It is precisely because of the close relationship between sentencing circumstances and sentencing appropriateness that the author writes this composition in order to promote the in-depth study of sentencing circumstances theory and hope to promote the good application of sentencing circumstances in judicial practice.
First, the legal definition of sentencing circumstances
At present, Chinese criminal law scholars have not reached a unified understanding of the concept of "sentencing circumstances" in theory. The author lists one or two of them for your comments.
The first view holds that the circumstances of sentencing are not only the facts of a specific crime, but also closely related to the offender or his infringing act, which affects the social harmfulness of the act and the degree of danger of the actor, and then determines the specific factual circumstances of lenient punishment or exemption from punishment. 1
The second view is that the circumstances of sentencing are the circumstances in which the people's court decides the severity or exemption of punishment when sentencing criminals. 2
Viewpoint 3 holds that sentencing circumstances refer to a series of situations and links that exist in the whole process of crime to decide whether to punish the offender, and are based on before, during and after the crime.
The author agrees with the first view, that is, the circumstances of sentencing are concrete facts that show the social harmfulness of the behavior and the personal danger of the actor, which are closely related to the criminal or his tort, and then decide whether to apply lenient punishment or exempt from punishment. Its function is to decide whether to punish leniently or severely on the basis of the corresponding legal punishment under the premise of conviction, and its content includes not only the facts of the crime, but also the performance before the crime and the attitude after the crime.
Second, the specific performance of sentencing circumstances.
The Gulangyu People's Court in Xiamen recently tried two bribery cases: in case one, the defendant Wu Mou took bribes twice, with a total amount of RMB 1? 60,000 yuan, sentenced to one year in prison and suspended for one year; In case 2, the defendant Huang accepted bribes 14 times, amounting to140,000 yuan, and was sentenced to 10 years' imprisonment. Both cases are bribery cases, and the verdict is completely different, in which the sentencing circumstances play a leading role.
For crimes of the same nature, due to the different circumstances of the crime, the degree of social harm is different, so the punishment is also light and heavy. It is for this reason that the specific provisions of the criminal law stipulate a certain range of sentencing. Therefore, when the court determines the nature of the crime, it also determines a certain range of sentencing. However, how to determine the specific punishment within this range depends on the specific analysis of the characteristics of each case and each offender and the comprehensive analysis of the criminal circumstances. Usually, sentencing can only be based on the social harmfulness of the behavior, that is, sentencing must be adapted to the objective harmfulness of the crime and the subjective malignancy of the offender, and personal danger can only be used as the basis for individualization of execution, that is, conviction and sentencing can only be based on the current criminal behavior and legal provisions, and the nature of punishment must be adapted to the nature and severity of the crime. In the above two bribery cases, both defendants surrendered themselves and returned the stolen money (part), and the defendant in the second case also performed meritorious service. It is precisely because of the above sentencing circumstances that the sentencing of the two defendants belongs to the category of lighter punishment. Because of the complexity of crimes, it is impossible for legislators to prescribe corresponding statutory penalties for various crimes, but it is also impossible for judges to decide the sentencing completely. Therefore, the circumstances of sentencing are stipulated. In this way, it can not only make the determination of punishment adapt to the complex criminal situation, but also make the sentencing rule-based, not beyond the scope stipulated by law, and avoid the arbitrariness of sentencing. The difference in the judgment results of the above two cases is also the embodiment of the adaptation of crime and punishment. Punishment should be commensurate with the crime, with heavy punishment for felony and light punishment for misdemeanor. If it is impossible and unnecessary to stipulate the corresponding definite punishment for each specific crime in criminal legislation, it is inevitable to introduce sentencing circumstances. Because the sentencing circumstances are abstract summaries of various situations that reflect social harm or personal danger, this enables judges to impose corresponding penalties on each crime according to its different sentencing circumstances, so that the principle of balance between crime and punishment can be fully implemented in criminal legislation and justice, and the penalty is both fair and utilitarian in preventing crime. In the above two cases, if there is no difference in sentencing circumstances, the judge can impose the same penalty on similar crimes based on feelings or likes and dislikes, which will make it easier for obviously unfair.
Sentencing circumstances are objectively produced with the criminal's behavior, and exist in the case regardless of human will. It not only includes tangible circumstances that can be seen and touched, such as the cruelty of criminal means and the severity of criminal consequences, but also includes intangible circumstances that exist in the subjective aspects of criminals, such as criminal motivation, purpose and attitude after committing crimes. Although these subjective plots are intangible, they still exist objectively and can be understood or evaluated through investigation and analysis of cases. For example, in the second case, the defendant Huang took bribes 14 times, the number of times and the huge amount showed his subjective greed. His behavior is not only a property crime, but also a crime of dereliction of duty. As a national staff member, the defendant is a public servant of the people. He knows the law better than ordinary people. Not only did he not set an example, but he also used his power to carry out criminal activities, which deserved more severe negative evaluation than ordinary criminals. Therefore, the judge adopts the principle of "can be lighter" rather than "can be mitigated" when sentencing.
