Research On Judicial Application Of Giving Sentence By The Statutory Penalty Of The Crime

To solve the problem of unbalanced crimes in the judicial practice,some scholars put forward giving sentence by the statutory penalty of the crime,that is,first get the sentencing prejudgment of specific cases and then find the appropriate charges.This view has not been recognized by the academic because of violating the principle of legality.But from the sample statistics of the criminal judgment,there are still many phenomena of improper use of it.As a matter of fact,it is not only legal and reasonable,but also important to interpret and apply the legislative provisions such as the principle of adaptation between crime and punishment.This article starts from the conviction significance of the principle of appropriate punishment for crime,clarifies the connotation of giving sentence by the statutory penalty of the crime and investigates its judicial application status through sampling investigation,and probes into the judicial application of it in this sense.The paper is divided into the following five parts:The first part,"the basic definition of giving sentence by the statutory penalty of the crime ",analyzes the two representative views of it,clarifies their basic connotation and specific performance on the basis of sorting out the disputes and differences in the academic field.At present,there are two completely different positions and the root lies in the difference in the understanding of the connotation of it.This article is in favor of the latter view,sentencing determinism embarks from the specific case of sentencing anticipation,which is against the relationship of punishment and crime.However,the punishment restriction theory can adapt to the request of the principle of legality,which is the requirement and embodiment of the principle of appropriate punishment for crime,and reflect in the process of legislation and judicial conviction.The second part,"investigation on the judicial application of giving sentence by the statutory penalty of the crime ",summarizes the situation of the application of giving sentence by the statutory penalty of the crime through the statistical analysis of the data of 110 criminal judgments in retrial cases.The result of the judgment shows that in order to realize the adaptation of the crime and punishment,the judicatory subject chose to change the charge.At the same time,in some cases the improper use of giving sentence by the statutory penalty of the crime has been aggravated the imbalance of the crime and punishment.It mainly includes: a tendency of generalization application because of the analogy application of criminal law;choosing different crime for the same case,which violates the principle of everyone being equal before the criminal law;the judgment reasoning argument is not sufficient,including piling up the factual evidence and using formulaic words instead of reasoning.The third part,"analysis of the causes of problems in the judicial application of giving sentence by the statutory penalty of the crime ",is to explore the causes of problems in the application of criminal punishment,so as to point out the direction for the construction of the following path.To be specific,the judicatory subject neglects the restriction of the principle of legality while mechanically applying the principle of appropriate punishment for crime;the over-reliance on the criminal policy also leads to the use of giving sentence by the statutory penalty as a tool to expand the application of criminal policy;the one-sided application of the criminal law is also one of the reasons.The fourth part,"the construction of the judicial application path of giving sentence by the statutory penalty of the crime ",is to explore how to standardize the use of giving sentence by the statutory penalty of crime in judicial practice to achieve balance of the crime and punishment.Firstly,the application of it must adhere to the principle of legality and the principle of appropriate punishment for crime.Secondly,the criminal policy should be flexibly used in the process of conviction,including the criminal policy of combining punishment with leniency and some specific criminal policies.Thirdly,applying criminal law correctly,and combining with the general provisions to supplement,limit and amend the specific provisions of the criminal law.The fifth part,"typical analysis of the judicial application of giving sentence by the statutory penalty of crime",is to illustrate how to use giving sentence by the statutory penalty of crime to draw a legitimate and reasonable conclusion combined with typical cases when affirming the pattern of crime number,inchoate conformation and accomplice.In the case of Guo,it shouldn't apply the pattern of the number of crimes mechanically,and consider the statutory penalty as the sole basis for the selection of charges based on the criminal policy.In the case of Fu and Yu,it needs to consider the punishment of the behavior to limit the determination of inchoate conformation and accomplice.