On The Forbidden Zone Of The "Specific Activities" In The Criminal Law

The criminal law prohibition order was written into the code by the Criminal Law Amendment(8)in 2010,and the Criminal Law Amendment(9)continued to supplement the content of occupational prohibition.Legislators affirm that there is a clear value orientation for courts to issue specific orders to restrict the personal freedom of punishment of control,probation,parole and persons released after serving their sentences according to the circumstances of crimes and the needs of correction: to strengthen the judicial control over the execution of community penalties,and to realize the shift of the focus of operation of the execution mechanism of free penalties through the implementation of community correction.It is also true that the prohibition order of the criminal law is embedded in the original free penalty structure system and integrated into the execution of the community penalty,which inevitably leads to the following questions that need to be answered clearly and accurately:Whether the nature of the criminal prohibition order is punishment or security measure;What kind of logical connection exists between the obligation of serving a sentence of three kinds of persons stipulated in the original criminal law and the prohibition order of the criminal law;and the special "administrative order" issued by the corrective department is similar to or even identical to the "judicial order" issued by the court,whether they have the same legal effect or not.On the basis of the original criminal law,no matter what reason to strengthen the restraint of the community,the prisoners' behavior is the code of punishment;Whether it face the criticism of severe punishment or not? In addition,in the case of the existing administrative prohibition order,litigation prohibition order and civil prohibition order,does the new criminal law prohibition order have realistic value and practical effect compared with passive judicial control? In recent years,the theory of the criminal law pays little attention to such problems,and the research findings are distributed in fragments.The above problems are either lack of overall grasp,or self-talk and self-painting around the nature and characteristics of them,or simply touch on the systematic relationship between the norms of the criminal law.In view of the fact that the realization of the purpose of law amendment depends on the corresponding institutional arrangements and effective follow-up of norms,the purpose of this paper is to give itself a relatively systematic and complete answer.In the existing criminal prohibition orders,the so-called "prohibition of being engaged in the specific activities" in theCriminal Law Amendment(8)and the occupational prohibition in the Criminal Law Amendment(9)have a considerable degree of coincidence with the "prohibition of access to the specific places" and "prohibition of contact with the specific persons".Based on the generality of "specific activities",it is easy to cause theoretical disputes and judicial divergences around its normative meaning,and focusing on this field does not affect the analysis of many of the above-mentioned problems.The topic of this paper is narrowed down to the latter scope.Literally,the prohibition of specific activities covers all forms of deprivation or restriction of the personal freedom.On the normative level,the meaning of "prohibiting of being engaged in the specific activities" specifically referred to in the Criminal Law is obviously reduced.It only attaches to the punishment of control or probation,and excludes the content of "prohibiting being access to specific places or areas,prohibiting being contact with specific people".Based on this,according to the original legislative intention and referring to the existing judicial interpretation and practice,the forbidden zone of the "specific activities" in the context of this article refers to the prohibited zone of the conduct other than "prohibiting access to a specific place" and " prohibiting contacting a specific person" designated by the two amendments to the criminal law for the above four categories of people.This article is divided into six parts,about 220,000 words.The first part is about the current situation and problems of the "specific activities" being written into the Criminal Law.Firstly,it defines the meaning of the criminal law of prohibiting "specific activities" in the criminal law,and summarizes the characteristics of the forbidden area delimited by courts and correction departments: Firstly,occupational prohibition is taken as the main body,while other prohibitions reveal all the details.Secondly,the judicial order focuses on the key points prohibited by the executive department,and the administrative order of the corrective department plays a basic role.Secondly,it objectively and systematically evaluates the extent to which the current Criminal Law,Criminal Procedure Law and relevant judicial interpretations regulate the application of prohibitions.Thirdly,it introduces the current situation of the application of the prohibition,and points out the problems and causes of the application of the prohibition.From the early positive response to the amendment of criminal law,the court issued injunctions one after another and now occasionally applied them,which reflects the following issues: The content of theinjunction lacks pertinence;the unclear function of injunction enforcement and the lack of operability of the mode of execution affect the court's sentencing and penalizing;and the content of the injunction is short of dynamic adjustment.Leaking rules has become an obstacle to the connection of the necessary level and the realistic level of the application of the forbidden zones.The second part is about the value goal of establishing the specific "forbidden zone".Reasonable establishment of the criminal law forbidden zone of the "Specific Activities" requires a clear value pursuit of the application of prohibitions;that is to say,grasping the acting force and action spot of the criminal law in the pull and restraint of many values is the value goal discussed in this paper.It is not easy to grasp the commonness of the rights of all persons in the concrete opposition between the rights of prisoners and the rights of ordinary people and clearly delineate the boundary of the right of punishment.In particular,the contradiction between restricting individual freedom and its basic needs of integration into social life,as well as the external conflict between individual freedom and social security,all intensify the internal entanglement in the design of the execution system.According to the principle of the consistency of civil rights and obligations stipulated in the Constitution and the basic spirit of the two conventions of the United Nations about the human rights,in the complex and interlaced individual freedom,the boundaries of activities that an individual cannot infringe upon and at the same time he himself cannot also exceed are delineated;and the basic rules of individual social behavior and social order are clarified.Based on the consideration of the special prevention and social defense,while fulfilling the