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The Preliminary Thought Over the Application of the Non-legality Sentencing Factors

Author: YeYing
Tutor: WangLiRong
School: Southwest University of Political Science
Course: Legal
Keywords: motions of crimes measures of action faults of victims compensation by accused the non-legality factors hurt at will
CLC: D924.13
Type: Master's thesis
Year: 2010
Downloads: 62
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Abstract

One of the most talked about things in theory and practice is achieve to standardization, equality and balance of sentencing. These years People’s Court and Procurators are seeking for the system of standardization of sentencing. More ever this is the paper’s value and purpose. As law can’t solve all problem of judicial cases, there are more situations affect sentencing except some legal circumstances. The paper begins with a case, to analyze extracting and applying of discretionary circumstances.This paper is composed of six parts, has 20552 words.The first part, introduces a criminal case of intentional injury carried by many people that I had participated in dealing with. Collegiate bench had different opinions about extracting and applying of discretionary circumstances. And this is the backgrounds of the paper. The second part, discusses the status and function of discretionary circumstances; analyzing the types, property, and degree to sentence. And defines the position of discretionary circumstances in the system of circumstances, analyzes the relation to other circumstances, to form Foundational knowledge for following parts.The third part, analyzes the criminal motivation of the actor in the case directly. Criminal motivation is very important in the system of circumstances, as a situation to reflect the mentality of suspect. So, this part researches the state, extracting manner, active rules of criminal motivation in the system of circumstances. And it tries to analyze the relation to other circumstances.The forth part, analyzes the effect degree of method used by the actor, and points out that there is some problem and risk if extracts method as a discretionary circumstance. On the objective respect of crime of intentional injury, injurious behavior is a constitutive requirement, and if the injurious behavior is exceptional unusual, it can become a discretionary circumstance. So how to define‘exceptional unusual’is a breach. In joint offence, the behavior is associated with joint circumstance tightly; in common offence, the behavior is associated with harmful consequences. So it is necessary to distinguish the two situations, avoiding iterative evaluation.The fifth part, analyzes the fault of the victim, collision is always aroused by aggressive behavior of both parties, so the fault of the victim may relieve the penalty, even exempting punishment. And the fault of the victim is relation to the criminal motivation, also needed to be distinguished.The sixth part, analyzes compensate of the defendant in the case. In the situation of Joint intentional injury causes death, compensate couldn’t change back into the life, but could relieve the degree of family life handicap of the victim. So if the actor compensate actively, he may be relieved the penalty, according to the comprehensive condition.The seventh part is to put forward the basic conclusion. One is that the non-legality sentencing factors’objective would be based on the application rules which is determined by the single case and factors in every cases do exist indeed; two is the accurate abstraction of the factors would be the foundation and in the process, the according materials would be the part of the whole evidence system which is should be identified by the clear evidence rule; three is the stage of judgment after the abstraction which is to handle the relationship between the legality factors and non-legality factors to fit for the multi-factors rules to sentencing.

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