The Theory On The Application Of Mitigated Punishment In Chinese Criminal Law

Despite two batch reductions,the number of death penalty charges in current criminal law is still as high as 46.The 11 th Amendment to the Criminal Law,which came into effect in2021,not only failed to reduce the crime of death penalty,but also increased the statutory penalties for many crimes.This shows that the criminal law of our country tends to be heavily punished.In judicial practice,due to various reasons,sentencing tends to be heavier overall.However,the system of mitigating punishment alleviates the trend of heavy punishment to a certain extent,which is conducive to the rationalization of sentencing.Therefore,it is of great practical significance to study the application of mitigated punishment.Although the criminal law has expressly provided for mitigating punishment,there are still many differences in understanding.The author focuses on the related issues of mitigating punishment,and launches the following discussion.The first chapter defines the concept and types of mitigated punishment in China’s criminal law,and compares it with the system of mitigated punishment in other countries.The basic meaning of mitigating punishment is to impose a certain penalty "below" the statutory penalty.Among them,the statutory punishment includes the Amended statutory punishment,while "below" does not include this number.As far as legislative provisions are concerned,mitigating punishment can be divided into statutory and discretionary.In the concrete application,the mitigated punishment will inevitably involve the mitigated punishment of the principal punishment or the mitigated punishment of the supplementary punishment.There are mitigating punishment systems in common law system and civil law system,and each has its own characteristics.The second chapter reveals the problems existing in the application of mitigated punishment.First,if the circumstances of mitigating punishment cannot be determined,the application of mitigating punishment cannot be determined.Sometimes it is necessary to evaluate the circumstances that can be exempted from punishment as statutory mitigating circumstances to avoid disharmony.However,the Criminal Law Amendment(VIII)limits the reduction range of statutory mitigated punishment.Secondly,compared with statutory mitigated punishment,the applicable substantive conditions of discretionary mitigated punishment are vague.In terms of procedure,the current criminal law is different from the Criminal Law of 1979,which sets up extremely complicated approval procedures for discretionary mitigation,which seriously limits the application of discretionary mitigation punishment.Thirdly,the mitigating circumstances have different effects on different kinds of punishment in China,and there are some disputes about mitigating punishment of most kinds of punishment.The third chapter discusses the solutions to the application of mitigated punishment.First of all,when the defendant has circumstances that can be exempted from punishment or more than two statutory mitigating circumstances,the statutory mitigating circumstances can break through the restrictions of the Criminal Law Amendment(VIII).Secondly,according to the historical interpretation,it can be considered that the "special circumstances" in the current criminal law refers to the "specific circumstances" in the Criminal Law of 1979.The existence of statutory mitigating circumstances does not prevent the application of discretionary mitigating circumstances.Compared with the system of exemption from criminal punishment,the approval procedure of discretionary mitigation of punishment lacks rationality and needs to be abolished.Finally,the mitigating punishment of principal punishment other than fixed-term imprisonment only involves the mitigation of the types of punishment,not the mitigation of the degree of punishment.When the principal punishment is reduced to public surveillance,the additional deprivation of political rights can be less than one year.China’s penalty of confiscation of property belongs to general confiscation,which has been abandoned by most countries and regions in the world,so it is necessary to limit its application.The criminal code has allocated an unspecified amount of fines for many crimes,which is far from the requirements of the principle of a legally prescribed punishment for a specified crime.Moreover,throughout the Criminal Law Amendment(XI),it seems that the ambiguity of fine penalty is getting worse.Under this background,the court should be good at using the mitigated punishment of supplementary punishment to exercise judicial control over the fine punishment.