Thinking of our country criminal sentencing perfect

 

A, sentencing overview

Sentencing is that the danger is to reflect the social harm of crime and the crime person exists objectively, sex, be considered, according to the severity of punishment or exemption from punishment decision of facts and conditions in the discretion of punishment. Effects of penalty sentencing provisions in criminal law is divided into two kinds in the judicial practice: the legal circumstances of sentencing and sentencing discretion. The statutory sentencing plot into a heavier punishment, light punishment, punishment reduced and exempted from punishment four categories, the provisions of the criminal law of the voluntary surrender, meritorious service, minors, attempted, suspend, recidivism in fact as exempt, reduce, lighter and heavier punishment basis. Discretionary circumstances is not stipulated in criminal law and in practice have influence on the sentencing facts, such as: the means of crime, circumstances, consequences, age, identity, pleaded guilty attitude, economic loss size etc..

Sentencing is the value of the sentencing justice. A famous philosopher said: not a fair trial, the consequences may be more than ten times the crime. The emphasis will often make crime people unfairly buried feelings, antisocial and re crime seeds, make the special prevention of penalty purpose failure. The partial light often cause social the public credibility of the judiciary suspected and shaken, not conducive to the smooth implementation of the implementation of the law and the purpose of general prevention. Therefore, in a certain sense, the importance of sentencing justice a little less conviction justice. While in the process of sentencing is fully considered and sentencing sentencing justice is to realize the basis of sentencing, the crime punishment adapts the guarantee, is the necessary element of special prevention and general prevention purpose of criminal law.

In the trial practice, uniform crime, sentencing circumstances are basically the same crime, the penalty is the difference between the example that emerge in an endless stream, different punishment for the same crime phenomenon reflected in judicial practice, sentencing "difficult" problems, and criminal sentencing in the applicable exposed shortcomings is an important cause of this phenomenon.

Defects in two, sentencing legislation

The provisions of the criminal law on the lighter, reduce, exempt from punishment sentencing in criminal law, and the specific charges, severely aggravated provisions in the criminal law, as follows:

The legal relief, lighter, exempted from punishment:

1, special subject

(1) the minor crime: crime under the age of eighteen, should be in the discretion of punishmentA lighter or mitigated punishment.

(2) mental patient who has not completely lost the ability to recognize or control his own conduct crime, shall bear criminal responsibility, but may be given a lighter or mitigated punishment. (completely unable to recognize or to control his own conduct, for without capacity of criminal responsibility, the implementation of criminal behavior does not bear criminal responsibility)

(3) a deaf mute or blind person who commits a crime, shall be given a mitigated punishment or be exempted from punishment.

2, preparation for a crime, discontinued or attempted

Preparatory crime can be accomplished crime shall lighter, mitigated punishment or be exempted from punishment.

The discontinuance of crime, no damage is caused, be exempted from punishment; damage is caused, be given a mitigated punishment.

For the offense, can be accomplished crime shall be given a lighter or mitigated punishment.

3, to surrender

"Criminal law" the sixty-seventh stipulation: after crime automatic surrenders, the confession of his crime, is surrendered. Criminals surrender may be given a lighter or mitigated punishment. Among them, the lesser crime, may be exempted from punishment.

4, meritorious service

Has performed meritorious service, may be given a lighter or mitigated punishment; there are significant meritorious performance, can be reduced or exempted from punishment.

5, accomplice, accomplice under duress

Plays a secondary or auxiliary role in a joint crime, is an accomplice, shall be given a lighter, mitigated punishment or be exempted from punishment.

Is coerced to participate in a crime shall, according to the circumstances of his crime, a mitigated punishment or be exempted from punishment.

6, other

Excessive defense:Justifiable defence obviously exceeds the limits of necessity and causes serious damage, he shall bear criminal responsibility, but should be reduced or exempted from punishment.

Excessive refuge:The emergency exceeds the limits of necessity and causes undue damage, he shall bear criminal responsibility, but should be reduced or exempted from punishment.

Manual others to commit a crime, but the instigated person does not commit the instigated crime, the instigator may be given a lighter or mitigated punishment.

