从实例分析中小议中国古代司法判决存在“自由裁量”的理由

中国古代社会的官员在对案件进行裁断时首要坚持的原则是"依法裁断",判决应该是依照法律规定而做出的,但是也因为种种原因而导致判决时不完全依据法律,"自由裁量"情况的存在。因此承审官裁量判决的结果将是二者相统一的"情法两尽"。在下文我将具体分析为什么判决的做出会有"自由裁量"的可能。

Fundamental Social Rights and Existenzminimum

While fundamental individual rights are unquestionably taken as subjective rights, the same does not happen with fundamental social rights. If they are subjective rights, they are justiciable. The main argument in favor of this understanding is based on liberty. The main argument against is the so called formal argument. In relation to the pro argument, liberty can be either juridical or factual. Juridical liberty has no value without factual liberty, because the right to liberty is only put into practice if one has the factual preconditions for its exercise. The argument against is that their justiciability displaces the competence of the elaboration of public politics from Legislative and Executive to Judiciary Power, what violates the principles of separation of powers and democracy. Nevertheless they are subjective rights indeed, but special ones： they are primafacie subjective rights. There is only one subjective right that is a priori considered definitive： the right to Existenzminimum） Its content is not settled, but it is quite unequivocal that the rights to simple housing, fundamental education and minimum level of medical assistance are part of it. Existenzminimum is then related to the minimum necessary for factual liberty. Against the justiciability of fundamental social rights, there are also arguments related to juridification of politics, administrative discretion and the possible reserve clause. The counter-arguments refer to original and exceptional competence, necessary objective proof of state＇s economical incapability, prohibition of State＇s will, principles of legality and of non-obviation o f Judiciary jurisdiction, Existenzminimun guarantee.

＂Principal Components＂ for the Calculation of the Best Estimate Liability of Future Discretionary Benefits under Solvency II

The core of the presentation that I propose treats about the application of principal component analysis for the estimation of the future earnings of the Segregated Funds. The Segregated Funds are the pools of assets which have been using in the Italian Insurance Market since mid 80＇s for managing the ＂with profit＂ business, also known as business with ＂discretionary participation feature＂ according to IFRS4 since the income attributable to the policyholders is composed by the net realised gains less a fee and by a minimum guarantee, if any. The discretion of the Management of the Entity lays on the decision on whether and when to realise both the financial gains and the financial losses of the underlying investments. This strategy is tied by the need to manage an appropriate ALM, from the rules included in the local legislation as well as by the policy about the solvency margin （for example a minimum solvency ratio to fulfil that is conditional upon the value of income attributed that year）. The fee can not be changed, i.e., is not discretionary, the minimum granted could be fixed on annual basis-sometimes paid on cash recurrently-or could be promised only at expiration or sometimes promised at expiration or in advance only for death and disability. In case of years so adverse that the Entity is not able to avoid earnings too low, sometimes the entity delivers an additional bonus, in order to compensate their policyholders, which is based above a full discretion. Principal components are used in finance as well as in other fields such as genetic. You can see some of these applications in two of the references advised below. The purposes of the technique of principal components are （1） to increase objectivity of results and their verifiability by third parties such as auditors, （2） make speeder the time spent for the analytical calculations （i.e., runs of the actuarial models） and （3） to render the relationship between the asset composition and the their earnings effectively used for the best estimate liabilities through their contribution in forecasting future cash flows.

Cross the chasm from the immediate execution of death penalty to the death sentence with a reprieve --- Interpretation of the ＂not to execute immediately＂

Retaining the death penalty and strict restricting the application of the death penalty is now a basic criminal policy in China, and from the judicial level, the key to the restriction of the death penalty is to study what lenient sentencing discretion the criminal has to constitute ＂not to execute immediately＂ when he has reached the standard of the immediate execution of the death penalty, to cross the chasm from the immediate execution of the death penalty to the death sentence with a reprieve. The basic process of the sentencing is to establish a baseline punishment on the basis of the social harmfulness of the activities of the criminal, and then measure the profits and losses according to the offender＇s personal danger. Therefore, although the social harmfulness of the activities of the criminal reaches the standard of the ＂most heinous crimes＂, due to the existence of the fault of the victim, active compensation for the victim, and the motives of the small blames and other lenient sentencing discretions, the criminal＇s danger has not reached the degree of ＂flagrance＂. Apply the death sentence with a two-year reprieve and even the life imprisonment generally. If there are some strict sentencing discretions, such as ＂the crime means is extremely cruel＂, carefully consider the use of the immediate execution of the death penalty. Under the circumstances of the concurrence of the sentencing, carry on the overall consideration based on the comprehensive measurement of various circumstances of the sentencing.

Sentencing Recommendations,Anchoring Effect and Fairness in Criminal Justice——An Empirical Study Based on a Sample of 520 Sentences in K City

The anchoring effect is a powerful and widespread cognitive phenomenon in the decision-making field.Our quantitative analysis of a sample of 520 sentences indicates that the sentencing recommendation of the public procuratorate has a marked influence upon the court＇s sentencing judgment.That is,whether we are investigating the freedom penalty,the fine penalty or the term of probation imposed by the judge,we find that the anchoring effect does exist.In addition,a change in the court conviction or in the trial sentencing circumstances and the availability of a defense lawyer may weaken the anchoring effect of the procuratorate＇s sentencing recommendations.As a form of cognitive bias,the presence of the anchoring effect in the area of sentencing further highlights the necessity of applying analyses based on legal realism to the field of criminal justice in China;and at the institutional level,it demands that judges adopt corresponding arrangements to ensure the impartial exercise of discretion.