Research On The Starting Point Of Sentencing For Intentional Homicide

In order to standardize sentencing,enhance the openness of sentencing,ensure balanced sentencing,and maintain judicial justice,the Supreme Court has successively issued the Sentencing Guidance(Trial),Sentencing Guidance on Common Crimes,Sentencing Guidance(2)(Trial),the Higher People's Courts of Chongqing also issued the Implementation Rules of Guiding Opinions on Sentencing of Common Crimes.According to provisions of the above documents,sentencing should be divided into three steps those are the starting point of sentencing,the standard sentence,and the declared sentence are determined in order.Among them,the scientific and reasonable starting point of sentencing is the key of determining the standard sentence and the declared sentence.However,the above documents do not specify the starting point of sentencing for Crime of Intentional Homicide,resulting in determining of the standard sentence and the declared sentence lost origin,and the judge's discretion was inappropriate,which led to the imbalance of Crime of Intentional Homicide sentencing in Chongqing.I believe that determining the starting point for the Crime of Intentional Homicide reasonably is premise to solving the problem of imbalance sentencing.Based on those,this article clarifies the existing starting point of sentencing based on the core connotation of the starting point of sentencing,and proposes a reasonable,legal,and feasible method for determining the starting point of sentencing.By applying this method to quantitative analysis of 469 cases,determining the value range of starting points of sentencing for Crime of Intentional Homicide,in order to sentencing is balanced and providing reference for the standardization of sentencing.This thesis is divided into three parts for writing.The first part mainly discusses the current situation and causes of imbalance in sentencing for Crime of Intentional Homicide,and the solution to the problem of imbalance in sentencing.There are "different sentences in the same case,different punishments for the same crime,misdemeanor felony,and felony misjudgment" in the criminal trial of Crime of Intentional Homicide in Chongqing.The imbalance of sentencing severely undermines justice.The main reason for the imbalance of sentencing is that the starting point of sentencing for Crime of Intentional Homicide is unknown,the rules for determining the standard sentence are unknown,and the proportion of sentencing circumstances is unreasonable.According to the Sentencing Guidance on Common Crimes,the starting point of sentencing is origin for Crime of Intentional Homicide in sentencing,which affects and restricts the final sentencing result.Therefore,the key to solving the imbalance problem of sentencing for Crime of Intentional Homicide is to determine the starting point of sentencing.The second part is mainly defining the core connotation of the starting point of sentencing,and analyzing the shortcomings of the existing methods of determining the starting point of sentencing one by one,and proposing a reasonable,legal,and feasible method of determining the starting point of sentencing,based on the concept of basic crime constitutes facts.According to the Sentencing Guidance on Common Crimes,"Basic crime constituting facts" should be interpreted as the facts that meet the minimum constitutional characteristics of a specific crime and reach the minimum constituent element of sentencing within the corresponding statutory penalty.The basic criminal constituting facts determine the starting point of sentencing.Therefore,the starting point of sentencing refers to Penalties that should be imposed within the corresponding statutory penalty range based on the basic completed facts of the specific crime.The method of determining the starting point of sentencing is insufficient,such as the frame theory and thesituation theory etc.Based on the core connotation of the starting point of sentencing,proposing a method for determining it.I believe that the determining of the starting point of sentencing should only consider the amount of punishment that should be imposed on its abstract behavior model which should exclude any circumstances affecting the sentencing.The value should be determined by empirical analysis.The third part is mainly putting forward the use of empirical analysis to determine the starting point of sentencing and applies this theory to the determination of the starting point of sentencing for intentional homicide,based on the core connotation of sentencing starting point and the abstract behavior theory.Specifically,the steps of determining the starting point of sentencing for Crime of Intentional Homicide are: First,determining the amount of the starting point of sentencing according to legal requirements;Second,selecting samples of time,space and content representative;Third,summarizing the various plots that affect the sentencing of intentional homicide;Fourth,setting the assignment rules for plots that affect the sentencing of intentional homicide;Fifth,counting plots that affect the sentencing of intentional homicide;Sixth,performing multiple linear regression analysis on the statistical results to determine the starting point of sentencing.