Study On The Discretionary Heavier Circumstances Of Sentencing

The discretionary heavier circumstances of sentencing is a subject with both theoreticaland practical significance. In theory, it is an important part of the sentencing plot, is theimportant means to realize individualized criterions, the basic theory of punishment. Althoughin theory and practice have fuzzy understanding of this kind of plot, but not as a researchtheme. Study of the discretionary heavier circumstances of sentencing will enrich the penaltytheory. In practice, discretionary heavier circumstances of sentencing is the only a statutorycircumstances that has increased the amount the defendant punishment circumstances,because there is no specific provision in the law for specific content and form, the judge hasmore discretion. Therefore, the discretionary heavier circumstances of sentencing extractionand application should be cautious. This article uses the method of comparative analysis, thephilosophy and the empirical analysis method to study the basic theory and practicalapplications of the discretionary heavier circumstances of sentencing. Besides introductionand conclusion, in full text is divided into four parts, more than sixty thousands words.The first part is the concept of the discretionary heavier circumstances of sentencing.This part is the logical starting point of the discretionary heavier circumstances of sentencingresearch. It is established in our country criminal law theory, but this kind of plot in theprevious studies did not complete definition. Therefore, using the relation between the methodof basic definition can reveal the essence of it. The discretionary heavier circumstances ofsentencing are defined as the court in the penalty discretion take into consideration theapplicable, reflect the behavior of social harm or personal risk, there is no specific provisionin the criminal law of form and content, in France, within the limits of the prescribed shall begiven heavier punishment according to no corresponding punishment to the plot, to apply theheavier punishment mitigation or longer terms of sentencing plot. Further discusses thediscretionary heavier circumstances of sentencing and the legal heavier circumstances,discretionary lesser circumstances, it is concluded that the judicial explanation shall be givenheavier punishment shall be given a heavier punishment sentencing plot belongs to thediscretionary heavier circumstances of sentencing, thus,more clearly define t the discretionaryheavier circumstances of sentencing. The second part is the theory foundation of the discretionary heavier circumstances ofsentencing. This part dig deeper into the discretionary heavier circumstances of sentencingaccording two angles: the existing basis theory and applicable therory. There shall be givenheavier punishment according to the discretionary circumstances exist according toreasonable, first elaborated the current theoretical circle shall be given heavier punishment fordiscretionary rationality, legitimacy of the existence of the plot. On this basis, fromdiscretionary heavier punishment plot both the historical foundations, law theory foundationof existence. Applicable shall be given heavier punishment according to the discuss isdiscretionary should consist of what to set up the plot. Analysis of the social harmfulness andpersonal risk that both can be used as the basis of the discretionary heavier circumstances ofsentencing.The third part is empirical analysis of the discretionary heavier circumstances ofsentencing. In the former two parts shall be given heavier punishment discretionarycircumstances after the basic theory of bedding, this part emphatically analyzes the judicialapplication. By adopting the method of empirical analysis from two perspectives: one is fromthe perspective of judicial interpretation, for during the period of1997to August1997in thejudicial interpretation provisions shall be given heavier punishment45discretionarycircumstances are analyzed. The discretionary heavier circumstances of sentencing in thejudicial interpretation exist the following problems: the plot alienation, repeated evaluation,do not have to punish legitimacy, non-standard expression..Bsides, from the angle of the realcases in judicial practice, through the legal information net of Peking University extracted1185cases contains the discretionary heavier circumstances of sentencing for empiricalanalysis, described the application of the judicial practice. From the status quo of the rangefound in the plot, plot applicable, expression of the plot and the problems existing in theconcept of the judge. These problems include standard has punishment justification alienation,plot and chaos, repeated evaluation and judgment expressed confusion, etc.The fourth part is the perfecting suggestion of the discretionary heavier circumstances ofsentencing. On the basis of former three parts, the fourth part shall be given heavierpunishment for discretionary circumstances judicial interpretation and the problems existingin the judicial practice to apply the perfect Suggestions: firstly, fixed the discretionary heaviercircumstances of sentencing alienated in existing judicial explanation, delete the repeatedevaluation and do not have the legitimacy of penalty regulations, unified judicial interpretation of the language; Secondly, to build a identification system of the discretionaryheavier circumstances of sentencing, clarify the meaning of common discretionary heavierpunishment plot, discretionary heavier punishment plot to eliminate unreasonable, clearidentification of the specific steps; Thirdly, correctly apply discretionary heavier punishmentplot, to reiterate discretionary heavier punishment plot applicable principles, clear steps toavoid repetition and evaluation criterions, establish the punishment level for discretionaryheavier punishment plot; the last suggestion is the specification of the discretionary heaviercircumstances of sentencing.