Research On The Basis Of Sentencing

As Supreme People' Court issued the Instruction to People's Court forMeasurement of Penalty (Trial Implementation) in September2010, the issue ofmeasurement of penalty drew attention. This article discussed how to determine thecriterion of measurement of penalty in two ways. The abstract determination ofcriterion of measurement of penalty, after systematically learnt, the author isconvinced that retribution and precaution should both be considered, and such acriminal policy can be the criterion of minimum measurement of penalty. The authorbelieves that there are crime of amount and crime of no amount based on essentialconstitutive requirement as standard behavior. Therefore, in judicial practice, themeasurement of penalty of specific cases should be analyzed and summarizedspecifically, not judged by the interruption theory of the doctrine of severepunishment. When defining the concept of the criterion of measurement of penalty,the source of the criterion, how Judge understand measurement of penalty in judicialpractice should be clear. Due to the uncertainty impact of fact and law to thecriterion of measurement of penalty, there are dot theory and scope theory as for thecriterion. There is quite a theoretical controversy among domestic scholars, but Ibelieve that as long as agreement is reached on the criterion of measurement ofpenalty based on the type of essential behavior of fact, the two theories are justdifferent in terms of form.The concept and the application of measurement of penalty is discussed in thefirst part of this article. The author's thought is broadened mainly by summarizingand analyzing scholars' explanations and comments. The author's point is broughtby integrating practices and theories, by discussing the controversy among scholarsand the theoretical analysis about measurement of penalty, and by considering aboutdevelopment trend of the establishment of the criterion in the sense of criminalpolicy combining the problems in practice. The theoretical foundation of the establishment of the criterion is discussed andcomprehensively analyzed and commented in second part, mainly about the criterionand the regulations of it.Integrating the understanding of people's court about the criterion ofmeasurement of penalty, some suggestions about the exiting problems of thecriterion is introduced in the third part so as to establish correct ideas of applying thecriterion and to perfect the criterion and absorb advanced foreign experiences.