An Empirical Study Of Attempted Crime Sentencing

According to Article 23 of the Criminal Law and relevant judicial interpretations,the attempted crime can be given a lighter or mitigated punishment compared with the accomplished crime,and the adjustment ratio of the attempted plot to the benchmark penalty is below50 %.In theory,it has also become a consensus in the academic circle that attempted crime should not be punished as accomplished crime.However,whether the attempted crime is lighter and mitigated in sentencing practice needs to be further tested,and an accurate conclusion can only be drawn after a certain number of real judgments are scientifically investigated.Taking 1518 judgments as the research sample,using the statistical regression analysis method,the regression analysis of the free sentence,the amount of fine and the range of penalty is carried out by means of modeling.It can be seen that the attempted crime has indeed been treated lightly to a certain extent in the sentencing practice,which is manifested in the fact that the attempted circumstances have reduced a certain proportion of the term of imprisonment and the amount of fine.The empirical analysis of the sentencing practice in the eastern,central and western regions also further shows that although the specific situations in each region are slightly different,they are basically the same in the direction of lighter punishment.Therefore,in the direction of lighter punishment,sentencing practice is consistent with legal provisions and criminal law theory.However,sentencing practice is only partially consistent with legal provisions and criminal law theory,and there are outstanding problems such as the low actual adjustment ratio of attempted circumstances and the absence of mitigating punishment.From the perspective of legal dogmatics,the low adjustment ratio of attempted plot will lead to substantive imbalance of sentencing and violate the principle of legal interest protection.In the practice of sentencing,the low proportion of attempted circumstances and the absence of mitigating punishment function are derived from the following two points : first,under the current composite mode adopted by sentencing,the unclear positioning of attempted circumstances weakens the regulatory role that this plot should play,and the mixture with other circumstances increases the difficulty of application;second,the absence of the function of mitigating punishment for attempted circumstances is directly caused by the determination of the starting point of sentencing for common crimes stipulated by judicial interpretation,because if the attempted circumstances play a role in mitigating punishment,the adjustment ratio will exceed the statutory adjustment ratio.Therefore,in general,the unmitigated punishment of attempted crime does have certain rationality,but the too low adjustment ratio should be adjusted accordingly.In view of the problem and reason of the low proportion of attempted plot adjustment in sentencing practice,first,we should pay attention to the objective danger of attempted behavior due to possible infringement of legal interests in the concept,and gradually correct the subjective tendency in sentencing practice;second,the role of attempted circumstances should be clarified in positioning,and it should only be regarded as the adjustment plot of the benchmark penalty.Third,we can learn from the practice of some provincial high courts to accurately determine the adjustment ratio by the type of attempted behavior,explore the specific implementation path of the adjustment ratio of the attempted plot,and provide accurate guidance for the sentencing practice to further improve the adjustment ratio of the plot.