Research On The Application Of Discretionary Circumstances Of Lenient Sentencing

Under the background of the judicial reform in the new era,the "trial-centered" trial substantive and sentencing standardized reform,all highlight the standardized sentencing activities for the realization of fair trial,improve judicial credibility,correct sentencing imbalance,has important value and positive role.As an important part of sentencing activities,the correct determination and accurate application of discretionary circumstances of lenient sentencing are not only conducive to the realization of the individualization of punishment,but also the natural requirements of the principle of the purpose of punishment and the adaptation of crime and punishment.However,through empirical research,it is found that the unclear connotation of discretionary circumstances of lenient sentencing,unclear applicable rules,and the neglect of the quantitative function of discretionary circumstances of lenient sentencing and the status of penalty in theory and practice are the reasons for the current deviation in sentencing,appeal and protest and other phenomena that are against the standardization of sentencing.This article is based on sentence to reveal principles of fairness and justice,based on the criminal policy of tempering justice with mercy,based on the basic principles of criminal law and sentencing according to the requirements of about comprehensive applicable circumstances such as greater discretion plot the suitable path of problem solving,aimed at resolving greater discretion plot controversy in theory and practice predicament to provide power.In addition to the introduction,the paper is divided into four parts:The first part "the basic definition of discretionary circumstances of lenient sentencing and its application",clarifies the basic concepts such as the connotation,extension,functions and characteristics of discretionary circumstances of lenient sentencing,and defines the basic definition of what is the application of discretionary circumstances of lenient sentencing.Greater in response to the discretionary plot "statutory","whether" must be considered after the two main bone of contention,define the greater "discretionary" should be: but provides the applicable law is not according to,must be taken into consideration when the judge's discretion and applicable,besides the crime constitution fact circumstances and statutory sentencing circumstances can reflect light behavior,low social harmfulness and actor personal risk of all cases.This paper points out that discretionary circumstances of lenient sentencing has four characteristics: illegality,objectivity,diversity and connectedness,and lists the common discretionary circumstances of lenient sentencing in practice.The second part "the empirical study on the application of discretionary circumstances of lenient sentencing",mainly includes the method and scope of the empirical study sample selection,as well as the specific performance and the crux of the problem of discretionary circumstances of lenient sentencing.To be specific,its application is mainly manifested in four aspects: the problem of selective application of discretionary circumstances is prominent;The judge makes light of the sentencing function of discretion and leniency.When there are multiple plots in a case,the mechanical treatment of the concurrence of plot conflicts;The judicial documents are partly open and partly vague about the discretionary circumstances of lenient sentencing.The crux of the application of the problem is: the deviation of criminal justice concept,the lack of standardization of sentencing procedures,the quality of judges and the existence of loopholes in the accountability system.The third part "the basis for solving the problem of the application of discretionary circumstances of lenient sentencing",is the basis for solving the problem of finding and dealing with the problem,mainly divided into standard basis,policy basis and theoretical basis.Legal provisions and relevant legislative and judicial interpretations provide the legal guarantee for the existence and application of discretionary circumstances of lenient sentencing.The basic criminal policy of tempering leniency with severity as the policy basis has a strong guiding role in the application of discretionary circumstances of lenient sentencing.At the same time,the extraction and application of discretionary circumstances of lenient sentencing should also be subject to the constraints and restrictions of philosophical theories and criminal jurisprudence theories such as the realization of the purpose of punishment,the principle of adaptation between crime and punishment and the individualization of punishment.The fourth part "solutions to the problems of discretionary circumstances of lenient sentencing",proposes solutions to the problems mentioned above and responds to the problems such as "the legalization of discretionary sentencing circumstances".Specifically,both in the judicial practice and theoretical research should be clear for discretion from the plot of status in criminal law,discretion from the plot is not dispensable,the size of its function is not entirely depend on the judge,and depends on the plot itself embodies the criminal behavior of social harmfulness and criminal personal risk.Judicial organs should fully extract and apply discretionary circumstances of lenient sentencing.In cases with multiple plots,systematic treatment should be taken seriously to avoid mechanized.Discretionary circumstances of lenient sentencing in cases should not be rejected or ignored.