Research On The Application Of The Principle Of Restriction And Aggravation

It is common for a person to commit several crimes at different times all over the world.Due to the differences in culture,legal tradition and other aspects in the world,the punishments for the perpetrators of several crimes are not the same.As for the continental law system countries,many countries adopt the principle of limitative aggravation to impose combined punishment on the perpetrators of several crimes.As far as China is concerned,the first criminal code of the People’s Republic of China,which was revised in the1979,clearly stipulates the content of the principle of limitative aggravation,which is an important part of China’s combined punishment system for several crimes.Although the legislative body amended the criminal law in 1997,it did not substantially modify the content of the principle of limitative aggravation.With the development of economy and society,the crime phenomenon has become more and more complicated.It is very common for a person to commit several crimes and be sentenced to more serious penalty.In order to deal with this problem,making implement the principle of compatibility to the crime,as the basic principles of criminal law,it imposes a fair sentence to the defendant who commits several crimes,which fully realize the purpose of the penalty retribution and crime prevention,the standing committee of the National People’s Congress amended the content of the principle of limitative aggravation stipulated in article 69 of the criminal law in February 2011,improving the legal maximum limit when fixed-term freedom penalty.In general,the establishment and application of the principle of limitative aggravation are of great significance to the implementation of the principle of compatibility of crime,responsibility with punishment,to avoid severe punishment and to ensure justice in sentencing.However,due to the defects of the principle of limitative aggravation,the absence of judicial operation rules and the non-standard exercise of discretionary power,there are also some prominent problems in judicial practice,such as different judgments of the same case and unbalance of sentencing,which affects the justice of sentencing,damages the judicial authority and weakens the judicial public trust.therefore,both criminal law theory and judicial practice departments have paid attention to it.Some scholars have carried out relevant researches and put forward some measures.At the same time,local judicial offices have issued relevant normative documents to reduce such problems to some extent.However,there are still some defects and deficiencies in the current theoretical research,and the legislative amendment has not fully met the needs of judicial practice,and the highest judicial organ has not fully paid attention to how to regulate the application of the principle of limitative aggravation,leading to the long-term failure to solve the problem effectively.Therefore,in clarifying the concept and nature of the principle of limitative aggravation,delving into its basis,value goal and function,empirically researching on application of the status of the principle of limitative aggravation,focusing on analysis the problems and reasons of applicable,I put forward practical and feasible measures,which is of great value and significance to enrich the theory of criminal law,also completes criminal legislation and improves current judicature.The paper follows the general idea of " concept clarification →proper basis →value objectives and functions →application conditions →the cause of the problem →concrete suggestions",Using methods such as empirical analysis,comparative research,legal hermeneutics,and interdisciplinary research,studies the application of the principle of limitative aggravation,and I put forward some Suggestions for legislative improvement and judicial improvement.In addition to the introduction and conclusion,the full text is divided into six chapters,about 170 thousand words.Chapter1 concept and constituent elements of the principle of limitative aggravation.Concept as the thinking form,it reflects the essential attribute of things,it is the basis of judgment and reasoning as well as the necessary and indispensable tool to solve legal problems.As the concept of the principle of limitative aggravation,domestic and foreign criminal law theory point that the accused that commits a few crimes,the highest in a few crimes announce punishment or above legal punishment,summation term of imprisonment is below,aggravate certain penalty,serve as the penalty that decides execution,but cannot exceed legal maximum term of imprisonment to restrict.Through investigating the relevant provisions of the criminal law abroad,it is found that the definition of the principle of limitative aggravation in the theory of foreign criminal law accurately summarizes the content of the legislative provisions of the country.However,the concept of the principle of limitative aggravation in the theory of criminal law in China does not accurately reflect its essential attribute.In fact,the principle of limitative aggravation in our country refers to a commits crimes which are sentenced to the same prison freedom penalty,the judicial office never limits number of punishment combined sentences in a number of punishment above the maximum sentence and below the overall sentence.Discretionary decision shall execute judgment,and execution of penalty shall not exceed a maximum sentence of legal restrictions.In terms of constituent elements,the principle of limitative aggravation is composed of two elements: "restriction" and "aggravation"."Aggravation" doesn’t refer to the aggravation on method and means,but on result and effect.That’s to say the penalty that decides to carry out should be higher than the highest term in a few punishments.Chapter2 The foundation of the principle of limitative aggravation.In the theoretical circle,some scholars believe that the principle of aggravation violates the principle of compatibility of crime,responsibility with punishment,which causes the unbalance punishment in judicial application and unfair sentencing,so they put forward a lot of dissension according to this principle,and advocate abolishing and deconstructing it.In fact,this criticism in the theory of criminal law is not reasonable,and the existence of the principle of limitative aggravation has its own legitimate basis.On the one hand,the limitation of human life expectancy,the objective need of criminals returning to