The Research And Improvment Of The Legislation Of The Lenient Post-crime Discretionary Circumstances Of Sentencing

The influence of discretionary circumstances of sentencing is universal and important. The new clause 3 of article 383 in The Amendment of The Criminal Law(9) is a good try for the legalization of discretionary and should be confirmed and encouraged. But this innovation also brings imbalances between different kinds of crimes, rules of circumstances of sentencing in general provisions and specific provisions. In the future, the legislation and judicial practice of criminal law are going to facing the problem of the legalization and normative application of discretionary circumstances of sentencing in China. This paper argues that, the realization of legalization of discretionary should be put in the general provisions of criminal law,the legal circumstance for sentencing should be stratified, the sentencing consideration should be clarified. At the same time, the application of discretionary circumstances of sentencing should be standardized by the judicial interpretations and sentencing guidelines.