A Study On The Qualification Penalty Of Prohibition Of Employment

Prohibition of employment is stipulated in Article 37(1)of the Criminal Law as a new content of the Criminal Law Amendment(IX),which is a highlight and progress of the amendment of the Criminal Law in China.The main content is to prohibit the actor from engaging in related professions,The application of the system has the characteristics of flexibility,lightness,economy,non-materiality,complementarity and compulsory execution.From ban system played an important role for prevention to crime,but also accompanied by controversy since its advent,including the nature of working ban that is has become a focus of controversy in the main non punishment punishment,saying,and security punishment and qualification punishment three main theory,based on the understanding from banning the nature of the various theories on the basis of,It is considered that the practice ban should belong to a qualification penalty.Through the introduction of the legislative status quo of the system of prohibition of employment,this paper analyzes the problems such as the unclear nature,the confusion of the applicable consequences,the contradiction with the penalty system and the vague scope of application.In five aspects,this article demonstrates the practitioner to ban into the necessity of qualification penalty: prohibition of employment is consistent with the characteristics of qualification penalty,working with the function and purpose of qualification penalty corresponds,to legalize is criminal penalty content requirements,can be in a certain extent,to avoid excess "punishment",is beneficial to improve and enrich the qualifications punishment system of our country.After making it clear that the prohibition of employment should be included in the qualification penalty,the system should be reconstructed in the criminal law to solve the problems existing in the current prohibition of employment system,including: adding 34(4)the prohibition of employment in the criminal law to clarify the status of the supplementary punishment;Reorientation and design of the position and content of the articles prohibited from practicing;Integrate and expand the provisions on the revocation of suspended sentence and parole and their treatment;A supporting judicial interpretation will be issued to clarify the scope of prohibition of employment.