The statutory aggravating circumstances:

1, the recidivist;

2 people under the age of 18, abetting crime;

3, in the specific provisions of criminal law and social harm, serious consequences, plot, means the bad influence, serious criminal great.

Can be seen from the above provisions: the provisions of the criminal law on the legal punishment, reduce, exempt from punishment is principles rather than concrete problems, and the provisions of the law shall be given a heavier punishment is the principle and Concrete Co., this creates a dilemma for the sentencing, the lighter, less elastic range of light punishment, space the judge's discretion; the heavier punishment, defining the specific law, other the heavier punishment and no provisions in principle. Specific performance in the following areas:

1,Part of sentencing function too much, too much on the adjustment.This situation occurs mostly in the multifunctional lenient circumstances, such as the provisions of the second paragraph of article twenty-seventh of the criminal law: "an accomplice, shall be given a lighter, mitigated punishment or be exempted from punishment", the criminal law seventeenth stipulation: "deaf and dumb or blind person who commits a crime may be given a lighter, mitigated punishment or be exempted from punishment". Provisions of the criminal law on the sentencing is too broad, to the judge's sentencing discretion given the great space. In the present case of uneven quality of judges, easy to produce different punishment for the same crime phenomenon, the verdict may exceed the lenient punishment of mental capacity. As in the robbery case together, Zhao x, Liu is such and such, Ma Moumou were involved in the robbery, three case of equal status, are recognized as an accessory, and only this one lenient circumstances, shall be given a lighter, mitigated punishment or be exempted from punishment according to law. The court sentenced Zhao Moumou sentenced to three years and six months and fined ten thousand yuan, Liu x, Ma Moumou was sentenced to three years in prison suspended for five years and fined ten thousand yuan. In the case of Mr. Zhao, Liu x, Ma Moumou sentence although not much difference between, but Liu, Ma Moumou was sentenced to probation, which is more important to see at a glance. Although this decision was not against the provisions of accomplice lighter punishment, but imagine if Liu is such and such, Ma Moumou was sentenced to the punishment or Zhao Moumou also sentenced to probation, Zhao Moumou heart will calm a lot, outside of the different punishment for the same crime question will also be a lot less.

2, a plurality of legal sentencing circumstances coexist, the specific application difficulties.The same properties or different sentencing circumstances exist in the same crime phenomenon is very common in judicial practice, such as lenient and heavier punishment, lenient and lenient, heavier and heavier plot. But in the process of how to correctly evaluate the plurality of circumstances of sentencing, sentencing is difficult to ensure the accuracy of. As in the case with the illegal trade in firearms, long and has two properties of accomplice and recidivism instead of sentencing, the judge by what way to evaluate the effect of two on the sentencing and so long a punishment commensurate with the crime? Recidivism as lawful heavier sentencing, in practice, its effectiveness should be treated differently. As with defiance and affray case, defendant XX and Lin Moumou for recidivism, the participation degree two cases fairly and means, XX again crime from release time for one year and zero four months, and Lin Moumou crime again from the release time of six months. Final court sentenced to two years in prison, Lin XX XX are to be sentenced to two years and zero six months. Lin Moumou crime than any such short time interval, the visible personal dangerousness and social harmfulness should be more than XX, and sentence and the dangerousness of the criminal and social harmfulness is proportional to. But did not see the effect of recidivism time interval on the sentencing in the judgment, the special prevention of crime can produce negative effects.

3From the plot, the lack of provisions in principle.Criminal law in aggravating circumstances most of the provisions in the specific charges, while others should be punished severely plot in the law and no regulations or provisions in principle. For example: state officials, judicial personnel, has the legal duty personnel use the power of crime; to escape legal sanction, pleaded not guilty, destroyed the evidence, collusion, death according to incite others to perjury, rap; criminal fled after committing the crime again; coercion, deception, abetting the crime; incorrigible, many crimes; crime means bad serious consequences, and great social influence, etc..

