A Study On The Application Of Law In The Prohibition Of Practicing In Chinese Criminal Law

The newly amended Criminal Law Amendment(9)shall be added to Article 37 of the Criminal Law:"The people's court may,on the basis of the circumstances of the crime and the circumstances of the offense of the crime of using the occupation to facilitate the commission of the crime or the execution of a specific obligation for breach of the professional requirement,The person who is prohibited from engaging in the relevant occupation has violated the decision of the people's court in accordance with the provisions of the preceding paragraph,and shall not be allowed to engage in the relevant occupation for a period of three years to five years from the date of completion of the sentence or on the date of parole,Shall be punished by the public security organ according to law;if the circumstances are serious,it shall be convicted and punished in accordance with the provisions of Article 331 of this Law,and any other laws and administrative regulations shall prescribe from the provisions of any other prohibited or restrictive provisions in the relevant occupation.This is the first time in the criminal law of our country,and the application in theory and judicial practice will undoubtedly become the first problem of the new clause.Qualitative study is a prerequisite for the study of application.There are two positions of punishment and security in academia.After the discussion of the relationship between them,with a theory of support,practitioners prohibited in nature should be security sanctions,we should pay attention to the distinction between the relevant concepts and,in particular,the definition and application of the prohibition order and the criminal record.After the above qualitative and definite definition,the application of the prohibition of employment is subject to the principle of proportionality,that is,the principle of necessity,the principle of relevance and the principle of equivalence.In the judicial practice of our country,the court,when applicable,should consider whether it conforms to these principles.Practitioners are prohibited from the need to meet the conditions of prevailing and necessary conditions,so as to achieve its legislative purpose to prevent further crimes.It is understood that the provision does not completely exclude the application of the criminal law,and that it is only in the context of the commencement of the period from the point of view of the commencement of the proceedings.Provides that,time may be prescribed,conditions and procedures can not be specified so the form of competition and the substantive divided.The practice of banning as a security measure should also keep pace with the times.In the application,it is necessary to use the experience of other countries to conduct a dynamic investigation on the personal risk of the offender to apply the practitioner's ban better.