Qualification - Penalty

Qualification punishment mainly includes eliminate the political rights and deports in China,either in theory or in practice there are many imperfect places.This is not only a violation of the development trend of China society,but also leaves contrarily with the modern penalty leisurely trend of development,it has hindered the qualification punishment penalty function display as well as our country penalty system's scientific style.Based on this,my article attempts to carries on our country qualification punishment and the foreign qualification punishment quite studies,absorbs the success of the foreign qualification punishment.I hope this can have a benefit to our country qualification punishment consummation.This article includes the following four parts:The first part is qualification punishment outline.This part proposed the qualification punishment's concept,the characteristic and the history, based on this drew out the argument of the theorists.The qualification punishment takes the theory concept which a penalty classifies.The criminal law scientist has divided opinions to its definition,but unable to receive agreement,The author collects theorists to the qualification punishment definition's foundation,defines to make the evaluation, proposed the author's qualification punishment definition,the qualification punishment is refers to eliminates the perpetrator to be engaged in the right ability.Based on this and has been cleared the qualification punishment characteristic-Multiplicity,Non-materiality,Slightly,Efficiency.Then introduced the qualification punishment's historical evolution,introduced the qualification punishment's origin,the retribution punishment time's qualification punishment,the goal punishment time's qualification punishment and the modern qualifications punishment's trend of development.This has a quite good assurance to the qualification punishment development vein.Is following,in above dissertation's foundation,draws out the criminal law theorists to save the waste argument to the qualification punishment,has saved waste all quarters the reason.The author is evaluating the qualification punishment to save the waste bilateral reason objectively in the foundation,pointed out that any kind of penalty has the advantages ambiguity,the qualifications punishment advantage is bigger than the disadvantage,the retention qualification punishment is the correct choice.But must know shortcoming which the qualification punishment has,needs to carry on the consummation to it,achieve damps the goal which the shortcoming seeks for profit.The second part is overseas qualification punishment legislation and practice.This part,author introduces the qualifications punishment's legal status,the type,the object,the deadline,the suitable way,the qualification punishment rehabilitation aspect.First,the qualification punishment's legal status mainly has six situations.The author approves the world overwhelming majority country to take the qualification punishment as the accessory punishment;this is helpful to the qualification punishment function to display.Then the author introduced the foreign qualification punishment's type,mainly has the following six kinds.Then the qualification punishments suitable object,the qualification punishment's deadline and the way to make the brief introduction...Finally,introduced another country has the influential role rehabilitation system to the qualification punishment legislation.Passes the view various countries rehabilitation legislation,the overseas rehabilitation system also divided into the generalized rehabilitation and the narrow rehabilitation two kinds,the author in differentiates two kinds of rehabilitation concepts in the foundation definitely the narrow rehabilitation system,and suggested our country established when the rehabilitation system should take the narrow rehabilitation as the foundation.The third part is our country qualification punishment legislation present situation.Although theorists of our country qualifications punishment have different opinions,but the author thought that our country qualification punishment type should stipulate by the criminal law content,our country criminal law has only stipulated eliminates the political rights and deport.Based on this,the author introduce eliminates the political rights and deports separately.,First,the scholars regard the voting right and the right to be elected,but the author thought that it must make the narrow sense to understand,in maintains consistent with the constitution study to its understanding;.The opinion,the publication,the assembly,form association,the parade,the demonstration free these citizen's basic right to eliminate the content as the qualification punishment,the legislation only to have our country in the world,and has not made these six big free connotation law explained specially,the scholars also have the difference,this caused our country this item to legislate to have the fuzziness,has brought the difficult problem for the legal practice..Also some scholars suggested that the above rights are defined in "political nature",the author thought this does not have the constitution basis,also does not have the constitution study basis and have the feasibility,therefore it must eliminate these six kinds the elimination outside the