Strafzumessung in Deutschland und ihre Bedeutung für die Reform in China

Abstract

Criminal sentencing in Germany and its significance for reform in China

Like some Anglo-American countries, China has created sentencing guidelines in order to avoid disparate and inconsistent sentencing. In Germany, however, guidelines of this nature do not exist. Instead, the German system of criminal sanctioning grants judges relatively broad discretion from the outset, which is exemplified by a wide range of possible sanctions and a flexible time limit for preventive detention. Although the German Code of Criminal Procedure regulates sentencing, the rules remain rather abstract. Efforts at concretization have been advanced under the so-called “Spielraumtheorie”, but a generally accepted concretization has not yet been achieved. Consequently, in German criminal law there exists – at least in theory – a risk of severe and inconsistent punishments. Nevertheless, in practice the past 40 years have shown a different trend: consistent and mild sentencing. This phenomenon can be explained by historical tradition, the clear division of politics and the justice system, the sentencing mechanism applied by the courts, the review of sentencing by appellate courts and an appreciation of the safety function served by preventive detention. The German experience shows that consistent and mild sentencing can be achieved without the creation of sentencing guidelines. In order to regulate sentencing in China, it may not be enough to improve the existing guidelines; rather, the creation of a systematic structure in support of sentencing similar to what exists in Germany could be necessary and of greater benefit.