Discretionary Sentencing Plot Legal Studies

At present, there is a major debate in the concept of discretionary sentencing circumstances, making a reasonable and clear definition of which, is the logical premise of studying other related issues. In China, however, absence of clearly-defined concept of discretionary sentencing circumstances prevents the formation of unified understanding among penal law theorists and results in different statements of discretionary sentencing circumstances concept. Through analysis of relevant theoretical perspectives, discretionary sentencing circumstances should be scientifically and rationally defined as: subjective and objective facts reflecting social harmfulness of action and personal fatalness of actor, which are not explicitly but generally prescribed in the Penal Code, and should be sentenced at the discretion of judicial organs.As several more amendments have been issued with the development of society since the amended Criminal Law in 1997, range of discretionary sentencing is continuously expanding in judicial practice, followed by constant appearance of drawbacks in some specific discretionary sentencing. To solve these drawbacks, boundaries between sentencing circumstances by discretion and by law should be redefined, and key of the definition is to legalize part of discretionary sentencing circumstances and transform them to legal sentencing circumstances.There is theoretical and practical basis of legalization of discretionary sentencing circumstances. First, its theoretical basis is good for remedying legislative defects and regulating discretionary power, for realizing sentencing justness and rationality, for achieving retributive and preventive purposes of criminal law, and for bringing about functions of criminal law of protecting legal interests and human rights. Besides, the practical basis which means the drawbacks of discretionary sentencing if not legalized, such as unclear regulation of its content and position, and lack of attention from judicial practice, may easily cause improper sentencing during application.Legalization of discretionary sentencing circumstances complies with basic principles of criminal law. First, it complies with the principle of "conviction and penalty according to law", whose clarity principle fully justifies logic of discretionary sentencing circumstances legalization; second, it conforms to the principle of "punishment commensurate with the crime", which must be satisfied in specific sentencing circumstances, and legal sentencing circumstances apparently can better meet the need, so it is important to legalize discretionary sentencing circumstances. Third, it also accords to principle of "equality of everyone before the law". Legalization can better conquer drawbacks of discretionary sentencing circumstances and realize equal sentencing.In order to realize legalization of discretionary sentencing circumstances, the range is clearly defined in this essay, namely, what kind of circumstances is suitable for legalization and what is not. Besides, the essay also introduces specific practice of legalization of discretionary sentencing circumstances, meaning the legalization of those discretionary sentencing circumstances that are frequently occurred, lacking controversy and mature, including legalization of criminal motive and means, of criminal objects, of habitual criminal and criminal record, of pleaded guilty and repentance, of restitution of the ill-gotten gains and compensation and so on.