On a runaway horse (below) - to see the court from Xu Ting's discretion

Third, the sentencing process

Not only in the sentencing court of first instance found on the plot there is suspicion of abuse of discretion, and the entire sentencing decision making process lacks openness, transparency and defense, making the results of the final sentencing decision is not formed in the litigation process, and to become Judge "office job" and the court a product of internal administrative examination and approval mechanisms in other words, decision-making process throughout the sentencing judge no discretion on the formation of effective constraints.

Conviction and sentencing procedures in the relationship, the current mode of co-existence of two major procedures: First, civil law countries, the conviction and sentencing process integration model, and second, common law countries, the separation of the conviction and sentencing process model [1 ] China to adopt a program of the former model, the court of the court through a continuous activity, not only whether a defendant constitutes a crime to make a ruling, but also the issue of guilt of the defendant's sentencing authority is given conclusion. This conviction and sentencing process integration model of course, to reduce litigation costs, improve the efficiency, convenience and other pArties to the proceedings has a certain merit, but ignored the sentencing decision-making process more scientific and fairness had a negative impact [2] In science, such a model can not guarantee that the judge sentencing the full access to relevant facts and information, it is difficult on the sentencing of the expected results and an accurate assessment of risk, easily lead to the judge in sentencing decisions have too much discretion, while in justice side, this model can not guarantee that the public prosecutor, the victim side, sentencing the defendant to pArticipate fully in decision-making process, making the whole process becomes a judge sentencing a unilateral and arbitrary decision-making process, both pArties can propose and demonstrate all aspects of sentencing, but also conclusion can not comment on the sentencing, more difficult to impose on the judge's sentencing concluded a positive and effective impact.

Xu Ting's case first instance fully demonstrates China's current sentencing procedures there are many problems in the Guangzhou Intermediate People's Court during the first trial, the prosecutor accused Xu Ting's allegations and raised no objection, defense counsel that the defendant constitute occupation crime, and does not constitute theft. In the Court's re-trial process, the prosecutor accused Ting Xu did not dispute the alleged facts, but argue that withdrawal is to "protect the bank assets", ATM machine failure, and banks are responsible, the defense lawyers that the case "The fact is unclear, evidence insufficient," the defendant's conduct is unjust enrichment, does not constitute a Criminal offense, requiring the court under the principle of legality of the declaration made by guilty in the trial of the two, either the defendant or defense counsel, are not identified on the sentencing and sentencing of the type, magnitude a clear opinion, the court did not organize the prosecution and defense on sentencing issues any form of cross-examination and debate the core of both pArties accused the debate Xu Ting's conduct constitutes theft problem, and the defendant's sentencing issues are entirely decided by the court ruling.

In the Guangzhou Intermediate People's Court during the second trial, the prosecution and defense on whether the defendant constitutes a theft of Xu Ting, a more fully the issue of confrontation and debate, as well as causing the extension of trial period, but whether it is public or law experts, all of the Court of First Instance sentenced to life imprisonment conclusion Xu Ting doubts and confusion, even the pArt of the legal profession are also considered "excessive punishment case." However, for the cause of serious concern to the community so the issue of sentencing, Court of First Instance has not listened to the prosecution, the defense's opinion, does not give both parties the opportunity to debate, even the case as "injured party" of the bank, there is no opportunity to attend the court hearing, the sentencing court issued the side views. Thus, the court after the conviction and issue to trial, you through the scoring, investigation and verification, and internal coordination of the way, the sentencing issue a ruling, of course, in view of Xu Ting, the case attracted nationwide attention in China's current the judicial system, the Guangzhou Intermediate People's Court is likely to a higher court conducted an internal referrals and reporting, the conclusions made in the sentencing of Guangdong High Court's approval, they may even by the Guangdong High Court to consult the Supreme Court made a further report, The final five years in prison after sentencing conclusions are likely to consent or acquiescence of the Supreme Court [3]

