Apply Fuzzy Mathematics to Discretionary Sentencing

Unbalance of penalty-measurement is the common problems that exist in almost all the countries. The common approach is deductive method and logical reasoning method. The former is based on the statute law and the latter is based on the past cases. Midline theory is the widely accepted way for penalty-measurement of Chinese legal circumstance, which means the standard penalty is the half of the statured one. But how to measure discretionary circumstance is not mentioned in legislation, so the conventional way is by judge's estimation. The paper proposed fuzzy approach to solve the discretionary sentencing. Taking fuzzy mathematics to penalty-measurement can limit the discretionary of judge to some distance, and as well as avoid the inflexible by statured the discretionary circumstance and make up the shortcoming of midline theory. The review and survey the past cases can also mirror the social effect of penalty-measurement, and will provide the actual performance of the law for future legislation. In the same time, the approach fully considered the opinion of trial jury which will protect the implement of trial jury mechanism in China.