The Research On Judicial Application Of Occupation Prohibition

Based on the purpose of professional crime prevention,The Amendment?to the Criminal Law establish a rule to cut off the relationship between the actor and his practice environment.As a new system created to meet the requirement of practice,the occupation prohibition makes up for the lack of penalties and enriches our criminal sanctions system.However,because of the lack of relevant judicial interpretation and implementation rules,a series of problems have arisen in the judicial application of occupation prohibition.This paper makes an empirical research on 375 cases of judgments published in the "China Judgment Paper Network" from 2016 to 2018.It summarizes the basic situation of occupation prohibition in judicial application,analyses the problems existing in judicial application,and puts forward suggestions for the problems,to contribute to the judicial practice.The structure of this paper is as follows:The first part is "the current situation of occupation prohibition in judicial application".This part mainly explains the source,selection method and coverage time of samples.And then through the analysis of 375 judicial cases on occupation prohibition,finds out the basic situation of occupation prohibition.From 2016 to2018,the judicial application of occupation prohibition mainly presents the following characteristics: firstly,the proportion of judicial application is low,and the growth rate is slowed down;secondly,the scope of crime involved in judicial application is wide and concentrated;thirdly,the scope of "sentenced of penalty" includes the main penalty,"the execution of penalty" includes the probation executed;fourthly,theperiod of application is diverse and generally shorter.The second part is "problems in judicial application".After analyzing the current situation of judicial application of occupation prohibition,the second part studies the problems existing in judicial application.In judicial practice,the problems of occupation prohibition can be divided into two aspects.There are some problems in the substantive aspect,such as confusion of legal basis,narrow object of application,unclear scope of application,obstruction of relief channels,inadequate reason for the judgment,etc.There are some problems in terms of procedure,such as single subject of execution,difficulty in execution and unclear relief methods.Both of the problems affect the result of occupation prohibition.The third part is“the way to improve the system of occupation prohibition”.The third part mainly proposes solutions to the problems found in the second part.The following improvements should be made in the substantive aspect.Firstly,it is necessary to clarify the relationship between the provisions of the Criminal Law of China and the relevant judicial interpretations that involve the limitation of professional qualification.Secondly,we need to expand the object of occupation prohibition and bring the subject of unit into the scope of occupation prohibition,to make up for the single penalty system.Finally,we should modify and reinterpret the third paragraph of Article 37 of the Criminal Law,to solve the circumvention of the application of "from its provisions" in judicial practice.The following assumptions are put forward in procedure.In the initiation stage,we can establish a procedure with multilateral participation by granting other companies,agencies,industry associations,parties the right to apply for occupation prohibition.In the trial stage,the court can evaluate the personal danger of the offender through social investigation.Then the court can combine the all the circumstances of the case to determine the application of occupation prohibition.At the same time,we should provide relief channels for the offender,and guide the court with guiding cases..In the executive stage,the offender who applied the occupation prohibition shall be handed over to the community correction agency.At the same time,every stage of the application of occupation prohibition should be included in the scope of procuratorial supervision,so as to standardize the judicial application of occupation prohibition.