The mitigation of punishment in criminal law

 

Authors: Liu Zhisong Xunwu court Release date: 2006-05-25 15:12:01

 

    Key word.  The criminal law   Mitigation of punishment   Specific application

    The problem of criminal responsibility as a hot issue in the field of criminal law has been attracting many scholars. These scholars, the concept of criminal responsibility, realization of the macro problems according to the form of extensive and in-depth research, and achieved significant results. However, this is a strong contrast, very few people and reduce the criminal punishment, or even "reduce the frequency of use of criminal punishment" one word is very little. In fact, research to alleviate the problem of criminal punishment also has important significance in theory and practice. The mitigation of punishment can make the judicial organ according to the specific facts of the case, to make effective judgment in measuring the legal standard, embody humane care legal situation, save the limited judicial resources, so as to better realize the national strategy of rule of law.

    On the one hand, the definition of mitigation of punishment

    Our country criminal law sixty-third stipulation: "the criminals with the provisions of this Law of mitigating circumstances, shall be sentenced to a punishment below the legally prescribed punishment". "Although do not have the crime prescribed in this Law for mitigating circumstances, but according to the special circumstances of the case, with the approval of the Supreme People's court, also may be sentenced to a punishment below the legally prescribed punishment".

When someone commits a crime, in accord with the objective reality of constitution of crime will also determines the nature of the person shall bear criminal responsibility and legal liability and scope, and the specific provisions of criminal law in the form of realization of criminal responsibility, which is roughly corresponding punishment. However, crime is a complicated social phenomenon, in many cases, because of the existence of some special reasons the objective environment criminal subjective aspect of crime or some factors, that affect the constitution of the crime, or in the whole influence the behavior of social harmfulness. At this time, often to some extent to the behavior of people in some forgiveness. Based on the "imaginary defense" error and the implementation of killing people in mind or not under normal circumstances the implementation of arson behavior, treatment is usually have some preferential treatment, is the reflection of forgiveness. From the criminal law theory, which is to reduce the criminal punishment. So, I think, to reduce the criminal punishment refers to the act of committing a crime, the criminal responsibility of legal reasons and have certain practical assumed more homogeneous crime should bear the criminal punishment light. This concept was shown to reduce the criminal punishment has the characteristics as follows:

    1, to reduce the criminal punishment to criminal responsibility shall be investigated for the premise. To reduce the criminal punishment is the implementation of the crime in the behavior of people, after the criminal responsibility determine the considered problem, therefore, the premise is a crime, and should be on the implementation of crime criminal responsibility of the person. This shows that, although someone's behavior constituted a crime, but the crime plot slight, there is no need to be investigated for criminal responsibility or for specific reason and exemption from criminal responsibility, will no longer have to reduce the criminal punishment of the problem. In other words, only when the basis of the actual perpetrator of criminal responsibility, is to reduce the criminal punishment of the room, if the behavior of people with certain specific matters because from the actual criminal punishment to bear, it no longer belongs to reduce the criminal punishment category.

    2, to reduce the criminal punishment is to reduce the criminal punishment to crimes according to law should bear the same. To reduce the criminal punishment is a independent concept, but to reduce the criminal punishment is to the actual existence of criminal responsibility, that the actor should bear the criminal responsibility is the premise of. To reduce the criminal punishment is to reduce the criminal punishment for the same crime should be the. As a minor under the age of 15 the implementation of intentional homicide, to reduce the criminal punishment, this loss is relative to the adult criminal penalties for intentional homicide behavior for no specific reason circumstances, rather than vague, reduce no reference. Emphasize to reduce the criminal punishment is reduced relative to the same crime should bear criminal responsibility, is that although some people exist to reduce the criminal punishment for criminal punishment, but the actual bear in some cases may still want to focus on other non mitigated excuses of criminal responsibility. If no frame of reference for the same crime to criminal punishment for the crime, responsibility, will deviate from the principle of adapting, lead to adverse consequences in favor of crime.

    3, to reduce the criminal punishment is to reduce. To reduce the criminal responsibility in the criminal law of our country is the content of the legal regulations. Therefore, criminal punishment can not arbitrarily reduce, but must be based on the provisions of the criminal law in to reduce the criminal punishment plot. While reduce the criminal punishment is also taken into account discretionary circumstances, but circumstances for discretion as to reduce the criminal punishment according to law and is also confirmed by the uncertain form, is a kind of special legal provisions. Therefore, to reduce the criminal punishment according to law, from the criminal law and criminal liability of any loss, is bound to affect the reasonable solution to the problem of criminal responsibility.

