The Study on Justification of Sentencing Procedure
This doctoral dissertation includes an introduction,four chapters and a conclusion.Introduction relates the significance of writing this paper.At the beginning,the dissertation straight strikes the judicial reality that sentencing becomes more and more important but unfair sentence occured repeatedly in China.This question crux lies in judge\'s sentencing discretion is oversized in our country.In order to restrain judge\'s sentencing discretion effectively,two ideas of regulation by substantive law and procedure restriction have come into being in the domestic law circle.This dissertation points out that there are serious malpractices which must be reformed urgently in Chinese sentencing procedure,that reformation of substantive sentencing law also has suitable difficulty and limitation,therefore the urgent matter should first adopt the idea of procedure restriction for sentencing discretion, walk sentencing procedure justification reform path,and make efforts to realize fair sentencing by procedure restriction.Seen from studies on sentencing procedure in academic circle in whole,not only its achievement quantity is not many,but also the quality is not high. So this dissertation regards justification of sentencing procedure as the object of study.First chapter introduces basic theory on sentencing procedure.Sentencing procedure should base "individualization of sentence" and "due process" as theory foundations,only based on these two kind of theories,sentencing procedure is due sentencing procedure.The theory of individualization of sentence was founded by criminal positivism school,and its modern implication is that court should take defendant\'s individual situation into consideration and make penalty as far as possible to suit to offender not only to seriousness of crime.Now it has become an important content of modern penalty theory,the western countries also express approval to it by legislations.Although our present law has not provided the principle of individualization of sentence explicitly,but the theory of individualization of sentence has been affirmed in domestic academic circle gradually in recent years,the judicial branch has also expressed the enormous interest in individualization of sentence through pre-sentence investigation in minor criminal case and non-imprisonment pre-trial social investigation.The theory of due process originated from Anglo-American,but it has become now a general principle of legality in the world and the pronoun of "procedural justice" after evolution,it means the nation must safeguard his rights to be informed and state opinions and be listened attentively when to deprive citizen\'s rights and interests.In China, with the establishment of the notion of "rule by law" and "human rights",with the unceasingly thoroughness of research on theory of due process in academic circle,the idea of due process starts to be accepted by people,which has provided the advantage for Chinese sentencing procedure justification reform undoubtedly.In view of the fact that the sentence result is often significantly correlated with others and sentence-making is of relative freedom, realization of justification of sentencing procedure has universal vital significance in various countries:first,justification of sentencing procedure is helpful for the realization of sentencing substantive justice;second,justification of sentencing procedure is inevitable request of procedural justice;third,justification of sentencing procedure is an effective way to restrict sentencing discretion.The justificative standards of sentencing procedure may be grasped from two aspects of legal value standard and concrete procedure standard:legal value standard means whether sentencing procedure itself manifests the basic legal values such as equality、the human rights、freedom、democracy and so on in civilized society;concrete procedure standard is the standard inducted from the angle of legal procedure,it includes four principles of procedural participation、procedural autonomy、procedural publicity and information maximization,information maximization is the unique justificative standard of sentencing procedure among them,its implication refers that all information correlated with sentencing should be able to be allowed into sentencing procedure and for suitable consideration by judges.Second chapter deliberates typical model of sentencing procedure.According to whether criminal trial has been divided into conviction procedure and sentencing procedure or not,we may divide sentencing procedure in various countries into two typical models,namely,the independent sentencing procedure model and the attached sentencing procedure model.The independent sentencing procedure model is mainly adopted by common law system countries, it refers that criminal trial is divided into two different stages of conviction and sentence,an separated sentence hearing will be hold for penalty decision after conviction.This model of sentencing procedure includes two stages of pre-sentence investigation and sentence hearing. Pre-sentence investigation refers that probation officers or anyone else carry on comprehensive and the exhaustive investigation with defendant\'s individual situation such as his characteristic,family,occupation,antecedents and so on,and make a written copy of pre-sentence investigation report on this foundation and submit it to the court for sentencing reference.Anglo-American laws have made the extremely strict specification with the pre-sentence investigation procedure and disclosure of pre-sentence investigation report. Sentence hearing is the core of independent sentencing procedure,taken England as example, it includes five steps,namely,establishment of criminal facts,police antecedents statements, examination of related reports,defense speech in mitigation and sentence verdict.In difference with the conviction procedure,sentence hearing applies more loose evidence rule, such as hearsay evidence、character evidence and so on are permitted into court.There is a special kind of death penalty procedure in U.S.which retains death penalty,related systems such as capital jury and jury override have powerfully guaranteed prudence of death penalty in America.The attached sentencing procedure model is adopted by continental