Research On The Occupation Prohibition In Chinese Criminal Law

"Criminal law amendment (IX)" take the occupation prohibition into the system of criminal law in the first article. As a legal system which will separate the offender and related occupation in a certain period, the main functions of occupation prohibition include the prevention of occupation prohibition occurring and the protection of public interest free from occupation crime infringement again. However, the provision of the"criminal law amendment (IX)"is so sketchy that many scholars still dispute on the nature of occupation prohibitions. Considering that the specific condition of the provisions is not clear, at the same time, the judicial application also exists many problems, it is necessary to have a comprehensive study on the system in deep. Thus, this paper makes a systematic study on the occupation prohibition in Chinese criminal law on the basis of reference to other people's research results and empirical analysis. This paper consists of four parts:The first part is an overview of occupation prohibition. This part introduces the concept of occupation prohibition and identifies the characteristics of occupation prohibited.This part mainly discusses the legislative value of occupation prohibition,while point out that the establishment of occupation prohibition will facilitate the implementation of special prevention and general prevention of occupation crime and further protection of social law benefit.The second part discusses the legal nature of occupation prohibition. At present,there is no conclusion about the nature of the occupation prohibition. There are three kinds of representative views: qualification penalty, non penalty punishment and security punishment theoretically. By comparison, the occupation prohibition does not match the features of qualifications penalty and non-criminal punishment measures,while it is more conformable to the security measures based on the applicable purpose and conditions,and the relationship with penalty. Thus, it does not belong to the qualification punishment and non penalty punishment, and should be understood as a substantial security measures.The third part elaborates the applicable conditions of the occupation prohibition. In this part, the author makes an analysis of the terms of occupation prohibition from three aspects: the object condition, the substantial condition and the penalty condition. The object condition focuses on the connotation and extension on the crime of using professional convenience and the violation of specific occupation obligations. The substantial conditions deal with the definition of circumstances of crime and the necessity of preventing re-offending. The penalty condition is mainly to solve some controversial problems mainly including that whether the occupation prohibition can be applied in the three conditions including: the offender is sentenced the public surveillance? the supplementary punishment and after the expiration of probation.The fourth part points out the judicial application problems existing in the current occupation prohibition in our country and puts forward some countermeasures based on the empirical research. In the judicial application, the occupation prohibition is inclined to be confused with injunction. There still exists some controversial problems, such as the violation of the "old and light" principle, the narrowness of application, the obscurity of the applicable progress and how to apply the provision of "those provisions shall prevail". Thus, it's necessary to distinguish the occupation prohibition and injunction,ban the retroactive application of occupation prohibition, expand its scope of judicial application, set up a suitable procedure for occupation prohibition and make it clear strictly that "those provisions shall prevail".