To understand with a mitigated punishment

The criminal law amendment (eight) the spirit of the legislation

2011Years2Month25DayNPC Standing Committee adopted the "PRC Criminal Law Amendment (eight)" the fifth stipulation: "the article sixty-third of the criminal law is amended as: 'the criminals with the provisions of this Law of mitigating circumstances, shall be sentenced to a punishment below the legally prescribed punishment prescribed in this law; a plurality of sentencing, he shall be sentenced to a punishment in a range of statutory sentencing sentencing range.'".

The blogger was relieved, the blogger in early2009Years3Month11On the blog: "how to understand the mitigated punishment", a blogger for a mitigated punishment of understanding, and the criminal law amendment (eight) the spirit of the legislation is consistent.

Attached:

How to understand the mitigated punishment (2009Years3Month11Day)

    Beijing City Public Security Bureau supervision office police asked me about how to understand the criminal law in the mitigation of punishment, I explained in detail:

The 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." Therefore, a mitigated punishment is a punishment below the legally prescribed punishment mitigated punishment, including statutory and discretionary mitigated punishment. For "shall be sentenced to a punishment" below the legally prescribed punishment, it should be understood:

The first, below the legal punishment, whether to include this number? Although the criminal law ninety-ninth stipulation: "referred to in this law, the following above, below, including the number of", however, theoretical and judicial practice circles all think, should be referred to in article sixty-third in the "below", limiting the interpretation is not included in this number, which reduce the punishment is below the minimum statutory penalty punishment,In order to avoid and light punishment in the application of the conflict and overlap. Otherwise the mitigated punishment and light punishment can be sentenced to the minimum statutory penalty, the boundaries between the two would not exist. For example, the criminal law article271The provisions of the crime of duty encroachment, huge amount, at more than five years in prison. If a mitigated punishment for crimes, a huge amount of embezzlement, then the minimum statutory penalty should be in5Years of the following.

Second, "punishment", it refers to the minimum statutory penalty stipulated in the criminal law provisions, or according to the severity of their crimes applicable statutory punishment? In this regard, the Supreme People's court "about laboratory specifies how to understand and grasp the" reduce "below the legally prescribed punishment punishment phone reply": "a mitigated punishment refers to 'shall be sentenced to a punishment below the legally prescribed punishment'. Here said the 'legal punishment,' refers to the defendant to the seriousness of the offense committed, shall be respectively applicable criminal law (including the Standing Committee of National People's Congress' decision 'and' Supplementary Provisions') the different provisions of the terms or the sentencing range. Specifically, if the crime punishment, respectively specified there are several or several, namely the crime should be applied or paragraph as' punishment '; if it is the same provisions, there are several sentencing range, namely the crime should apply to the sentencing range as' punishment'; if only a single penalty, as a 'punishment'. In addition to correctly understand the 'punishment', should also pay attention to 'reduce', and 'light' is a difference, in the same range of statutory penalty for lighter punishment or lower sentence, is' a lighter punishment ', not' mitigated punishment'. A mitigated punishment below the legally prescribed punishment, is below the minimum legal punishment range of punishment." Therefore, the "penalty" refers to the legal principle of crime and punishment, according to the severity of their crimes applicable statutory punishment. As the criminal law article271The provisions of the crime of duty encroachment, there are large amount and large amount of two grade sentencing, should according to the severity of their crimes applicable statutory punishment, mitigation of punishment.

Third, reduce the punishment can be reduced to a lighter punishment? As the criminal law article271The provisions of the crime of duty encroachment, if the amount is relatively large, can be sentenced to five years in prison or detention. So, for this kind of behavior can change for a mitigated punishment, sentenced to control? I think, should contact the specific circumstances of minimum statutory penalty to decide: if the punishment is the starting point of punishment and the prison or prison (minimum punishment) is in prison, not to other kinds of punishment. As the criminal law article232The provisions of the crime of intentional homicide of statutory minimum sentence of three years, then reduce the punishment should be sentenced to criminal detention or control, can not reduce the. If the minimum statutory penalty is criminal detention, such as embezzlement, it can change the kind of punishment, will reduce the punishment of detention penalty changes to the control punishment.

Fourth, minimum statutory penalty when a crime for regulation,Because the control is the lightest punishment,So how to apply the mitigated punishment?Is exempted from criminal punishment or additional penal apply? I think, can only choose additional penal apply. Reason:First of all, unlike exempted from punishment, mitigation of punishment should still sentenced to punishment, since there is no lower than the main control, and the application of the deprival of political right has special provisions,Then applying fine and confiscation of property will become inevitable. Secondly, the article thirty-fourth of the criminal law clearly stipulates: "the supplementary punishments may be imposed independently". Therefore, to maintain minimum statutory penalty is to control crime reduction of penalty, deprivation of political rights can be applied independently, a fine or confiscation of property, the supplementary punishment.