Discretionary Sentencing Circumstances In Criminal Law Of China

The concept definition and application of discretionary sentencing plot in the science and practice in a vague and very controversial state,until today,our criminal law and various criminal normative documents avoid the definition of its concept,and generally adopt "principle part list" legislative mode.Although such a practice retains the function of discretionary sentencing circumstances to make up the abstraction and lag disadvantages of the grammar,the vague connotation and applicable standards still inevitably cause many problems.In terms of legislation,due to the lack of clear concept and punishment basis,the lack of sentencing system,and the judicial aspects,the lack of concept and applicable standards,the lack of utilitarian selection,lack of substantive relevance and repeated evaluation,resulting in serious generalization tendency.Moreover,reform of sentencing standardization reform is also faced with practical conflicts with the application of discretion and unreasonable supporting sentencing suggestive procedures,which seriously restrict the standardization process of discretionary sentencing circumstances in China.Based on this,this paper starts from the common understanding of discretionary sentencing concept,from the essential characteristics,source,basic,function and function,combining the characteristics of illegal content,apply flexibility and the independence of sentencing.Think discretionary sentencing circumstances refers to the criminal law does not clearly stipulate its content and function but recognize the existence,the judge in the trial to follow the punishment and legal procedures must consider,can reflect the social harm and the behavior of the individual risk,for the case appropriate selection and applicable and to the sentencing play the heavy,lighter,mitigation and punishment of the subjective and objective situation.On this basis,in view of the problems existing in the current legislation and judicial practice,this paper believes that it is necessary to build the correlation between the sentencing target,sentencing principle,sentencing mode and punishment basis under the guidance of the systematic ideology.First,With the sentencing goal of achieving the justice and stability of the discretionary outcome,With the requirements of "unified sentencing balance and sentencing personalization" to refine the connection of sentencing guidelines and sentencing norms,Establish the discretionary sentencing mode of "qualitative first,quantitative as auxiliary";On this basis,From the micro level,build the discretionary sentencing plot extraction standards,classification and applicable methods and supporting sentencing procedures as the core —— in the trial practice,The identification standard of reporting punishment,preventive punishment and supplementary resuming punishment in combination with "non-discretionary sentencing circumstances blacklist" to standardize the extraction of discretionary sentencing circumstances;At the same time,formulate clear concepts and application basis in the legislation,and promote the legalization of some discretionary sentencing circumstances,In justice,the application of discretionary sentencing circumstances is standardized by setting up classification and applicable methods,defining the sentencing influence range of discretionary sentencing circumstances,and supplemented by supporting procedures.With the basis of punishment as the center,from the macro theory to the specific applicable rules layer by layer,gradually translate the abstract theory into both systematic and practical and operable sentencing norms,and finally achieve the fairness and stability of sentencing.