The criminal law has made different provisions on the amount of bribery. The amount of bribery crime is not only a quantitative standard to distinguish crime from non-crime, but also a quantitative standard to punish the severity. The amount is the main symbol to measure the degree of social harm of bribery, and the social harm is the basis for the application of punishment, so the amount becomes the basis for choosing the applicable punishment system, which makes all kinds of bribery "sit in the right place" on the level of legal punishment. But the amount is not the only basis for conviction and sentencing, because the degree of social harm of bribery is not only reflected in a certain amount of crime, but also in the reasons, means, consequences and attitudes after the crime to a certain extent. Therefore, it is wrong to ignore the circumstances beyond the amount of crime when dealing with bribery cases. It is precisely because of this that the defendant in case 2 finally received a lenient sentence. Therefore, we say that it is precisely because of the objective existence of sentencing circumstances and the needs and provisions of its application that the principle of a legally prescribed punishment for a crime can be implemented under the condition that the punishment is relatively certain, so as to avoid being too rigid and unable to realize or lose the "statutory" intention because of the great relativity.
Third, the misunderstanding analysis of sentencing circumstances
In the above-mentioned second case, because the defendant Huang surrendered himself, partially returned the stolen money and goods, and performed meritorious service at the same time, the lawyer put forward a defense opinion to change several mitigating circumstances into one mitigating circumstance, requesting the court to consider mitigating the punishment or even reducing the punishment, and sentenced him to fixed-term imprisonment of not more than three years, with probation applicable. The author believes that this proposal lacks legal basis. This proposal does not objectively analyze the role of sentencing circumstances, and it is suspected of absolutizing the role of circumstances, which is not conducive to reasonable and accurate sentencing. When several circumstances with lighter punishment are merged, it does not have the function of changing the statutory punishment under any circumstances. China's criminal law stipulates several sentencing ranges and grades for most crimes. If the social harm of the behavior is light or general, and there are some light punishment circumstances, the judge has every reason to put this situation in a light range or grade when considering the severity of punishment, and it is not necessary to consider the heavier punishment first, and then reduce the punishment for the actor according to several light circumstances to adapt to the crime and punishment. The author believes that in this case, that is, when there are more than two lighter situations, the lighter weight should be increased. In this case, Huang took bribes of 6.5438+0.4 million yuan, and should be sentenced to fixed-term imprisonment of 10 years according to law (according to judicial practice, if sentencing circumstances are not considered, Huang's sentencing range should be 654.38+02-654.38+04 years). It is precisely because of several lighter circumstances of Huang that the judge gave him the maximum lighter punishment. The bottom line is 654.38+00 years in prison.
In addition, the author also thinks that the lawyer's suggestion of reducing a standard punishment and applying probation is inappropriate. This involves a question, that is, whether there is a limit to the degree of mitigation. Although there are different views in theory, the author believes that a mitigating circumstance can only alleviate one situation, but not infinitely. Because mitigating punishment is relative to aggravating punishment. According to the interpretation of relevant legislation, aggravated punishment can not be increased indefinitely, but only by adding one sentence above the statutory maximum punishment. For the limitation of mitigating punishment, we should refer to the limitation of aggravating punishment and make a reverse inference in theory. Therefore, mitigated punishment cannot be mitigated indefinitely. At the same time, mitigating circumstances can only be reduced one by one, not by leaps and bounds. There is a huge difference between the judge's judgment and the lawyer's suggestion in this case, which is not only the result of different understanding of sentencing circumstances, but also the result of different application of sentencing circumstances.
From the analysis of the previous article, it is not easy to properly grasp the influence of circumstances on sentencing, which is mainly determined by the complexity and diversity of sentencing circumstances. There is no uniform standard for the application of sentencing circumstances, which should be grasped according to specific legal provisions and various situations. In the process of specific discretion, we should: first, take the social harmfulness of criminal acts and the antisocial size of criminals as the criteria to determine the severity of punishment, and we should not unilaterally emphasize a certain plot factor and exaggerate the role of sentencing circumstances to make it the decisive factor of sentencing; Second, correctly understand and deal with the role and influence of sentencing circumstances on sentencing severity, and unify sentencing circumstances with sentencing basis; Third, comprehensively consider the principle of sentencing circumstances. Usually, there are many kinds of sentencing circumstances in a case, both favorable and unfavorable; There are both statutory sentencing circumstances and discretionary sentencing circumstances; There are both hypothetical plots and possible plots; It is not only the plot before the crime, but also the plot after the crime. Of course, this guarantee does not mean denying that various sentencing circumstances have different effects on the severity of sentencing, and treating all sentencing circumstances equally. Instead, the judge is required to comprehensively consider the circumstances of sentencing and prevent one-sidedness.
