Research On The Application Of Occupational Prohibitions In Criminal Law

As a new punishment system,the occupational prohibition system is newly added in the Amendment(IX)of Criminal Law,which reflects the response of the criminal law legislators to the social development trend.The application of this system in judicial practice is also increasing day by day.Reasonable use of the occupational prohibition system can not only reduce the probability of criminals recommitting crimes,but also help to maintain social stability.However,scholars are still in dispute about the definition of the nature of the occupational prohibition system,and the boundary between the system and relevant systems is still fuzzy.In judicial application,there are also different applicable standards for the specific application of the system.In order to further clarify the nature and relevant connotations of the system,and put forward my own opinions and suggestions on the incomplete parts,this paper will discuss related issues of occupational prohibition from the following four parts.The first part is the introduction.Through the literature data and other methods,this paper briefly summarizes the legislative background of the occupational prohibition system,summarizes the controversies existing in the application of the system at the present stage,summarizes several mainstream viewpoints in the current academic circle,and sorts out the basic information of the system and the current research status.The second part is an overview of the professional prohibition system of criminal law.Starting from the characteristics of the occupational prohibition system with its attachment,selectivity and complementarity,this paper makes a more accurate positioning on the nature of the occupational prohibition system by analyzing the three mainstream viewpoints of the theory circle at the present stage,namely,the theory of qualification punishment,the theory of security punishment and the theory of non-criminal punishment measures.From the analysis of the legislator’s legislative purpose and the principle of legal punishment for a crime,we can find the existence of loopholes in the qualification punishment theory.From the criminal sanction system of our country and the embodiment of punitive elements,it can be concluded that the definition of security punishment is not appropriate.After the analysis and demonstration from the Angle of legislation setting,it can be found that it is the most reasonable to define the system as a non-penalty punishment measure.In addition,this chapter also compares and distinguishes the occupational prohibition system with the injunction and the occupational prohibition in the administrative law,which provides the theoretical basis for the practical application of the system in the judicial system.The third part is about the problems of occupational prohibition in judicial application.From the aspect of the subject of application,the author points out that unit crime has not been included in the scope of regulation,the definition of "occupation" is not specific enough,and the identification standard of occupational correlation is not clear.From the point of view of penalty application,there are some problems such as unclear types of penalty applied by the occupational prohibition system and unreasonable scope of punishment in judicial practice.In the case of the lack of gradient of the current penalty period,there are still some problems such as too narrow range of judge’s discretion and too high starting point.In terms of the execution procedure,there is no specific execution organ and execution mode of the occupational prohibition system in the current law.Moreover,in the third paragraph of Article 37 of Amendment(IX)of the Criminal Law,there are also great differences in the understanding and application of "from its provisions" by different judges in specific judicial practice.When the offender needs to bear the corresponding legal consequences for evading the punishment of occupational prohibition,it is not clear what kind of law should be used to punish the offender for the general violation,and the law also lacks the specific judgment standard for "serious circumstances".Finally,the lack of supervision and relief procedures may cause the system to be null and void and the legal rights of the parties to be violated,so it is necessary to establish a matching supervision and relief measures.The fourth part is the suggestions to improve the above problems.The large number and great influence of unit crimes make it necessary to bring unit into the category of occupational prohibition.In addition to the occupation in the general sense,the definition of "occupation" also needs to take into account the specific occupation and part-time occupation and other special occupation,and the identification of relevant occupation correlation should be more flexible.After clarifying the penalty scope applicable to the occupational prohibition system,this paper also puts forward some suggestions to reasonably define the penalty scope.As for the problem of penalty time limit,this paper thinks that at present,it can be applied by the judge according to the specific situation through the free discretion of the professional prohibition in criminal law and the professional prohibition in administrative law.Through the comparison of the public security department and the community correction mechanism,found the aboriginality and flexibility of the latter is more suitable for implementation of the system,and puts forward to establish information disclosure on the basis of the mechanism and Regular reporting system,in the people’s procuratorate’s supervision and information disclosure system cooperate with the cooperation of grid management mechanism,realize the professional personnel supervision and punishment is prohibited.Finally,from the point of view of the protection and relief of rights,it is necessary to keep the basic rights of appeal and appeal of the parties and to protect their corresponding relief rights.