4Discretionary circumstances, provisions are not perfect.As the illegal circumstances, circumstances only according to Article sixty-first of the criminal law explanation to expand slightly to find a legal basis for the legal circumstances, to be right and proper to affect the sentencing seem awkward position, but not commensurate with its awkward position is action a day in some cases to sentencing has had a huge impact, even no less than the statutory sentencing plot. As the former head of Chongqing City Planning Bureau Jiang Yong bribery case, that the court: the bribery amount is 1796 yuan, and the circumstances are especially serious, but due to actively cooperate with the judicial organs to recover most of the stolen money, has the performance of repentance was sentenced to death, suspended for two years. "Actively cooperate with the judicial organs to recover most of the stolen money, has become the Jiang Yong show repentance" waiver of a reason to die, but these two scenarios are not discretionary circumstances of sentencing laws regulations. How to face the impact such as: actively chairman, pleaded guilty attitude is good, the means of committing a crime and so on the discretionary circumstances of sentencing sentencing activity gradually increased, is to promote the equilibrium of sentencing, the principle of suiting punishment to crime cannot be avoided.

Three, to perfect the sentencing suggestion

In view of the drawbacks of sentencing provisions of the criminal law in our country, it is necessary to standardize and improve sentencing.

1, standardize and perfect the function plot.In the criminal law of our country, many provisions will three functions, reduce and exempt from punishment lighter are concentrated in one episode, expanded the discretion of judge, so in the legal provisions on plot specific content is divided into three grades, and the lighter, reduce and exempt from penalty three grades corresponding, or reduce the multiple function and grade of a plot. This can effectively improve the operability of the provisions of the criminal law, which is also an important means of reducing the imbalance in sentencing. The multifunctional plot, should be based on the nature of the crime, the crime degree determines the various functions of the circumstances of the choice. For nature, serious crime, should choose the smaller liberal function; for the property, harm is lighter crimes, should choose the larger lenient function.

2The heavier, plot to provisions in principle.In the general principles of criminal law to the heavier punishment to the principle provisions. He shall be given a heavier punishment means heavier species or higher rate of punishment on the behavior in the statutory punishment and range. It is shown that deserves the punishment behavior is serious, only on the behavior of people heavier punishment, through increasing the responsibility of the perpetrator, to maintain the nature and circumstances of criminal punishment and criminal behavior adaptation. If any of the following circumstances, can be in the statutory scope shall be given a heavier punishment:

First, performing public affairs staff, has a statutory duty personnel of non use of authority to commit the crime;

Second, criminal acts causing serious consequences, including the huge economic losses, the adverse social impact and political influence;

Third, the nature of the crime is harsh, cruel, great anger;

Fourth, hinder, to escape the investigation and trial or resist law enforcement, violent;

Fifth, coercion, deception or instigates others to commit crimes;

Sixth, once a person has committed several crimes or criminal.

3Application of circumstances of sentencing, the coexistence of multiple.Generally the same suspect lighter, aggravating circumstances coexist, how to correctly evaluate and sentencing is a difficult problem, the author thinks not simple superposition or cancel each other out.

First, on a lighter punishment, to see what is "should" plot, which is "can be" with "shall" plot, plot, first consider the "should be" plot; no "should be" the plot, according to the "can" to sentencing plot. Whether it is "should" or "can" plot, must be in the legal punishment in the punishment, but should not degrade the punishment, such as multiple light degrades as to reduce, multiple reduce degrades as to be exempted from punishment.

Second, with a plurality of aggravating circumstances, only in the legal punishment is heavier, rather than increasing, aggravated offense by circumstances exception.

Third, to mitigating circumstances and aggravating circumstances exist, should be more leniently. That is: first, according to the aggravating circumstances determine the sentence and sentence, then according to mitigating circumstances, combined with the case, to determine the sentence from consideration of social harm and personal danger. If the offender burglary robbery, burglary is aggravating circumstances, shall be sentenced to more than ten years, life imprisonment or the death penalty. Accessory is mitigating circumstances, should be in prison within the range of lenient punishment in ten years.

4In part, the discretionary circumstances of sentencing.Discretionary circumstances of sentencing in judicial practice for a variety performance, can be classified according to the four aspects of crime constitution.

