Researches On Occupation Prohibition System In Criminal Law

With the enactment of The Ninth Criminal Law Amendment,the occupation prohibition system appears in the theory and practice of China's criminal law.As one of the Article thirty-seventh,this system is placed after the Article thirty-seventh of Criminal Law.This legislation has won a lot of praise in the academic circle,which fills up a huge blank of our criminal legislation.However,when it comes to understanding and application of the system,there are many differences and disputes in the academic area.Because the system has just been established,the description of this term is relatively simple.This situation will obviously make it more difficult for judicial office to apply this term.Only by researching on the occupation prohibition system in criminal law,can we help our country control the number of professional crimes and perfect the system of criminal punishment system.This paper is divided into three chapters.The first chapter is a brief introduction to the occupation prohibition system in criminal law.It includes the definition of the nature of the system,the reasonable basis of the system,the relationship between the occupation prohibition system and other relative systems.Firstly,by examining and exploring the existing penalty system and analyzing the description of the occupation prohibition system in criminal law,the author concludes that the occupation prohibition system can be recognized as a security measure in our criminal law.Secondly,by researching the legislative motivation and operating mechanism of the occupation prohibition system in criminal law,the author points out that the theoretical support of this system is the principle of the prohibition of abusing rights and the maintenance function of the criminal law.Thirdly,Through the comparison of the criminal occupation prohibition system and the administrative qualifications penalty system,the deprivation of political rights punishment system,the criminal injunction system and the criminal record reporting system,the author finds that the occupation prohibition system in criminal law has its own significance.The second chapter discusses the substantive application of the occupation prohibition system in criminal law.It includes the definition of target scope of this system,the analysis of the application standard of this system and other substantive problem in understanding this system.Firstly,by using the literal interpretation,teleological interpretation,systematic interpretation and other methods,the author considers that the target of this system is the person who uses the professional convenience or violates the professional obligations,in result published by the criminal law.Secondly,the author defines that the occupation prohibition system plays a significant role in crime prevention.Then,the author set a diplex inspection standard—— the purpose of this system and the principle of proportionality.Thirdly,some problems are solved in this chapter,such as the validity of time of this system,the treatment of concurrence with administrative penalty and the responsibility of violation of this system.The third chapter is the reflection and perfection of the procedure of the occupation prohibition system in criminal law.It mainly involves the design of procedures of proposing,declaring and executing theoccupation prohibition.By combining the function of this system with the general rules of criminal proceedings,the author demonstrates that the investigative and procuratorial authority has the right to suggest the application of this system.Then,the author defines the time and the form of declaration and the relief method of this system.By studying the legislative motivation and the current judicial situation in our country,the author advised that the executor of this system should be the community correction organization.At the end of this chapter,the author designs both a set of general procedures and a set of special procedures with regard to the execution of the occupation prohibitionsystem.