| As the Article63of Criminal Law of the People’s Republic of China states in itsfirst paragraph,“In cases where the circumstances of a crime call for a mitigatedpunishment under the provisions of this Law, the criminal shall be sentenced to apunishment less than the prescribed punishment; where there are several ranges ofpunishment provided in this Law, such criminal shall be sentenced to a punishmentwithin the range of punishment that is immediately following the prescribed range ofpunishment.” This article was amended in the Article5of the Amendment VIII to theCriminal Law of the People’s Republic of China, hereinafter referred to as CriminalLaw Amendment VIII, which was issued by National People’s Congress of thePeople’s Republic of China on February25,2011.The statutory mitigating punishment system, which is playing an important rolein implementing the criminal policy of combining punishment with leniency in ourcountry, while still has several defects in its application, such as the ambiguity incertain specific rules and the unclear extent of the judge’s discretion.To some extent, the newly added stipulation of Criminal Law Amendment VIII,which says “where there are several ranges of punishment provided in this Law, suchcriminal shall be sentenced to a punishment within the range of punishment that isimmediately following the prescribed range of punishment”, will alleviate the abuseof mitigation of the punishment in juridical practice in our country, however, onlystipulating “such criminal shall be sentenced to a punishment within the range ofpunishment that is immediately following the prescribed range of punishment”is stillnot enough to meet the requirement of the criminal highest principle of suiting punishment to crime, lack of control on the extent of mitigation and the narrowapplication still exist in the revised mitigation of punishment system.This article begins with analyzing the first provisions of Article63of theCriminal Law in the first chapter, the statutory circumstances which call formitigation of the punishment and the criterion and the extent of mitigation of thepunishment are the very one basis and two rules generalized from the statutorymitigation of punishment system. The legal rules will be briefly explained in the firstsection and the legal analysis of the one basis and the two rules will be in thefollowing three sections. We will focuses on five key concepts, mitigatingcircumstances, statutory sentence, less than the prescribed punishment, range ofpunishment and range of punishment that is immediately following the prescribedrange of punishment. The first chapter of the analysis of statutory mitigatingpunishments is supposed to provide an overview of the system to the readers.Based on the comprehensive understanding of the provisions, the condition ofthe application of statutory mitigating punishment system will be presented in thesecond chapter. The newly added stipulation of Criminal Law Amendment VIIIbrought about appreciable improvements in legal practice, while the narrowapplication of the system, the lack of control on the extent of mitigating and thetrouble in circumstance that the minimum statutory sentence is surveillance can not beignored, these significant practical issues of the mitigating punishment system are stillto be solved. We would know why and how to learn from other legislation throughstudying such problems.In Chapter III, legal comparisons with other legislation will be made bothvertically and horizontally, trying to find the shortage of statutory mitigatingpunishment system in our country and take examples of advanced system in othercountries. We will start from reviewing the four most important legislations since ourfounding, including the drafts, to find the root of the current issues of the system, andthen we will pick two typical civil law countries, Japan and Germany, to makecomparison with them to find the worth learning pattern of the system building. In thelast part of this Chapter, the two most constructive viewpoints, which are generalizedfrom the comparisons, mentioned above, indicates that:1. there is no essentialdifference between lighter punishment and mitigation of punishment;2. the extent ofmitigation of punishment should be strictly defined when it applies to the deathpenalty and life imprisonment. In the last chapter, based on the comparisons and thoughts of the third chapter,some applicable suggestion, according to the issues referred in the chapter II, will beput forward as follows.1. The lighter punishment and mitigated punishment could be merged;2. The legal notion of less than the prescribed punishment should be strictlyinterpreted;3. Clear lighter and heavier punishment principal penalty grid order;4．Classify the circumstances of mitigating punishment, including lighterpunishment;5．The extent of the mitigation of punishment, including lighter punishment,should be explicitly ruled.In addition, there are some specific recommendations on the extent of themitigation of punishment:1. In cases where the criminal is sentenced to death penalty or life imprisonmentcall for a mitigated punishment under the provisions of this Law, such criminal shallbe sentenced to a punishment within the very range of punishment that is immediatelyfollowing the prescribed range of punishment2. In the cases of simple mitigating circumstances, the criminal shall besentenced to a punishment within the one or two ranges of punishment that isimmediately following the prescribed range of punishment.3. In the case of the mitigating circumstances that there is probability ofexemption from punishment, the criminal shall be sentenced to a punishment withinthe two ranges of punishment that is immediately following the prescribed range ofpunishment.Through the introduction of the legislation of the mitigating punishment systemand the analysis of the current judicial application status, then compared with otherlegal system vertically and horizontally and come to a conclusion and somesuggestions, this article is trying to make a particular analysis on the system andapplication of the mitigation of punishment. I hope this article may give some helpfuladvices in completing the system of statutory mitigation of punishment in our country. |
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