Research On The Typed Construction And Normalization Application Of The Discretionary Circumstance For Severe Punishment

The application of the discretionary circumstance for severe punishment not only does not violate the principle of a legally prescribed punishment for a specified crime,but also accords with the requirements of the principle of a legally prescribed punishment for a specified crime at the substantive level.On the basis of clarifying the factual basis of the case and the prohibition of indirect punishment,the discretionary heavier punishment is not an improper aggravation of the defendant's punishment so it will not lead to the so-called heavy punishment doctrine and there is no inevitable conflict between it and the legal circumstances of heavier punishment.The application of circumstances of discretionary heavier punishment will not violate the statutory provisions of the criminal law.The exertion of penalty function should always focus on the realization of penalty purpose,therefore,on the premise of integrating the theory of penalty teleology and the theory of penalty function,it is helpful to determine the application of the circumstances of heavy penalty to the above functions and the realization of the purpose.From the perspective of the victim's need for protection,from the standpoint of functional responsibility,or from the dimension of case sociology,it can be concluded that there is a positive argument for the discretionary circumstance for severe punishment.Some previous studies have found that there are unavoidable defects in the constitutive scheme of discretionary punishment.Based on the dual dimensions of the criminal law of behavior and the criminal law of the doer,the systematization and typology of the criminal law are constructed,so as to realize the cooperation between objectivism and subjectivism in the field of penalty theory.In order to standardize and apply the circumstances of heavier punishment in the practice of sentencing,at the micro level,the judgment documents of individual cases should be strengthened to make them conform to the principles of comprehensive evaluation,repeated evaluation prohibition and individualization of punishment.At the macro level,the guidance system of criminalcases should be gradually improved while the relevant inappropriate provisions in judicial interpretation should be thoroughly cleared up,through the combination of judicial interpretation and case guidance system,the author gives guidance on the standardization and application of circumstances of discretionary heavier punishment.In the procedure of sentencing,we should construct and perfect the mechanism of dialogue and discussion between the victim and the defendant and the participants in the criminal procedure,therefore,it is widely acceptable to draw sentencing conclusions after the circumstances of heavy punishment are applied in the penalty discretion,finally achieve the goal of sentencing justice.