qualifications punishment.Second,Regarding eliminates the political rights the suitable object to be possible to induce according to our country legal rule into the harm national security criminal offender,condemns the death penalty and life imprisonment's criminal offender,the heavy damage social order criminal offender,may independent eliminate the political rights suitably the criminal offender four kinds,but regarding minor this kind of special object,our country current law stipulated that has the minor to eliminate the political rights qualifications punishment suitably the situation,the author thought this does not tally with the world general trend,also does not conform to our party and the country implements the special protection to the minor the policy,therefore the author suggested that our country should profit from the majority national legislation experience,in the criminal law stipulated explicitly the minor is not suitable the qualifications punishment.Third, Regarding eliminate the political rights the suitable deadline,our country law divides into lifelong eliminates.The author thought that our country legislates stipulate eliminates the age limit scope to be too small,it does not favor judge to decide after deliberation the power according to the penalty individualizing principle full use freedom,also not favor criminal offender start with a clean slate the drive,Therefore the author suggested that our country qualification punishment's deadline will change between 1 year to 10 years,the development qualification punishment discretion of punishment space and the commuting a sentence space,strengthen its flexibility.Fourth,our country criminal law does not stipulate.What is suitable the deadline,the scholars also have the difference.The author thought that our country criminal law must profit from the overseas legislative experience,stipulate explicitly deports deadline in the criminal law.The fourth part is this article's key point.The author pointes out our country qualification punishment's insufficiency and propose the perfect measure in the above three part of elaboration's foundation.Through our country qualification punishment legislation and the overseas qualification punishment legislation's contrast,the author thinks our country qualification punishment legislation existence the following question:1.The type is unitary;the active surface is small;2.It is suitable the object insufficiently to be clear concretely;3.It is suitable the way to lack pointed,has too severe and the unfair suspicion,easy to cause the penalty to be surplus,does not favor the penalty prevention of crime goal realization;4.Lacks the incentive mechanism,does not favor the reassignment qualifications punishment to violate the transformation the enthusiasm,obstructs the qualifications punishment to violate returns the society as soon as possible.Based on this,the author thought that our country qualification punishment should from the type,the suitable object, in the incentive mechanism and the legislative system simultaneously starts to carry on the consummation.First,Complies with the trend of the times too thickly to eliminate the political struggle color the political rights to change eliminates civil rights.Second,cancels "eliminates the opinion,the publication,the assembly,the parade,the demonstration free right".Third,take the existing law,the laws and regulations to the occupation(skill) the qualifications punishment as the backing,the addition occupation(skill) the qualifications punishment.At present,our country criminal law may consider that divides into the professional qualifications punishment,the guard.It is suitable the object for the embezzlement,the bribe,to invade the property,to divert the property and the destruction social economy order criminal.Four,the adjustment qualification punishment is suitable the object.On the one hand,the limit qualification punishment's suitable object,regarding "it is condemned the death penalty,life imprisonment's criminal offender" and "regarding the voluntary manslaughter,rapes,sets on fire,the detonation,the poison,to rob and heavy damage social order the criminal offender" in the ordinary circumstances,it is unnecessary attachment to be suitable the qualification punishment,only if this crime's implementation and the qualification exercise related;On the other hand,the expanded qualification punishment's suitable object,like our country criminal law eighth chapter of embezzlement crime of bribery,the ninth chapter of misconduct offense are suitable,the qualification punishment the stipulation.Five,the introduction of qualification punishment legislation choice system,causes judge to be possible to act according to the perpetrator and the implementation crime different situation,may have the choice to eliminate its part or the complete content,from the legislation guaranteed that the qualifications punishment is suitable can make punishes works as its crime,thus guarantee penalty suitable fairness. Six,the perfect qualification punishment criminal incentive mechanism, establishes the qualification punishment rehabilitation system.The establishment qualifications punishment rehabilitation system must solve the rehabilitation time,the performance condition,and the point of order and proposed correspondingly consummates the suggestion.