Abstract

The Chinese criminal justice commenced to standardize sentencing practice with the leading of the Supreme Court of PRC after 21 Century.As a result，the “relatively independent sentencing process” as a result of that reform notwithstanding seemed not to work well as it should be.That unsuccessful and regretful consequence that “relatively independent sentencing process” gave rise to eventually making the issue of proof of sentencing facts emerged in practice，which was covered by the proof of conviction facts previously.There were indeed some analysis and researches on the issue of proof of sentencing facts in academy paralleling to the progress of reforming sentencing process，but such researches were too general and rough，also surficial.Furthermore，they had no consensus viewpoints in terms of key issues of proof of sentencing facts.Therefore，it is urgent and necessary to re-study on the issue of proof of sentencing facts.

This dissertation was divided into six chapters without introduction.

The first chapter was “Jurisprudence of Proof of Sentencing Facts”.This chapter restated the conception of criminal proof firstly，which proffered the fundamental purpose of criminal proof.Then，it tried to analyze the distinction between proof of sentencing facts and proof of conviction facts in accordance with different theories.As a prerequisite，it formulated some special principles applied to proof of sentencing only，conversely could not be applied to proof of conviction，apart from those general principles of criminal proof.

The second chapter was“the Proof of Sentencing Facts in the Viewpoint of Comparating Law”.In this chapter，this dissertation compared the models of proof in Common law system including England，the U.S.and Canada with the models of proof in Continental law system including France，Germany and Japan.This chapter sufficed contents on this issue by analyzing and elaborating those two different models of proof in the logic of sentencing facts，burden of proof referred to sentencing facts，standard of proof referred to sentencing facts and process of sentencing.At last，by comparing the two different law systems in terms of this issue，this chapter analyzed and illustrated both the same characters and diverse ones regarding the two different models of proof.

The third chapter was “the Factum Probandum in proof of sentencing facts”.This chapter stated that the Factum Probandum in proof of sentencing facts had some distinguished charactors，specifically，they should reflect the philosophy of punishment，should be legalized，should be capable to assert and prove，so the conception of the Factum Probandum in proof of sentencing facts was distinct from Sentencing Circumstances.Then this chapter illustrated the identifiable standard between the Factum Probandum in proof of sentencing facts.The facts may be separated into Factum Probandum of responsibility and Factum Probandum of utility on the basis of fundamental theory of sentencing，or separated in to facts of criminal elements and facts of sentencing circumstances based on the reformed sentencing method.Concerning with the circumstance of criminal practice，the last one may fit the criminal procedure of China.At last，this Chapter analyzed sentencing evidence，including the basic nature of sentencing evidence，the social investigation report and the victim impact statement.Also，whether the traditional evidence rules，such as rule of relevancy，rule against hearsay，and rule against illegally obtained evidence，may apply to sentencing evidence has been analyzed.

The fourth was “the Burden of Proof Related to Sentencing Facts”.After demonstrating the problems regarding burden of proof both in practice and in academy，this chapter inclined to agree the viewpoint that prosecution should bear the burden of proof by submitting sentencing advice statement in general，and counsel ought to bear burden of proof based on some exceptions.The trial judges also may supply evidence according to their judicial discretion.At the ending of this chapter，some particular problems in terms of the assignment of burden of proof for some sentencing facts has been discussed.

The fifth was about “the Standard of Proof Related to Sentencing Facts”.After illustrating the unified standard of proof for both conviction and sentencing established via Criminal Procedure Law of PRC and the problems it has brought about，this chapter firstly demonstrated the ideology of establishing standard of proof to lay the philosophical foundation for how to establish rational standard of proof related to sentencing facts.Then combining with such theoretical foundation，this chapter asserted five factors，which imposed a large effect on establishing the standard of proof related to sentencing facts.At last，this chapter proffered a viewpoint with respect to constructing different levels for the standard of proof relating to each different types of sentencing facts.

The last chapter was “the Process of Proof Related to Sentencing Facts”.First of all，this chapter described the development of sentencing process in association with the frame of criminal procedure，and concluded that the effect of semi-independent sentencing process is not successful.Then this chapter analyzed the basic structure of process of proof related to sentencing facts，and alleged that the sentencing process should be as independent as possible to normalize proof of sentencing facts in terms of the relationship between sentencing evidence and independence of sentencing process.By comparing with the two specimens，voir dire process and the exclusionary process of illegally obtained evidence，adduced a new process called “trial within trial”，and further analzing the operating progress of this new process and its advantages.The sentencing process should be centralized in the situation that defendant confesses but not admits sentencing outcome，and “pretrial-review” pattern should be applied in the situation that defendant confessed meanwhile admits sentencing outcome.Then this chapter researched on some significant issues in sentencing process，including sentencing advice from prosecution，advocated statement about sentencing issus，and adjudicated reasoning related to sentencing evidence.

Key Words：Proof of Sentencing Facts；Jurisprudence of Proof；Factum Probandum；Burden of Proof；Standard of Proof；Process of Proof