Second, in the judicial process, we should decide the application of combining leniency with severity from the types and differences of crimes. Felony is generally strict, and misdemeanor is generally lenient. How to distinguish between felony and misdemeanor? A misdemeanor refers to a crime of fixed-term imprisonment of less than three years, and generally lenient circumstances should be considered for such crimes. Felony refers to the crime of fixed-term imprisonment of more than three years, and the circumstances of the crime are serious, so the handling of such crimes should generally be considered strict. But not just strict? Serious crimes should consider important links in the case.
There is also a light and heavy one. For example, public surveillance, criminal detention, and fixed-term imprisonment of not less than six months but not more than five years are misdemeanors or felonies, and should they be lenient or strict? According to the specific circumstances of the crime, this is a crime that needs to be considered in implementing the criminal justice policy of "tempering justice with mercy". Whether it is a misdemeanor or a felony determines the combination of leniency and severity.
Third, we should consider the distinction between specific circumstances of a crime. The criminal law stipulates that if the circumstances are bad or serious, the punishment shall be heavier. The plot of a crime is relatively flexible in the whole judicial process, so it is legal and very clear compared with the first two items. Although this item is stipulated by law, it is generally not so specific. Therefore, in judicial consideration, judges and prosecutors have greater discretion or discretion.
Finally, the distinction between leniency and severity depends on the performance of criminal consequences. If it is a barbaric crime, the subjective malignancy is relatively large, and this kind of crime should be strict. Good behavior should be treated leniently, which is considered from the consequences of crime. This is considered in the specific steps of the criminal justice policy of "tempering justice with mercy" in the judicial process.
In addition, "tempering justice with mercy" is not endless, and criminal law must be used within the statutory scope and must be carried out within the legal space. There are also many questions worth discussing, such as what is legal space? This is mainly the discretionary power given to judges and prosecutors by law. There are also some legal links, such as the understanding of the concept of crime; For example, Article 13 of the Criminal Law stipulates that if a crime is excluded, it may not be treated as a crime, which gives judges and prosecutors great discretion. In addition, the law stipulates many situations that can be exempted and mitigated, and these situations are also within the statutory scope. Therefore, discretion is given outside the statutory scope, but it cannot exceed this scope, so "tempering justice with mercy" is carried out within the statutory scope.