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Abstract:
The antinomy between liability and deterrence is an essential issue in sentencing theory. A plausible framework of sentencing theory can only be constructed if the theoretical boundaries of liability and deterrence are explicit. Similar problems exist in both Germany and China regarding sentencing theory: first, the issue of clarity in the concepts of liability (sentencing liability) and deterrence, i.e., the questions of what the connotations of these two concepts are and what sentencing circumstances they encompass; second, the issue of properly addressing the relationship between liability and deterrence as it may vary under different sentencing theories. These two issues typically form the core scope of sentencing theory.
Both Germany and China need further imovements in sentencing theory. A concise and explicit definition regarding fair sentencing is necessary. The act liability has to be maintained and the concept of liability should be aligned with crime theory, which means the level of liability should depend on the seriousness of the act. If the concept of liability includes all the sentencing circumstances prescribed in section 46 (2) of the German Criminal Code, the liability concept may turn into one that centers on character or lifestyle, in both of which cases the personality rather than the act of the defendant is taken into account. Liability should be examined before deterrence in the process of considering the relationship between liability and deterrence, which is aimed at constructing the “condemnable – punishable” crime theory. In China, sentencing guidelines and guiding cases have been introduced to avoid unfair sentencing and sentencing disparities. However, reforms are needed in the following aspects: the concepts of “crime committed” and “criminal liability”, the sentencing principles set out in sections 5 and 61 of the Chinese Criminal Law, the criteria for the application of the death penalty in section 48 (1), the “three-step approach” and the mathematical calculation prescribed in the sentencing guidelines. Meanwhile, the reasoning in sentencing and appellate review of sentencing should also be emphasized.
