The Prohibition Of Occupation And Its Perfection In Chinese Criminal Law

Article 9 of the Criminal Law Amendment Act (1) provides that such a provision shall impose a penalty on a specific obligation for the use of occupational facilities or a breach of occupational requirements, and the judicial organ may impose a penalty on the offenses of the crime and the prevention of further offenses. The date of parole or punishment from the date of completion of the relevant professional punishment, and provides for a period of three to five years,this is the first time in China's criminal law prohibition of occupational system. From the legal provisions of the provisions of the location and the specific content of view, the prohibition is neither a penalty or additional punishment in the main one,nor is a penalty execution. Because of the criminal liability as a prerequisite for the application, focusing on the behavior has occurred; the same time, the release of criminals for criminals, the criminal responsibility for the completion of punishment and "disappear", there is no reason under the "criminal responsibility" Otherwise it does not meet the crime of torture to adapt to the requirements of the principle. However, the prohibition of employment is premised on the "crime situation and the need to prevent further offenses", not on the basis of the guilt and limitation, but on the personal risk of the perpetrator, focusing on possible future conduct, and The legal nature of the penalty is not consistent, so occupational prohibition can not be a penalty. However, the legal characteristics of occupational prohibition and security disposition are very similar. Because the prerequisite for the application of security measures is also the person's personal risk,and for the purpose of the pursuit of special prevention for those who meet the prescribed conditions, the use of prohibition, isolation, probation and other methods to prevent the occurrence of special measures is penalties Useful complement. In our country, whether in theory or in judicial practice, the security measures are relatively unfamiliar concept, but the occupational prohibition is not the first law of our security measures, for example, the revised "Criminal Procedure Law" Provisions of the "law does not bear the criminal responsibility of mental patients" to take compulsory medical treatment measures is a kind of security measures. Objectively speaking, security measures and penalties of these two different types of criminal penalties,and exist in China's criminal law,is a tacit fact. In fact, the addition of a prohibition system is the result of the change in the punishment of crimes to crime prevention and the requirement that the penalties should be slightly penalized. In order to prevent the perpetrators from re-engaging in occupational-related crimes and compensate for the weak function of "special prevention" Play a positive role. However,the professional prohibition is punishments for the "innocent" who have completed the sentence, which restricts the freedom of people's choice of profession and hinders the re-socialization of the perpetrator. If improperly applied, it will easily cause human rights violations and punishments. The risk of over-limit, do not meet the modest principle of criminal law.As far as the provisions of the current criminal law on occupational prohibition is concerned, its legal nature, applicable conditions, executive organs and supervision mechanisms are not detailed and lack of specific operability,which leads to the excessive discretion of the judge in the case of occupational prohibition , The implementation of the results are difficult to meet expectations. Secondly, the principle of appropriateness is the most basic principle of the application of security measures,including the "purpose of the purpose," and the principle of security measures. In order to better display the effect of occupational prohibition, firstly, we should accurately locate the legal nature of occupational prohibition, "Proportional" and "comparable"three requirements,"occupational prohibition" as a measure of security measures,its application should also comply with the principle of appropriateness, subject to the"three requirements"; once again, should be occupational prohibition , Including the elaboration of "how to prove the risk of recidivism", set up by the prosecution, court application, the implementation of community corrections institutions, as well as under the conditions of rehabilitation of a set of systems.