Fourth, the legal thinking about the crime of "capable people"
In the first case, the defendant, Wu Mou, was the vice president of a hospital, the director of surgery and a provincial expert, who made special contributions to medical and health work. Therefore, when sentencing, members of the collegial panel have different views.
The first view is that the defendant Wu Mou was once a person who contributed to society. Although he embarked on the road of crime, he can turn his achievements into crimes, and his crimes cannot be investigated or given a lighter punishment. Moreover, the "Physician Law" is about to be promulgated, and people who are subject to criminal punishment cannot obtain the qualification of doctors. If Wu Mou is disqualified as a doctor, it will be a great loss to society, patients and himself. Therefore, it is suggested that the court consider the above sentencing circumstances and exempt the defendant from criminal punishment.
The second point is that people who commit crimes must not be lenient, let alone extrajudicial. Although Wu Mou has the status of "capable person", he is by no means and should not be a special citizen. If Wu Mou is not investigated or punished, the legal principle of equality before the law will be destroyed. To connive at him is to openly admit the different identities of criminals and the inequality of rights and obligations arising therefrom. Therefore, Wu Mou, the defendant, must be punished according to law and given real punishment to deter and educate other unstable elements.
The third view holds that Wu Mou's sentencing circumstances in this case should be comprehensively analyzed, and lenient treatment should be strictly grasped. Because from the principle of legal system, he must be investigated and dealt with according to law in order to safeguard the dignity of the law; From the perspective of economic principles, he is a medical backbone with certain professional knowledge and social needs. Punishing him is also a loss to society. Therefore, considering the legal consequences, economic benefits and social benefits of handling the case, it is considered appropriate to give the defendant a suspended sentence.
The author thinks that it is necessary to treat scientifically the social harmfulness and potential social benefits of Wu Mou, a "sinner and capable person". Comprehensive evaluation of various sentencing circumstances in the case, while finding out the facts, nature, circumstances and social harm of the crime, we should also understand its consistent performance, reasons, motives, confession attitude and economic situation, and earnestly grasp the ins and outs of the crime, treat it cautiously according to different situations, and prevent it from being simply handled according to the amount framework. Special handling methods should be adopted, which are different from ordinary criminal cases. On the premise of implementing the principle of legal system, we should give consideration to economic principles and give full play to probation, control and non-penalty treatment. Viewpoint 1 It is inappropriate to take public opinion and situation as sentencing circumstances. Although these factors may have some influence on sentencing, they have nothing to do with the criminal himself or criminal behavior, so they can only be external factors affecting sentencing, not sentencing circumstances. Considering the defendant's expertise in medical technology and external factors, the court sentenced the defendant Wu Mou to one year's imprisonment and suspended sentence for one year, which I think is appropriate.
Verb (abbreviation of verb) on the legislation of sentencing circumstances
The author thinks that there are some shortcomings in Article 6 1 of the Criminal Law, that is, there is no standard of sentencing and no grading punishment according to the seriousness of the circumstances. The basis of sentencing is the unity of the social harmfulness of behavior and the anti-social behavior of the actor, which is only the general standard of sentencing for judges. It is not enough to judge by this general standard, and there is also a lack of specific indicators or carriers to reflect it. The content of sentencing usually includes four aspects: 1? Decide whether to punish the offenders; 2? To decide the punishment for criminals; 3? To decide whether the punishment for the offender should be executed immediately or suspended; 4? Sentencing must be based on the provisions of the law. Because sentencing is related to the dignity of the judiciary and the life and death of the parties, the law has taken two measures to ensure the fairness and rationality of sentencing as much as possible and avoid the imbalance of sentencing. First, through appeals or protests, the criminal procedure ensures that the sentencing errors are minimized and corrected; The second is to stipulate the principles and standards of sentencing in the criminal law to prevent the occurrence of abnormal sentencing from the substantive law.
German criminal law clearly stipulates the principle of sentencing and sets sentencing standards accordingly. Article 46, paragraph 2, of the law stipulates: "When sentencing, the court shall weigh all favorable and unfavorable circumstances, paying special attention to the following matters: the motive and purpose of the criminal; Emotion and behavior thoughts revealed by behavior; Degree of breach of obligations; The type of crime and the imputable result; The criminal's life experience, personal and economic relations, attitude after the crime, especially the degree of efforts to compensate for losses. " The amendment of French Criminal Code 1986, which represents the latest development trend of criminal law in western countries, also makes specific provisions on sentencing standards. Article 132 of the law stipulates: "within the limits prescribed by laws and orders, the court must consider the various circumstances of the crime, the defendant's personality, mental state or mental state, his income and liabilities, his motives and actions after the crime, especially the actions against the victim, and decide the punishment system according to these."
