Research On The Range Of Mitigated Punishment

The issue of Sentencing is the miniature of the theory of criminal law,and the issue of Mitigated Punishment is the miniature of the theory of criminal law.The problem of Mitigated punishment inevitably involves the circumstances of the punishment,the benchmark of the punishment,the range of the punishment and the procedure of the punishment.Compared with the problem of circumstances,benchmark and procedure,the problem of range of mitigation is not only the key and difficult problem in judicial practice,but also more prominent in the scientific and fair and reasonable inspection of sentencing methods.Therefore,the author of this paper makes a theoretical analysis and exploration from the perspectives of the concept construction and practice of the scope of mitigation,the analysis of the relationship between related categories,the deconstruction and reconstruction of sentencing principles,the interpretation and inspection of sentencing rules,and the specific application of the proposed improved sentencing rules,with a view to promoting the accuracy and standardization of the overall system of Mitigated Punishment.The main body is divided into six chapters:The first chapter mainly introduces the normative connotation and practical problems of the range of mitigated punishment.First of all,in terms of concept construction,because the scope of mitigated punishment is not a normative legal term,but only a combination of legal terms,it is still necessary to extract the basic elements and common elements from the concept of mitigated punishment and scope,and make a comprehensive analysis to construct a normative concept of the scope of mitigated punishment.The scope of mitigated punishment should have been the distance between the highest and lowest point of punishment.Because the legislation takes the legal penalty as the discretion standard,the legal penalty here is essentially placed at the place of sentencing,so the concept of reducing the punishment range is the distance between the highest point and the lowest point of the legal penalty.Secondly,in practice,the scope of mitigation of punishment is manifested in the problems such as the degree of mitigation,the limit of mitigation and the reduction of additional punishment.In fact,the issue of degree refers to the issue of the maximum extent of mitigation,i.e.whether it can be minimized to exempt from criminal punishment;the issue of limit,based on the limited mitigation,how to further regulate the issue of mitigation,i.e.whether or not the mitigated punishment or the shortened sentence should be restricted and how to limit it;the issue of mitigation of additional punishment mainly focuses on the issue of additional punishment Whether it can be reduced and how to reduce it.The second chapter focuses on the analysis of the structural elements of the scope of mitigated punishment and the analysis of related categories.First of all,on the structural elements,the connotation of legal penalty,the following and the legal penalty are mainly explained.Legal punishment refers to the range of legal punishment corresponding to a specific crime(the collection of punishment types and punishment degrees),not the range of legal punishment corresponding to the whole crime,nor the period of a certain punishment or punishment type within the legal punishment.The following are terms that describe the types of legal punishment or the limit,range or scope of legal punishment.In the text of criminal law,the following word is usually used in this principle.However,in the mitigation of punishment,we must use the techniques of restrictive interpretation or supplementary interpretation to separate this number from the following connotations.Therefore,the legal penalty below should be understood as lower than the legal minimum penalty.Secondly,on the related category relations and concept discrimination,the emphasis is placed on the impact of the circumstance category and the benchmark determination of the mitigated punishment on the scope of the mitigated punishment.At the same time,the concepts of the legal punishment scope,the sentencing scope and the scope of the mitigated punishment which are easy to cause confusion are distinguished and explained.In this paper,the limitation function of the legal sentencing range and the next sentencing range to the range of mitigated punishment is demonstrated.The third chapter focuses on the guiding principles of sentencing.The range of mitigated punishment is an integral part of the system of mitigated punishment,which must be based on the guiding principle of sentencing in the system of mitigated punishment.From the perspective of historical development and evolution,the sentencing principle of "taking criminal facts as the basis and criminal law as the criterion" has always been the basic guiding principle of sentencing.According to the modern concept of criminal law,although the penalty is connected with the social harmfulness of the crime,it is still up to the criminal responsibility to determine the existence and weight of the penalty.However,in the guiding principle of sentencing "based on criminal facts and criminal law",it is difficult to see or directly express the status and weight of "responsibility".Therefore,it is still necessary to include the principle of the adaptation of criminal responsibility and punishment into the scope of sentencing guidelines.The principle of suiting punishment to crime responsibility is the basic principle of criminal law,and also the important guiding principle of sentencing.The principle of the adaptation of crime responsibility and punishment is the unity of the principle of the balance of crime and punishment and the principle of the individualization of punishment.Among them,the criminal responsibility is the key point to interpret the principle of criminal responsibility and punishment.The size of criminal responsibility determines the severity of the penalty,which itself is determined by the criminal responsibility of the crime already committed and the need of crime prevention of the crime not committed.Because the responsibility punishment of the crime already committed has included the consideration of the general prevention factors,the need of the crime prevention of the crime not committed is basically considered from the direction of the reduction of the risk of the perpetrator’s life.The fourth chapter focuses on the interpretation of the basic connotation of the sentencing rules of the scope of mitigation of punishment,and a comprehensive review of it.Since the founding of