    And two, about mitigating circumstances that

    (a) identification of mitigating circumstances.

    Sentencing, refers to the fact behavior affect the social harmfulness degree. As the severity of punishment or be exempted from punishment and sentencing facts, the myriads of changes, complex. Mitigation of punishment from the penalty is one kind of sentencing. The criminal law is to stipulate the standard, mitigating circumstances into the legal circumstances and circumstances.

    1, the legal circumstances.

    Legal circumstances, refers to the legal provisions must be taken into account in the sentence, making a particular treatment plot, the legal circumstances content is generally has decisive significance for the social harm of the crime of all or some kind of crime or a crime of provisions. For example, personal behavior, the role of special social identity in the common crime, harm result, criminal behavior caused by the crime object, the crime of attitude etc..

    From different angles, and can be classified to the legal details: ① according to the provisions of the legal circumstances of the criminal law and the legal scope section applies different, can be in the general provisions are provisions plot and plot; according to the legal results of legal circumstances different, can be divided into severe punishment and leniency punishment; according to the legal circumstances is bound to affect the results of different, can be too much for the type of plot and the plot should be.

    China's "criminal law" in the following aspects about "extenuating circumstances":

    (1) shall be given a lighter or mitigated punishment plot, has over 14 years of age under 18 years of age crime (article seventeenth of the criminal law).

    (2) should be mitigated punishment or be exempted from punishment plot: ① the justifiable defense exceeds obviously necessary to cause significant harm to the limit (article twentieth); ② emergency exceeds the limits of necessity and causes undue damage (article twenty-first); ③ is coerced to participate in a crime (article twenty-eighth of the criminal law of the crime); since when another major meritorious services (article sixty-eighth).

    (3) shall be given a lighter, lighter punishment or be exempted from punishment plot, accessory (article twenty-seventh).

    (4) may be given a lighter or mitigated punishment: the mental patient who has not completely lost the ability to recognize or control his own conduct of the crime (article eighteenth of the criminal law); ② attempted offence (article twenty-third of the criminal law); ③ the instigated person does not commit the instigated crime and instigator (Xing Fadi 29); the surrendering criminal (article sixty-seventh); and exposing others to commit a crime behavior, verified or provide important clues, and the cracking of other cases performed meritorious service (article sixty-eighth).

    (5) can be mitigated punishment or be exempted from punishment plot: in the field of the people's Republic of China in accordance with the crime, the criminal law of our country should bear criminal responsibility, and in foreign countries has been punished by the penalty (article tenth); ② renders great meritorious service (article sixty-eighth); ③ (commercial) bribery in prosecution before the active his bribery act (article 164th); bribery voluntarily confessed in the prosecution before the briber's (article 300th); the introducing bribe people before prosecution voluntarily confesses the bribery bribery behavior (article 792nd).

    (6) can be mitigated punishment or be exempted from punishment plot: an individual who embezzles 500 yuan less than 1000 yuan, the circumstances of the crime after repentance, positive gains (article 383rd).

    (7) can be lighter, mitigated punishment or be exempted from punishment plot.

    The deaf and dumb or blind the crime (article nineteenth of the criminal law).

    The preparatory crime (article twenty-second)

    2, discretionary circumstances

    Discretionary circumstances, is refers to the criminal law does not expressly provided, and summed up from the trial experience in that trial, in specific cases, the subjective sub degree damage degree and behavior of social behavior, flexibility in sentencing, discretion applicable circumstances.  Discretionary circumstances is necessary supplement to the legal circumstances. Legal circumstance for sentencing is the unity of the provisions according to some common with general significance, is often abstract, generalization, principle, its weight range is relative, but the actual trial results must obtain a specific declaration penalty punishment or exempted from knot theory, therefore, the people's court to consider the circumstances in the measurement of penalty, have to consider the specific circumstances of each case differ in thousands of ways, the details and background.

    Mitigating circumstances not although the heart with the desire, according to the judicial personnel subjective things, and explores the following aspects to measure:

    (1) the motive for the crime. The motive for the crime reflects the subjective malignant degree of criminals, the motive for the crime does not affect the conviction but affect the sentencing, due to different motives crimes should be considered differently in the measurement of penalty.

    (2) the means of crime. The means of crime reflects the social harm of crime, but also directly reflects the subjective malignant degree of criminals. In the criminal law is not the crime means shall constitute the essentials of case for the crime, criminal means have not affect the conviction, but meaningful, on sentencing of criminal means, therefore, in the measurement of penalty should also be considered.

