Research On The System Of Employment Prohibition In China's Criminal Law

As a new system,the Article 37-1 about the employment prohibition in the Criminal Law is more general,and the content of the provision lacks specificity and clarity.There are also obvious differences and divergences in relevant research in the theoretical and practical circles,and this situation affects the accurate understanding and application of the employment prohibition.This article intends to analyze the employment prohibition system in the Criminal law,mainly from the following aspects:The first part is an overview of the employment prohibition.The beginning of this part introduces the concept of the employment prohibition,clarifies the characteristics of the employment prohibition,and then clarifies its compliance with the criminal policy and the purpose of special prevention,affirming its legislative value.The second part is to discuss the nature and applicable principles of the employment prohibition.First of all,it puts forward the theories on the nature of the prohibition of employment in the theoretical circle,and analyzes and refutes them one by one.Then proceeding with the measure of security,it clarifies the basic boundary between security measures and punishment,and analyzes the purposes,functions and applicable conditions of the employment prohibition so as to draw the conclusion that the employment prohibition conforms to the formal characteristics and essential connotation of security measures.Then,through the enlightenment of the appropriate principle of extraterritorial security measures,the application principle of the employment prohibition is determined as the principle of purposiveness,necessity and proportionality,and these principles are related to the application of the prohibition of employment.The third part is to study the specific application of the employment prohibition.First,it analyzes the substantive conditions applicable to the employment prohibition,including "criminal situation" and "necessity of preventing further crimes",which is essentially a judgment of the perpetrator's personal danger.This article makes it clear that the "criminal situation" in the employment prohibition is actually one of the basis for judging the "necessity of preventing further crimes".It analyzes the judgment factors about personal danger,and clarifies the importance of personal risk assessment.Based on extra-territorial experience,the author tries to establish a practical model of personal risk assessment in China.Second,it determines the specific applicable targets of the employment prohibition.This article clarifies the standard for defining the scope of "occupation" in the employment prohibition,and analyzes the connotation and extension of "utilizing occupational convenience" and "specific obligations that professional requires".Then it Solves the controversial issue of whether the person who is sentenced punishment of control,probation and accessory punishment can be applied to the prohibition of employment.Then it analyzes the problem of applying the prohibition of employment to juridical person,and elaborates on the necessity and feasibility of applying the prohibition of employment to juridical person.Third,the article clarifies the declaration procedure,application period and prohibited content of the prohibition of employment.Fourth,it clarifies the understanding and application of the sanction clause,and analyzes the legal consequences of violating the prohibition of employment.The fourth part clarifies differences between the criminal employment prohibition and the administrative employment prohibition,and then clarifies the specific applicable rules of "those provisions shall prevail".It is to realize the connection between the criminal employment prohibition and the administrative employment prohibition initially.The establishment of the employment prohibition is an important measure to improve China's criminal sanction system.It enriches the legal consequences of breaking the Criminal law,and is of great significance for the prevention of crimes.Through the above research,the author makes an in-depth analysis of the employment prohibition system in order to make a slight effort for the accurate understanding and effective application of the system.