The Attempting Discussion Of The Proposition Of Sentencing Impacting Conviction

Prof. Liang Genlin put forward the proposition of Sentencing impacting conviction when he discussed the rationality of the theory of conviction transform. He launched a reflection on the relationship between crime and punishment. Can sentencing impact conviction and how? To solve the problem, this article is divided to three parts.Chapter I explains the connotation and denotation of sentencing impacting conviction and compares “sentencing impacting conviction” with “punishment impacting crime” and “affirming a crime by penalty”. Sentencing impacting conviction and punishment impacting crime belong to different levels, the former judicial level, the latter legislative or judicial level. However, they share the same principle: features of crime and intent of penalty collaborate to narrow the crime circle critically. How does punishment impact crime, how is sentencing impacting conviction.“Curbing a crime by penalty” has a broader extension than that of sentencing impacting conviction. The former means containing as well as restricting crime, the latter only refers to restricting. Containing crime by penalty rises to the dialectical relationship between crime and penalty. The upper limit of punishment depends on social harmfulness and the lower limit of it depends on the necessity of containing a specific crime. In terms of the extension of the above concepts, “curbing a crime by penalty” takes first place, “punishment impacting crime” comes second, finally “sentencing impacting conviction”. Sentencing impacting conviction is talked about the restriction role of sentencing which helps to explain crime constitutive elements and to distinguish crime from non-crime or this crime from that crime.Chapter II discusses the relationship between sentencing impacting conviction and the theory of conviction transform. The conviction transform theory advocates that when a normal sentence is too heavy, the judge could change the conviction. I raise three doubts: fist, doubt on its condition; second, doubt on its function direction; third, doubt on its effectiveness. Sentencing impacting conviction and the theory of conviction transform have similar appearance but low efficiency. Similar appearance demonstrates in two aspects, inheritance of the origin and convergence of the direction. Their essential difference is that in the former concept penalty plays a restrictive dynamic role whereas in the latter concept penalty plays a decisive role.The interactive thinking is affecting legal practice consciously or unconsciously. In the case of Sun Weiming, the court changed the defendant’s subjective guilt regardless of objective facts just because of the need of sentencing. In the case of Lin Yan, the court chose a light one from all the possibilities permitted by doctrine of law, thereof it is an appropriate interaction between crime and penalty. Whether to adhere to the doctrine of law is a distinctive mark between appropriate and inappropriate interaction.Chapter III points out possible paths of sentencing impacting conviction: a static type of explaining the facts about a crime and a dynamic type of choosing conviction. The static one is thought to be of two categories: a horizontal one and vertical one. The horizontal one means to explain provisions by comparison of legal penalty between one crime and another. For example, the comprehension of “employing other dangerous means”, “misappropriating state funds and materials allocated for disaster relief, emergencies, flood control” and “sells blood illegally ……whoever causes harm to others” cannot be separated from the horizontal comparison of legal penalty. The vertical one aims at explaining provisions by comparison of legal penalty between different sentencing rages within a specific crime. For example, the understanding of Crime of Kidnapping cannot be separated from the vertical comparison of legal penalty.To illustrate the dynamic path, I take theft crimes and fraud crimes as examples. Can a financial fraud behavior not reaching the amount of a financial fraud crime but already reaching the amount of fraud crime be found guilty for ordinary fraud? It depends on the situation. When a financial fraud crime is heavier than ordinary fraud crime, it demonstrates that legislators have a stricter punitive attitude of financial fraud crime than ordinary fraud crime and therefore this financial fraud behavior can be downgraded to ordinary fraud behavior. Similarly, serious insurance fraud case cannot be convicted for ordinary fraud crime. We also should exclude the huge property fraud from the crime of cheating. The crime of illegal lumbering is slighter than larceny, therefore extremely serious lumbering cases cannot be convicted for larceny. Theft of guns, ammunition, hazardous substances is heavier than ordinary larceny, therefore a theft not reaching the quantity demand of the former crime but reaching the amount of the latter crime can be characterized as larceny.