    (3) the time of the crime, where the environment and conditions, time, place and of the crime of political, economic and social background, had an influence on the subjective malignant degree the social harmfulness of crime includes the crime, although the vast majority of crime, criminal law is not the necessary element of specific crime the time, place, as the constitution of a crime, but crime time, location is obviously meaningful for sentencing.

    (4) criminal damage result. There is no direct damage results, with indirect result of damage, damage severity degree is generally property losses or major property damage or casualties, is pure physical loss or loss of both material and so on.

    (5) the object of crime, the object of crime, but also reflects the degree of social harmfulness of crime. Some of the crime must be against the specific object can constitute the others don't have, but, anyway, the object of crime is an important factor to affect the sentencing.

    (6) the personal status crime and consistent performance. Personal crime refers to the physiological status of criminals, and life experiences, consistently refers to criminals ever have criminal record, occupation ethics thought.

    (7) the attitude of criminals after the crime or by judicial organs to take compulsory measures, whether to faithfully confess a crime, whether the performance of repentance, whether to take positive measures to eliminate or reduce the harm caused by other crimes result and so on, reflect the subjective malignant degree of different sentencing criminals, but also some differences.

    The legal circumstances and circumstances of understanding, can better understand the legislation idea of punishment in criminal law relief. Priority should be given to the legal circumstance of sentencing discretion, should be on the legal circumstances as a reference, the discretionary circumstances as supplement, two should be unified.

    (two) on the application for mitigating circumstances.

    In judicial practice, the specific circumstances of the case are often complex, appear a variety of circumstances inconvenience in sentencing, sentencing, must according to the specific situation of the case specific analysis, comprehensive survey of various circumstances, a comprehensive measure of the plot of the primary and the secondary, the appropriate punishment.

    The sentencing process, to a large extent is the concrete application of a variety of circumstances of sentencing, general provisions for mitigating circumstances also follow the general sentencing, but it also has the characteristics of its own, which is applicable to process the unity of universality and particularity, it is as follows:

    1, the universal.

    Generally, refers to the things that are in nature the general rules are summed up, mitigating circumstances and in accordance with the general, general requirements for.

    First, prohibiting repeatable evaluation. Prohibiting repeatable evaluation is prohibited by the provisions of the law of elements, conditions, in the penalty discretion in sentencing things repeated again as to be used as the basis, and severely or leniently discretion. According to the principles of prohibiting repeatable evaluation, shall be convicted sentencing plot and distinguish. Conviction plots are elements of fact itself constitute crime, and sentencing is other effects other than the fact that the severity of the penalty factor, therefore, conviction and sentencing circumstances have different functions, as an important manifestation of the principle of prohibiting repeatable evaluation, convicted circumstances must not be re used in the measurement of penalty. Conviction plots in determining whether an act constitutes a crime, has been used once, if the sentencing again when using this plot, is to repeat the evaluation, so it should be banned

    Second, the concurrence of circumstances of sentencing. The same crime, there are more than two of sentencing, the sentencing concurrence. Sentencing competitive contract to competing with the reverse concurrence, concurrence refers to the same direction with two or more lenient or severe circumstances. Reverse concurrence refers to has a strict plot and a lenient circumstances. In the same to the concurrence of circumstances, for example, has two aggravating circumstances or two lighter punishment, because of heavier punishment or lighter punishment function is the same, the equivalent of two from the overlay plot or mitigating circumstances. In this regard, in the measurement of penalty imposed on criminals two times heavier or lighter can, but should pay attention to. Here is the heavier or lighter punishment, rather than mitigating circumstances, mitigating circumstances just below the legally prescribed punishment to a reasonable degree can be reduced. Therefore, according to the provisions of the criminal law, two lighter punishment or two shall be given a heavier punishment, are within the range of statutory penalty discretion, therefore two lighter punishment cannot be upgraded to a mitigating circumstances. Similarly, the two aggravating circumstances can not be upgraded to an aggravating circumstances.

    In the reverse competing circumstances, such as a mitigating circumstance, a heavier punishment which are opposite, the former tends to light, the latter more weight. In this regard, can take the method of offset? The author thinks that the offset method is inappropriate, functions or properties of different things that cannot be offset. Because in the specific case, meaning each sentencing circumstances are different, are not equal, therefore cannot simply be offset, the correct method is, first to determine a basic punishment according to the criminal facts and the nature of the crime, and then using the plot of the equilibrium of sentencing, the balance may be called the modified penalty. In only one of sentencing circumstances, as long as a correction can be. With more than two cases of adverse circumstances, it needs to be corrected more than two times. Under normal circumstances, consider the aggravating circumstances, according to the aggravating circumstances of punishment is more severe correction, and then consider the light plot, the first correction to determine penalty lightening correction. In order to achieve the equilibrium of sentencing.

