| The criminal employment prohibition has been in effect for nearly five years.The accumulation of relevant referee cases is abundant,and the conditions for empirical research are ripe.Through the analysis of hundreds of judgment texts published on the website of adjudication documents,the following problems remain to be solved in the current judicial application of prohibition.The application of the declaration of employment prohibition is not clear,including the determination of the premise of declaration and the determination of the basis of application.The proscription of employment is premised on "using one’s occupation to facilitate a crime or to commit a crime against a particular obligation".However,judicial practice does not have a clear understanding of what is the act of "taking advantage of professional convenience" and the relationship between taking advantage of professional convenience and violating specific obligations.The application basis of employment prohibition is "according to the crime situation and the need to prevent reoffending",but whether the relationship between "crime situation" and "need to prevent crime" is one and the same or independent and parallel,what are the specific investigation factors of crime situation and what are the investigation factors of "need to prevent crime" are not clearly answered.The scope of practice prohibition is inappropriate.From the internal level,the use of different occupation by the implementation of the crime,the final prohibition scope is similar;From the external level,the line between employment prohibition,probation and control prohibition is blurred,and some courts almost follow the prohibition order.The effective implementation of the prohibition is not coordinated,including the uncoordinated understanding of the"penalty" and the uncoordinated setting of the effective time node.The application rate of"from its provisions" is extremely low.In the opinion of the majority of the courts,the court will not make a separate declaration when other legal norms have restrictions on the practice,thus leading to the danger of falsely placing article 31,paragraph 4,of the criminal law.The first part is the introduction,which mainly introduces the research purpose,research significance,research status and research methods of the paper.The second part introduces the legislative background of the employment prohibition system,that is,the increasingly indiscreet occupational crime,the decline of the traditional penalty prevention effect and the foreign experience for reference.It clarifies the legal nature of the employment prohibition system.Employment prohibition is neither a qualification penalty nor a so-called security punishment measure,but a non-penalty treatment measure.The third part is an empirical analysis of the cases of employment prohibition arising from judicial practice.Firstly,the basic information of employment prohibition cases is analyzed,including the number of employees,their cultural distribution and regional distribution.Secondly,it clarifies the legal nature of the employment prohibition system.Employment prohibition is neither a qualification penalty nor a so-called security punishment measure,but a non-penalty treatment measure.The fourth part,through the theoretical reflection of the problem,clearly declare the basis:the use of professional convenience should be understood as the use of supervisor,handling,custody and other business convenience;Make use of the familiar working environment and working process for professional reasons;Take advantage of the advantageous position and social relations formed by occupation."The use of professional convenience" and "breach of specific obligations" belong to the relationship between sufficient and unnecessary conditions,the latter includes the former."Crime situation" and"need to prevent reoffending" are parallel elements serving the same purpose and have different contents.The former only includes the circumstances of the crime,that is,the criminal act,the means of the crime,the purpose of the crime,the form of the crime and the intentional negligence crime.The latter refers to the circumstances before and after the crime,including age,degree of education,repentance after the crime,and consistent changes in the execution of the penalty.Reasonably define the scope of implementation:the scope of practice prohibition should rest on the "occupation" rather than the "specific activity".In addition to the occupation used by the crime(the original occupation),the scope of relevant occupation should also be determined according to the principle of relevance of legal interest infringement.Coordinate the effective execution time:the "penalty" here should be the main penalty and the supplementary penalty stipulated in section 1 of chapter 3 of the criminal law.Employment prohibition shall apply to probation.Where a criminal who has been sentenced to suspension of sentence is also prohibited from employment,the period of suspension shall be counted from the date of expiration of the probation period of suspension of sentence.Correct understanding of the "from its provisions" clause:"From its provisions" shall be understood to mean that if the people’s court deems it necessary to apply the prohibition of employment according to the provisions of paragraph 1 of article 37 of the criminal law,and if there are other prohibitions or restrictive provisions in other laws or administrative regulations,it shall,in compliance with the relevant provisions of other laws or administrative regulations,declare the period of prohibition of employment.The fifth part reviews the problems and theories,and condenses the applicable rules. |
