Empirical Study On The Judicial Application Of Professional Prohibition System

Putting more emphases on prevention than penalties is the development trend of modern criminal law.The establishment of the professional prohibition system follows the times,which helps to improve the existing criminal sanctions structure in China.The professional prohibition system is neither a new kind of penalty,nor a punishment against qualifications,but a security measure.Different from other laws and administrative regulations,the professional prohibition system includes strict application conditions and higher mandatory.At the beginning of the establishment,it carried out extensive academic discussions on its applicable preconditions,applicable subjects,and applicable standards.However,the judicial practice is very different from the discussions,and sticks in a dilemma.In view of this,this paper is aimed at studying and discussing the system of professional prohibition,so that we can discover the source of the dilemma by analyzing the application of the system in concrete cases.On the one hand,the substantive law is too abstract.What the so called“employment" and“sentenced punishment" is not certain and will go against the recognition and judgment of judges;because the professional prohibition period lacks gradient,so many cases hoarded in the minimum prohibition period;Judge' s decision criteria is vague,so it is difficult to be unified in specific cases.On the other hand,there are deficiencies in the specific application procedure.The article does not specify the announcement time and the supervision procedure of the system,which makes it difficult to form a closed loop between announcement-execution-supervision during the implementation of the system;the absence of a relief system has led to a tilt in the balance between defending society and citizens' basic rights.Based on affirming the functional value of the system,the theoretical review of the professional prohibition system has conducted a comparative analysis of the controversial viewpoints and has responded to the above entity and procedural issues.From the entity point of view,it is necessary to clarify the connotation of"employment" and the types of penalties;to reduce the minimum period of professional prohibition;to refine the discretionary standards of the case..At the same time,the improvement of the professional prohibition system requires the supplementary setting of the applicable procedures of the system.The the judge is the only subject of the declaration to make a separate announcement in the verdict;the local public security organs at the same level and their dispatched offices are responsible for the implementation of the supervision system.Supplementary setting up complete relief procedures.When the perpetrator does not have the danger of using professional convenience or violating professional duties,the probation mechanism shall be used.The perpetrator who passes the probation period is no longer prohibited from engaging in related occupations.