| As one of the most serious violent crimes, the intentional homicide is the crime of intentional deprivation of life of others with a unlawful way, which violated the most precious life of mankind. Among the countries that retained the death penalty in law, including China, the crime of intentional homicide the highest proportion of the death penalty. Article 232 of China’s "criminal law" provides that the intentional homicide must be sentenced to death, life imprisonment or more than ten years of fixed-term imprisonment. If the circumstances are relatively minor, he or she shall be sentenced to fixed-term imprisonment of not less than three years and not more than ten years. This is the basic content of the application of the death penalty in the crime of intentional homicide. And it is also a common legal punishment on "criminal law" provisions stipulated by heavy to light in reverse order. Perhaps because the "criminal law" greatly focus on the protection of the right to life and the intentional homicide must be sentenced to death, China’s "criminal law" sets such a statutory sentence. If there is some special circumstances of sentencing in the intentional homicide case, consideration about life imprisonment or ten years or more in prison should be given to these condition.As the most severe and extreme penalty measures depriving people of the right to life, death penalty play a key role in major violent crimes. But in judicial practice, there is some circumstances of sentencing in the intentional homicide case, such as the motive of crime, object of crime, means of crime, consequences of crime and so on. The specific situation in the intentional homicide case is different from each other. Although there is no specific provisions providing how to use these circumstances of sentencing in criminal legislation of our country at present, the intentional homicide case is not be sentenced to death. In judicial practice, sentencing circumstances are the only one that decides whether to be sentenced to death in the intentional homicide case. In order to scientifically and accurately determine the criminal responsibility of the criminal, it is very important to analyze all kinds of circumstances of sentencing comprehensively in intentional homicide case, especially for the selection and application of the discretionary circumstances of sentencing. We know that sentencing circumstance is an objective reality and people’s will cannot transfer of them.Sentencing circumstance, a key sentencing factor, is a collection of subjective and objective facts reflecting social harmfulness of act and personal danger and its degree of actor. As a result, on the basis of the punishment fits the crime, the judge should fully weigh the decisive effect of the proper application about discretionary circumstances of sentencing in death penalty’s discretion. Only in this way can guarantee the scientific sentencing, the application of death penalty in the intentional homicide case and the balance between crime and punishment. After that, the general prevention and special purpose of punishment can be realized better. So, with the aid of the normative application of discretionary circumstances of sentencing in death penalty’s discretion of intentional homicide, it is not only a very important and realistic way of the right of discretion in death penalty, but also the best way to achieve the ultimate goal of sentencing justice.Apart from the introduction and conclusion, the paper is divided into four chapters.The first chapter, mainly about the introduction of Fudan poisoning case and the analysis the result of its sentencing, which divided into two sections. First is about the introduction of Fudan poisoning case and the result of its sentencing. Second, this section analyses the dispute caused by the sentencing of Fudan poisoning case and discusses the effect of the statutory sentencing and sentencing discretion on the sentencing of this case, especially focusing on the analysis of some important function of discretionary circumstances of sentencing in this case. A question is raised. In other words, the sentencing of this case is not a question? That’s to say, the selection and application of discretionary circumstances of sentencing should be standardized. This is the topic of this article.In the second chapter, the article gives a brief overview of the normative application of discretionary circumstances of sentencing in death penalty’s discretion of intentional homicide, which divided into two sections. The first section briefly introduces the discretionary of circumstances of sentencing, analyzing the concept and scope of the discretionary circumstances of sentencing. The second section mainly analyze the connotation and value of the normative application of discretionary circumstances of sentencing in death penalty’s discretion of intentional homicide.The third chapter, the article analyses theoretical supporting about the discretionary circumstances of sentencing in death penalty’s discretion of intentional homicide, which divided into two sections. The first section discusses the theoretical basis of the normative application of discretionary circumstances. The second section analyses the overview of the normative application of discretionary circumstances of sentencing in Fudan poisoning case, especially the objective necessity and concrete manifestation of the normative application of discretionary circumstances of sentencing in individual case, such as Fudan poisoning case.The fourth chapter divides into two sections. The first section analyses several important issues about the normative application of discretionary circumstances of sentencing in death penalty’s discretion of intentional homicide. Contains: Criminal law does not expressly require the discretionary circumstances of sentencing. In judicial practice, do not attach importance to the use of normative application of discretionary circumstances of sentencing, especially in death penalty’s discretion of intentional homicide, there are great randomness on the application of discretionary circumstances of sentencing. The second section analyses the recommendations for those issues. This section mainly discusses the legislation improvement of the normative application of discretionary circumstances of sentencing and the means of justice to achieve the normative application.Because the author lack of the rich theoretical knowledge and limitations of thinking, there are some deficiencies in this paper, which needs further analysis and research. The paper has some deficiency which the author hopes to be pointed out by teachers. |