    Third, multi function plot. In the criminal law lenient circumstances, generally multifunctional plot, a lighter or mitigated punishment sentencing has two functions, even with a lighter punishment, a mitigated punishment or be exempted from punishment of three kinds of function. In this case, the sentence should first consider the nature of the crime. If the nature of the crime is lighter, can be mitigated punishment or be exempted from punishment rather than a lighter punishment. Secondly, to analysis of sentencing itself weight. For example, the same is attempted murder, one is not killed, but caused the damage; two is not only not be killed, and it does not cause harm to people, the two attempted murder, apparently, should be treated differently, can not make no exception. The last note, the law of lighter, mitigated or exempted from punishment in order, for example, a mitigated punishment or be exempted from punishment or exempted from punishment or mitigated punishment is obviously different, the former first consider the mitigated punishment to consider exempted from punishment, for the latter to consider, exempted from punishment to consider a mitigated punishment.

    Fourth, you can type the plot and should plot.

    The provisions of the criminal law of sentencing, both can be punishment, and should be punishment, whichever is obviously something else, from the legal logic, by the code of conduct should and can form is called the standard model to judge. We should norm is obligatory norms, and norms is licensed or authorized norm. Therefore, can and should be the logical implication is different, generally speaking, the law can do, do not do not illegal, the law should do, do not do is illegal. Thus in the can type plot and should plot and in some cases, the first consideration should plot, and then consider can plot.

    2, special.

    Special is that the nature of a thing by itself with the. Mitigation of punishment has its own special conditions. Reduce the punishment for mitigating circumstances should pay attention to the following aspects below the legally prescribed punishment:

    First of all, the sentence of the criminal law is to reduce, and other kinds of punishment, choose a light punishment should also be considered a loss. As the criminal law 285th stipulation invading the computer information system of statutory sentence of three years in prison or detention, if the crime shall be sentenced for mitigating circumstances, post sentence detention, is to reduce the sentence of the.

    Secondly, the short term. That is less than the minimum legal sentence, as the provisions of the criminal law punishment for more than three years in prison, according to the short term can be sentenced to three years in prison, for example, article 170th of the criminal law of the crime of counterfeiting currency, at more than three years to ten years in prison, if there are extenuating circumstances, and less than three years in prison, this is the sentence reduced.

    Once again, a mitigated punishment is not immune from criminal punishment. Mitigation of punishment to less than the statutory minimum penalty existence as premise and necessary conditions, such as the criminal law 280th forged, altered identity certificate of statutory sentence of three years in prison, detention and control or deprivation of political rights, if applicable penalty reduced and exempted from punishment, confusion, and therefore can only apply to reduce the sentence.

    Fourth, correctly grasp the minimum statutory penalty, as mentioned before, the provisions of the criminal law has more than two sentencing range, minimum punishment mitigated punishment is not less than the provisions, but lower than the minimum sentence of the sentencing range suitable and specific crimes, such as 308th, the witness to retaliation of less than three years in prison or detention, if the circumstances are serious at three to seven years in prison. If the circumstances are serious sentencing range, reduce the punishment is not in the "less than three years imprisonment or criminal detention" sentencing range to reduce, but reduce in the latter range.

    Finally, a mitigated punishment after the choice of penalty is only limited to the criminal law as a crime legal punishment scope of punishment or sentence, not selected in the top.

    Three, a mitigated punishment or additional penal apply problem

    The additional penalty is aided penalty, the penalty can include fines, confiscation of property, deprived of political rights for three, the author thinks that the mitigated punishment applies additional punishment, the reason is:

    First, the general rules of the criminal law stipulate the mitigated punishment, is to examine the criminal social harm and personal, those who have mitigated punishment the crime, the criminal social harm and personal reduces, penalty should be mitigated punishment, but the general provisions of the criminal code of the penalty is the penalty and the additional penalty, mitigation of punishment is applicable to penalty, thus mitigating additional penal apply.

    Second, from the criminal law point of view, a mitigated punishment if not applicable supplementary punishment, punishment will lead to confusion. Such as the holding of article 172nd of the criminal law, the crime of using counterfeit money crimes, larger amount is less than three years imprisonment or criminal detention, a fine or a single one hundred yuan to one hundred thousand yuan fine; large, more than three years to ten years in prison, a fine of twenty thousand yuan and two hundred thousand yuan fine, if the amount is especially the huge, department for more than ten years in prison, a fine of fifty thousand yuan and five hundred thousand yuan fine or confiscation of property. If the criminals have used a huge amount, should be sentenced to ten years in prison, a fine of fifty thousand yuan and five hundred thousand yuan fine or confiscation of property, but with mitigating circumstances on the principal punishments sentenced to three to ten years following the light amplitude, and reduce the punishment without additional penal apply, is self to be in fifty thousand yuan of above five hundred thousand yuan of the following a fine or confiscation of property, clearly the principal penalty and accessory penalty in the penalty is very chaotic, is extremely unreasonable.

