Research On The Judicial Application Of The Criminal Profession Prohibition

With the economy growing and fasting pace of work,modern social profession have became more elaborate,many of these types of professional qualifications of employees with specific requirements,the formation of a special occupational threshold special occupational crime type.We have regulated many special professional crimes by administrative law,but it still have many professional crimes who utilized professional facilities or violate special obligation.Because of inherent defect of traditional system of punishment,it can not govern these professional crimes.So the amendment to criminal law 9 adds the criminal profession prohibition.It is a preventive measure which increased after the amendment to criminal law 8.Just as its name implies,the preventive measures have two significant feature.Firstly,it regards the personal dangerousness as the important foothold;Secondly,it regards the prevention as the primary purpose.Although the new system has came on,but the legal nature is still not definitely,the judicial application is still not clear,and the relevant system is still not perfect.At present,the theory of the nature of the prohibition of criminal occupation in China mainly includes non-penalty punishment,qualification punishment,security punishment,incidental punishment and penalty,while the extraterritorial state or region has Penalties or security measures.Through the interpretation of the non-penalty measures of Article 37 of the Criminal Law and the normative analysis of the characteristics of the security disposition,the legal nature of the prohibition of criminal occupation should be attributed to the security measures.Secondly,the scope of profession can not be restricted too broad or too narrow,it must cause serious consequence and be damaged easily.Thirdly,the material condition should be on the basis of criminal situation and the need to prevent crime again.Fourthly,the punishment condition should be restricted in detention and incarceration.At last,the consequence of administrative law which violating criminal profession prohibition should be determined.Because of the precondition of criminal profession prohibition is imposition of penalty,and the declaration of time is before the punishment has been completed or before conditional release.Only part of administrative profession prohibition will be having conflicts with criminal profession prohibition.The from its provisions should be interpreted as provision for attention,rather than regard the court as the subject of declaration and on the basis of the applicable conditions and duration of administrative profession prohibition.When the application have conflicted,we should stick to tolerant rule of criminal law.At the same time,we must be on the basis of the applicable conditions of criminal profession prohibition,then we can decide the duration.Besides,the criminal law have been existing measure of security.But they can always not be admitted.So we advise producing the conception of measure of security into the criminal law,integrating some measure of security which have been existing in criminal law,adding other measure of security and forming systematic entirety.Secondly,the author designs the prohibition procedure of criminal career in our country,and puts forward the idea from four aspects:proclamation procedure,proclamation procedure,executive procedure and relief mode.At last,anyone who utilize professional facilities or violate special obligation carry out illegal actions,and who is non-criminal liability should be regulated by criminal profession prohibition.