Sentencing circumstances

Sentencing circumstances refer to the fact that the criminal law expressly stipulates or the judicial organ decides to convict, which reflects the seriousness of the criminal circumstances. Various factual situations that can be used to decide whether to punish criminals and the severity of punishment. The circumstances of sentencing have the following characteristics:

(a) the content of sentencing circumstances

Sentencing circumstances are all kinds of facts related to crime, and sentencing circumstances are factors that have certain influence on sentencing. These factors should be all kinds of facts related to crime. This is also a direct embodiment of the principle of sentencing based on facts. Of course, all the facts related to crime here can be the plot in the crime, the plot before the crime and the plot after the crime. The influence of criminal circumstances in the process of crime is the factual element of punishment and plays a direct decisive role in the process of sentencing. The circumstances before and after the crime can also affect the sentencing to a certain extent. For example, the attitude after committing a crime, whether to confess or refuse to plead guilty, also has an important impact on sentencing.

(B) the function of sentencing circumstances

The circumstances of sentencing have an important influence on deciding whether to punish or not and the severity of punishment. Whether or not to punish and the severity of punishment are the main contents of sentencing, and sentencing circumstances play a decisive role in this respect. So the circumstances of sentencing and conviction are different. Conviction circumstances, as the constituent elements of the amount of crime, are the factual basis for determining the establishment of a crime, aiming at solving the problem of whether there is a crime or not. The circumstances of sentencing are to solve the problem of the severity of the crime on the basis that the behavior constitutes a crime. Therefore, it is necessary to distinguish between sentencing circumstances and conviction circumstances, especially to prohibit repeated evaluation: the elements of criminal facts that have been used for conviction cannot be used as sentencing circumstances again.

(3) the basis of sentencing circumstances

The circumstances of sentencing are expressly stipulated in the criminal law or decided at the discretion of the judicial organs. Sentencing circumstances reflect the seriousness of the crime, thus affecting sentencing. Sentencing circumstances can be divided into statutory circumstances and discretionary circumstances. Among them, the statutory circumstances are stipulated in the criminal law, and the discretionary circumstances are not expressly stipulated in the criminal law, but determined by the judicial organs according to the trial experience. Statutory sentencing circumstances refer to various factual elements that should be considered when sentencing. The general and specific provisions of criminal law clearly stipulate the statutory sentencing circumstances. The sentencing circumstances stipulated in the general provisions of criminal law are applicable to all kinds of crimes, while those stipulated in the specific provisions of criminal law are applicable to specific crimes. In order to grasp and apply the statutory sentencing circumstances, we classify them as follows:

(a) circumstances that should be given a heavier punishment:

1. abetting 18 to commit crimes (Article 29 of the Criminal Law); 2. Recidivism (Article 65 of the Criminal Law); 3. instigating, coercing, luring or bribing state functionaries, armed forces personnel, people's police and militia to carry out armed rebellion or armed riot (article 104 of the Criminal Law); 4. Collaborate with overseas institutions, organizations and individuals to commit the crimes stipulated in Articles 103, 104 and 105 of this Chapter (Article 106 of the Criminal Law); 5. State functionaries who hold state secrets, betray the state, take refuge in overseas institutions and organizations, and endanger the people and national security of China (Article 109 of the Criminal Law); 6. Armed cover for smuggling (article 157 of the Criminal Law); 7. Counterfeiting money, selling and transporting counterfeit money (Article 17 1 of the Criminal Law); 8. Rape/Kloc-a girl under 0/4 years old (Article 236 of the Criminal Code); 9. Child molestation (Article 237 of the Criminal Code); 10. State functionaries illegally detain or detain others (Article 238 of the Criminal Law); 1 1. State functionaries commit the crime of framing (Article 243 of the Criminal Law); 12. A judicial officer abuses his power, illegally searches another person's body or residence, or illegally invades another person's residence (Article 245 of the Criminal Law); 13. Judicial personnel extort confessions from criminal suspects or defendants by torture or use violence to force witnesses to testify, resulting in disability or death (Article 247 of the Criminal Law); 14. Supervisors of prisons, detention centers, detention centers and other supervisory institutions beat or physically abuse the supervised person, resulting in disability or death (Article 248 of the Criminal Law); 15. Supervisors instigate or condone criminals to beat or physically abuse other criminals, resulting in disability or death (ibid.); 16. Postal workers open or conceal, destroy mail and telegrams to steal property without permission (Article 253 of the Criminal Law); 17. Pretending to be the people's police to cheat (Article 279th of the Criminal Law); 18. Inducing minors to participate in gathering for fornication (Article 30 1 of the Criminal Law); 19. Judicial personnel use violence, threats, bribery and other methods to prevent witnesses from testifying or instigate bribery or coerce others to commit perjury (Article 307 of the Criminal Law); 20. Judicial personnel help the parties to destroy or forge evidence, and the circumstances are serious (ibid.); 2 1. Illegal felling of forests or other trees in national nature reserves (Article 345th of the Criminal Law); 22. Using or instigating minors to smuggle, sell, transport, manufacture or sell drugs to minors (Article 347 of the Criminal Law); 23. Anti-drug personnel or staff of other state organs harbor or protect criminals who smuggle, sell, transport or manufacture drugs (Article 349 of the Criminal Law); 24. Luring, instigating, deceiving or forcing minors to take or inject drugs (Article 353 of the Criminal Law); 25. Being sentenced for the crime of smuggling, trafficking, transporting, manufacturing or illegal possession of drugs and committing the crime specified in this section (Article 356 of the Criminal Law); 26. The principal responsible persons of hotels, catering services, cultural and entertainment industries, taxi industries and other units use the conditions of their own units to organize, force, seduce, shelter or introduce others to prostitution (Article 36 1 of the Criminal Law); 27. Making and copying obscene movies, videos and other audio-visual products, or spreading obscene articles to minors under 18 (Article 364 of the Criminal Law); 28. Destruction of weapons and equipment, military equipment and military communications in wartime (Article 368 of the Criminal Law); 29. Misappropriation of funds for disaster relief, emergency rescue, flood control, special care, poverty alleviation, resettlement and relief for personal use (Article 384th of the Criminal Law); 30. Crime of accepting bribes (Article 386 of the Criminal Law).