On the surface, the Guangzhou Intermediate People's Court of Xu Ting from the original life sentence to five years in prison sentencing, is to go through layers of referrals and strict approval, a process that both the Criminal Tribunal, in charge of the President, President of the Court , and discussion of the judicial committee's approval process may also include the Guangdong High Court and even the Supreme Court asked the reporting process, the end result is by no means a single sentencing judge or member of the full Court could decide, she says, which seems to indicate that the court Conclusion on the sentencing is subject to many constraints, and difficult to abuse of discretion, however, precisely the problem lies in the secret office operations processes and systems within the Court to consult the report above. This is because the judges through the "office jobs "The secret decision-making process, at most, to get through the access to files and transcripts of sentencing-related facts and information, they receive sentencing information is neither comprehensive, it is difficult to ensure their objectivity, especially in extenuating circumstances and aggravating circumstances exist the case, the court through this secret decision-making process is difficult to make a convincing ruling sentencing the other hand, in China is between the lower court can not maintain internal and independent system, the higher court once the found that a case has aroused widespread concern and even criticism, especially in a case of the referee caused some Party and government departments or authorities concerned in the case, they tend to compromise instead of the principle of so-called "stability", "harmony" instead of strict compliance with the rule of law in this context, the court between the upper and lower levels of internal referrals and approval mechanisms often create a kind of "everyone felt ridiculous, but everyone also reluctantly" situation, in other words, the result is likely to come from a sentencing authority's instructions or a hint, but in the Full Court, in charge of the president, the judicial committee of the lower court as well as informal communication process, to be accurate to comply with this of course is not single judge or the Full Court of the existence of a single abuse of discretion issue, it is difficult not to be considered in sentencing the court system the issue of abuse of discretion. At least, that the internal layers of approval to pursue the administrative decision-making system, the issue of abuse of discretion is indeed an objective reality.

Court to rely on "office job" and the reason why the internal approval process mechanism can not avoid the abuse of discretion, but also the right to appeal is difficult to play a role in control mechanism has a close relationship. The so-called right to appeal, means the right of access to justice, that is, the prosecution and defense parties can apply through the exercise of procedural rights of the court's jurisdiction to impose a positive and effective impact. Generally speaking, a legal form of establishment, for the prosecution, the victim and the defense to provide an effective opportunity to exercise the right to appeal in such court proceedings, both parties can make their own evidence, emphasize a particular aspect of the factual circumstances, can also be each other's evidence, the fact that plot to rebuttal, the parties also question the case law is applicable to argue cases in court. As a result, the court can get factual information from different aspects, the parties understand the legal issues applicable to the case held the position and attitude. Instead, the kind of relying on administrative means to make the referee's approval procedures, the absence of the establishment of basic legal forms, and no judicial hearings to establish the most basic mechanisms, so all parties can not guarantee the effective exercise of the right to appeal. Court neither comprehensive, objective grasp of facts of the case information can not be the case the application of the law to make accurate judgments, but is difficult to avoid falling into the paranoid side, stubborn defects [4]

Xu Ting's case in the first instance proceedings, the court is set up around the issue of theft is carried out cross-examination and debate, but not included in the sentencing decision-making process open, transparent and defense of the court proceedings. Whether the defendant or defense counsel, emphasized that the defendant does not constitute a crime in the views and evidence, sentencing objective to lose the opportunity to defend from the Criminal justice experience and sense, conviction and sentencing in this integration program mode, the defendant pleaded not guilty, once selected, it is impossible to request the court "lenient sentence" or "mitigating" the defense of the views, otherwise too much adhere to a lighter or mitigated punishment point of view, will inevitably lead to by the innocence of their previous views have been seriously affected. With such scruples, the defendant and defense counsel have only started to focus on the defense of not guilty, but had to abandon the defense of sentencing effects persist, but in China's current the judicial system, courts should accept the views of the defendant's innocence, no doubt it is extremely difficult. that the defendant pleaded not guilty to uphold at the expense of defending the practice of sentencing, sentencing objective, causing widespread inadequate defense in the sentencing decision-making process right to appeal the jurisdiction of the constraints of the effect can be reduced only very low level.

Guangzhou Institute of Xu Ting commuted by a big margin, and did not give the opportunity to influence public prosecutor general, appear to support prosecution of prosecutors only care about the issue the court conviction, and sentencing issues are generally not of concern, neither defendant proposed to prove the need for heavier sentencing facts and circumstances, nor does the defendant's mitigating or aimed at persuading the sentencing court to contest the plot Guangzhou Intermediate People's Court of Xu Ting made from life imprisonment to five years imprisonment for revision, is simply focus on two "discretionary mitigating circumstances" result, but for these two "discretionary mitigating circumstances" is reasonable, based on whether we can come to this sentencing sentenced to five years in prison conclusion, the public prosecutor with no chance to post the sides. According to the author in front of the analysis, in this case the existence of a large enough support for Ting Xu aggravating sentencing circumstances, also not for the prosecutor stressed that even without the Court attention. identification of the prosecution in sentencing decisions and conclusions of the sentencing, not only completely into a passive acceptance of the position, and almost reached the negative level is not as fact, the court in sentencing issue often abuse of discretion circumstances, often with the prosecution in the sentencing issue on the public right to give up a direct link.

