The Study On The Participation Of Criminal Victims In Sentencing

Traditional criminal justice treated the criminal suspects and defendants’ status as the center of litigation, focusing on the protection of criminal suspects and defendants’ rights and interests, neglecting the criminal victims. The countries of the world made a reflection on this, and launched a victim protection movement. The protection of criminal victims’ legitimate rights and interests has increasingly become the focus of the circles of theory and Practice. Protecting criminal victims to participate in sentencing procedure and properly influence the judgment, has become the target of procedure reforming.The reform of sentencing standardization is implemented in our country since 2010, although the attention on the participation of criminal victims in sentencing has been increased, the fact is still not just as we wished. This paper mainly analyzes the participation problem of criminal victim in sentencing, which except the cases of reconciliation of the parties, and proposes the suggestions of the participation of criminal victims in sentencing of our country.The body part of this paper includes four sections:The first part mainly analyzes the legitimacy of the participation of criminal victims in sentencing. Firstly, this paper summarizes the argument of whether the criminal victims should participate in sentencing between the circles of theory and practice, and proposes own opinion that the criminal victim should participate in sentencing, refutes the opposite views. Then, the paper discourses the basis of implementation of the participation of criminal victims in sentencing in our country from five aspects, which includes restorative justice theory, protection of rights theory, participation of program theory, penalty function theory and the national criminal policy of temper with mercy.The second part mainly investigates on the system and practice of the participation of criminal victims in sentencing in our country. Firstly, it is about the law of the participation of criminal victims in sentencing in our country. Our “Criminal Procedural Law” and relevant legal norms have relevant provision, which has provided a legal basis for the participation of criminal victims in sentencing. However, there are still some shortcomings about the participation of criminal victims in sentencing in our country, such as the provisions about the subject, the form, the voluntary, the specific procedures and related system are indefinite etc. Then, through analyzing the cases that had concluded in 2013 in a district people’s court S city, the paper discovers some problems about the participation of criminal victims in sentencing in judicial practice, for example, the number of cases and proportion is low, the types of cases is not comprehensive, the method of participation is monotonous, the views is easy to be accepted by judge, and the participation at the stages of review and prosecution is disconnect with trial procedure etc. Through analyzing the actuality of the participation of criminal victims in sentencing, this paper summarizes the reasons for those problems, which are low awareness of individual rights of criminal victims, lack of legal knowledge, attention of the compensation for the criminal victims’ loss, the implementation of the legal aid system for criminal victims is not ideal, and the attention of judge for the views of criminal victims etc.The third part mainly investigates the foreign patterns of the participation of criminal victims in sentencing, and puts forward own suggestion to perfect our country’s pattern of the participation of criminal victims in sentencing. Firstly, the paper analyzes and compares the two foreign patterns of the participation of criminal victims in sentencing, which are victim impact statements pattern and victim express own views on sentencing pattern, and finds the two patterns are different in such aspects as, the contents, the basis, the forming stage, the form and the function of litigation. Then, according to our country’s actual situation, the paper puts forward suggestion to perfect our country’s pattern of the participation of criminal victims in sentencing, learning the content of foreign pattern of victim impact statements, and combines with the provision of our country.The fourth part puts forward own views on perfecting related system of the participation of criminal victims in sentencing in our country. Firstly, it is about the subject of the participation of criminal victims in sentencing. Considering the different criminal victims’ situations in different cases, the right of the participation of criminal victims in sentencing can be used by themselves, legal representative, close relatives and agent ad litem. Secondly, it is about the form of the participation of criminal victims in sentencing. The the content of victim impact statement should be fixed down in the written form. It is unnecessary for the victims to write down their views on sentencing, and they can use verbal form. Thirdly, it is about the voluntary of the participation of criminal victims in sentencing. Considering the particularity of the criminal victims, they should have rights to choose whether to exercise this litigation rights that they have. Fourth, it is about the specific procedures of the participation of criminal victims in sentencing. The paper puts forward the concrete procedure while criminal victims participate in sentencing at the stages of review and prosecution and trial procedures. Lately, it is about the related system. To achieve the goal of the participation of criminal victims in sentencing, it is necessary to protect victims’ rights to know, protect the personal safety of victims and their families, perfect our country’s legal aid system, and provide appropriate relief to criminal victims when their rights have been infringed.