Research On The Question Of The Concurrence Of Sentencing Circumstances

The main process of sentencing is the application of circumstance for sentencing. Therefore, appropriate application of the circumstance for sentencing is a prerequisite and safeguard of just results of sentencing. Application of circumstance for sentencing involves sentencing facts with application of one circumstance for sentencing, application of multiple circumstance for sentencing and applications of same circumstance fact for sentencing evaluate compliance with multiple sentencing circumstances, called the concurrence of sentencing circumstances. As can be seen from the above-mentioned situations, in terms of concurrence of sentencing circumstances and its application, problems as insufficient research in theory and application standards being not standardized in practice are salient. Moreover, they are not only against the basic principle of criminal law, such as the principle of legality, the principle of suiting responsibility and punishment to crime, and against the criminal policy tempering justice with mercy, but also fall short of the purpose of penalty measurement justness. On the basis of basic definition of concurrence of sentencing circumstances, this paper evaluates its existing problems, analyzes its theoretical bases and application situations and conducts, analyses of several specific cases. The present paper, written in more than 40,000 characters, is divided into five parts.The first part called the basic definition of concurrence of sentencing circumstances is the starting point of logic. It is widely acknowledged in academic circles that if multiple sentencing circumstances appear in a single case, the case is in the category of concurrence of sentencing circumstances. However, this definition exists deviations. By interpreting concurrence through etymology and systematic explanations, I think that concurrence of sentencing circumstances means that one sentencing fact accords with evaluations of multiple sentencing circumstances on the evaluative level, and on the applicable level, only one sentencing circumstance can be applied. The concurrence of sentencing circumstances has diverse manifestations, including the concurrence of voluntary surrender and render meritorious service, the concurrence of drug recommitment and general recidivism, the concurrence of excessive defense and fault of the victims and so on. According to the interrelation between sentencing circumstances, concurrence of sentencing circumstances can be classified as inclusive concurrence and intersected concurrence; and it can be classified as concurrence of statutory sentencing circumstances, the concurrence of statutory sentencing circumstances and extenuatory sentencing circumstances, and concurrence of extenuatory sentencing circumstances, based on whether they are clearly defined in law.Part two investigates the problems of concurrence of sentencing circumstances. It investigates problems of concurrence of sentencing circumstances in theory and in judicial practice and concludes that in theory, there exist problems as deviations on the conceptual understanding of it and fragmentary understanding of the phenomena of concurrence of sentencing circumstances, and that there exist issues as sentencing that is not standardized, evaluations that are not comprehensive and repeated applications. The above-mentioned problems are to great extent attributed to the incomplete and unsystematic understanding of concurrence of sentencing circumstances.The third part covers the theoretical bases of concurrence of sentencing circumstances. This paper mainly evaluates logic basis, philosophical basis and judicial basis of concurrence of sentencing circumstances, which include the relationship between the concept of extension under the formal logic, the relationship between syllogistic reasoning mode and concurrence of sentencing circumstances. The relationship between facts and norms and the relationship between practice and understanding are investigated on the basis of philosophy. Due to the diversity of social facts and finiteness of norms, one fact may not correspond to one norm. Sometimes, many norms may correspond to one fact, which makes concurrence of sentencing circumstances possible. Meanwhile, it is the product of practical development;The modern standpoint of sentencing, the basic principle of criminal law, and the criminal policy tempering justice with mercy are evaluated on the judicial basis. It is concluded that concurrence of sentencing circumstances is a product of modern sentencing and that forming a correct understanding of it is not only the requirements of the principle of legality and the principle of suiting responsibility and punishment to crime, but also is the demand of carrying out the criminal policy tempering justice with mercy.Part four reports the application situations of concurrence of sentencing circumstances. This part mainly elaborates on specific application situations and general application rules of concurrence of sentencing circumstances, including in terms of substantial conditions, there are only one sentencing fact, conforming to the evaluation of compliance with multiple sentencing circumstances, and only choose one sentencing circumstance to apply; and in terms of procedure conditions, there are in the same litigation procedure, the same criminal, and the same matter of case. The specific application rules include choosing the sentencing circumstance which is more comprehensive, choosing the sentencing circumstance which is lighter, and choosing the sentencing circumstance which is heavier.The fifth part demonstrates special analyses of concurrence of sentencing circumstances, which is about its specific applications. Exhaustive analyses are conducted on several special circumstances, which include concurrence of voluntary surrender and render meritorious service, that of drug recommitment and general recidivism, that of excessive defense and victim’s fault and that of lenient punishment to minor and other sentencing circumstances under penitence. This part is the key part in resolving related issues. it follows the the principle of legality, the principle of suiting responsibility and punishment to crime,and the criminal policy tempering justice with mercy and overcomes weaknesses such as omitted evaluations together with repeated ones, so as to achieve the goal of application standardization and to maximize penalty measurement justness.