Guangzhou Intermediate People's Court in sentencing decision-making process also ignores an important aspect of the program, that is, as a "theft victim" the full participation of the banking side in the Hsu Ting re-trial, defense lawyers have raised the case involves that of ATM machines for technical appraisal of the application, but it was the court refused. In fact, as the case is critical to the factual circumstances, that the failure of ATM machines as well as the reasons for failure, not only whether the court finds that the establishment is theft important facts, but also for determining the defendant's sentencing Xu Ting has an important correlation, however, in this case took a two first instance, the court has neither the technical organization of the ATM machine identification, the banks did not notify the representatives court proceedings, the case for sentencing closely with some of the facts are difficult to verify the plot, such as withdrawal of malicious behavior of Xu Ting, the bank actually been kind of losses, these losses were offset after the number, how many become impossible to restore the, ATM machine failure What is the reason for the destruction of man-made, or force majeure factors, Ting Xu malicious succeeded again and again after the withdrawal, why banks are not detected because of poor management, or technical problems; Ting Xu found in the bank malicious withdrawals after it with Xu Ting, made representations, Xu Ting's attitude is what the banks taken remedial measures ... These facts and Xu Ting's "subjective vicious", the behavior of social harm and the victim's loss is closely ties, Xu Ting for determining the sentencing is undoubtedly very important to the plot, however, because the court did not summon to appear in court on behalf of banks, these facts have become more difficult to discern the plot.

Fourth, the Mustang is how to runaway (on behalf of the Conclusion)

There is no doubt, Xu Ting Although with the approval of the Supreme Court ruled that gradually fade out of view of people's attention, but as a typical case, you can still play the study of Chinese Criminal law issues of the role of samples in the case of Xu Ting to After a detailed analysis and comments, we need to briefly summarize, the court in a Criminal trial is exactly how the abuse of discretion.

First, the principle of legality is not bound by the case, judicial officials of a socially harmful behavior, once produced preconceived guilt, it is possible to understand the mechanical theory of a crime, will force the behavior to a set of charges on, and do not hesitate to make the inference against the experience and knowledge, which often leads to the conviction on the issue of judicial officials has almost unlimited discretion.

Upon the social harm is equivalent to "establishment of a crime", the remaining task is to find one best suited to conduct by a defendant of the charges, while after trying to identify a number of charges, which still is not an accurate conviction in the case, many judges would tend to charge substantially magnify the problem of identification for the interpretation. Thus, in the legislature after the 1997 abolition of the system analogy, the behavior of the defendant to be convicted of the charges in accordance with the closest, which is commonly referred to as "judicial analogy "China has become the practice court.

Abuse of discretion as a court of the main symbol, "judicial analogy," the court refused to show any indulgence to implement socially dangerous acts of the perpetrator's state of mind from the formal point of view, the judge by looking for a similar offense, to be applied to a act on, which seems to show the judge is not bound by statute referee logic but in essence, the judge followed by judicial activities "to make up for flaws statute" principle, not in vain pursuit of a rather vertical values .

Second, in the absence of the establishment of operational rules to guide sentencing case, the judicial officer may determine an act of arbitrary sentencing benchmarks, distort those "discretionary sentencing" may also be abnormal to abnormal light or heavy sentencing decision .

In recent years, some local courts began to try to specify in the applicable jurisdictions' sentencing rules to guide ", the Supreme Court is also the second" Five-Year Reform Program "submitted to the designated national unity" sentencing rules to guide "the idea, according to the present pilot case, the sentencing rules to guide play in the following areas is expected to limit the role of legal discretion: first, a variety of "aggravating circumstances", "mitigating circumstances", "mitigating circumstances" and "exemption from punishment of the plot." make a detailed list as possible, especially for those who have not yet established in the Penal Code into the "discretionary circumstances" in the definition as specific as possible, the second is the impact of various sentencing sentencing situations in the appropriate quantitative, three in the coexistence of a variety of sentencing, especially the "mitigating circumstances" and "aggravating circumstances" exist in the case, the magnitude of the penalty calculation and form conclusions and make certain sentencing norms.

