On the Problems of Just Sentencing in China

Abstract

According to the legal norms in China, judges are not allowed to deviate from the sentencing model of deductive legal reasoning and syllogism, and thus, they cannot make law. The inherent limitations of this model figure in the reasoning of judges, such as the poor interpretation of the abstract terms of laws and regulations, the difficulties of identifying legally relevant facts and the simplicity of the reasoning process, which lacks legal rationality. While they are subject to the conditions of the legal system, some external and internal factors influence the judges’ reasoning behind their decisions concerning the determination of sentences. The internal factors include the knowledge, judicial experience, special experiences, and attitude of the judge; the external factors refer to the circumstances of the victim, the personality of the offender, the intervention of external power, and the opinion of the public. All of these factors are parts of the dilemma of sentencing justly. Only if the formal and...