On The System Of Criminal Occupational Prohibition

Amendment(IX)to the Criminal Law of the People's Republic of China for the first time involves the criminal occupational prohibition to prevent recurrence by temporarily forbidding the people being released or on parole who take advantage of his occupation or disobey the professional ethics during the crime engaged in the relevant professional field.But as a brand-new system,its rough legislation standard and the absence of applicable procedure and execution system make it difficult to guarantee the rights of the actors.From this point of view,it is necessary to examine the extraterritorial legislation which is relatively mature in the professional prohibition system.On this basis,we can get a better understanding and interpretation of the elements of this rule,clarify the applicable procedures,and design the supporting system to ensure its execution.At the same time the function of crime prevention is brought into full play and the legitimate rights and interests of the people being released prison or on parole will be protected.In addition to the introduction,this article has the total of thirty-three thousand words.The first part introduces the outlined theory of criminal occupational prohibition.It is necessary to clarify the nature of criminal occupational prohibition,and to analyze its relationship with injunction and executive prohibition from a big field of vision.The criminal occupational prohibition is to focus on the future and to prevent crime,its basic structure is: subjective condition(qualified person)+ substantive condition(personal danger)+ legal consequence(security measures).It is consistent with the purpose and structure of security measures paradigm,so it is one of security measures.Both of criminal prohibition of occupation and the administrative prohibition of occupation have the function of preventing someone from engaging in specific occupations,but there are differences in the premise of application,deterrence and scope of application: The premise of criminal occupational prohibition is that the behavior of the perpetrator constitutes a crime and there exists a risk of recurrence of the occupation-related crimes.Also,its power of deterrence is stronger than the administrative prohibition of occupation with a smaller scope of application.The second part introduces the extraterritorial study of the criminal prohibition of occupation.For example,this rule has been applied for a long time in Germany,Switzerland,Macao.Their criminal occupational prohibition systems,which are mature,can be our examples and references.These countries and regions have the following characteristics in four aspects---the basic principles,legislative norms,applicable procedures and enforcement systems of the criminal prohibition system: After long-term development,they have formed the statutory principle of punishment,the principle of balance,the principle of necessity and the principle of individual.They have precise description of elements such as subjective condition,requirements of criminal punishment,and the criminal occupational prohibition basically goes through the same normal proceedings of crimes.They have flexible systems of implementation such as review mechanism,the implementation of the change and the implementation of the termination.The third part contains the legislative interpretation of criminal occupational prohibition.Prohibition of criminal occupation tries to fulfill the crime prevention in the way of temporarily depriving the people being released or on parole of equal employment opportunities,which causes a serious impact on the lives of people.So it should be applied carefully in the judicial practice.Therefore,the writer gives constrained explanation of the subject conditions,conditions of punishment,substantive conditions,the scope and the time of prohibition,and retroactivity to protect the purpose of prudent application.The fourth part introduces the judicial application of criminal occupational prohibition.In order to ensure the effectiveness of the criminal prohibition of occupation and the basic rights of the object,in this part,the writer will clarify that it applies the ordinary criminal procedure,design a series of flexible implementing and changing systems,such as the application of ordinary criminal procedure,suspension of execution,shortening the execution period and conditional exemption of execution,construct the judicial executive-led grid implementation model,and establish a multiple supervision model that is mainly operated by the People's Procuratorate and complemented by various social forces,such as citizens,social organizations,news media and so on.Criminal occupational prohibition is the effective means to prevent crime.Clarifying the nature of criminal occupational prohibition is the theoretical premise to guarantee its function of preventing crime to bring into an available play.Interpretating the relevent legislation reasonably is the legal basis to ensure it apply correctly.Designing a series of scientific and reasonable implementing systems is the institutional assurance to ensure it perform effectively.