Whether the rules that guide sentencing to reduce the extent to which the sentencing court's discretion, we do not know of, at least, this argument is still a lack of empirical data and evidence support, but does not establish that the sentencing guide opinion, the judge's sentencing decision is bound to fall into any conclusions based on the random errors of the Guangzhou Intermediate People's Court case of Xu Ting, the two judgments are ample evidence of this. The court should not only large enough to show the defendant be given a heavier sentence ignore the plot, the case of two "discretionary mitigating circumstances" made the interpretation of any expansion, but also to those mitigating circumstances for sentencing impact of the unconvincing explanation that made from life imprisonment to five years in prison this staggering commute.

Of course, just the fact that there is no sentencing rules to guide itself is not sufficient to lead to abuse of discretion the court. In addition, if the judge by public opinion, the media, the legal experts of the serious impact, if faced with strong pressure from higher Political authority, or any individual judge about the case because the referee can end the implementation of the "rent-seeking behavior", so that there the problem of corruption ... these factors and the lack of sentencing guidelines issues combined, are more likely to bring the discretion of the abuse.

Third, the prosecution and the defense sentencing court the parties have been excluded from decision-making process, they can not exercise the right to appeal to the conclusions of the sentencing court to impose an effective impact, making the sentencing court as an "office job" and "internal administrative examination and approval "mechanism of decision-making process of the court process is difficult to guarantee access to comprehensive information on sentencing, the sentence is difficult to ensure the accuracy of information.

Links to free download http://www.hi138.com

In general, open, transparent and Daiyou defense of the proceedings is the right of judicial discretion to contain an effective mechanism for a rule of thumb and common sense, Xingshi judge acquitted issue often subject to many constraints, and difficult to Xiangyou too much discretion, which of course there is no independent judiciary, no authority, and courts tend to criminal prosecution, but also with the judge to be subject to more stringent process control is closely related to, for example, a normative conviction court proceedings function of the process, the prosecution, the victim and the defense side of the court concerned can promote the same time participate in all aspects of the evidence and facts, the prosecution of the protest is capable of making a guilty verdict of the court was extraordinarily careful, all through the hospital guilty verdict , the President approval and judicial committee to discuss the practice, the judge's acquittal also had significant restrictions on the role ... ...

Since the discovery of the acquittal verdict in the court severely restricted the reason, then, we are sentencing the court why the easy part of the problem of abuse of discretion is not hard to understand. As already discussed, there is no criminal proceedings in China independent of the sentencing process, sentencing process is not the way to the hearing, the court did not give both parties to provide sentencing, sentencing opinion and debate on this opportunity as a result, the sentencing judge access to information may be incomplete, not necessarily is accurate. Moreover, in the existing judicial system, prosecutors appear to support the prosecution's court conviction would be regarded as the main indicator of successful prosecution, and sentencing issues are rarely given for serious treatment. It can be said with the conviction highly concerned about the issue in stark contrast, the prosecution essentially deemed the issue of sentencing discretion within the scope of the court matters, invisible part of the sentencing court recognized "the independent exercise of jurisdiction," the legitimacy can imagine No prosecution strong concern, while the defendant, the victim party for the court's sentencing decision and lack of effective constraints of power, the court in sentencing discretion is prone to abuse of freedom problem.

Fourth, both in conviction or sentencing part of the program, the court's decision essentially gives the instrument can not be compelling reasons from lack of persuasive reasoning of the referee, counsel for the accused and their defense of the views or refused to load the referee instrument, or in the opinion did not give reasonable rebuttal case, it rejected the conclusions made.

Rational principles of justice as the main manifestation of the referee instrument of reasoning is to reduce the discretion of the judge an effective mechanism through which the referee reasoning, the judge can be convinced of the facts of the case inside out to show the full process, but also to apply the law referee reasoning process has been fully expressed, whether it is both parties or the public, can understand the Court to resolve the basic dispute the prosecution and defense programs, and how does this program arising out of, especially the claim of its not been adopted by the party, but also by understanding the reasons for the referee to review the court rejected the legitimacy of the side view, and the court accepted their point of view is reasonable to think carefully, therefore, relative to the reasoning of the judge is not concerned, that kinds of instruments to fully explain its reasons, more conducive to curb the judge's desire to make it to handle their own prejudices and pre-cut, so based on experience, reason and conscience to judge, and give up the kind of random, arbitrary and unpredictable decision way.

