An Empirical Analysis Of The Approach To Standardized Sentencing Methods

The research of the path of the standardization sentencing methods is not limited to the purely technical level, but in the experience of philosophy as ontology, cognitive validity as a support to the facts and norms as a condition of Paradigm Construction.Therefore, this article argue that the sentencing should be based on empirical research-oriented thinking, drawing on the useful experience of extraterritorial,pondering the fundamentally flawed of the sentencing guidance,by which we will lead the Chinese sentencing practice, promote the design and application the system of sentencing experience, achieve the justice of sentencing.There are five parts in this paper,and there are about one hundred twenty thousand words. Its main contents are as follows:The part of foreword combs theoretical context and showed the thread of thought of standardization sentencing studies. Based on which, the author hold the opinion that the current academic thinking shackled by technical standardization sentencing is deviating from the direction of the sentencing research, and then proposed an alternative way that we need experience thinking to replace the specification thinking and to seek the key point of the new development, and all this built a discourse platform for the subsequent part of this article.The first part which is based on the situation of the absence of standardized sentencing terminology clearly states that the conception of the path of the standardization sentencing methods and reveals the status and role of experience. From the point of abstractness,the so-called standardized sentencing methods referred to under the premise of knowing the rule of sentencing with the experience thinking, in the light of the four-dimensional force, along with the implementation of criminal responsibility arising a state of harmony and reasonable trend.From the point of concreteness,the so-called standardization sentencing methods meant that in the context of standardization sentencing, in the participation of the four-party, but detached from the trial based standard, and formed the open and stable system of experience with the function of macro-control, meso-guideline and micro-discretionary, and for the situation of the present prevailing specification thinking. This part declared the status and role of experience, putting forward the so-called experience referred to direct involvement in the main high frequency of cognitive thinking, feeling and afterfinishing the formation of an individual occupational groups or self-persuasion, which affects the specific person confirmation of the specific views of specific things. Following this, the experience with the principle of balance of crime, the theory of "three normally", relative rationalism organically combined to complete the task which was fixed the standardization sentencing methods approaching to explore the nuclear of the experience.The second part compares the standardization sentencing methods in two legal systems meticulously and systematically, and points that either the number-tutorial mode of the United States, the British narrative text mode, or guilt theory of Germany and Japan, the Polaris-Sentencing Guidelines, sentencing information system of Chinese Taiwan,will provide the rich and useful resources and acquire different experience.The third part is based on two version sentencing guidance of the Supreme Court, the regional Higher People's Court, and deeply analyzes the proportion of main-land China-style standardization sentencing methods, meanwhile, the problems are summarized in the following cases: targeting misconduct, plot set unevenly, sentencing benchmark unstably, scale settings reason unclear, different circumstances applied disorderly, the fact that separation of the reference induction, using the text mechanically,etc, and under the existing paradigm to solve these problems, this part proposed some countermeasures.The fourth part breaks the existing paradigm of standardization sentencing decisiv-ely, cognitive social facts should be noted, plot efficacy evaluation, judges gather experience, the four-party to participate in the construction of reasoning as the basic con-tent of the new paradigm. In the specific level, it should be fact-based, to a large data according to the jurisprudence as a guide to text supplemented to form an open and stable dynamic experience system. Thereafter, it summarizes the nine basic idea circulates through the article, and points the deficiencies.