, according to the facts of the crime,the nature of the crime,the plot and to the harm of society,in accordance with the provisions of the relevant provisions to sentence.This is the principle of sentencing circumstances apply. But the vagueness of the stipulation that itself against sentencing plot correctly in the judicial practice. Susceptible to sentencing deviation. This needs the categorization of sentencing plot in seize its essence attribute that is in fact and the value point of the new classification on the basis of the development to adapt to the changing of the judicial practice.It is self-evident that sentencing plot in criminal law is the important role, and sentencing plot can properly in the judicial practice application is directly related to national security and social stability. Sentencing injustice will directly damage the judicial justice, authority figure, easy to cause the victim and the relatives and friends and conflict between criminal and judicial personnel, undermine the confidence in the judiciary and the rule of law society. Sentencing justice is built on the basis of the specific individual justice, and the specific case in sentencing the sentencing circumstances of the need to consider many has nothing to do with crime, merits, such as minor crime recidivism, etc.So the author thinks that "felony heavy sentences, misdemeanor lenient sentence penalty when the crime" is not the connotation of sentencing justice; On the contrary, the expression of misleading the role of outside the given circumstances of the judges to ignore, it is bad for the realization of sentencing justice.In recent years, with the perfection of legal system construction in our country and the rule of law the advance of the society, people’s demand for justice rapid growth. The impact of different circumstances of sentencing also, at the same time of sentencing plot theory research is also one of the most basic of modern criminal law theory problem.. Sentencing plot of classification is the premise to correctly apply the sentencing plot, is the opportunity to promote the justice of sentencing, also is advantageous to the principle of balanced the ideal state of the criminal law. In this paper, based on the brief analysis of sentencing plot classification theory, the sentencing plot is proposed from the Angle of fact and value, the classification of specific ways.The author argues that establish a fact judgement and auxiliary value judgment classification criteria for the classification of typed sentencing plot.Under the guidance of this article is trying to, in accordance with the above ideas, mainly from the following several parts.The first part of introduction, mainly includes the research purpose and meaning of the article, in this paper, the research ideas, research methods in this paper.The second part classification of sentencing plot theoretical basis. Any discipline to leave the most basic theoretical basis, will be "madrassa reflected, non-existent. This part mainly includes the value of the sentencing plot classification basis law objective, subjective, based on practice and on the basis of comparing various traditional theories on to redefine the connotation of the given circumstances.Because the theory of crime is the pursuit of social value, from the point of view of the value theory, theory of criminal law, crime and social about whether social security form and realize the difference between state and degree of value relationship."Law mainly is the study of value often involves at least value problem". Of any society is determined by the science and technology in a leading position of the basic characteristics of namely or concreteness and abstraction, generally determines the basic requirements of society for their own safety, on safety, the society can tolerate the minimum, is the core interests of the social security at different periods, the difference will affect and decide the basic features of crime in criminal law system, and because the basic features of social sex differences between criminal theory system. As to lay a theoretical basis for later development. Sentencing plot the objective basis of mainly embodied in the social harmfulness. Reflects the social harmfulness of the size of the facts of the crime and as a basis for the sentencing, on the basis of sentencing plot has powerful function in theory. The concept of social harmfulness is refers to the behavior of criminal law to protect social relations or cause or may cause damage facts of one kind or another. Harmful to the society as the objective foundation of sentencing is primarily by the amount of harmful to the society to achieve to guide actual trial judge’s discretion. Social harmfulness as a basic concept in the theory of criminal law in our country, not only in the theory of crime and widely used in the theory of criminal responsibility and penal theory, mainly is the social harmfulness is a set of theory of crime and punishment theory of concept, relatively objective and with clarity and pertinence. Sentencing plot of subjective foundation of criminal personal danger. Personal danger is the concept of modern criminal law school in the original theory, but also the cornerstone of modern criminal law theory. According to the criminal’s personal danger when sentencing sentenced to different punishment is almost money in the countries all over the world. This embodies the principle of adaptive principle, and reflects the appropriate to the principle of culpability. The basis of the practice of sentencing plot mainly embodies in the discretion of the judge. Because as part of the penalty discretion sentencing plot application process, at the discretion of the judge is the judge in the process of the trial of criminal cases have or the exercise of discretion, it includes two aspects of criminal procedural law and the criminal substantive law discretion. But for the substance of judge’s criminal discretion, our country legal science there is no unified understanding. But there are any legal punishment some penalty discretion scope, the judge declared within the scope of this decision on behalf of the country, namely the exercise of penal discretion on behalf of the state. In addition to redefine the connotation of sentencing plot.The third part mainly sentencing plot new way of classification. This part, first of all, to the traditional criminal law theory in the classification of sentencing plot from the comparative analysis of different theories on the basis of the system. Nine kinds of views on the analysis of the contrast in the traditional criminal law on the basis of summarizing the existing theory defects:perspectives on the classification of sentencing plot is generally more than nine point of view, to say the scholars of these views are basically similar, also from different sides reflects the our country present stage sentencing plot theory in criminal law theory of academic achievement, is of great significance, although from the form, there’s nothing wrong with these views, but in essence, the author thinks that the defect is obvious, which does not address and answer the essence of the classification of sentencing plot. In what kind of punishment within the limits of the prescribed affection is no, what kind of sentencing plot is strict, what kind of plot is lighter, what kind of plot and alleviate? These are not clear. Therefore the author puts forward the captured the essence of things attributes that sentencing plot are classified in terms of fact and value, first to determine the criteria for the classification of sentencing plot, criminal facts and social harmfulness of standard, the former is a fact, the latter is of value, is also mentioned by Hume "is and should be" different standards; The former is abstract, and use easy to lawmakers, who is another, easy to spread and use of judicature. The categorization of sentencing circumstances should first clear the standard of classification, thus determine sentencing plot the presuppositions of correct classification standards of classification.Fact judgement is a reflection of the reality of an object, whether its true or false depends on and object to coincide with the actual situation. Value judgment is the relationship between the subject and object. Circumstances for sentencing is the value judgment standard of value in the plot level category is made up of actor of the subject and the object of legal interest. Crime is the ultimate value of event is harmful to the society, but due to differences in standards of crime, it is the latter social meaning or facts that may be. When crime need value judgment standard is that the social harmfulness as the standard of the specification. And in fact judgement and value judgment standard is analyzed. Determine the fact that the plot and the plot of the value of two kinds of classification.The fourth part to establish the system of sentencing plot. Firstly analyzing the status quo of the sentencing imbalance is serious at the present stage in China and proposes the establishment of sentencing plot system by means of case necessary and urgent. Sentencing plot system should be established typed at the same time, as well as the significance of establishing sentencing plot system typed, finally proposes the specific way to construct the sentencing plot system typed.