Research On Several Problems Of Reference Punishment

Basic punishment is for specific crime, without considering any statutory or discretionary sentencing under the premise, according to the basic facts of the crime accomplished state should be sentenced to punishment. Basic punishment is the concept and evolution of sentencing, the two model are compared with the concept put forward is an important breakthrough in the reform of the sentencing standardization, although some long, but its provisions characteristic attracted the attention of numerous scholars. In the rule of law as the basic strategy of governing the country, the study of the basic punishment has a more far-reaching historical and practical significance. The author in the full investigation and study, based on research results in China and abroad famous jurist and scholar, combined with their actual work, to the unique perspective of a line judge, from the three aspects of basic punishment. This paper is divided into three parts, the first part mainly discusses the basic punishment of reality and value; the second part is the theoretical analysis on the basis of punishment; the third part discusses the establishment of the basic punishment method, theoretical foundation and special law.In the first part, the value of the basic punishment. The standards or methods of judicial practice need to be operational in order to reduce the differences in the personality of judges, and to achieve the ultimate goal of sentencing balance. We know the general judicial process is: the penalty back and forth between the standard and the fact confirmed by the charges for the kinds of punishment and the punishment of the crime of the benchmark punishment measure, in the standard under the guidance of considerations of sentencing facts and the benchmark sentence as the basis to determine the heavier, lighter punishment. In fact the guidance of constructing with the facts of the crime and choice of statutory penalty punishment is punishment discretion, but due to the provisions of our criminal law and the criminal punishment has a wide range, is a flexible space. In the expansion of the huge space, because no similar crime penalty corresponding points, the lighter, heavier is ambiguous, so some scholars believe that the so-called direct is severely limits the scope of the statutory punishment sentenced to severe penalties, the lighter is in a limited range and sentenced to lighter punishment in criminal law. It is difficult to imagine that there is no starting point of the sentencing judge how to consider and evaluate various sentencing circumstances to make a clear sentence. However, if you set the benchmark sentence for abstract abstract crime, not only difficult to determine, but due to the abstract crime benchmark penalty corresponding to the facts of the crime main factors that may affect the amount of punishment is not a specific case, this will make no specific sentencing basis. The Supreme People's court appointed sentencing sentencing procedure is to clarify the target text level, realize the unification of sentencing discretion, therefore in the specification of judges right conditions, reducing the scope of sentencing is imperative, in case standard benchmark punishment concept of judicial discretion under the background of the point came into being.The second part, the theoretical analysis of the basic punishment. Basic punishment is for specific crime on the basis of specific provisions is accomplished alone, making mode. The basic crime fact is determined by the range of legal punishment to determine the basic crime fact, which is determined by the range of legal punishment. Only for the specific case of benchmark punishment; punishment in legal punishment for the benchmark rate; benchmark sentence referring to reference facts of the crime is the basic criminal facts and other impact of crime; judicial punishment as the reference text for a range of experience points in the text basis of sentencing; punishment is not immutable and frozen, and behave as a a program. In view of the basic punishment is the evolution of the research process from the sentencing benchmark, the author mainly from two aspects of macro and micro level to understand the sentencing benchmark, and then expounds the difference between it and the basic sentence. From a macro perspective, the sentencing benchmark mainly refers to the principle and object of criminal punishment; from the micro level as the reference point for sentencing judge sentencing quantification, provide a range of statutory penalty from the starting point of punishment for the judge, this is also our country criminal department is seeking to determine the logical starting point of punishment the amount of. The benchmark punishment with regulatory function, restrictive function, complementary function of the three major functions, function of benchmark punishment, also proves from another angle benchmark punishment with strong research value and its important position in the theory of law in.The third part, the establishment of the basic punishment method. With the sentencing reform in the country to promote the implementation of a comprehensive, scientific sentencing method has become an urgent need for judicial organs, and the research on the basis of criminal law has been more and more attention of scholars. How to determine the balance of penalty and penalty discretion benchmark bound together in a common cause, which has become an important and difficult problem to be solved to study the theory of criminal law. In our country, in recent years, determine the colorful theoretical basis of benchmark punishment, law and practice circles are also each one sticks to his own view, Public opinions are divergent. In this paper, the author mainly discusses nine kinds of theory, have a profound impact on sentencing reform are: line theory; on line theory; situation theory; gravity theory; lattice theory; main factors; risk behavior; logical deduction method; empirical analysis. Based on the nine kinds of theories, points out the advantages and disadvantages of objective and flaws of the above theory, combined with the judgment of the judicial organs of China put forward the establishment of the basic punishment self opinion, that is the first to find the starting point, relying on the individual accomplishment mode determines the basic criminal facts, the basic facts of crime legal punishment range corresponding to the fact secondly, combined with the logical deduction; Followed by logical deduction combined with empirical method to determine the benchmark punishment. At the end of the article, the article attempts to explain the special method of establishing the standard punishment, using an example to illustrate that the establishment of the basic sentence in the sentencing process is not static, but with its own particularity.