1974 item 2 of the draft amendment to Japan's criminal law stipulates: "When applying the penalty, we must consider the age, personality, experience and environment of the offender, the motive, method, consequences and social impact of the crime, and the attitude of the offender after committing the crime, which should be conducive to curbing the crime and reforming the offender." In the United States, the Sentencing Committee under the United States Congress has formulated the Sentencing Guide of the United States, which specifies the sentencing scale including 43 grades in detail to solve technical and practical problems. The court that makes the judgment must make the judgment within the prescribed scope.
Combined with the specific situation of our country and drawing lessons from foreign practices, the author suggests adding specific sentencing standards in the criminal law provisions, and at the same time legalizing some discretionary circumstances to raise them to statutory circumstances. Because an effective and reasonable sentencing system can improve the criminal justice system's ability to fight crime; Clarity is the basic requirement of the principle of a legally prescribed punishment for a specified crime for legislative activities, because vague criminal law is not only in danger of putting innocent people in prison, but also in danger of arbitrarily treating and applying laws or vague basic policies based on special subjectivity. Specific sentencing standards are convenient for judges to weigh all the favorable or unfavorable situations of criminals, and pay attention to various matters that have an impact on the severity of sentencing: the motive and purpose of the crime, the stimulation during the crime, the age, personality, experience and environment of the criminal, the means, results and social impact of the crime, the attitude of repentance after the crime, especially the efforts made to compensate for the losses, etc. When dealing with property punishment, we should also consider the financial situation of criminals. Defining specific sentencing standards can tell judges what basic and indispensable plot factors should be considered. The principle is thick and the standard line is thin, which makes the judge's behavior have rules to follow. Of course, the clarity of legislation does not oppose that statutory punishment should have certain discretion space, and it is wise to leave room. The new criminal law has many successes in this respect. For example, according to the amount and circumstances of the crime, the statutory punishment for corruption and bribery crime is stipulated as five sentencing grades, which overcomes the drawback of the excessive span of the statutory punishment in Criminal Law 1979.
Some people think that the circumstances of sentencing should not be stipulated in the criminal code (continued from page 34) (continued from page 6), and should be explained in judicial interpretation. The author thinks it is inappropriate. First of all, too many criminal judicial interpretations will limit the judge's personal initiative. Judicial interpretation and judge's reasonable and moderate discretion cannot be equated. Judges only rely on judicial interpretation, without examining the specific circumstances of each case, and there will still be the problem of improper sentencing after conviction. Secondly, the formation of judicial interpretation is suspected of being produced by judges, and the degree of its production is quite controversial. Therefore, in my opinion, after the criminal law clearly stipulates the specific standards of sentencing circumstances, it is not appropriate to have too many judicial interpretations, but to improve the personal quality of judges, so that judges can exercise their discretion within a reasonable range and handle each case as accurately and fairly as possible.
In addition, on the basis of detailed and complete sentencing circumstances, legislation should also arrange the sentencing circumstances of some crimes according to the severity, and list the corresponding punishment grades and grades, so that judges can choose appropriate punishments according to the severity of criminals when sentencing. American criminal law divides crimes into four grades according to circumstances, and each grade is divided into several grades. Then, the corresponding types of punishment and the classification system of crime and punishment are stipulated, so as to facilitate judges, eliminate the possible disparity between crime and punishment, and further legalize and institutionalize the principle of "adapting crime and punishment".
Combined with China's criminal law, because many provisions concentrate the three functions of lightening, mitigating and exempting punishment in one plot, which virtually expands the judge's discretion, it is suggested that the plot content be divided into three levels in legal provisions, corresponding to the three levels of lightening, mitigating and exempting punishment respectively, or reducing multiple functions and levels of a plot. This can effectively improve the operability of criminal law provisions and is also an important means to reduce the imbalance of sentencing.
Ending of intransitive verbs
Due to the complexity and variability of society, the facts of each case are unique and complicated. Therefore, the judgment of sentencing circumstances should meet the fair and reasonable needs of these unique case facts. The process of analyzing and judging sentencing circumstances is the process of applying abstract legal norms to a single specific case fact and realizing individual justice. In this process, the judge must examine these unique situations in detail and consider the needs of society according to the law in order to make the most legal, reasonable and fair judgment; In this process, the unique plot of the case is the reason and destination of the judge's jurisdiction, that is, the judge's discretion comes from the plot of the case, and its fundamental purpose is to solve the factual plot of the case fairly and reasonably. Therefore, the judgment of sentencing circumstances is a rational and dialectical thinking and reasoning process, and calmly controlling this process is also the basic requirement of a high-quality judge.
(Author: Gulangyu People's Court, Xiamen City, Fujian Province)
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