law system countries,it refers that criminal trial doesn\'t establish a separated sentencing procedure,but it attaches sentencing under the trial procedure which regards conviction as the core task, simultaneously solves two questions of conviction and sentence.Although this model of sentencing procedure is absence from special pre-sentence investigation and sentence hearing, the judicial organ may also investigate defendant\'s personality information in detail for individualization of sentence generally.In brief,legal cultures and the system backgrounds of two models of sentencing procedure are different,understandings on relationship between conviction and sentence are also different.By comparison,the independent sentencing procedure model can implement theories of individualization of sentence and due process better,it also conforms to the justificative standards of sentencing procedure more obviously. Therefore,in recent years,some scholars in continental law system countries begin to criticize and reconsider their attached sentencing procedure tradition,even to propose to make trial procedure bifurcated and establish an independent sentencing procedure.Third chapter introduces concrete systems and practices on sentencing procedure in foreign countries.In order to guarantee parties of prosecution and defense effective participation in sentencing procedure,many countries in two major law system have fulfilled prosecution party\'s sentence recommendation and sentence bargaining.Prosecution party\'s sentence recommendation refers that prosecutor makes specific sentence recommendation in court,aimed to urge prosecution party to participate in sentencing procedure furtherly for restricting judge\'s sentencing discretion and guaranteeing reasonable sentence.The system of prosecution party\'s sentence recommendation has been already adopted by various countries, even in England which long defended stubbornly tradition of prosecutor\'s not making sentence recommendation,it has also changed the attitude to encourage prosecutor to make sentence range recommendation in recent years.Sentence bargaining means that both parties of prosecution and defense or three parties of prosecution、defense and judge negotiate on sentence on the foundation which the accused acknowledges guilt,and court will sentence based on the correlation agreement,for the purpose of changing the disadvantageous situation that litigants withstand sentence by court passively,causing both parties of prosecution and defense,especially defendant to participate in sentence decision-making on own initiative, thus to let the accused serve a prison sentence well by the agreement decision.After the end of 1980s,the common law system countries established the system of victim impact statements,entrusting victims with right to state crime influence even sentence opinion in sentencing stage,for strengthening victim right protection.Japan,Holland and some traditional continental law system countries have also implemented the similar procedure under their influence.In addition,in order to prevent the court from willful sentencing and to safeguard litigant\'s right to know,two major law system countries also generally established sentence reasoning system,and formed two patterns of forcing to reason and advocating to reason.Fourth chapter discusses China\'s sentencing procedure problems.This chapter mainly uses positivism research method to analyze Chinese present sentencing procedure by inspection of litigious acts of the court、defendant、lawyer、prosecutor and victim,and summarizes three questions which there are in sentencing procedure in our country on this foundation,namely,unicity of sentencing information、administrative tendency of sentence-decision and surprise of sentence result.Therefore,the local judicial branches carried on series of procedural explorations such as pre-sentence social investigation、sentence recommendation、sentence bargaining and the relative independent sentencing procedure in sentencing practice in recent years,Chinese sentencing procedure reform has already been on schedule formerly.In China,justification reform of sentencing procedure is extremely essential:it is advantageous to regulate judge\'s sentencing discretion,guaranteeing fair and reasonable sentence;it is advantageous to extend denotation of prosecution power, guaranteeing full exercises of prosecution power;it is advantageous to safeguard defendant\'s right to counsel,preventing defendant\'s status worsening;it is advantageous to urge victim to participate in sentencing process,guaranteeing his special interests.At the same time,looked from period backgrounds and the technical operations,justification reform of sentencing procedure has also had the feasibility in our country.This article holds that the basic mentality of justification reform of sentencing procedure in our country should be bifurcation of criminal trial(i.e.separation of conviction procedure and sentencing procedure) and as far as possible to establish the independence sentencing procedure,and take this as the turnning point to further regulate court\'s sentencing discretion and intensify litigants\' rights of action. Considering Chinese conditions,the choice of sentencing procedure model in our country may make the different treatment according to whether defendant acknowledges guilt or not, namely:Strict trial bifurcation should apply to the case of defendant\'s acknowledging guilt, explicitly providing that the sentencing materials such as defendant\'s character cannot be used until the accused is convicted.Limited trial bifurcation should apply to the case of defendant\'s acknowledging not guilt,namely making sentencing materials investigated after the crime facts investigation on the basis of present procedure,simultaneously setting up relative independent sentence plea in the final stage of court debate.We should set up defendant personality investigation procedure,regulate court\'s sentence operation,entrust prosecutor and victim with right to sentence recommendation,and establish sentence bargaining mechanism in specific measures of justification reform of sentencing procedure.Conclusion shows the accomplished research and the basic conclusion in the dissertation as well as questions and directions which needed to be studied possibly.