On Perfection Of Penalty Measurement Of Crime With Non-sentencing Circumstances In China

Providing support for procedural reform of penalty discretion standard in non-sentencing circumstances crime, it is necessary to do research on existed problems of penalty discretion in non-sentencing circumstances crime in sentencing guidance enacted by supreme people’s court and enforcement regulation enacted by local supreme people’s court. As a result, reasons why the judge cannot use sentencing guidance in penalty discretion in non-sentencing circumstances crime can be revealed. In current justice practice, there are three reasons why the judge cannot use sentencing guidance in penalty discretion in non-sentencing circumstances crime. Firstly, unbalance in penalty discretion in non-sentencing circumstances crime cannot be avoided when using sentencing guidance. Secondly, there is a narrow range in delimiting factors of penalty discretion in non-sentencing circumstances crime when using sentencing guidance. Thirdly, the use of sentencing guidance cannot lead the judge to correctly utilize discretion in penalty discretion in non-sentencing circumstances crime. Therefore, starting from two aspects, we can handle problems in normative penalty discretion in non-sentencing circumstances crime. First, Establish scientific regulations in penalty discretion in non-sentencing circumstances crime, which should fit the requirement of penal law, as well as critically treating sentencing methods in sentencing guidance and other sentencing methods considering their effects on penalty discretion in non-sentencing circums- tances crime. Second, supervising and urging the judge to correctly measure in s crime institutionally, it asks the judge to give rationalized instruction of penalty discretion in non-sentencing circumstances crime. Besides, before measurement in non-sentencing circumstancescrime, the judge is required to follow the precedent judgment, and the procurator is demanded to make evaluation for penalty discretion in non-sentencing circumstances crime given by the judge.