Study On The Criminal Prohibition Order

May1,2011, the newly Amendment of the Criminal Law of the People’s Republic of China has enacted. The Article2, the Article11and the Article14of this amendment create a new system which is so called Criminal Prohibition Order. Under the regulations, when a criminal is granted with suspension of sentence, he or she may be prohibited from engaging in certain activities, entering certain regions or sections, or meeting with certain persons during the probation period depending on the details of the crime.In view of the prohibition order system is a brand new system, the purpose of this paper is to clarify its nature and theoretical foundation, and further more to clear the properties of the system, to facilitate its norms in practice.This paper focuses on a prohibition order system. It begins with discourse of its nature, the theoretical basis and significance, and subsequently compared with extraterritorial related systems, and specific application in practice are discussed, and finally propose the future development of the system prospects. The full text of the body is divided into five chapters, a total of about twenty thousand words.The first chapter begins with different understandings of the nature of the prohibition order, following with the author’s own point of view: a prohibition order is both specialized and additional regulatory measures for penalties, but also specialized probation additional test rules, discussed in the following is prohibition order is different from the security punishment. Then the author discusses the theoretical basis of the prohibition order:the special prevention theory, the principle of individual penalty and trend of executioner socialization. The end of this chapter discusses the significance of the prohibition order, the prohibition order is of great significance for public surveillance and probation system of China.The second chapter starts with a introduction of French, Germany, Swiss and American related systems. The following compares the different nations’systems from the applicable authority, applicable conditions. Then discuss the differences of its prohibition order system between China and other nations. Finally, pointing out that our system and the other nations’ systems are not the same, ours has a unique system attributes.The third chapter analyze the articles of<criminals sentenced to public surveillance or declared suspended for a prohibition order provisions(Trial)> promulgated by The supreme court of the people’s republic of china. Firstly, it defines specific conditions of the prohibition order, by combining the relevant provisions of the United States, including the prerequisite and Dangerousness conditions. Then it discusses the specific content of the prohibition order, to define the principle of declaring specific prohibition order, including the principle of non-punitive, the feasibility principle, the principle of legal content, the principle of relevance and proportionality principles, and a proposal of specific content of prohibition order. After that, the author come up with different means to implement the prohibition order, including the use of electronic technology and the introduction of the guarantor. Then analyze the legal consequences of a prohibition order, which they are depend on different regulation, respectively, in accordance with the provisions of the Security Administration Punishment Act30or revoking the probation. Finally discusses a number of procedural issues related to the prohibition order, including no aggravating punishment on defendants from appeals, the Court shall not declared a prohibition order after judgment.The fourth chapter is the author’s outlook of the future development of prohibition order. Due to the existing prohibition order is too narrow to be applicable, the author proposes the prohibition order should be expanded to the non-custodial pre-trial and non-custodial torture and other related systems. In view of the development needs of a prohibition order system, I propose the declaration should be separated from the judgment instruments. Finally, I proposed the idea of the prohibition order should use dynamic regulatory measures.By researching the prohibition order, this paper defines the nature, the theoretical basis, the applicable conditions, content and the legal consequences of the prohibition order preliminarily. Hoping this paper can not only set up boundary for the application of the prohibition order, but also lay the foundation for future research of other scholars.