Research On Subject Of Plot Of Penalty Measurement

Sentencing circumstances are not only important issues of the penalty system in Chinese criminal law and also difficult issues in both theory and practice of Chinese criminal law. Circumstances affect the measurement of penalty directly. The status and function of sentencing circumstances determine that they are the base in criminal law theory. In this dissertation some difficult and fashionable points in sentencing circumstances, combining the related achievements at home and abroad have been discussed. The whole dissertation consists of five chapters, counting up to about twelve thousand Chinese words.Chapter 1 is a briefing of the basic theory on the sentencing circumstances, mainly introducing its concept, features, classification, legal bases and history. The author holds that the legal bases of sentencing circumstances are to resolve its philosophical connotation. Any system of sentencing circumstances should have its theoretical ground, otherwise no foundation on which it exists and this is like water without a source. The union of social harm and personal danger in sentences is the theoretical premise of optimization of sentencing circumstances. The view of "the living law" is the positive aspect of this system. On the practical bases the optimization of sentencing circumstances can fill up the gap between the realty the effectiveness of law. The design of this system should well represent the humanistic thoughts of the "people-oriented", not exceeding the value notion of fairness and justice. The concept of sentencing circumstances is all subjective and objective standards which, in addition to criminal facts, represent the degree of criminals social harm and personal danger, and affect the courts' sentences. As to the classification of sentencing circumstances, this dissertation substitutes "definite sentencing circumstances" for the traditional "legal sentencing circumstances" as the opposite to "extenuatory sentencing circumstances".Chapter 2 mainly discusses the related question of definite sentencing circumstances. The author reconstructs the theory of legal sentencing circumstances on the bases of the forth goers achievements. Firstly, the author discusses the reasonsof adopting the concept of definite sentencing circumstances. This is the premise of innovating theoretical construction. Subsequently, the three levels of classifications of the definite sentencing circumstances through analyzing its concept and features are explored.. It discloses the related legislative considerations of definite sentencing circumstances from aggravating to mitigating sentencing circumstances: It is necessary to codify the kickback as a legal mitigating sentencing circumstance. Being an old criminal should be a mitigating sentencing circumstances; The conducts committed because of inveiglement, innocence, intoxication, or those by the men of moral character or good deeds can be mitigating sentencing circumstances.Chapter 3 illustrates the concept, the features, the basic scope and the application of the extenuatory sentencing circumstances. The extenuatory sentencing circumstances are various circumstances synoptically provided by the penal code, represent the actors' public harm and personal danger, and can be applied with extenuation in sentences. The grounds of extenuatory sentencing circumstances are determined by the criminal personal facts of the suspects just like legal sentencing circumstances. The criminal personal facts of the suspects manifest the social harm of the conducts and the personal danger of the actors. The extenuatory sentencing circumstances are those judicially considered and cognized in sentences. Their contents are recapitulative and uncertain. They can affect the sentences independently. Their functions are uncertain. They stand for the authorization. The legality of the extenuatory sentencing circumstances determines that their positions are improvement. The judges should prudently and moderately exert their free discretions to ensure the proportionality between the crime and punishment. According to the theory and practice of criminal law in our country, the extenuatory sentencing circumstances can be boiled down to various and concrete situations based on different forms. The criminal motives, the criminal means and manners, the criminal space-time environment, the targets of offence, the criminals' persistent behavior, the criminals' attitude to the compensations to the victims after crime, the social situations, the criminal policies and the public indignation are all basic contents of the extenuatory sentencing circumstances. This dissertation illustrates practically andseparately the extenuatory mitigating, exempting, heavier and lesser sentencing circumstances in favor of judicial practice.Chapter 4 illustrates the concept of sentencing circumstances conflicts. Sentencing circumstances conflicts is also called the coexistence of multiple converse circumstances, the situation in that some criminal circumstance tend to severity, others to lenience so that the collision between circumstances occur in sentencing. The conflict between sentencing circumstances can be generalized in reality as one form: the conflict between circumstances tending to severity and lenience, which is a high union of the forms and contents of sentencing circumstances' conflict. As to a case with multiply sentencing circumstances, the following four principles should be applied, the principle of grasping sentencing circumstances on the bases of sentences and the principle of considering sentencing circumstances comprehensively; the principle of prohibition against repeating the sentencing circumstances; the principle of proportionality between crime and its punishment. This dissertation put forward the following means to resolve the issues of sentencing circumstances' conflicts: The sentencing circumstances which affect the sentence severely should be applied preferentially. The mitigating sentencing circumstances can make death penalty into life imprisonment and the aggravating sentencing circumstances should not be applied if death penalty is the basic punishment. The mitigating sentencing circumstances can make life imprisonment into the terms of 15 to 20 years and the aggravating sentencing circumstances can not be applied within this period unless life imprisonment is the basic punishment. The sentence could be under the lowest legal punishment and the aggravating sentencing circumstances will have precedence over the mitigating sentencing circumstances if the sentence term is short. After the application of the mitigating sentencing circumstances, the remaining mitigating and aggravating sentencing circumstances can counteract each other. The above principles accord with the retrenchment principles of criminal law. The issues of sentencing circumstances' conflicts can only be settled through legislation in order to overcome the cognitive disagreement and practical confusion.In Chapter 5 both legislative and judicial consummation of the system ofsentencing circumstances have been discussed. Firstly, this part introduces both legislative and judicial defects in the system of sentencing circumstances. Secondly, it reviews the system of sentencing circumstances in our country on the ground of the experiences abroad. And finally it analyzes the validity and mistake of sentence by computer and put forward the system of one provision for one offence in agreement with sentencing circumstances and forecasting its development on the ground of its original meaning.