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Research on the problem of conviction sentencing counter

Author: SunShiYing
Tutor: ZhangXiuLing
School: Inner Mongolia University
Course: Legal
Keywords: sentencing counterspell condemned criminal trial the substantial justice punishment of a relationship Punishment of a balanced
CLC: D924.13
Type: Master's thesis
Year: 2012
Downloads: 88
Quote: 0
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Abstract


In the continental law system, convicted and given process is not be separated, criminal court for trial by process, not only solved the defendant is a crime, and solved the problem of sentencing defendants. And the British and American law is different, the mainland legal system country without a jury and a judge in judicial decisions on power allocation system, criminal court whether by judges or by the judge and jury mixed composition, all of the case facts and law applies to have the same right to the referee, this makes convicted and given become not be separated the referee object. This model is convicted and given integration mode. Obviously, the mode of judgment in China is the typical integration mode, its characteristic is established sin and sentencing, first after conviction sentencing, condemned the sentencing decision, the so-called "to the sin of punishment". However, the thorough thinking, it is not difficult to find that, in fact, in the relationship of punishment, the two are not the performance for the decision and the relationship is decided, in specific cases, sentencing decision condemnation, but not convicted decided to sentencing. Therefore, if the criminal legislation from the crime and punishment of the relationship between the point of view of the punishment of a relationship on the whole there exists a kind of interactive and dialectical nature. This paper will empirical study and theoretical research method in combination, xu case for perspective, through the analysis of the qualitative and sentencing case in dispute, the reflection on the traditional "to sin formulating penalty" prescribed restrict relationship, put forward "sentencing counterspell condemned" theory, again for "sentencing counterspell condemned" theory is currently in opposition and in favor of scholars in the debate, to "sentencing counterspell condemned" were analysed in, and then through the typical real case of "sentencing counterspell condemned" empirical analysis, finally puts forward "sentencing counterspell condemned" model construction. Trying to solve some difficult cases in article provision by legislation the elements of fuzzy, or legislative provisions cross, competition between, judicial main body to the case qualitative and quantitative divergence, break through the traditional mode of the punishment of a restriction, apply the "sentencing counterspell condemned" mode for case properties to harm and accurately ascertain the behavior of the fair decisions.

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