(2) Circumstances under which the punishment can be lightened or mitigated:

1. The mental patient who has not completely lost the ability to recognize or control his own behavior causes harmful results (Article 18 of the Criminal Law); 2. Attempted crime (Article 23 of the Criminal Code); 3. The instigated person has no instigator of the instigated crime (Article 29 of the Criminal Law); 4. Surrender (Article 67 of the Criminal Law); 5. Make meritorious service (Article 68 of the Criminal Law).

(3) Circumstances that should be given a lighter or mitigated punishment:

A person who has reached the age of 14 and is under the age of 18 commits a crime (Article 17 of the Criminal Law).

(4) Circumstances that should be mitigated:

Interrupted criminals who cause damage (Article 24 of the Criminal Law).

(5) Circumstances that can be given a lighter, mitigated or exempted punishment:

1. Deaf or blind people commit crimes (Article 19 of the Criminal Law); 2. Preparation for a crime (Article 22 of the Criminal Law).

(six) circumstances that should be given a lighter, mitigated or exempted from punishment:

Accessory (article 27 of the Criminal Law).

(seven) circumstances that can be mitigated or exempted from punishment:

1. Having received criminal punishment for committing a crime in a foreign country (Article 10 of the Criminal Law); 2. Having made significant meritorious service (Article 68 of the Criminal Law); 3. Individuals who embezzle more than 5,000 yuan and are dissatisfied with 10000 yuan, show repentance after committing a crime, and actively return the stolen goods (Article 383 of the Criminal Law); 4. The briber voluntarily confessed to accepting bribes before being prosecuted (Article 390 of the Criminal Law); 5. Introducing the briber to voluntarily explain and introduce the bribe before being prosecuted (Article 392 of the Criminal Law).

(eight) circumstances that should be mitigated or exempted from punishment:

1. Excessive defense (Article 20 of the Criminal Law); 2. Excessive risk aversion (Article 2 1 of the Criminal Law); 3. Coerced accomplice (Article 28 of the Criminal Law); 4. Those who surrender themselves after committing a crime and have made significant meritorious service (Article 68 of the Criminal Law).

(nine) circumstances that can be exempted from punishment:

1. If the circumstances of the crime are minor, there is no need to impose a penalty (Article 37 of the Criminal Law); 2. Voluntary offenders who commit minor crimes (Article 67 of the Criminal Law); 3. Illegally planting opium poppy or other narcotic plants, and automatically eradicating them before harvesting (Article 35 1 of the Criminal Law).

(10) Circumstances that should be exempted from punishment:

Probation offender who has not caused damage (Article 24 of the Criminal Law). Discretionary circumstances refer to the circumstances that the people's court should flexibly grasp when sentencing. Although discretionary circumstances are not stipulated by law, they are summed up from the trial practice experience according to the legislative spirit and relevant criminal policies, so they are also of great significance to sentencing.

