The Vocational Prohibition In Chinese Criminal Law

“The Criminal Law Amendment(Nine)of the People's Republic of China(hereinafter referred to as the ?Criminal Law Amendment(Nine)?)” from the perspective of crime prevention,the prohibition clause was added in occupation to contain the relevant occupational crime.This provision makes the prohibition of employment officially entering the stage of criminal law in China.It is the result of the game between executive power and judicial power to lift the prohibition of employment to the criminal law level.Due to the influence of historical thought and other factors,the establishment and change of China's system are mostly dominated by the government,which makes the expansion of administrative power to judicial power a historical relic and a matter of necessity.But with the advancement of the rule of law,judicial power begins to seek a kind of restraint and balance.In this context,the establishment of the prohibition is actually a control mode for the expansion of administrative power,and its existence is an inevitable and necessary thing.No matter in theory or in practice,as a new rule,it is necessary to clarify its nature and applicable rules.Based on the practice of the legislation of various countries(mainly Germany),the author in this paper makes a detailed discussion on these problems by means of various explanations,such as the interpretation and the system interpretation.In the world,some countries have made the prohibition of employment become the qualification punishment,such as Russia,France,Greece,etc.,and some scholars believe that China's employment prohibition is a kind of qualification punishment.But this view is untenable whether in form or in substance.The practice of criminal law in our country is to prevent the recommitting crimes.It?s not and it will not to be the qualification punishment.Since the prohibition of employment belonging to the category of security punishment,it should follow the principle of security disposal.As permitted,the application of the prohibition is a double-edged sword.To coordinate the relationship between the punishment of crime and the protection of human rights,and to minimize such evil,the problem should be solved by the principle of prohibition.In this regard,the author believes that it is possible to learn from a relatively well-developed security measure system of Germany,and make the principle of appropriation as the queen clause of the prohibition principle.The principle of appropriateness includes applicability,necessity and proportionality.In the specific case,only when the security measure is appropriate for a person or to proportion,can be declared by the court.If it is beyond the significance of behavior by person,or with desirable behavior and bears no relation to the level of the damage,it is not permitted to rules or sentenced.On the basis of clarifying the nature and applicable principle of the prohibition,the author starts from the four aspects of the terms of the sanctions and the compatibility clause,and expounds the applicable conditions of the employment prohibition.the applicative premise is for criminals who committed a crime that is related to vocation would be sentenced to a punishment,which is difficult to select the concept of professional,but it can be set range by the national standard classification and code and be defined by characteristic judgment.Professional convenience is different from the convenience in the criminal law.The latter is based on the former,but it is also endowed with independent status by occupation classification and code.The implementation of crime against the specific obligation of professional requirements has two kinds of understanding.First,the perpetrator violates professional specific obligations in criminal law and constitutes a crime,namely the "duty" in the specific provisions of criminal law in the specific charges which have stated clearly.Second,as long as the perpetrator?s criminal behavior has violated the specific occupational requirements at the same time,the crime here is not limited to the specific crime(professional crime)in the criminal law(the occupational crime).This paper adopts the first point.Penalty completion involves the understanding of the punishment scope,in addition to criminal detention,control and fixed-term imprisonment,life imprisonment or stay of execution also should be had suitable space.Besides,the author also thinks as a method of execution of punishment,the probation completion should also be included in the category of penalty.The application essence of the employment prohibition is based on the needs of the crime and preventing crime again.Among them,the crime situation refers to all plots that can reflect the illegality and accountability of the perpetrator.The need to prevent reoffending is essentially another expression of the possibility of the perpetrator.In the sense of criminal law,the possibility of recidivist is personal danger.During the period,this paper mainly focuses on the issues such as the available period,retrospective effect,declaration,and scope.The author thinks the available period of the employment prohibition is short and inflexible.If an actor was prohibited from working,the declaration may conform to the principle of appropriateness.But as time goes by and the influence of dynamic factors,there could be illegal to this principle,and therefore it is necessary to add a lifetime ban,suspension and other supporting system.As to the scope of application,from the applicable scope and the scope of prohibition respectively,the author demonstrates that it applies to criminal negligence and unit application,and puts forward the related profession.The backup terms of employment prohibition set up sanctions rules from two levels of administrative punishment and penalty to safeguard the implementation of the employment prohibition,among them,the criminal punishment measures centering on individual sanctions are a pioneering step.Finally,this paper analyzes the compatibility of employment prohibition provisions,in view of the academic community that the employment prohibition?s suitable space is limited,the author points out that from the provisions of the prohibition are to restrict or prohibit the regulation of existing vocational qualifications.This is a problem on the legal status,and there are no existing laws and regulations that override the provision of criminal law.