the People’s Republic of China,the sentencing rules for the mitigation of punishment(range)have gone through the period of gestation,establishment,inheritance and perfection,and finally established the dual sentencing rules of "under the statutory punishment" and "within the next sentencing range".The sentencing rule of “under the statutory punishment " belongs to the relatively unlimited discretion rule.” Within the next sentencing range" sentencing rules belong to the relative limit range of discretion rules.Although they are special and general,they are exclusive in application.In terms of the extent of reducing punishment,the sentencing rule of "under the statutory penalty" contains the possibility of exemption from punishment,which goes beyond the original function of reducing punishment.The new sentencing rule of "within the next sentencing range" added in the Amendment VIII to the criminal law in 2011 limits the maximum reduction range of punishment,which means that there are at most 335 charges with several sentencing ranges,which can block the way from excessive reduction to exemption from punishment.But there are 134 charges with only one sentencing range,which can not be clearly reduced.In terms of the limit of reducing the scope of punishment,whether it should be lightened at will or according to the standard within the determined scope,the sentencing rule of "within the next sentencing scope" can not be effectively answered,and there has been a theoretical difference between "strict restriction theory","specific application theory" and "compromise theory" in the criminal law academic circle.In addition,when the actor has several mitigating circumstances,the sentencing rule of "within the next sentencing range" has limitations.The fifth chapter focuses on the path improvement of the sentencing rules to reduce the scope of punishment.From the investigation and analysis of the legal provisions of the civil law countries,the common law countries and the Hong Kong,Macao and Taiwan regions of our country,we can get useful experience in improving the sentencing rules of the scope of mitigation of punishment in our country.The best strategy is to reduce the scale of crime and reduce the punishment by different kinds of punishment.The Amplitude-grid Subclass model that is based on the beneficial achievements of foreign countries and the legislative documents after the founding of the People’s Republic of China.It advocates the division of sentencing range into sub categories with "penalty pattern" as the cutting point,to form a multi-level measurement space for mitigating punishment,so as to regulate the specific range of mitigating punishment.Criminal case is the refining of the highest and lowest point of the statutory punishment in the specific provisions of criminal law,which has the effect of limiting the scope of aggravating or reducing the punishment.It is necessary to raise the upper limit of single crime fixed-term imprisonment and promote the coordination and scientization of the internal structure of the penalty system.It is suggested that the penalty of 20-year fixed-term imprisonment be increased in order to limit the reduction of such extremely serious crimes as death penalty and life imprisonment.On the issue of the degree of mitigation,the model of Amplitude-grid Subclass adheres to the position of "the theory of reducing the Yype-Term of punishment” and on the issue of the limit of mitigation,the model of Amplitude-grid Subclass adheres to the position of "the compromise theory".The sixth chapter describes the application of the Amplitude-grid Subclass model in the main punishment and the additional punishment.According to the difference in the measurement of the term of imprisonment caused by the different attributes of deprivation or restriction of rights and interests,the five main punishments can be divided into divisible punishments and indivisible punishments.Death penalty and Life imprisonment belong to the category of indivisible punishment,which can only be change the original punishment.According to the sub category model of dange,under a circumstance of mitigated punishment,Death penalty should be reduced to Life imprisonment;life imprisonment should be reduced to Fixed-term imprisonment of not less than 15 years but not more than 20 years.The Fixed-term imprisonment belongs to the real divisible type of punishment,which is reduced to the next sentence in order.Generally,the reduction of prison term is preferred,and in some cases,more consideration should be given to change the original punishment.Detention and control belong to the measurement of the term of sentence,but they fail to show the attribute of division in the specific provisions of the penalty,which is not really a divisible type of penalty,usually only the mitigation of the type of penalty.There are three ways to reduce the control.It is reasonable to think that reducing the control is an additional tool of punishment.Whether the additional punishment can be reduced,whether the main punishment can be reduced to the additional punishment,how to reduce the additional punishment and so on,become the difficult problems of the additional punishment reduction.First of all,whether the additional punishment can be reduced.In the field of criminal law,there is a refutation of "affirmative theory" and "negative theory".In judicial practice,there are different judgments of affirmation and negation.In principle,we can get the reasons to support the reduction of the additional punishment from the law of the allocation of the main punishment and the additional punishment within the legal punishment and the relationship between the weight and cohesion of the external punishment.Secondly,whether the main punishment can be reduced to additional punishment.The academic circles of criminal law still form the relative position of affirmation and negation.However,in practice,there is basically a one-sided situation,and there is no judicial case to reduce the main punishment to the additional punishment.However,the boundary between the main punishment and the supplementary punishment is not insurmountable,and the judicial field should gradually break the outline thinking of "the main punishment and the supplementary punishment are different and do not change".Finally,how to reduce the additional punishment.One,the determination of time limit and amount is based on the comprehensive evaluation method and the comparative mitigation method;the other,the mitigation of punishment depends on the current situation of the allocation of legal sentence in each specific charge.