Empirical Research Of Sentencing Mechanism Of Excessive Defense

The lack of legislation on the comprehensive influence of the circumstances of over-defense and other sentencing circumstances on sentencing will create a great space for the arbitrary discretion of the application of penalty in the judicial practice of over-defense.This is not unrelated to the problem of excessive sentencing in judicial practice of our country.Because of this,based on the mechanism of excessive defense sentencing as the theme,using a variety of empirical analysis of 1254 samples of case study,to explore law of excessive defense judicial practice on the penalty discretion,excavate its defects,and combining with theoretical analysis,solve the sentencing of lay particular stress on practical problems of excessive defense case.Apart from the preface and conclusion,the paper is divided into five parts with more than 60,000 words:Chapter one,literature review and research topics.Domestic criminal law educational world the research of excessive defense criminal responsibility,focus on the research on the level of conviction,the study of sentence level is less,only pay attention to the study of sentencing level of reduction of punishment,the specific circumstances for understanding and applicable scattered link problems,lack of excessive defense and other circumstances of sentencing comprehensive influence situation research;In terms of research methods,the empirical analysis method adopted is limited to descriptive statistical analysis method,and has not been applied to inferential statistical analysis methods such as correlation analysis and regression analysis.The research topic of this paper is the sentencing mechanism of over-defense,that is,the comprehensive influence of over-defense and other sentencing circumstances on sentencing,which is embodied in four aspects.One is the comprehensive influence of over-defense and other sentencing circumstances on the discretion of exemption from punishment;The second is the comprehensive influence of excessive defense and other sentencing circumstances on the discretion of criminal categories;Third,the comprehensive influence of excessive defense and other sentencing circumstances on the sentence discretion;Fourth,the comprehensive influence of excessive defense and other sentencing circumstances on the discretion of probation.The second chapter,research object and research method.This paper introduces the source of 1254 samples,the spatial and temporal distribution of the samples,the level of trial of the cases and the result of penalty determination in cases of excessive defense.The 1,254 cases involved 31 provincial-level administrative regions of the country,and the samples were significantly representative based on the number of samples,case sources,time span,regional scope and case trial level.Meanwhile,the research methods of this paper are introduced,including descriptive statistical analysis method,binary Logistic regression analysis method,multiple Logistic regression analysis method,and multiple linear regression analysis method.Among them,Binary Logistic regression analysis,Multivariate Logistic regression analysis and Multivariate linear regression analysis are inferential statistical analysis methods.Descriptive statistical analysis method is mainly applied to the statistics and description of the basic situation of sample cases.The inferential statistical analysis method is directly applied to excessive defense sentencing mechanism research,compared with only using describe data base of descriptive statistics analysis method,the empirical analysis in this paper,at the same time by using the inferential statistical analysis method to study of mechanism of excessive defense sentencing,scientific and comprehensive reflection of excessive defense on the penalty discretion in judicial practice.The third chapter,SPSS regression analysis of the comprehensive influence of over-defense and other sentencing circumstances on sentencing.This chapter first introduced the penalty types of research need to be applied to the specific statistical analysis method and the corresponding specific research object,and then to specific punishment type grouping the dependent variable,and the effect factors of sentencing into the independent variable,in punishment law regulations,judicial practice experience for the guidelines,based on the case facts,15 kinds of independent variables and 35 sub-independent variables are extracted and set from the case.At the same time,reference category variables and virtualization category variables are set according to the needs of the model.Secondly,using SPSS binary Logistic regression analysis method,multiple Logistic regression analysis method,multiple linear regression analysis method,binary Logistic regression analysis method,the factors that affect whether the sentence is punishable or not,the type of punishment,the discretion of the sentence,whether the sentence is suspended or not are modeled and the results are analyzed.It provides data support for summarizing and analyzing the law of judicial practice of excessive defense in penalty discretion.The fourth chapter,empirical