personal responsibility of the special community groups,we should consider their bread-and-butter issues.And taking account of two things should balance the protection of their rights and border restrictions.This is also the proper meaning of the goal of good governance in a harmonious society.The third part is about the nature of the Criminal Law of the "specific activities" that are prohibited.To clarify the theoretical disputes about the nature of the prohibition of “specific activities”,in order to further clarify the nature of the Criminal Law of the prohibition of“specific activities”.Firstly,around the nature of the prohibition in the Criminal Law,the author argues the theoretical arguments and various viewpoints,combs the legal basis and logical approach of various viewpoints,and inquires into the reasons leading to the unscientific characterization.Secondly,it analyses the laws of different countries and regions,and finds out the reasons for their institutional qualities from their diversity.Thirdly,using the principle of dialectical materialism and drawing lessons from the pluralistic and qualitative approach of the foreign criminal law prohibition,the proposition of the attribute triangulation is put forward.That is to say,the nature of the forbidden zone in the Criminal Law should be determined according to the legal identity and nature of the object of application.Persons released after serving their sentences are ordered to prohibit the specific occupation,which is an independent and applicable security punishment;The prohibition attached by the regulated person is the content of the penalty of control;The prohibitions attached to probation and parole personnel have the nature of incidental punishment,which can be attributed to the execution of community penalties.Whether they are non-independent security measures or not can be discussed further.The fourth part delimits the path of the forbidden zone of the "specific activities" reasonably.Firstly,to reasonably divide the forbidden zones of "specific activities" in the Criminal Law,it is necessary to distinguish it from the administrative injunction and litigation injunction,find the main thread hidden in it,and find the connection path between the Criminal Law's prohibition and other two kinds of public law's prohibition in criminal justice,enforcement of administrative law and their combination.This requires a systematic interpretation of the whole system of the prohibition from the perspective of the legal system,and the integration of the provisions about the prohibition in different departmental laws when setting up the Criminal Law's prohibition zones.Secondly,it finds out the relationship between the establishment of the forbidden zone of the "specific activities" through combing them,and seek the interactive rule between the application and enforcement of prohibitions.Taking the typical norms of occupational prohibition as samples,this paper finds out the game relationship between the existing occupational prohibition and the living space of the special groups in the community.Thirdly,through the investigation of the crime situation and the possibility of recidivism,we can construct an institutionalized expression mechanism and clearly adjust the specific choices such as the scope,duration,intensity of prohibition of the prohibited activities and the level of punishment for violation of the prohibition.The fifth part is about the types and characteristics of the forbidden zones for the "specific activities".First of all,the applicable objects of occupational prohibition include the control,probation,parole and personnel released after serving their sentences.Occupational prohibition can be roughly summarized into three categories: prohibition of engaging infinancial and securities business,prohibition of registering companies,enterprises and social organizations,and prohibition of other occupations.The current Criminal Law stipulates in principle that employment is prohibited "within a certain period of time",on the premise of giving priority to the application of "other laws".Secondly,the objects forbidden to go out at night are applicable to juvenile prisoners and community prisoners who have the habit of committing night crimes or sexual crimes.Based on foreign laws and experience,the ultimate form of this prohibition is family imprisonment with a time limit.Although there is no name of it in community correction in China,there are already such practices in fact.At present,the research and development of positioning technology of the community correction and its application have provided solidly technical support for finalizing the system.Thirdly,the practice of prohibiting driving,drinking and taking high-speed railway not only interprets the specific content of the prohibition of engaging in the "other specific activities" in the judicial interpretation,but also reveals the open direction of the concept stipulated in the Criminal Law.That is to say,the transition is from the occupational prohibition to restricting of the prisoners' daily life behavior.The sixth part delimits and adjusts the procedural control of the forbidden zone of the Criminal Law.Firstly,we should improve the process and authority of announcing and changing the prohibited zone,emphasize that the prohibition is an important part of operating the sentencing procedure,and clarify the allocation of suggestions,decisions and adjustments in the delimitation of the forbidden zones.Secondly,we should confirm the right of the declared person to obtain judicial relief,design the specific relief scheme by taking the construction and follow-up of relief procedure,and start reasoning and explanation around relief appeals and reasons,so as to reflect the overall structure and key analysis of the judicial relief.Thirdly,this paper analyzes the reasons that lead to many difficulties in the execution of the injunction,strengthens the process control of the enforcement of forbidden zones,releases the space of the prisoners for self-discipline and self-government timely,designs a reasonable way to deal with the risk of recidivism and follows up the scientific assessment of the danger and degree of the prisoners so as to promote the application of the injunction.In summary,with the popularization of internet technology in all walks of life,it is difficult to curb the possibility of recidivism of the community inmates only by virtue of the obligation of restricting freedom.The managing of the recidivism of the mobile personnelreleased after the term of sentence is related to the stability and security of the society.To some extent,setting up a forbidden zone of the "specific activity" for the above four categories of the people can restrain their recidivism,alleviate social contradictions and repair social cracks.At the same time,establishing of the forbidden zone of the Criminal Law to replace of the partial imprisonment or opening the door of the prison ahead of time not only coincides with the trend of international light punishment and non-imprisonment execution,but also promotes the rule of the law of the social governance with system civilization,so as to ensure the healthy,orderly and harmonious development of society.