The Foundation Of Sentencing

Sentencing is an important theoretical issue, but also an important practical issue, foundation of sentencing reasonable or not, related to the sentencing balanced and justice achieved. According to one system of sentencing on both a theoretical value, but also has important practical significance justice. According to the text of the mainline sentencing, expounded on the concept of sentencing, the theoretical foundation, and then given a reasonable basis for its content and launch, as well as to improve the legislative and judicial thinking.The main part of the article divided into four parts.Part one is to illuminate the meaning of foundation of sentencing. Foundation of sentencing means that the basis or factors on which the People's court depend, decide whether to impose penalties and which penalties for criminals. And distinguish foundation of sentencing between the principles of sentencing, benchmark of sentencing benchmark and foundation of penalties. Finally point out the meaning of foundation of sentencing that is conducive to limit the discretion of judges, to a certain extent overcome sentencing imbalance.Part two is to clarify how established foundation of sentencing. Article introduce main representative viewpoints of retribution, utility and the integration of theory , point out strongpoint and shortcoming, based on this, I think the theory of foundation of sentencing of should be that in the sentencing phase should be retribution mainly utilitarian principle, and that such retribution should be legal retribution, rather than moral retribution, otherwise it will lead to legal nihilism, and utility should be individual prevention, rather than general prevention, or it will break after the delimitation of responsibilities limits. Based on this theory, I believe that sentencing should be based on social harmfulness, than take in account dangerousness of the person.Part three is to discuss foundation of sentencing further more. Article discuss the meanings of social harmfulness and the factors which to evaluate it (contains the meanings of harm and subjective evil character, the factors which to evaluate them), and the meanings of dangerousness of the person and the factors which to evaluate it.Part four is how to perfect legislation and justice. The phenomenon of sentencing warp is caused by much matter, according to the theory of foundation of sentencing, I choice two function, that how to perfect principles of sentencing and strictly applied perspective on recidivism. Our criminal law is short of provision about individual penalties, so should to perfect legislation. Recidivism is strictly based on t subjective evil character, if can not know this, we will sentence wrongly.