量刑規範化實現公正之路徑研究——以“人民法院量刑指導意見”為研究對象

Abstract

“Justice is the first virtue of social institutions, as truth is of systems of thought”. The evaluation of any systems, whether legislative or judicial, depends on the how well the justice it served. And sentencing system is no exception. As an important part of judicial system, sentencing is essentially the exercise of power. The fairness and reasonableness of the allocation and execution of power shall eventually be measured by the criterion of justice. Sentencing is considered fairness and the purpose of sentencing can be achieved only when justice is served. The goal of Standardization of Sentencing is to set fairness and justice as the principles in evaluation of methods of sentencing, sentencing circumstances and guidance of sentencing reform.

To ensure the unity of basis of sentencing as well as the unity of jurisdiction, and to achieve fairness and justice in sentencing, by forming the “Sentencing Guidelines by the People’s Courts” (herein after referred as “Sentencing Guidelines”), the Supreme People’s Court defines the objective, principles and methods of sentencing, and extracts corresponding sentencing circumstances from the “General Provisions and Specific Provisions of Criminal Law” for quantification and refinement. A so called “complete” sentencing system has been established and gradually implemented in all levels of people’s courts. This reform has profound effects to the extent that traditional methods of sentencing are almost completely overthrown. The new sentencing system was introduced throughout the country, and the goal of “Similar Sentences in Similar Cases” preset by the standardization of sentencing has been achieved to a certain degree, but it has also been questioned by the theoretical and judicial practice circles in the process of its implementation. In particular, strict application of Sentencing Guidelines hardly fit into complicated criminal cases. The judge’s discretion is severely restricted, and a new type of unfair sentencing or “Mechanical Judgment” appears. The crimes and circumstances illustrated by the “Sentencing Guidelines” are too limited to cover various kinds of crimes. There are flaws with the design method of Sentencing Guidelines, and the so-called “Absurd Sentencing” appears. Therefore, the Supreme People’s Court has to amend Sentencing Guidelines three times in a decade to respond to various issues, but many fundamental problems remain unsolved. Based on the in-depth discussion on the fundamental principles of sentencing, this thesis redefines the objectives and principles that should be followed in sentencing. Based on a large number of case studies, corresponding improvement suggestions and revised drafts of Sentencing Guidelines are proposed with an expectation to improve China’s sentencing system and to achieve the goal of fairness and justice in sentencing.

Chapter one, the Introduction, summarizes the origins of the problem, the significance of the topic selection, the current status of the research, the research methods and the innovations. As a background introduction, the Author first briefs the motive and the process of reform of Standardization of Sentencing. Since the reform of Standardization of Sentencing is of great significance to both theoretical and practice circles, the Author provides in depth analysis in both theoretical and practical aspects, and believes that this Thesis could, to a great extent, make up for the theoretical research and be a guidance to judicial practice.

Chapter two is the discussion of basic principles of standardization of sentencing, with the aim of solving theoretical issues of sentencing to support the study of subsequent chapters. In terms of the connotation and essence of standardization of sentencing, the Author believes that sentencing is a responsible process of “decision making” on how to sentence rather than a simple “quantification of penalty”. Reform of standardization of sentencing shall achieve the goal of fairness and justice in sentencing and shall in accord with essential attributes of sentencing, so that the principles, objectives, methods and circumstance of sentencing are all part of an integrated regulatory system to serve the same purpose of fairness and justice. Second issue is the objectives of sentencing and their relationship with standardization of sentencing. The Author believes that the connotation of sentencing objectives should be different in different times. The sentencing objectives in China today should be the balance and unity between “sentencing balance” and “penalty individualization” instead of the single method of “Similar Sentences in Similar Cases”. The third issue is sentencing principles and the relationship with standardization of sentencing. As the leading concepts among methods of sentencing and Sentencing circumstances, the principles of Sentencing shall bear its unique characters of sentencing which shall be distinctive to other judicial activities. The fourth issue is about judicial discretion and its relationship with standardization of sentencing. The Author believes that there is no conflict between judicial discretion and standardization of sentencing, rather, discretion is necessary in order to deal with complexity and variety of cases. Follows the theoretical study is the analysis on provisions of sentencing objectives, principles, methods and circumstances provided in the Sentencing Guidelines, which will be elaborated in Chapter Three.

Chapter three is about Sentencing Guidelines which is considered as the achievements of the reforms on standardization of sentencing. The Sentencing Guidelines provides centralized and unified rules as to sentencing objectives, principals, methods and circumstances, adding guidelines specialized to sentencing to the existing criminal judicial framework. From macro perspective, the Author believes that the objectives of sentencing shall be fairness and justice rather than “Sentencing Balance” or “Similar Sentences in Similar Cases”. From meso perspective, the Author acknowledges that the traditional method of “concurrent punishment for several crimes” was abolished, and the method of “Nature of the Crime Primary, Amount of the punishment Secondary ”, as well as the sentencing steps have been established. From micro perspective, the Author sees that commonly seen circumstances of sentencing are provided in the Sentencing Guidelines, which were previously found sporadically in many different laws or regulations. However, as the widespread implementation of the Sentencing Guidelines, deviations from achieving the goal of sentencing justice, both theoretical and practical, gradually appear, and the Author discusses such in the following two Chapters.

