Research On The Judicial Application Of Criminal Practice Prohibition

The criminal employment prohibition refers to the people’s courts prohibit or restrict their qualifications for engaging in related occupations within a certain period of time,who are sentenced to penalties for committing occupation-related crimes.The "Criminal Law Amendment(IX)" stipulates that "prevention and re-offense" is the applicable standard of the system,and the personal danger is used as the basis for judges’ judgment,which has the nature of security measures.The addition of criminal employment prohibition indicates the function change of the criminal legislation in our country,but the application of the system is different from the traditional criminal sanction mode,the domestic lacks the practical experience of similar system,and the applicable research on the criminal employment prohibition concentrates on the theoretical level.The perfection of any system can not be divorced from the analysis of practice,so it is necessary to suggest the corresponding judicial countermeasures in the light of the actual problems by the statistical summary of the cases.In addition to the introduction and conclusion,the paper is divided into five parts:The first part is a basic overview of criminal employment prohibition.Based on the difference between this system and the administrative prohibition measures,first of all,the system is collectively referred to as criminal employment prohibition.Legislation grants the criminal employment prohibition the function of special prevention.The prompt intervention of criminal legislation responds to the public’s safety needs,and at the same time it can promote the link between administrative prohibition and criminal employment prohibition,make up the functional defects of the freedom penalty.As a new system,the criminal employment prohibition is different from other criminal cases in terms of applicable objects,applicable basis,applicable measures,consequences of violations,and competing laws and regulations.The second part is the analysis of the nature of criminal employment prohibition.The criminal employment prohibition does not have the attributes of penalty,and the legal content of the penalty is significantly different from that of qualification penalty.It should not be qualified as qualification penalty.The applicable conditions and specific measures for the criminal employment prohibition and non-penalty punishment are different.The criminalization of the criminal employment prohibition as non-penalty punishment is a misunderstanding of the formal elements and substantive connotation of the system.The application of criminal employment prohibition is in full compliance with the positive and negative conditions of the security measures.We cannot deny that the essential nature of the criminal employment prohibition is the security measures,because of the lack of explicit provisions on security measures.Facing this decision helps us to further examine the judicial application of the system.The third part is about the applicable status of criminal employment prohibition.Through the statistical analysis of 136 relevant judgments,we conclude the legal status of criminal employment prohibition.The statistical content includes four aspects: the scope of application of the criminal employment prohibition,the content of the application,the discretion of judges,and the attitudes of the prosecution and the defense.The scope of application of criminal employment prohibition covers the applicable crimes and penalty category;the applicable contents include the types and deadlines of occupations that are prohibited from being engaged;the discretion of judges mainly refers to the current situation in which judges apply discretion;the attitude of the prosecution and the defense passes through the criminals is shown through whether the offender has an appeal,the sentencing suggestion made by the procuratorial agency and whether there is any protest.The fourth part is about the application of criminal employment prohibition.Based on the current statistics of the third section,the judicial status quo of the system is summarized from the scope of application and application of the criminal employment prohibition,and the following problems are mainly found: First,the scope of application of the criminal employment prohibition is narrow;The courts that make a decision are small,and the types of crimes and penalties are extremely limited.Second,there are flaws in the use of the criminal employment prohibition;the prohibition period is too mechanized,and the scope of prohibited professions is extremely vague.Thirdly,the application of the criminal employment prohibition is incompatible with the system of probation and penalty changes,and some judges are not clear to the knowledge of the retroactivity of the system and the expression of applicable standards.The fifth part is the judicial perfection of criminal employment prohibition.Due to the lack of legislative background and judicial experience in similar systems in China,in the application of criminal employment prohibition,to regulate the discretion of judges from a macro perspective,we can draw lessons from the principle of appropriateness of security measures and value the assessment mechanism of personal danger.At a specific level,we should explain the applicable standards and applicable objects of the criminal employment prohibition.In the judicial application of the criminal employment prohibition,the judge should first examine whether there are provisions in the relevant laws and regulations regarding the criminal employment prohibition,but the conditions and time limit for application still need to be limited to the scope of the criminal law.