On Discretionary Circumstances Of Sentencing

In recent years,with the deepening of reform and development of politics,economics and culture in China,great progress has been made in legislation and judicial practice,as well as in criminal sentencing.Whether sentencing is just or not is of great importance to the judicial justice.So this problem is highly concerned by the whole society.In 2017,with the announcement of the?Guiding Opinions of the Supreme People's Court on the Sentencing of Common Crimes?(hereinafter referred to as "Guiding Opinions on the Sentencing of Common Crimes"),the work of criminal sentencing has been more and more standardized.The circumstances of sentencing include two aspects:legally prescribed circumstances of sentencing and discretionary circumstances of sentencing,the two of which are equally important.Discretionary circumstances of sentencing refer to various facts and circumstances that reflect the social harmfulness or the threat to the offender's life,which have a legal basis and will be used by the judge to some extent.While,the content and function of the discretionary circumstances of sentencing are not clear.The author thinks that there are two important functions of the discretionary circumstances of sentencing:to decide the declaration sentence and to change the statutory sentence within the range of statutory sentence.In the judicial practice,each case is different and the types of discretionary circumstances of sentencing are also different.The author analyzes their common types from the following two aspects:the perpetrator and the victim.With the gradual development of the reform of the mitigation of punishment worldwide,under the pressure and consensus from the international community,the discretionary circumstances of sentencing have to be applied to the related sentences and punishment in the judicial practice.In this process,it is important to reasonably control the range of the discretionary circumstances of sentencing.That the legally prescribed circumstances of sentencing and the discretionary circumstances of sentencing should be fully considered is also stipulated in the "Guiding Opinions on the Sentencing of Common Crimes ".This regulation has gradually become the basic principle and the reference standard for the people's courts at different levels in China.However,for the lack of further definite and concrete legislative definition,there still exist many problems of the discretionary circumstances of sentencing in the judicial practice,such as the lack of the selection standards,the confusion of the identification standards,the shortness of the reasoning and so on.The author thinks the reason why the application of the discretionary circumstances of sentencing is so important may be that it not only directly reflects the degree of the judicial justice in China,but also includes the actual interests between the two sides and roundly reflect the just and comprehensive reform of the legislation and judicial justice in China.In order to solve these problems and realize the justice of sentencing,the author proposes the suggestions from the following two aspects:to improve the legislation and to promote the judicial response.Suggestions of the legislation include to clarify the discretionary circumstances of sentencing standards on the basis of legislation and to add part of the discretionary circumstances of sentencing into the declaration circumstances of sentencing.Suggestion of the judicial response include to improve the writing of the criminal judgment,to regulate the application of the discretionary circumstances of sentencing through the guiding cases and to cultivate the professional legal teams and legal elites.