Research On The System Of Occupation Ban In China's Criminal Law

occupation prohibition system in "Criminal law amendment(nine)" starting time is prohibited or the date of completion of the execution of punishment,which is performed to after the completion of the penalty.Clearly it is already beyond the limit responsibility punishment.Its applicable basis is " crime situation and the need to prevent crime again ",which for the future rather than in the past and not accepting the restriction of culpability principle.The prohibition in the original occupation within a certain period of time,eliminate the occupation conditions of crime of people who may have a potential threat to the society directly,to defend the society effect,with the purpose of special prevention,the starting time for the completion of the penalty.It also means that a specific criminal reward goes over,then professional banned by the actor is not spread of vengeance,have the connotation of reward.Finally,within the scope of applicable conditions,legal consequences and specification style characteristics,professional ban system in our criminal law are consistent with security measures.It means that professional ban system should be more reliable as a security measure.The formal condition of the system is that the perpetrator "makes use of the professional convenience to carry out the crime" or "commits the crime of violating the specific duty of the professional demand",and "is sentenced to the penalty".The essential condition is "the crime situation" and "the necessity of preventing the crime again".Prohibition period is three to five years.In specific cases,occupation bans should be applicable in the system of prohibition of the principle of necessity,the utility principle and the principle of proportionality.Prohibiting occupation must be relate to "occupation" when the perpetrators crime,and to the extent of personal danger,trying not to interfere with the behavior of people's basic livelihood.In connection with other laws,administrative regulations,the provisions of the criminal law "from its provisions" should be in the framework of the criminal trial within the applicable term.At present,the theoretical analysis of criminal law system and reality condition such asthe application status of occupation prohibition in the occupation ban rate is low,the application and implementation status is not satisfactory for the system.The author thinks that it is necessary to expand the scope of professional ban system,especially to bring the unit into the regulation range;Clearing community correction mechanism as the executing agency,to ensure the implementation of occupation no decision.Procedure guarantee human rights against infringement.Clearing the investigation organ and prosecutors have suggests.At the trial stage court debate contains professional ban.After sentencing of career decision,the accused shall have the right of appeal and inspection authorities shall have the right of protesting.In addition,it should expand the occupation prohibition system of the prohibition period and the addition of amplitude change and improve the legal consequences of violation of the system of occupation prohibition provisions.