Discretionary circumstances are mainly manifested in the following aspects:

(1) Criminal motives

The criminal motive reflects the subjective malignancy of the criminal. Generally speaking, the motives of intentional crime are all bad, but there are also differences in degree. For example, adultery murder is worse than murder based on indignation, so it still has a certain impact on sentencing.

(2) Criminal means

Criminal means reflect the objective harm degree of criminals. In the process of conviction, criminal means generally do not work, but have an impact on sentencing. The means and methods of criminals are cruel or extremely cunning and concealed, which is more harmful than using ordinary criminal means to commit crimes and should be severely punished.

(3) the time and place of the crime

Crime always happens in a certain time and space. Except the time and place of individual crimes are optional elements, the time and place of crimes have no influence on conviction, but they should be considered when sentencing. For example, compared with quiet places at night, public places in broad daylight have different degrees of infringement of legal interests, so there should be differences in sentencing.

(4) the result of the crime

The result of crime is the result of the damage caused by crime to the object, which directly reflects the extent to which legal interests are infringed. Therefore, whether the criminal result is serious is of great significance to sentencing. For example, it is better to rape one person than to rape many people, and so on.

(5) the object of crime

Different criminal objects have different degrees of infringement on legal interests, and the severity of sentencing should also be different. For example, the weak such as the sick, the disabled, minors, the elderly, pregnant women and so on. Are more serious than the average person; Infringement of relief funds and materials is more serious than infringement of general property and so on.

(6) The consistent performance of the offender

The consistent performance of criminals is a plot that reflects the personal danger of criminals and also has a certain impact on sentencing. If the offender always abides by the law, behaves well, and occasionally commits crimes, he should be treated leniently; On the other hand, if criminals have been behaving badly and have a bad criminal record, they should be severely punished.

(7) Attitude after committing a crime

The attitude after committing a crime, whether it is refusing to explain, even evading legal sanctions, or voluntarily confessing, actively returning stolen goods and recovering economic losses, all reflect the personal danger of the criminals, and should be treated differently when sentencing.

Applicable principles of sentencing circumstances

The circumstances of sentencing should be applied according to law. Therefore, we must correctly understand and scientifically grasp the applicable principles of sentencing circumstances stipulated by law.

(A) the application principle of heavier and lighter sentencing circumstances

Article 62 of China's criminal law stipulates: "If a criminal has the circumstances of heavier punishment or lighter punishment as stipulated in this law, he shall be sentenced to punishment within the limits of statutory punishment." This is the application principle of sentencing circumstances with heavier punishment and lighter punishment. According to this regulation, a heavier punishment refers to choosing a punishment or a heavier sentence than similar crimes without this plot within the scope of statutory punishment; Lighter punishment refers to choosing a relatively lighter punishment or fixed-term imprisonment than similar crimes without this plot within the scope of statutory punishment.

(2) The principle of mitigating the circumstances of sentencing.

Sustained release can be divided into general sustained release and special sustained release. Paragraph 1 of Article 63 of China's Criminal Law stipulates: "If a criminal has mitigating circumstances as stipulated in this Law, he shall be sentenced to a penalty below the statutory penalty." This is the provision for general mitigation, so it can be seen that general mitigation refers to the punishment that is lower than the statutory minimum punishment according to law. The second paragraph of Article 63 of the Criminal Law stipulates: "Although criminals do not have the mitigating circumstances stipulated in this Law, according to the special circumstances of the case and the standards of the Supreme People's Court, they can also be sentenced to a penalty below the statutory penalty." This is a special mitigation provision, so it can be seen that special mitigation refers to a penalty that is lower than the statutory minimum penalty as appropriate.

The special case here means that the case involves politics and diplomacy. In cases with special circumstances, even if the criminals do not have mitigating circumstances as stipulated in this Law, they may be sentenced to a penalty below the statutory penalty with the approval of the Supreme People's Court. There are two issues that need to be clarified when understanding the mitigation of punishment: First, how to understand the statutory minimum penalty? In my opinion, the statutory minimum penalty here means that the minimum penalty for a crime committed by only one unit is stipulated in this article. In the provision that there are more than two units with a legally prescribed punishment for a crime, it refers to the lowest punishment among the units with a legally prescribed punishment for a crime. For example, if theft is applicable and there are other mitigating circumstances, the statutory punishment applicable to theft is fixed-term imprisonment of 10 years or more, life imprisonment or death penalty, and a fine or confiscation of property. Therefore, the legal minimum penalty is 10 years in prison. If there are mitigating circumstances, the punishment shall be fixed-term imprisonment of 10 years or less. Second, to what extent can the punishment be reduced? I think. Mitigating punishment can be commutation or commutation, that is, from a heavier punishment to a lighter punishment, but generally it cannot be changed to exemption from punishment.

