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Study On The Application Of Discretionary Sentencing Circumstances In Discretion Of Death Penalty For Intentional Murder

Posted on:2019-11-14Degree:MasterType:Thesis
Country:ChinaCandidate:L Y ZhengFull Text:PDF
GTID:2416330572951287Subject:Law
Abstract/Summary:PDF Full Text Request
The crime of intentional homicide is one of the most serious violent crimes in China.It violates the legal interest and the right to life.The 232 nd provision of the criminal law of China stipulates that intentional homicide is sentenced to death penalty,life imprisonment or fixed-term imprisonment of not less than ten years.If the circumstances are minor,it shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years.This is the basic content of the application of death penalty in intentional homicide.In China,when committing intentional homicide,the death penalty is the first consideration when penalty is imposed.If there is a statutory or discretionary light circumstances,the lenient punishment should be considered.It can be seen that the punishment of our country focuses on the protection of the right to life.The death penalty is the most extreme and the most severe punishment measure.It plays an important role in effectively fighting violent crimes and maintaining social stability.However,in practice,the defendants are not necessarily sentenced to death for crimes of intentional homicide,ranging from death sentences to life imprisonment,fixed-term imprisonment or even three or five years' sentences.These episodes affect more or less the sentence.Although the circumstances of these crimes affect the verdict,there are no specific provisions in China's criminal legislation to stipulate the circumstances of these crimes.China's criminal policy requires less killing and careful killing.In cases where there is no statutory sentencing circumstances and the cause of the case is intentional homicide,it is generally the discretionary circumstances of sentencing to restrict the application of the death penalty.However,in judicial practice,judges often attach importance to the circumstances of statutory sentencing,neglecting the application of discretionary circumstances of sentencing,resulting in the phenomenon of "different cases of the same case".In order to scientifically and accurately determine the size of the criminal responsibility of the criminal,respect and safeguard the legitimate rights and interests of the accused,it is applicable to various discretionary circumstances of sentencing in the case.Therefore,judges should consider comprehensively the discretionary circumstances of sentencing with decisive influence on the death penalty discretion.This article is about thirty thousand words and is divided into the following six parts.First of all,through the study of 82 cases of H in the case of intentional homicide,which has been applied to exclude the death penalty because of discretionary circumstances of sentencing,it analyzes the specific application of discretionary circumstances of sentencing in the death penalty discretion of intentional homicide,hoping to provide some help to the study of discretionary sentencing circumstances of death penalty in intentional homicide cases.The first part is the analysis of H province's discretionary circumstances of sentencing restricting the application of death penalty.By analyzing the 82 cases of intentional homicide in H Province,this part finds that a single discretionary sentencing plot is less effective in limiting the application of death penalty in the case of judges.The discretionary circumstances of sentencing are often limited in the application of death penalty.Judges usually weigh after considering multiple scenarios.The application of death penalty is restricted.Among them,in the process of restricting the application of death penalty,civil compensation + understanding,civil contradictions + confession and repentance are two kinds of discretionary circumstances of sentencing plot,which play a greater role in limiting the use of capital punishment.The second part: the discretionary circumstances of sentencing limiting the application of death penalty.This paper expounds the definition and scope of discretionary circumstances of sentencing,and introduces in detail the general situation of legislation and the general situation of justice.The third part: the value and space of discretionary sentencing circumstances in limiting the application of death penalty in China.Analyze the value of discretionary circumstances of sentencing in limiting the application of death penalty.The same sentencing plot,different places of the judicant made different judgments,the reason is different from the discretionary circumstances of sentencing limiting the application of death penalty.At the same time,the scope of sentencing provided by the provisions of the criminal law,the general criteria for applying discretionary circumstances of sentencing and relevant criminal policies provide space for discretionary sentencing circumstances to restrict the application of death penalty.The fourth part: the common discretionary circumstances of sentencing limiting the application of death penalty.Combined with nearly five years' case of intentional homicide and death sentence,detailed analysis is made on the specific application of the discretionary circumstances of sentencing such as civil disputes and disputes,positive compensation,victim's fault and understanding of relatives of victims.Civil disputes are subdivided into marriage and family disputes,neighborhood disputes,love disputes,production and life disputes.In intentional homicide cases,the causes are mostly intensification of civil disputes.After the incident,the defendant actively compensated the loss of the victim and obtained the understanding.After considering these circumstances,the judge would generally consider the execution of the death penalty with caution.The injured party's fault generally falls into three categories: the first is the general fault,the second is the direct responsibility for the intensification of the contradiction,and the third is the major fault.The fifth part: discretionary circumstances of sentencing restrict the application of death penalty.In judicial practice,discretionary circumstances of sentencing play a positive role in limiting the application of death penalty,but there are also many problems.First,discretionary circumstances of sentencing do not have unified norms.First,the discretionary characteristics of the plot are taken into account.Secondly,there is no uniform norm in discretionary circumstances of sentencing,which leads to the phenomenon of arbitrariness in the application of discretionary circumstances of sentencing.Once again,the judges' qualities are different,and the trial level is different.Fourth the relationship between life circumstances and circumstances is different.Two the discretionary circumstances of sentencing have not been given due attention.The lack of legislation,the neglect of application,the contempt of individual will,and the lack of easy application of the objective environment have led to discretionary attention to the discretionary circumstances of sentencing.Three it is difficult to grasp the standard of discretion when the circumstances of quantitative penalty are concurrence.How to apply and guarantee the impartiality of sentencing is the key and difficult point of court decision under the circumstances of concurrence of multiple discretionary sentencing circumstances.Four,when limiting the application of death penalty,it is not fully reflected in the combination of the mitigation of sentence with death sentence.Discretionary circumstances of sentencing are advanced.
Keywords/Search Tags:Discretionary Circumstances of Sentencing, Death Penalty Application, Intentional homicide, Perfect Suggestion
PDF Full Text Request
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