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Study on Problems in Circumstance of Sentencing in China

Author: LiXiaoLei
Tutor: GaoWeiJian
School: Southwest University of Political Science
Course: Legal
Keywords: circumstance of sentencing sentencing procedure sentencing standard non-legislativization standardization
CLC: D924.13
Type: Master's thesis
Year: 2010
Downloads: 131
Quote: 0
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Abstract


This thesis explores some difficult and hot problems in circumstance of sentencing in China based on the achievements at home and abroad. It is composed of four parts besides the introduction, about 30,000 words.The first part is the definition of sentencing circumstance, which covers the concept, structure of it and its position in the criminal law system. This part is developed under the background that circumstance of sentencing is not clearly defined by the Criminal Code of China and the connotation of the concept is much disputed by criminal law theorists. The author defines circumstance of sentencing from the following three aspects. Firstly, the lexical meaning of sentencing circumstance is investigated so as to clarify its connotation. In another word, the author traces back to the source of sentencing circumstance firstly. Secondly, the factors, specifically, the essential factors and functional factors, contained in the concept, are analyzed. Thirdly, the relationship between circumstance of adjudgement and circumstance of sentencing is defined. Additionally, the author uses some figures to further clarify the relationship among the factors in sentencing circumstance and its position in the criminal law system.The second part is concerned with posing and analyzing problems. This part is continued from the preceding paragraph. In this part, the author presents the outstanding problems that appear in theoretical research and judicial practice of sentencing circumstance. The problems are:the chaos of application of legal sentencing circumstance, the dilemma of non-legislativization of discretionary circumstance of sentencing, misunderstanding of legal circumstance of sentencing and discretionary circumstance of sentencing, lack of independent sentencing procedure and so on. These problems are also analyzed in this part by the author.The third part deals with the problems. As for the problems discussed in the second part, the author thinks that the purpose and direction for solving the problems in sentencing is to pursue justice of sentencing and this needs not only reforms in substantive law but corresponding systems in procedural law. This part covers four aspects. The former three aspects respectively put forward the measures against the problems from the perspective of substantive law and the fourth aspect puts forward the measures from a procedural perspective in order to truly realize justice of sentencing. The fourth part is the conclusion and some reflections on circumstance of sentencing. In fact, the former three parts constitute a complete and logical system. They discuss the problems in the criminal law, the reasons and the measures under the context of the criminal law. This part reflects on circumstance of sentencing on the basis of summarizing the previous parts and explores the reasons for the problems in the criminal law beyond the context of it.

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CLC: > Political, legal > Legal > Chinese law > Criminal law > General Provisions > The use of penalty
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