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Research On Quantification Of Sentencing Circumstances

Posted on:2017-12-11Degree:MasterType:Thesis
Country:ChinaCandidate:H J YanFull Text:PDF
GTID:2336330488472653Subject:Criminal Law
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The current theory and practice of sentencing have shown that there is a variously theoretical understanding about the quantification of sentencing circumstances, and which has faced with numerous difficulties in operation practice.The reason lies in that the quantification of sentencing circumstances has been equal to, even alienated as, the precision and mechanization of application of sentencing circumstances, which blurred the original features of quantification of sentencing circumstances, deviated from the basic principle of the criminal law and social science, finally led to numerous queries of the academic world and senior judges about the Standardization Reform of Sentencing, the highlight of which is the quantification of sentencing circumstances.In fact, the positive meaning of the Standardization Reform of Sentencing should be fairly defined, the real reason which leads to queries is that a deviation of the mathematical basis, the method path and the set of rules of the quantification of sentencing circumstances happened. Therefore, this article intend to start from the mathematical basis of social science, fuzzy mathematics, to the further and systemic research. In addition to the introduction and conclusion, the article is mainly composed of four parts, and basically follow the logic of thinking: "what is the quantification of sentencing circumstances——why the sentencing circumstances can be quantified——the current problems of quantification of sentencing circumstances in our country——how to solve".The first part is the basic investigation of the quantification of sentencing circumstances, mainly focusing on clarifying and answering "what is the quantity of sentencing", which is the logical starting point and prerequisite problem of the topic of the quantification of sentencing circumstances.Specifically speaking, as to “what is the quantification of sentencing circumstances”, it can be defined and divided in abstract and concrete levels.As far as the former is concerned, in the sense of methodology, the quantification of sentencing circumstances is an abstract method, which has a specific connotation; As far as the later is concerned, in concrete level, the quantification of sentencing circumstances has different concrete manifestation and local contents under different system environment: in our country, quantification of sentencing circumstances is based on precise mathematics and has been widely used; In other countries, the technique of quantification of sentencing circumstances faces with two contrary situation:widely used or be excluded from the reform of the sentencing.The second part is the theoretical basis of the quantification of sentencing circumstances, mainly elaborating how sentencing circumstances and quantification can be connected and combined in theoretical level.In other words, if the outline of "what is the quantification of the sentencing circumstances" can be clear in the investigation of realism, that the interpretation of theoretical basis can reveal the essence of "why sentencing circumstances can be quantified".Specifically speaking, the inner unified relationship of “Discretion of Sentencing and Quantification of Sentencing” lay a solid foundation for the interpretation of theoretical basis of quantification of the sentencing circumstances.At the micro level, quantification of the sentencing circumstances is consistent with the principle of clarity, the principle of equality before criminal law and the principle of balance between crime and punishment; In the middle level, mathematics is a Instrumental discipline, which provides a method for measuring the social harmfulness of the offenses and the risk of of the offenders; At the macro level, reference and convergence of social science and natural science provide intrinsic rationality and feasibility for citing natural science methodology in the field of social science.It means that nowadays rather than entangle in“sentencing circumstances should or can be quantified”, we should try our best to explore and solve the practical problem of“how to quantity the sentencing circumstances” in theoretical and practical level.The third part is the current dilemma of quantification of the sentencing circumstances, mainly investigating the problems of quantification of the sentencing circumstances in Chinese context. It means that after proving the rationality of quantification of the sentencing circumstances, the extensive application of Chinese quantification of the sentencing circumstances, based on precise mathematics, has made the whole standardized sentencing reform stalled.In the physical realm, there are mechanical operations caused by precise numerical regulation ratio and addition and subtraction rule, backward discretion caused by judges' practical rationality, imbalance result caused by sticking to ratio adjustment and operation rules in sentencing guidelines text; In the procedural realm, virtual supervision caused by regulation ratio and operation rule.Such dilemmas have clearly shown that quantification of the sentencing circumstances can't be based on precise mathematics. Moreover, it is a powerful query of“how to quantity the sentencing circumstances” from the objective practice.The fourth part is the solution of current dilemmas of quantification of the sentencing circumstances, mainly interpreting that the key to realize the abstract rationality of quantification of the sentencing circumstances and crack the dilemmas is to quote the appropriate mathematical basis. That means the answer to "how to quantity the sentencing circumstances" should return to the essence of sentencing circumstances and quantification.The fuzzy discretionary feature of the evaluation of sentencing circumstances has decided that the quantity theory of quantitative analysis for sentencing circumstances must be able to bearing the fuzziness.Therefore, fuzzy mathematics whose object of study is fuzzy object is the inevitable choice to crack the precise dilemmas of quantification of the sentencing circumstances and realize scientific quantification of sentencing circumstances.On the one hand, the "this or that" multivariate logic of fuzzy mathematics is consistent with relativity and dialectic of sentencing circumstances under the guidance of ontology of sentencing; On the other hand, the “non-additive” feature of fuzzy mathematics is consistent with the “non-additive” feature of sentencing circumstances, which is based on fuzzy evaluation.The fuzzy quantification of sentencing circumstances set multilevel fuzzy comprehensive evaluation model as a framework, set breaking down the sentencing factors, establishing a set of sentencing circumstances, a measuring set of factors(set up measuring matrix), allocating weights and comprehensive evaluation as steps.Such arrangements not only can the cognitive experience of judge group combine with discretion of the individual judge, and set a special stage and ways for discretion of judges in cases, but also is a natural selection for cracking the precise dilemmas of quantification of the sentencing circumstances.
Keywords/Search Tags:sentencing circumstances, quantification, precise mathematics, fuzzy mathematics, multilevel fuzzy comprehensive evaluation model
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