| Establishing the sentencing benchmark is to clarify the process and common rules of sentence. According to our sentencing theory, the logical initial point to discuss sentencing process is the constitutional facts. But in fact, the theoretical model to determine the nature of an offense could not provide the concrete process of sentence. The norm facts corresponding the norm sentence should be such verities which could reflect the specific mean and infringing extent of the crime. It will be in accordance with the cognitive laws of“from objectivity to subjectivity”and“from phenomena to essence”to take the norm facts as the objective fundamental of sentence.The establishment of the sentencing benchmark of a specific crime should be based on the criminal judicial interpretation made by Supreme People’s Court and the type experiences in the sentencing guidance of local people’s courts. They are the main way of centralizing and typing the sentencing experiences. Without such original forms of experiences, only confusion can be achieved in exploring the norm facts and sentencing benchmark. Where they are not enough to guide the specific sentence, the conclusions and reasons made by judges in instructive cases should be intensively considered, from which one should find technique rules of sentence which can withstand the rational inquiry. It is unrealistic and unnecessary to establish the sentencing benchmark and corresponding norm facts of each of the more than 400 accusations in the Criminal Law and its amendments, since common crimes are more frequent in judicial trial, and it is less difficult to sum up their sentencing experiences and clear up their sentencing process. |
京公网安备11010102006664号 京ICP备2023015853号