On The Perfection Of Qualification Penalty In China

Qualifications refer to the preconditions or identities that people should possess in order to engage in certain activities.As a qualification in criminal law,qualification penalty refers to a penalty method that deprives the qualifications enjoyed by those who use qualifications to commit crimes in criminal legal relations.It plays an indispensable role in dealing with crimes committed by using qualifications and crimes against the qualifications of others.It needs to be clear that the qualification penalty is not a legal concept,but a theoretical concept of criminal law,and correspondingly there are life penalty,freedom penalty and property penalty.Qualification penalty is an important part of modern penalty system,which occupies an important position in foreign criminal law.But in our legislation,it only shows two kinds: deprivation of political rights and deportation.Therefore,to improve our qualification penalty system is not only the need to effectively control specific crimes,but also one of the important contents of improving our penalty system.On the basis of the existing qualification penalty research in the criminal law academia,this paper has made some breakthroughs in the following aspects:Firstly,combining the new provisions of "prohibition of employment" in Amendment IX of the Criminal Law,the nature of it is analyzed,and the relationship and difference between it and qualification penalty are clarified.Because in the current research of qualification penalty,there is seldom a combination of qualification penalty and Penalty Nine to carry out research,this paper has some innovation in this respect;secondly,from the perspective of "localization" legal resources to analyze the perfection of qualification penalty,and vigorously tap the "local resources" in China's qualification penalty,such as on the basis of the "pardon" system since ancient and modern times in China.The necessity and feasibility of the system of reinstatement of qualification penalty are analyzed.Therefore,this paper has some novelty in this respect.Thirdly,the existing research mainly focuses on the theoretical study of qualification penalty,while the research on the reinstatement system of qualification penalty is insufficient and one-sided.Based on the study of qualification penalty,this paper makes a comprehensive analysis of the reinstatement system of qualification penalty.This paper mainly includes the following aspects:The first part is an overview of qualification penalty.Qualification penalty is first of all a penalty method that deprives or restricts the criminal's specific legal qualifications or rights.It has the following characteristics: first,the specificity of applicable crime;second,the specificity of deprivation content;third,the prominence of the function of penalty prevention.From the perspective of the types of qualification penalty,the types of qualification penalty in the world mainly include the right to vote and be elected,deprivation of public office,deprivation of civil rights,prohibition of practice,prohibition of access to specific places,deportation and deprivation of honorary titles and ranks.The second part introduces the status quo of foreign qualification penalty legislation.This paper makes a comprehensive analysis from the perspectives of civil law countries and common law countries.Among them,German qualification penalty is embodied in two ways,namely additional penalty and additional consequence.In terms of applicable standards,German qualification penalty takes "crime" and "penalty" as two criteria for the application of qualification penalty,and stipulates the system of reinstatement of rights in qualification penalty,which is a major feature of its qualification penalty system and has a strong reference significance.French qualification penalty has a wider scope of application,which is not only applicable to natural persons,but also to legal persons,and has set up criminal legislation in continental law countries.Precedent.It stipulates the time limit of penalty in qualification penalty,which reflects the pertinence of penalty and is conducive to optimizing and saving penalty resources.In the criminal law of Anglo-American law system countries,because it is not written law countries,the types and scope of qualification penalty are seldom Limited directly in legislation,but the flexible use of qualification penalty in judicial adjudication actually gives judges greater discretion in the penalty of qualification penalty,which is also a major feature of qualification penalty in Anglo-American law system countries.The third part is the status quo of qualification penalty in China.At present,the real qualifications penalty in our country only includes deprivation of political rights and deportation.Compared with the foreign qualifications penalty system,the types of qualifications penalty are relatively single.Specifically,deprivation of political rights as one of the qualifications penalties in our country,the distribution of its charges is unreasonable,mainly reflected in the obvious use of power to commit crimes of dereliction of duty without qualifications penalty,the chapter of corruption and bribery qualifications penalty less,which is a blank in legislation.In addition to the above two kinds of formal qualifications penalty,there are still a large number of penalties with the nature of qualifications penalty scattered in other non-criminal laws.At present,there are disputes about the nature of this kind of "administrative qualifications penalty" in the theoretical circles.Some people think that it should belong to the broad sense of qualifications penalty,while others believe that it belongs to an administrative penalty.The viewpoint of this paper tends to the second kind,that is,it only considers that it It is a kind of administrative penalty,which does not have the attribute of penalty.The fourth part is the perfection of qualification penalty in our country.This section mainly integrates the provisions of the Criminal Law Amendment(9)on "prohibition of employment".At present,there are disputes about its nature in the theoretical circles,mainly focusing on whether it belongs to a kind of penalty measures.This article holds that the prohibition of employment is not a penalty measure,and it does not belong to the qualification penalty of our country.However,the requirement of "prohibition of employment" to qualifications penalty is the necessary perfection of penalty in our country.It is also the requirement of legalization of criminal responsibility.It can also solve the problem of the inconsistency between criminal responsibility and administrative responsibility.Finally,integrating some legal resources of "administrative qualification penalty" into the content of qualification penalty can enrich the system of qualification penalty in China.The fifth part is to establish the system of reinstatement of qualification penalty in China.Firstly,it is clear that the right to reinstate the qualification penalty is a penalty method to deprive or restrict the legal qualification or right of a specific offender;it is necessary to establish the qualification penalty.