The Judicial Application Of Discretionary Mitigated Punishment Norm

Article 63,paragraph 2 of the Criminal Law stipulates the norm of special mitigation of punishment.As a norm in favor of the defendant,it is of great significance to relieve the tension between the situation and the law and to better realize the dialectical unity of general justice and individual justice.From the point of view of the application status of the special mitigation punishment norm,the low application rate and the uneven application of charges are only the surface state presented by the norm in the long-term judicial practice,and the inadequate standardization of the application of provisions is the problem to be solved urgently."Special circumstances of a case",as the entity condition of applying the special mitigating punishment standard,determines that it is the key and core to affect the application of the special mitigating punishment standard.Legislators deliberately vague treatment of the "special circumstances of the case" may be the expedient to avoid theoretical disputes,but if such a state is allowed to continue,the deep problem in the application of special mitigation of punishment norms,that is,the inadequate standard of the application of provisions will not be solved.Special mitigation involves sentencing,so we need to consider the following questions from the perspective of sentencing: First,why to implement special mitigation? Second,how is special mitigation achieved? The answers to these two questions help clarify the essence of the "special circumstances of the case".The sentencing standard determines the generalization of sentencing,which can only meet the requirements of average justice.The pursuit of the individualization of sentencing needs to be reprocessed on the basis of sentencing criteria,and the decision of punishment should be made in full accordance with various sentencing circumstances such as motive,purpose and means.At present,the method of sentencing in the "Sentencing Guidance" has the problem that the standard of adjusting the benchmark penalty is fuzzy,it ignores the qualitative of the circumstances of sentencing,and it is difficult to deal with the relationship between various circumstances of sentencing.The correct idea to eliminate the above disadvantages is to establish a unified evaluation system according to the overall circumstances of sentencing.The "responsibility doctrine" and "prevention purpose" under the doctrine of amalgamation can properly deal with the qualitative and classification problems of sentencing circumstances.With responsibility doctrine as the basis of sentencing,the responsibility penalty has the advantage of strict distinction between responsibility penalty and preventive penalty.This makes all kinds of sentencing circumstances which were originally mixed adsorbed on the responsibility penalty or preventive penalty respectively.Therefore,the sentencing circumstances are naturally divided into the circumstances affecting the responsibility penalty and the circumstances affecting the prevention penalty.An understanding of the "special circumstances of the case" requires an understanding of the substantive elements that determine the extraordinary mitigation of punishment.On the basis of clarifying that the essential element of special mitigation punishment is the reduction of responsibility of the offender or the small necessity of special prevention,the essential connotation of "special circumstances of the case" can be determined as the discretionary sentencing circumstances of reducing responsibility punishment or preventing punishment.The application of special mitigating punishment standard adopts progressive applicable rules:the first order rule is the discretionary circumstances to consider the punishment of reducing responsibility;The second order rule is to consider the discretionary circumstances of reducing preventive punishment;The third order rule is to prevent the generalization of sentencing circumstances;Finally,pay attention to the rule to focus on the return of "sense".The discretionary circumstances of the responsibility penalty can be derived from the following two aspects: one is the fact that the illegal degree of responsibility is reduced,the other is the fact that the degree of responsibility is reduced.The former is mainly reflected in the occasions where more than one result(or there are intervening factors)and no serious social harm consequences are caused;The latter has a wide range of common purposes or motives worthy of forgiveness,reduced likelihood of expectation,the existence of special circumstances in drug crimes,etc.The special purpose of prevention should be taken into consideration for the defendant under the responsibility penalty,and the evaluation criterion can be summed up as the possibility of recidivism.Focusing on the possibility of recidivism,such as sincere repentance,apology,active return of assets and compensation for losses can be classified as discretionary circumstances to reduce preventive punishment.From the perspective of the perpetrator and the victim,the relevant factors affecting the special mitigation of punishment can be included in the aforementioned discretionary sentencing circumstances of reducing responsibility and preventing punishment.At the same time,to prevent the extension of "special circumstances of the case",we can consider from the outside of the perpetrator and the victim,reasonably follow the judge’s collective rationality,and carefully select the sentencing circumstances formed based on criminal policies.Finally,take "common sense" as the ultimate basis and practice the purpose of justice for the people.