Discuss The Mitigated Punishment

The Eighth Amendment to Criminal Law(97 Revision), Article 63, Section 1 adds that “according to this law, the punishment should be given under the legal sentencing range if there are several ranges”. This addition clearly states the mitigation of punishment degree, but it also leads to some criticism, and its legitimacy is debatable. Supreme Court's Sentencing Guidance involves only the range of lenient punishment, without considering the mitigation of punishment. Sentencing plot includes the extraction and application of plot mitigation. There has no clear conclusion about this in theory, and the relevant research results are not under the cross-examination of scholars, so this essay tries to clarify this question and realize the justice of sentencing.The essay includes six parts, totaling about thirty thousand words.The first part discusses the basic question. It teases out and explains the connotation of the Article 63 of Criminal Law, clearly states the normative foundation of the factual basis, basic point and degree of punishment mitigation; it relates sentencing plot to conviction plot, sorts out the types and levels of sentencing plot to form a platform for discussing punishment mitigation; it finds out the difficulties of the extraction and application of plot mitigation through the evaluation process from criminal facts to the factors of actors in order to better seek solutions.The second part defines the legal basis for the mitigated punishment and establishes value objective to set up the relevant technical regulations. First, it adheres to the criminal law position of the principle of responsibility position. It discusses whether the plot reflecting the degree of harm damage can accurately apply to the evaluation of the criminal responsibility of actor, and therefore the manifestation of the essence of responsibility is the important basis of adjusting criminal punishment with plot. Second, it efficiently prevents re-crime. It discusses whether the plot reflecting the change of actor's subjective attitude has a necessity or has how much necessity to apply to criminal punishment. Adapting the application of criminal punishment to the extent of education and reform crime can save the resources of punishment execution, make the criminals avoid meaningless punishment, and also to some extent limit the possibility of re-crime. Third, the problem of function nature and degree of plot is complicated, and should be confronted and debated by the accuser and the defender in court to guarantee the justice and transparency of procedure.The third part discusses the mitigation of plot. First of all, according to the sentencing process from act to actor, mitigation of plot can be divided into act plot and actor plot. Second, it discriminates the less severe punishment and lighter punishment and suggests judging the plot's function and nature with considering concrete circumstance according to the explicit and implicit rule of the law. Third, it emphasizes on the difficulty of discretionary mitigation of plot, judges the particularity of criminal means, objects, results and motives according to the degree of damage and crime, and judges the extent of compensation and forgiveness according to the criminal's actual damage degree.The fourth part discusses the mitigation of punishment basic point. First, according to the statutory sentence level ruled by special provisions of criminal law, it establishes the lowest point as the basic point of statutory sentence based on the different facts of different cases. Second, it gradually establishes the basic point of act plot and actor plot according to the thought of from outside to inside, from act to actor. Third, it discusses “the mitigation of punishment basic point corresponding to criminal facts” and “the mitigation of punishment basic point corresponding to actor” with the respective examples of attempted quantity crime and voluntary surrender.The fifth part discusses the mitigation of punishment degree. First, it points out the existing “the lower sentencing range” is short of theoretical and factual base. The practice of Sentencing Guidance of multiplying basic criminal punishment to a certain mitigation of plot is unscientific and unreasonable. Second, the mitigation of punishment degree should be analyzed in the specific case rather than establish standard in advance to rigidly limit its degree. Third, the judgment of the mitigation of punishment basic point should be passed on to the judicature.The sixth part discusses the procedure control of discretionary mitigation of plot. Article 63, Section 1 of Criminal Law transfers the approval right of discretionary mitigation to the Supreme Court, which not only increases the burden of the Supreme Court, and also makes the system set aside in practice. Under the condition that law has turned into reality, restriction to explain “the mitigation of punishment plot not ruled by the Law” can limit the submission of discretionary plot to actor plot.