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

The Problem of Sentencing Discretion

Author MiDan
Tutor XiongJingBo
School Nanjing University
Course Legal
Keywords The Problem of Sentencing Discretion Judge Internal Judicial Manager External Observer Answer Way Of Thinking
CLC D924.13
Type Master's thesis
Year 2013
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The sentencing discretion is too large and the referee results are not up to the objective expectations of the people. These are difficult problems that have been always plagued the judicial practice and theoretical circles. The participants in the sentencing can be divided into internal judge, judicial manager, and external observer. The three categories based on differences in cognitive also have different opinions in sentencing discretion.The judges group of internal referees generally accepts professional legal training. By judging the thought process of the trial of cases under the rules, principles, criminal policy specification meets the legal profession habits or not, they examine the discretion from the above perspective. If the sentencing process of the judge is recognized as not in conformity with the legal ethics, and the penalty is out of the reasonable expectation, the judge may be challenged by using the power of discretion unreasonably. Whether the power of discretion is used appropriately is judged by the judicial manager in the view of the penalty that is in compliance with the procedural law and substantial law or not. If the judicial manager starts the oversight program to test the result of the sentencing judge, they found that the trial judge’s sentencing judgment sentencing low, high sentencing, then the judge can be questioned unreasonable use of discretion. Outside observers examine the discretion from the perspective that whether the sentencing results on shall proceed in line with his expectations, if the judge ruled and the outside observer is not expected to meet, the judge can be questioned by using the power of discretion unreasonably. Once the sentencing discretion marked unreasonable use of stigma, it will lead to the doubt of the justice and legal authority. If the law is not of faith, it will affect the process of China’s rule of law.How to solve the irrational use of sentencing discretion, compression judge subjectivity and responding to people’s reasonable expectation to objectivity? This paper discussed this, and in accordance with the questions, analysis of the causes of the problem, the current standard method and review and putting forward the improvement ideas of order. These are overall frameworks of the article idea.The paper is divided into four parts.The first part discusses the free measurement rights from the perspectives of judges, judicial managers and outside observers. The first chapter elaborates on the existence of the discretion of sentencing in the light of judges’perspective and analyzes the relationships between the discretion and the application of statutory rules and principles of laws, the criminal policies, and judicial environment, thus reaching a conclusion that judges do have the right of discretion under the relative criminal legislation mode. The author thinks the dilemma from the judges’perspective is that although it seems like discretion exists of all times during sentencing, there are lots of external factors affecting the fair use of judges’free measurement rights. Some of these factors may affect or even decides the judges’judgments. The second chapter expounds the judicial managers’acknowledgement of judges’discretion. The author believes that the inappropriate intervention of judicial managers restricts the fair use of judges’discretion. The third chapter analyzes outside observers’acknowledgement of judges’discretion. The author concludes that the difficulties in discretion of judges outside observers’in outside observers’perspective are:the unconstrained judges’ discretion, the miscarriage and corruption of justice incurred by the privacy and unclearness during sentencing.The second part discusses the reason of the unreasonably use of the sentencing discretion. Through the analysis on the institutional factors and the judges’self-factor, we can conclude that the judges’self-factor is the main reason. What we must do is to improve the judge’s legal literacy to solve the problem of sentencing discretion of judges. The legal management and the outside observer’s behavior is the auxiliary means.The third part discusses and checks the current methods of specification of discretion. The author combs the classification of the specification methods, and after analyzing the value of the related specification methods such as the setting up of guidance on sentencing, sentencing suggestion, computer sentencing system and so forth on regulating the discretion, the author points out the deficiencies of the related specification methods, and makes the conclusion that the specification methods have great space for improvement.The fourth part discusses the improvement ideas. In order to solve the discretion problem better, the author puts forward the thoughts from three aspects:judges, the management system and the outside observer.

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