Specific application of sentencing circumstances

To a great extent, the sentencing process is the specific application process of various sentencing circumstances. Therefore, the specific application of sentencing circumstances is of great significance.

(A) the application of sentencing circumstances in the case of concurrence

There are often more than two sentencing circumstances in the same criminal case, which is called concurrence of sentencing circumstances. The concurrence of sentencing circumstances can be divided into joint concurrence and reverse concurrence. Co-opetition in the same direction means that there are more than two lighter or heavier situations. Reverse concurrency refers to having a lighter plot and a heavier plot. In the case of concurrence in the same direction, the application of sentencing circumstances is easier to solve, and two lighter circumstances can be given a greater degree of leniency. According to the criminal law of our country, two mitigating circumstances cannot be upgraded to one mitigating circumstance. In the case of reverse concurrence, the application of sentencing circumstances is more complicated. In this case, the offset method cannot be simply used. The offset method means that there are more than two sentencing circumstances in a case, some of which play a lenient role in sentencing (including lighter, mitigated and exempted punishment-the same below), and the other plays a strict role in sentencing (including heavier and heavier punishment-the same below). When determining the criminal responsibility of criminals, these two circumstances cancel each other out, neither heavy nor heavy, which is equivalent to putting these two sentencing circumstances aside from sentencing factors. In my opinion, this kind of offset is not appropriate. In fact, in specific cases, the connotations of various sentencing circumstances are unequal and cannot be simply offset. The correct method should be to determine a basic punishment according to the basic criminal facts and the nature of the crime, and then use the circumstances to balance the sentencing. This process of balance can be called the revision of punishment. The process of penalty correction is the process of optimizing sentencing by using sentencing circumstances. The process of penalty correction shows that the variable value of sentencing circumstances fluctuates in a certain range along the horizontal direction according to certain laws. In the case of only one sentencing circumstance, it only needs to be corrected once. However, in the case of two inverse images, a second correction is required. Under normal circumstances, if the circumstances are serious, the basic punishment shall be revised according to the circumstances. Then consider the lighter circumstances, and according to the lighter circumstances, modify the penalty determined in the first revision.

(B) the application of multi-functional plots

The lenient punishment circumstances stipulated in China's criminal law are generally multifunctional circumstances, and a sentencing circumstance has two functions of lightening or mitigating punishment, and even three functions of lightening, mitigating or exempting punishment. How should it be applied in such a multifunctional situation? I think that in this case, we should first consider the nature of the crime. If the nature of the crime is minor, it may be considered to reduce or exempt the punishment, instead of a lighter punishment. If the crime is serious, you can consider a lighter punishment. At the same time, we should also analyze the seriousness of the sentencing circumstances themselves. For example, the same attempted murder, first, although no murder, but caused serious injuries; Second, although it did not kill people, it caused minor injuries; Third, not only were people not killed, but the victims were also safe and sound. Obviously, the attempted murder in these three situations should be treated differently, not equally. Finally, we should pay attention to a problem, that is, the arrangement order of laws and regulations for lighter, mitigated and exempted punishment is of guiding significance for the application of multi-functional plots. For example, article 22 of China's criminal law gives a lighter, mitigated or exempted punishment to the preparatory offender. However, Article 24 of China's Criminal Law exempts or lightens the punishment for the discontinued offender. Obviously, the preparatory crime should be considered in the order of lighter, mitigated and exempted. For the discontinued crime, exemption should be considered first, and then the punishment should be mitigated.

(3) The application of possible circumstances and should circumstances.

The sentencing circumstances stipulated in China's criminal law are both possible and necessary, and they are obviously different. From the perspective of legal logic, the code of conduct composed of should and can is called normative modal judgment. Necessary norms are mandatory norms, while actual norms are permissive or authorized norms. Therefore, the logical meanings of "can" and "should" are different. Generally speaking, what the law stipulates can be done or not; What is required must be done. Then, in the case that a lighter punishment can coexist with a heavier punishment, and a lighter punishment can coexist with a heavier punishment, how should the criminal be sentenced? I think, in this case, we should consider the appropriate plot first, and then consider the possible plot.