About Stealing A Recidivist Severe Penalty Thinking

In1998the supreme people’s court issued the processing of stealing some issues of thejudicial explanation\"and has more than ten years, this judicial interpretation is still in thejudicial practice to play a role. This paper intends to stealing the recidivist severe penaltylegal basis, theoretical basis and the judgment in the judicial vicious subjective basis degreefor analysis. In addition to the case of text is divided into four parts.The first part of the first, judicial interpretations, established the theft of the punishmentof the recidivist severe penalty principle. Some scholars think that judicial interpretation andno established theft of the punishment of the severe penalty recidivist principle for tworeasons: first, a recidivist laws can be interpreted as the\"other situations\"; Second, the legalpunishment shall be removed by the class don’t, as a whole range of legal punishment, so thatwould explain the judicial interpretation and not really theft in severe penalty punishmentprinciple of recidivism. This paper thinks, the items of the law\"other situations\" for criminalbehavior referred to a crime or harmful consequences has serious circumstances situation, butnot show behavior person must be personal risk and subjective vicious identity characteristics(i.e. recidivist plot). So not as\"other situations\" of explanation. Legal punishment amplitudeis prescribed by law and specific harm behavior and harmful consequences, corresponding tothe match, if ignore this matching nature, to give judges too much discretion, will lead to aseries of problems. Such as corruption, on how to relative.Second, think this judicial interpretation break through the principle of legal punishment,not legal. Stealing a recidivist severe penalty judicial interpretation not legal. Some scholarsbelieve that the rationality can resistance but not legitimacy, and the reconstruction of therecidivist mode, judicial interpretation of\"creative\" wait for a respect to discuss this judicialinterpretation of the legality of the problem. In the above of view on the basis of the review,this paper argues that the judicial interpretation no legitimacy judicial interpretation oflegislation of the performance. Reasonable judicial interpretation can’t become its legitimacy,the basis of the judicial interpretation on the banner of justice cannot destroy unity of the legalsystem, infringe upon the legislative power.The second part, the strict penalties for inspecting the basis, through to the personal risksaid, personal risk and social harmfulness said, subjective vicious and personal risk said,social harmfulness of said analysis, this paper argues that, in the strict refused a recidivist is with a deep recidivist according to the subjective vicious. At the same time, for stealing arecidivist analyze the necessity of severe penalty, think stealing should stipulate a heavier orsevere penalty recidivist, and think personal risk factors such as the sentencing of the heavierconsideration when only one of the factors, and the main content of the severe penalty shallbe in the crime is looking for, and aggravation of the only crime is according to shown in thedepth of the subjective vicious. General theft criminals fluky psychology serious, easy tocrime success, high incidence case, the legal provisions only recidivist heavier, therefore, thelaw of stealing the recidivist deterrence weaker sex, it is necessary to stealing a recidivistaggravating punishment. And further to the crime (object) criminal object and crime objectiveelements may be the behavior of the vicious subjective deeper list analysis.The third part, stealing a recidivist severe penalty to watch for. For stealing tired severepenalty for the problems to be pay attention to analysis, thought the recidivist theft heavierpunishment and severe penalty shall also be there. For stealing a recidivist heavier or for theaggravation of conditions are analyzed, think the distinction between the vicious subjectiveconditions is degree. Specific for, to make a judgment according to the crimes the facts, andthat can make LieJuXing regulations. Avoid recidivism will consider to benchmarkpunishment of plot of discretion, otherwise may repeat evaluation is the sentencing recidivistfunction.The fourth part, for legislative and judicial proposal. A recidivist has increased therationality, the proposal through the legislation to establish\"recidivism heavier oraggravated\" system. In addition, the short term our country’s judicial practice will stillapplicable stealing a recidivist severe penalty judicial interpretation, the proposal for thejustice in the judicial interpretations have criminal behavior by the vicious subjectivejudgment, to determine whether a recidivist theft for judicial explanation, be aggravatingpunishment.