    The visible, mitigated punishment is still suitable for additional punishment. The criminal law of our country the additional penalty despite the stress, but most have not yet specified amplitude, in practice, more difficult to apply a mitigated punishment, but this is not on the additional penalty discretion not to consider mitigating reason, the right way is, to have mitigated punishment cases, usually in the supplementary punishment amplitude regulation fine penalty, such as, need to apply a mitigated punishment mitigated punishment; additional punishment without amplitude provisions, such as the deprivation of political rights, confiscation of property, in the discretion of the supplementary punishment should also consider extenuating circumstances, the discretion of punishment.

    Four, minimum statutory penalty for the lightest punishment penalty punishment in mitigating application

    A mitigated punishment or reduce the extent to which cannot be reduced, exempted from punishment, this is the judicial and academic circles in the vast majority of people have accepted the. The reality of social life are complex and diverse, the crime phenomenon exists in the society is various, sentencing also has many individual phenomenon is difficult to summarize the general theory, such as a crime intentionally hurt others to commit a crime, according to Article 234Th of the criminal law shall be sentenced to three years in prison, detention or control the penalty, but the damage caused by the discontinuation of a crime, be given a mitigated punishment. But think carefully about this case, but found that criminals should be the minimum statutory penalty for control, and mitigating the following without penalty can be used, but also how to apply the mitigated punishment? In this regard, practice understanding people is endless and same, practice is also different, some think that apply a light sentence minimum sentences may be, some are directly applicable law and the actual mitigated punishment lighter punishment. All of these practices and criminal law theory about reducing punishment.

    The author thinks, the minimum statutory penalty for the control case, the penalty is the most light punishment in cases, such as should reduce the plot can not be punished more leniently. Instead, it is unable to apply a mitigated punishment, so in the law have no clear case should reflect on the criminals lenient spirit, only directly applicable provisions of article thirty-seventh of the criminal law, the criminal shall be exempted from criminal punishment. There are two reasons:

    First of all, is the principle of legality. This principle requires judicial conviction must have clear laws and regulations as the basis, otherwise, can not be convicted, shall not be applied to the penalty. When a mitigated punishment shall be given case, the criminals should be suitable for measurement of penalty minimum punishment regulation, such as to any punishment legal punishment scope are necessary to violate the criminal law about the mitigated punishment provisions to the sentencing regulation in the legal minimum punishment in accordance with the mitigated punishment requirements, there is no other lighter kinds of penalty, because the control is the principal species in the light punishment, its itself is only a magnitude, which is more than three months to two years, no shorter sentences optional. So, a mitigated punishment provisions ruled out for control or more severe punishment, and under the control of law does not expressly provided for the penalty, it is "without a law does not punish", because of this application may be exempted from criminal punishment is appropriate.

    Secondly, in accordance with the provisions of the criminal law on exempted from criminal punishment, the applicable conditions of article thirty-seventh of the criminal law may be exempted from criminal punishment of crime are minor and do not require punishment, refers to the behavior constitutes a crime, but because of other minor crimes, so the social harm is small, so it does not require the penalty. In front of the lift in the case of criminal acts constitute a crime may cause some damage, but discontinued crime, reduce the harm to society with the subjective malignant is light, easy to accept education and reform, so can be considered a crime are minor and do not require punishment, is suitable for the exemption from punishment.

To sum up, to reduce the criminal punishment is an independent concept, it has the contents and functions of its own independent. It reduces the criminal responsibility of the meaning, the correct application to reduce the criminal punishment, and has important significance to correctly solve the problem of criminal punishment in judicial practice.

    Reference material.

    1, Chen Xingliang "the ontology of science of criminal law" the Commercial Press, 2001 edition;

    Yang Chunxi, Yang Dunxian, 2, "criminal law" Chinese treatment (Second Edition), Peking University press, 1998 edition;

    3, Gao Mingxuan editor, deputy editor Zhao Bingzhi, "new China criminal law" (the book), Renmin University of China press, 1992 edition;

    4, Fan Fenglin editor of "treating" punishment, China University of Political Science and Law press, 1994 edition;

    5, "general principles of the treatment of sentencing", "Journal of China University of Political Science and Law", 1983 first.

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