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Discussion On The Selection Criteria And Evaluation Mechanisms About Discretionary Circumstances Of Lenient Sentencing

Posted on:2017-09-16Degree:MasterType:Thesis
Country:ChinaCandidate:S S LvFull Text:PDF
GTID:2336330536453422Subject:Law
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In criminal justice,the judiciary decides to sentencing the perpetrator considering liberal punishment,the perpetrator must have the reason being worth forgive by legal orders.The root for legal orders forgive the perpetrator is law care of human nature,never force someone to do something against his will,raises to theory of criminal law is called anticipated possibility.Anticipated possibility is the core of normal responsibility,the premise and basis of the blame for perpetrator by law,a more important value is to establish the connection between anticipated possibility and liberal punishment can develop the interpretation function to non legal lenient causes,explain the root for legal orders forgive the perpetrator.As a result of this,we can consider anticipated possibility as the essential and value standard for the cognizance and extraction about the circumstances for liberal punishment.However the concept of anticipated possibility is vague and unclear,considering the requirement of legal norm is formalization and clear,we cannot adopt the anticipated possibility as reference standard.In this point,it is similar to crime and social harmfulness.Any action which is evaluated as a crime has social harmfulness.Social harmfulness is the essential category of crime,however the social harmfulness involves value judgment,we cannot take the behavior of social harmfulness as the origin of the establishment of a crime.So,on the basic issues of crime,the criminal law scholars built elaborate system of constitution of crime to interpretation and evaluation the crime whose essence and standard is social harmfulness.Similarly,the paper builds a structure mechanism system to interpret and judge whether the behavior has anticipated possibility and its degree,making the extraction and evaluation criteria of the circumstances for liberal punishment be more formalization and standardization,so as to balance the conflict between substantial justice and formal justice of law standard.It can be necessary and inevitable for judiciary to cognize and extract circumstances for liberal punishment by evaluating the loss or defect of the perpetrator's anticipated possibility using the structure mechanism system.It can restraint the large and arbitrary discretion space of the judiciary during liberal punishment sentencing process.
Keywords/Search Tags:anticipated possibility, liberal punishment, extraction standard, system mechanism
PDF Full Text Request
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