A Study Of The Determine Of Prohibition Applicable Condition

The prohibition system breaks the traditional domain of penalties with a sense ofinnovation, that makes it a major innovation of the “The eighth criminal LawAmendment”. However, the prohibition is a double-edged sword, which can bedeclared by the judge to limit the freedom of criminals outside the criminal law. Ifapplicabled properly, the prohibition can become an effective tool for maintainingsocial stability. However, the improper application would infringe the legitimaterights of criminals. Therefore, how to construct a reasonable prohibition applicablecondition is the most important issues we need to address.To construct a more reasonable prohibition applicable condition,it is necessaryto analysis the legislation and regulations about the prohibition. Currently, thelegislation and regulations about the prohibition is still exploratory. The prohibitionapplicable condition seem more than principled and the operability is not strong. As aconsequence of that, it is difficult to popularize the prohibition in judicial practice.Meanwhile, to construct a more reasonable prohibition applicable condition,It is alsonecessary to analysis the expert opinion about prohibition applicable condition. Aboutprohibition applicable condition，there are four main views—“Dangerousness theory”、“Possibility theory”、“Relevance and angerousness theory”、“Necessity andcorrelation theory”. These four theories have their own characteristic，that indicateswhat the prohibition applicable condition shall have at different degrees. To constructa more reasonable prohibition applicable condition, we shall not confine at theprohibition applicable condition itself. We need to explore the purpose and nature ofthe prohibition. Only when we understand the purpose and nature clearly, we canconstruct a more reasonable prohibition applicable condition. From the perspective ofpurpose, reforming criminals and protecting the community is the purpose of theprohibition. Therefore, the prohibition can be declared only when it need to reformcriminals or protect the community. Beside, we should consider the possibility ofexecution in practice. So, it is necessary to exclude those prohibition which can’t beexecuted. So, the purpose of the prohibition request that the prohibition applicablecondition must have those parts-the possibility of Seriously impede reconstruction orinducing crimes、relevance and exclusion criteria. From the perspective of the natureof the prohibition, the prohibition is a measure assisting the non-custodial sentence,which is different form security measures system. As a result of that, the prohibition is negative, that requests the proportionality and correlation shall be part of theprohibition applicable condition.