analysis conclusion and reflection.This paper studies the sentencing mechanism of excessive defense in judicial practice by using various regression analysis methods in SPSS,and concludes that: in terms of the discretion of exemption from punishment,only the circumstances of excessive defense,understanding and minor injury can significantly affect the judge’s ruling of exemption from punishment;When the judge decides to exempt the punishment,the most important consideration is the damage result,and it must be the minor injury rather than the "serious damage" in the conscious consciousness such as non-serious injury and serious injury above.The second consideration is the circumstance of excessive defense,and the last consideration is the circumstance of forgiveness.In terms of punishment types,the result of minor injury and the circumstance of excessive defense can significantly affect the judge’s decision on the punishment of control,detention and fixed-term imprisonment,rather than the punishment of life imprisonment and death penalty.In the case of more lenient sentences,the consequences of minor injury are more important than the circumstances of excessive defence.In terms of sentence determination,excessive defense,active compensation,forgiveness,minor injury and serious injury can significantly affect the judge’s sentence of shorter term,and recidivism can significantly affect the judge’s sentence of longer term.Minor injuries played a bigger role in sentencing to shorter sentences than defensive circumstances,which played a bigger role in other circumstances.In terms of the discretion of probation,minor injury,serious injury,excessive defense,confession and repentance,repentance and understanding can significantly affect the judge’s decision on probation,while recidivism and previous convictions can significantly affect the judge’s decision on probation.The relative importance of the eight factors that had a significant influence on the discretion of probation was,in descending order,repentance,minor injury,confession and repentance,serious injury,forgiveness,recidivism,excessive defense,and previous convictions.By analyzing the law of penalty discretion in the judicial practice of over-defense,we find that there are two problems in the sentencing mechanism of over-defense in the judicial practice:Be exempted from punishment,first of all,the facts will be established in the front of the plot in the damage effects of excessive defense plot is preferred,because of serious injury or death for a "serious injury consequence",directly because of the heavy casualties and excessive defense as the basis of a mitigated punishment plot regardless of excessive defense cuts punishment plot applicable order restrictions and excessive defense cuts according to of the punishment,This logic model will lead the judicial organs to focus on the established fact of the consequence of the death and injury caused by the defender,which seriously weakens the dominant position of the circumstance of excessive defense in the discretion of exemption from punishment.Secondly,compared with the circumstances of forgiveness can significantly affect the ruling of exemption from punishment,the circumstances of leniency in favor of ruling of exemption from punishment have no significant effect in judicial application.In terms of probation,overdefense,the key circumstance of "minor crime" and "no danger of reoffending",has only a very limited influence on the decision of probation.The fifth chapter,the reason and solution of excessive defense case penalty.The sentencing bias in cases of excessive defense is manifested in two aspects: low rate of exemption from punishment and low rate of probation.Excessive defense case be exempted from punishment for low rate because only results based on the "the victim position" to form theory,to defend people psychological oppression state ignore and surrendered to ignore three aspects from the plot,the way to solve is that,try to overcome only thinking of the theory of the results,abandon to established fact damage results as starting point and core of sentencing attention,While with the excessive degree as the starting point of focus,correctly grasp the excessive defense according to investigation,measurement and reduced the penalty excessive defense can be exempted from punishment as the plot,plot to exert excessive defense in be exempted from punishment discretion the dominant role of plot,to avoid serious injury,death,such "severe damage" in the conscious exclusion,blocking the use of excessive defense be exempted from punishment plot;Secondly,to effectively activate the use of voluntary surrender from wide sentencing circumstances.Excessive defense case probation applicable rate is low due to ignore the excessive defense a key plot for cutting the circumstances of the crime is lighter and "sin no more dangerous" decisive role,is the way to solve the judicial workers should fully recognize the excessive defense the plot of "the circumstances of the crime is lighter" and "sin no more dangerous" measure of the effect,Emphasis should be placed on the positive effect of over-defensive circumstances on the ruling of probation.