Our Judicial Environment Of Discretionary Circumstances Of Sentencing

In today’s society ruled by law, Sentencing plot and Condemned the plot to play the defendant condemned the same effect, if convicted is the effect of the first phase of the defendant, sentencing is influence in the second stage of the defendant. In sentencing process, legal given circumstances and discretionary given circumstances are the judge should consider the factors, especially not ignore the discretionary given circumstances role, discretionary given circumstances is the distinction between the defendant personal risk is harmful to the society and the decisive factors, punishment is culpable individualized and adapt to the principle of application and reflect, also be the basis for the discretion of the judge. In sentencing for discretionary plot process, because is still lack of some theory and system support, make discretionary given circumstances is free to use, frequent the status of the same case different results And when the face some new is more disoriented, on the one hand, because of the contents of the given circumstances control-determine the uncertainty that the judges can’t easily use discretionary given circumstances, on the other hand in the right of discretion of the judge is not controlled well, abusing discretionary given circumstances. These are restricting discretionary given circumstances make the effect. And some of the theory and practice of the debate has been hot problems, Such as public opinion, the criminal policy and post-sentence detention of performance can be used as the custody whether control-determine the given circumstances applyThis paper briefly introduced the discretionary given circumstances research summarized, including discretionary sentencing the plot of the concept, characteristic, principle and function as well as the legal basis. A discussion on the three hot topic, first for public opinion based on the America of the jury system. The jury system is the common law is an important system, the members of the jury is generally come from social bottom people who represent the interests of ordinary people, the jury opinion in Anglo-American law is used to determine whether the guilty. And though the jury convicted in China is still some unrealistic, but whether, with "the jury" opinion to determine sentencing? So from this point on consideration, the author thinks that public opinion can be used as a discretionary given circumstances apply. But to the spread of the media do some of the restrictive rules, we adopted is a real public opinion, and not being media hype or historiography has the "opinion" after. Second for criminal policy and discretionary given circumstances, the relationship of the criminal policy in China from the three stages, and analyses the criminal policy of the needs of the social stability of the relationship between the. we should according to different period of the needs of the community, adjust the spirit of law, adjust the criminal policy, to deal with the new’s problems. But we also should bear in mind that the criminal policy can never replace the law, not the judge took the law and replace it. That should the law within the provisions of the criminal policy as discretionary given circumstances shall be applicable. The last about post-sentence detention of performance and discretionary given circumstances custody of the relationship, the author performance from custody after belongs to sin performance, essentially the same properties of prison stage this perspective, this paper analyzes the performance as discretionary given circumstances custody for many of the benefits, and made some system construction. The third stage of the two groups to different cases of codefendant comparative analysis, summarizes the judicial environment for discretionary given circumstances of the problems. Mainly includes no unified standard lead to apply and optional discretion of the judge of a conflict between the and so on. The fourth stage according to the above problem, try to perfect the discretionary given circumstances system construction and puts forward some legislative judicial construction of advice, for discretionary given circumstances to the development of the theory has certain contribution.