society and the economy of justice are the realistic basis for the existence of the principle of limitative aggravation.On the other hand,the purpose of punishment is no longer simply to repay the crime,and the prevention of crime is also an important part of the purpose of punishment.As the criterion of discretionary punishment,the principle of limitative aggravation cannot be explained by retribution and prevention alone,and only the theory combining the merits of self-restraint and the shortcomings of self-restraint can provide theoretical basis for it.Chapter3 the value goal and function of the principle of limitative aggravation.The value goal of the legal system dominates the specific content of the overall legal system and determines the direction of the legal system to play its role.The reason why the legislature sets up the principle of limitative aggravation in the criminal law is that the offenders who commit a number of crimes are not subject to the term of punishment imposed by the total number of executions,but are subject to certain restrictions on the term of punishment which decides to be executed,Its fundamental goal is to pursue the adaptation of guilt and punishment.All social legal systems have certain functions as the premise of existence,as the most severe means of legal sanctions penalty is no exception.The realization of this value goal depends on the potential function of the principle itself.These functions mainly include: correct the pure retribution effect of the principle of cumulating punishments,correct the non-equivalence effect of the principle of absorption,and realize the balance of relative between crimes and terms of punishment.Chapter4 Application conditions of the principle of limitative aggravation.Through an empirical study of the judgments of intermediate people’s courts in different regions of China in the past 10 years,it is found that there are prominent problems in the application of the principle of limitative aggravation,such as the different judgment of the same case and the imbalance of sentencing,and the value goal of the legislation of the principle limitative aggravation is not fully and effectively realized.It is mainly manifested in two aspects: on the one hand,the different judgment of the same case between the cases.for the same case of the same situation,but the court’s handling methods are different,and for the case of the same or similar degree of harm to the society,for the guilt of the criminals and personal dangerousness,the court’s punishment to the criminals is greatly different.On the other hand,imbalance in the inside of the case of crimes is the other factor,the relationship between crime and punishment,the degree of the penalty for person with crime,the degree of responsibility the person takes and personal risk do not match,such as the execution of punishment execution with unequal number of crime and punishment which breaks through the legal punishment,the decision of punishment with the crime of serious degree does not match,what’s more,execute punishment counterparts doesn’t fit for personal dangerousness.Chapter5 The cause of the problem in the application of the principle of limitative aggravation.There are both legislative and judicial reasons for the unbalance of sentencing in the application of the principle of limitative aggravation.On the legislative factor,the legislative content is incomplete and unclear,incomplete,such as the meaning of "judgment",the "number",imposed on execute punishment according to the nature of the term of "compound" was not clear,limitations to aggravate applicable rules are incomplete,the principle of compound sentence limit is unreasonable and so on.So that judges in judicial practice is easy to bring different understanding and then take different measures.For Judicial factor,the courts at all levels of the conviction and sentencing of ideas still entrenched,because,the limitative aggravation in practice is lack of necessary guidance,the judge decided to execute punishment method is not scientific,the starting point of execution punishment and plot adjustment of punishment is out of order,the sentencing discretion of judges and the exercise have no standards.Chapter6 Concrete Suggestions on perfecting the application of the principle of limitative aggravation.Whether at home or abroad,sentencing imbalance is an objective phenomenon.In the face of the unbalanced sentencing problem in the application of the principle of limitative aggravation,we cannot turn a blind eyes and turn a deaf ear to it.Of course,it is not rational to call for a change of law whenever there is a problem.The proper way is that the criminal law hermeneutics and legislative criminal law should run together.If we ignore one of the two,it will not help to achieve the balance of sentencing.Therefore,under the premise of striving not to break the commandment that "legislation is not the object of ridicule",a kind of joint force should be constructed: corresponding to the development of criminal law hermeneutics,more scientific legislation and judicial rules should be used to provide more clearly,complete and unified rules to judicial judgment.At the same time,more measures should be taken to regulate the discretion of sentencing in the application of the principle of limitative aggravation.Teleological explanation is the highest criterion of criminal law interpretation,but also will determine whether the conclusion is reasonable judgment standard.Under the basic position,it reasonably explains the "judgment",“punishment”,“combined punishment for several crimes " “crimes in the maximum sentence above " the meaning of " discretionary ",which is of great significance to the principle of the cutting and limiting in imbalance punishment.The imbalance of sentencing in the application of the principle of limitative aggravation is not always caused by the unsatisfactory legislation,and the irregular judicial behavior is also an important factor.In the basic position,we merge the responsibility to guiding principle,and set a system which can reflect the formal logic and dialectical logic unifies sentencing,the law of qualitative and quantitative combined punishment of methods,at the same time,we limit reasonably applicable principle of compound sentence in proportion,and through enhancing sentencing reasoning and sentencing supervision measures,such as the specification in limiting applicable principle of compound sentence,reducing limit in increasing principles applicable in the sentencing imbalance.