The Theory Of Procedural Regulation On Sentencing Discretion

The sentencing discretion refers to the right to referee decisions for the judge,on the basic of confirm the crime correctly,after he had comprehensive measured in the kinds of legal punishment and its range,then determined the punishment.The nature of this right is distributing the punishment,determining the kinds of punishment and its degree within the range of legal punishment forjudge.Because of this right is relevant to offender’s important rights,such as his life,liberty and property etc.It becomes to a focal topic in criminal law theory and judicial practice that how to regulate the sentencing discretion so as to protect offender’s rights.So for that reason,this paper will discuss the relevant problems on regulating the sentencing discretion form the view of procedural law.So as to perfect the legislation and benefit to criminal justice work.This paper total 30,000 words with four parts.First part is summarizing the procedural regulation of sentencing discretionAt first,we introduce the basic theories of the sentencing discretion so as to apportion its concept.And then we plan to state its necessary from two aspects,that it can realize the individual justice also can fill the law loopholes.Secondly,we will discuss the necessity of regulation on sentencing discretion respectively from the human weakness,the nature of power,and the limitation of liberty.The sentencing discretion is a double-edged sword.We need to realize its advantages and disadvantages,and to establish related rules and measurements to prevent its abuse.At last,this part introduces its independent value of the procedural regulation on sentencing discretion.As we know the limitation is obvious,we can infer that the procedural regulation has more advantages than substantial rules on the sentencing discretion.In addition,it is enough to reveal the unique value of procedural law with the fair,just and balance sentencing.The second part is currently looks on procedural regulation on sentencing discretion study.We will have an overview of the procedural regulation on sentencing discretion through a in-depth and detailed inquiry study on the situation of procedural regulation on sentencing discretion at present from the juridical practice and the law text.Firstly,the sentencing discretion regulations are mainly interpreted in substantive rules,the procedural rule is secondary.And the most regulations are judicial explanation.While the defect in regulation is low effect level.Secondly,with consider lawsuit participant subject,we can get an overview about how well of the procedural regulation on sentencing discretion in judicial practice.From the present jurisdiction practice,the suggestion on weighing sentences,the defendant and his defenders sentencing defense,the court’s sentencing reasons,and the victim’s participant,contrary on the theories.The third part is going to analyze reasons about the present situation of procedural regulation on sentencing discretion.In this part,we will analyze the reasons why the alienation phenomenon exists in the law text and juridical practice about procedural regulation of sentencing discretion at present from the aspect of lawsuit participant subjects.The fourth part is about legislative perfection of the system of procedural regulation on sentencing discretion.And this part is also the core of this paper.We can perfect the legislation of regulation on sentencing discretion from four aspects.One way is to perfect sentencing suggestion that is perfecting the operating mechanism of the procurators,such as the content of the suggestion,subject,means,and alteration etc.The other way is strengthen the sentencing defense,and get the right remedy.That is constructing relatively independent system of sentencing defense,ensuring the defense right can be used fully by the counsel.Another way is enhance the sentencing reasoning,though the method of ensuring judge’s independent sentencing right in the system,reforming sentencing documents and public the sentencing reasons etc.Guarantee the victim should be entitled the participating right is another way.The judicial administrative organs should be fully guaranteed the victim has right to know,at the same time,perfecting the system of agent and the legal aid for the victim,providing system-condition for victim to participate in sentencing process.Finally,the procedural justice and substantive justice achievements are brought on.