On the contrary, if the court's verdict has not been able to respond to the defendant and defense counsel's opinion, it is difficult to answer legal circles and the general public raised questions and even give rise to the referee against the logic of experience and common sense impression, then the court there may have been abuse of discretion has in fact, give up the reasoning of the court ruling, usually adhere to a philosophy of judicial power doctrine, the exercise of jurisdiction and the arbitrary exercise of jurisdiction equated, even as the court of jurisdiction alone both parties to enjoy without the impact of "state power." However, the court once the authority of the administration of justice simply based on "national power", based on its impartiality and credibility will be difficult to be maintained.

Fifth, the decision when faced with the media, the strong pressure of public opinion, once the face of overwhelming opposition, it is prone to unnecessary shake and unprincipled compromise, thus rashly through the appeal system to make a significant revision and retrial mechanism, which kind of commute is still not open, transparent, non-reasoning and lack of defense in the case of the formation.

Independence of the judiciary faces many challenges in the environment, the Chinese courts are often unfair procedures by convincing the judge concluded, however, when faced with external pressure, criticism and influence in the Political framework in a weak position within the court, will undergo another procedure to correct the injustice that "bad social effects," the judge concluded, and equally difficult to make compelling new referee conclusions on three occasions this has shown a discretionary the phenomenon of abuse of rights: First, the original referee procedures and results of the referee, the second is to start to correct the way the trial judge, third revision procedure and revision of the conclusions.

On the surface, outside of the judicial activities of the strong intervention means that the court can only take the attitude of obedience and obedience, and difficult to have any discretion, but Xu Ting from life imprisonment to five years in prison for a major revision, but that the such a truth: The more the courts have unfettered discretion, the referee activities are the greater the likelihood of external intervention. This is because, since the court is not justified in the case of the referee to make the first conclusion, of course, in the case of lack of legitimacy to the second and even more new referee concluded, external Political authority and public opinion also believe that the court has been able to "rely on the state's power" to make a difficult convincing the referee, of course, can continue to "rely on the state's power" to make corrections to this decision, which are completely in line with a law on Political philosophy: authority The more unrestricted large extent, the more likely to be at the mercy of greater power.





Notes:
[1] See (U.S. Lafei Fu, etc.: <<Criminal Procedure>> (the book, in translation, China University of Political Science Press, 2003 edition, page 1371 the following See also John Sprack, Criminal Procedure, eighth edition, Blackstone Press Limited , 2000, p. 330.

[2] See (Germany Claus Roxin: "German Code of Criminal Procedure>>, in translation, Taiwan Sanmin published in 1998, page 470. See also (德托马斯魏 Ghent: <<German criminal procedure>> in translation, China University of Political Science Press, 2003 edition, page 145. See also (U.S. Phoenix, (Dehe Coleman, Yue Li Ling: <<one case, two systems - comparing the virtues of criminal justice ", China Legal Press, 2006, page 352.

[3] Xu Ting aroused widespread concern in the case, the Supreme Court, a vice president had publicly expressed views of Xu Ting's case in his view, belongs to a vicious withdrawal Xu Ting, the conviction and sentence should be , but this is a special case of theft, sentenced to the crime of theft of financial institutions is clearly inappropriate, it should be considering the legal and social effects; Xu Ting's withdrawal process and details of concern, depending on how the money is taken out, whether there is forced to drop machine withdrawals, or collusion with the behavior of financial institutions. "From what I understand the situation, the first trial sentenced to life imprisonment was manifestly excessive." He was more in favor of the <<Penal Code>> Article 63, paragraph 2, that is punishment to the following sentence in the case, must be approved by the Supreme Court approval. see Chun-Liu: "Vice-President maximum: Xu Ting heavy sentence of first instance", "Beijing News>> March 11, 2008.

[4] restricted mode and the right to appeal a comparative analysis of administrative examination and approval model, see Chen Ruihua: <<problem with the doctrine between - the basic question of criminal proceedings (Second Edition>>, China Renmin University Press, 2008 edition, page 49 below.

Links to free download http://www.hi138.com