The discretion of a lighter punishment mainly:

The object of a crime:

1, the object of crime, social harm of lighter;

2, no damage or harm result the lighter;

3, actively take measures to eliminate or reduce the harm result;

4, positive gains;

5, active compensation for economic losses;

6, the offender and the victim have a special relationship to a lighter punishment;

Against third people, 7 defense;

By 8, the so-called "loyalty" of crime;

9, the victim has some responsibility for the crimes.

The objective aspect of crime:

1, the harm behavior of short duration;

2, the time of special crime, social harm of lighter;

3, where a crime is special, the social harm of lighter;

Method 4, crime method, not bad, the social harm of lighter;

5, violation of non criminal regulations, if the circumstances are relatively minor;

6, the specific source of duty special, to a lesser degree of social harm;

7, the defense is not timely;

8, the hedge is not timely;

9, hedge in self-defense;

10, risk-taking behavior has certain rationality.

The subject of crime:

1, I, first offender;

2, over seventy years of age of the elderly crime;

3 in general, the crimes;

Effects of 4 congenital dysplasia, or acquired diseases and mental retardation in weak;

5, the crime of consistently good performance.

The subjective aspect of crime:

1, indirect intention is direct intention to light;

2, negligence is overconfident negligence as light;

3, stirred by righteous indignation crime (non - "loyalty" crime);

4, criminal purpose, motivation, subjective malignant small;

5, the crime of illegal cognition without;

6, the imaginary defense;

7, the imaginary necessity;

8, to confess the crime of (non criminal);

9, pleaded guilty to a better attitude.

Other discretionary lighter punishment:

1, crime has little influence on the public, public anger is not;

2, according to the local situation requires a lighter punishment;

3, the need for other discretionary circumstances lighter punishment.

Discretionary aggravating circumstances are:

The object of a crime:

1, the object of crime, social harm degree of heavy;

2, which resulted in a heavier or serious harm result;

3, have the ability and conditions to eliminate or reduce the harm result and laissez faire;

4, to less return or returns;

5, have the ability to compensate for the losses and does not take the initiative to pay compensation for the losses;

6 special needs, the offender and the victim relationship heavier punishment.

The objective aspect of crime:

1, the harm behavior of longer duration;

2, the time of special crime, social harm degree of heavy;

3, where a crime is special, the social harm of heavy;

Method 4, crime method, the bad, the social harm degree of heavy;

5, violation of non criminal regulations, if the circumstances are relatively serious;

6, provocative defense.

The subject of crime:

1, make the (non recidivism);

2, criminal is a criminal crime experience and skills;

3, national staff non post crime;

4, crime has not good;

5, criminal is a strong understanding and control ability.

The subjective aspect of crime:

1, over in one's mind of intentional crime;

2, criminal purpose, motivation is bad, dirty;

3, refused to confess the crime;

4, pleaded guilty attitude is bad or not good.

Other discretionary heavier punishment:

Effect of 1, crime big or resentment to the society;

2, the local, the current situation requires a heavier punishment;

3, need other circumstances shall be given a heavier punishment.

Although these circumstances no provisions in the law, in the judicial practice of sentencing influence is more and more big, the judicial personnel to consider whether or not these circumstances divergent. The existence of such a situation, the judicial justice has had a negative impact, and destroyed the unity of legal system, not conducive to the maintenance of judicial authority in the masses of the people, but also for the few judicial personnel office relationships, favors, and even the breeding of corruption may provide soil, contrary to the equality, the principle of suiting punishment. I think we should according to our criminal legislation purpose, the danger degree and harm to society as the standard will summarize all affect the conviction and sentencing circumstances, combined with the judicial practice effect was evaluated on the sentencing, some in the judicial practice is universal and is people's recognition of discretionary circumstances upgraded as statutory sentencing plot, as will the functionary crime, old and disabled, mentally retarded people crime, crime, make the first (non recidivism), attitude toward admission of guilt and repentance (whether positive disgorge ill gotten gains, active compensation for economic losses, and actively rescue disabled persons), crime before the performance of the discretionary lighter heavier punishment to upgrade the statutory sentencing plot as a supplementary system, sentencing, to consummates our country criminal sentencing system, so as to ensure the equilibrium of sentencing, the judicial justice.

 

(Langzhong City People's Procuratorate Chen Jian.