Chapter Four is about certain theoretical problems in the Sentencing Guidelines in terms of sentencing principles, methods and circumstances. As to sentencing principles, many are just reinstatements of Criminal Law, and seem too general or too vague, and lack of features specific to sentencing, examples are repetition of principles of criminal law, vagueness in the connotation of Balance of Sentencing and shortage of individualization of penalties. In terms of methods of sentencing, although the traditional method of “concurrent punishment for several crimes” has been abolished, no clear rules have been set up regarding how to figure out the nature of the crimes and the amount of punishment, or the relationship of the two aspects. In terms of circumstances of sentencing, problems still exist such as ambiguity in the stages when implementing sentencing circumstances; lack of rules regarding application of circumstances such as difficulty in the application of mitigating circumstances within the sentencing range wherein a defendant pleas guilty and accepts sentencing recommendations. After theoretical analysis on the Sentencing Guidelines as well as the outcome of implementation of the Sentencing Guidelines, whether the practical consequences are deviated from the preset goal of judicial justice is discussed in Chapter Five.

Chapter Five covers issues discovered in judicial practice after the implementation of Sentencing Guidelines, focusing on problems revealed during the ten years of reform on standardization of sentencing. Firstly, provisions as to calculation of punishment hardly fit into complicated crime cases, for an example, it’s “hard to reach accurate sentencing wherein multiple persons commit multiple offenses in joints crimes” , or “unclear on how to calculation imprisonment wherein a minor commits the same crime after he/she passes the legal age ”; Secondly, unreasonable restrictions on judges’ discretion give rise to the so called “mechanical judgment”; Thirdly, not all crimes and penalties provided in criminal law are covered in the Sentencing Guidelines; Lastly, through empirical analysis by data and real cases studies, the practical results are reviewed from the perspective of quality and efficiency of trial, consequences of sentencing, judicial discretion, openness of judicial process and legal fairness and justices, with the conclusion that the reforms of standardization of sentencing has not achieved its goal of fairness and justice in sentencing. After in depth discussion on fundamental principles of sentencing, the theoretical and judicial practice with respect to Sentencing Guidelines, the Author is clear about how to improve the reform of standardization of sentencing, thus proposals on reconstruction of the Sentencing Guidelines are illustrated in Chapter Six.

In Chapter Six, ways leading to the goal of fairness and justice in sentencing through standardization of sentencing is presented in view of the problems revealed both in theoretical level and judicial operation of sentencing standardization. Starting from reset of fairness and justice in sentencing as fundamental concept, the Author illustrates the principles required to be followed from four aspects, i.e., standardization of the guidelines, scientific design of the text of the Sentencing Guidelines, integration and connection of the sentencing system with the overall criminal judicial systems, and the instructive role of sentencing rules. Modifications and reconstructions of the Sentencing Guidelines are proposed, which the Author elaborates from three aspects: reestablishment of sentencing principles, improvement on applications of sentencing methods and circumstances and adding of charges and types of penalties to the Sentencing Guidelines. Lastly, improvement calls for the establishment of corresponding mechanism and policies, including but not limited to, establishment of a full reasoning mechanism in judgment-writing by enrichment of sentencing reasoning and strengthen on the release of guiding cases. Ways to fairness and justice of sentencing are proposed, however, thinking shall not stop, which leads to Chapter Seven.

In Chapter Seven, the Author summarizes what has been discussed in previous chapters and provides extended thoughts on ways to the goal of fairness and justice of sentencing. The Author believes that reform of China’s standardization of sentencing features the hasty in the implementation of standardization of sentencing with the goal of sentencing balancing, instability of the expected results of the reform, coupling effects on legislature created by reform of standardization of sentencing, and return to rationality in terms of standard of fairness and justice. Standardization of sentencing reform lasted for more than ten years but still left many problems unsolved, this may due to the fact that the reform was advanced with excessive speed without sufficient consideration. There is no doubt great progress has been made when reform is combined closely with judicial practice. Extended thoughts on judicial reforms are enlightened from reforms on standardization of sentencing. Among the experiences and lessons learned from the reforms of standardization of sentencing is that we should not only have a view on certain “points” and see the trees, but also should have an comprehensive view and see the forest. Judicial practice is the criterion for testing reforms as to whether the goal of legal justices is realized and is the only way said goal can be achieved.

Date of Award	1 Mar 2021
Original language	Chinese (Traditional)
Awarding Institution	City University of Hong Kong
Supervisor	Minkang GU (Supervisor) & Tianxiang HE (Supervisor)