On the Sentencing Discretion of Punishment Aimed at Prevention

The justification for punishment is the legitimacy of retribution and the rationality of the purpose of crime prevention; accordingly,the punishment sentenced on retribution is the punishment based on liability,while the punishment sentenced on crime prevention is the punishment aimed at prevention. In the process of sentencing punishment aimed at prevention,the pursuit of special prevention shall be emphasized; while the positive general prevention shall not be put on the priority over special prevention. In the process of sentencing punishment aimed at prevention,it is difficult to pursue positive general prevention and it is not right to pursue the negative general prevention. However,if the necessity of general prevention is relatively small,the punishment shall be sentenced leniently. Since the sentencing discretion of punishment aimed at prevention is a process of individualization,the balance of sentencing cannot be achieved. In any crime offense,any circumstance evidencing there is a small risk of re-offending shall be taken into account seriously. Those practices which do not apply or strictly apply discretionary lenient punishment to serious criminal offenses have violated the purpose of punishment. In the process of sentencing punishment aimed at prevention,neither can the circumstance affects the punishment based on liability and the circumstance affects the punishment aimed at prevention be taken into account as a overall comprehensive judgment,nor can they be offset with each other; the circumstance which is legally typed shall be taken into account,and the circumstance which is not legally typed shall be taken into account either.