On The Constitutional Limits Of The Application Of The Prohibition On Criminal Law Practice

One of the "criminal law" article 37 of paragraphs 1 and 2 in our criminal law prohibited provisions of the basic terms of practitioners.As a new provision in the Amendment(IX)to the Criminal Law of China,the provision of prohibition of practicing is a supplement to the existing penalty measures in China,which can prevent the perpetrator from endangering public safety or other public benefits if he continues to engage in the profession.However,as a newly established system,the specific implementation of the provisions are not clear,unclear problems,in the implementation of the way,the implementation of the content is still controversial,so in the judicial practice,China's courts at all levels are less directly applied,these need to continue to in-depth discussion and research.First of all,the legislative sources such as the relevant normative legal documents of China's prohibition of employment are systematically reviewed.In order to prevent the practitioners of a certain occupation from continuing to abuse their professional power or take advantage of their position to carry out illegal and criminal acts and cause social harm,they are prohibited from engaging in the industry or professional activities.Based on the assessment of the personal danger,he was subjected to restriction for a certain period of time or even lifetime deprivation.Prohibition of employment can be applied if one of the conditions of "committing a crime by taking advantage of an occupation" or "committing a crime contrary to a specific duty required by an occupation" is met.By comparing and studying the specific contents and legislative patterns of the relevant legislative norms of the prohibition of employment in different countries and regions,the representative views on the legal nature of the prohibition of employment include the theory of penalty,the theory of non-penalty punishment measures,the theory of security punishment and the theory of penalty everywhere.The prohibition of employment in the criminal law of our country is a nominally non-criminal punishment measure,but a security punishment in essence.Secondly,the labor right is one of the basic rights of Chinese citizens,and the prohibition of criminal law restricts the right of free choice of employment and freedom of occupation in the labor right,which infringes the freedom of labor right protected by the Constitution of China.In China,the labor right is not only the basic right of citizens,but also one of the obligations of citizens.That is to say,the labor right protected by the Constitution of China is not only the right of freedom,but also contains the connotation of social rights.This provides a concrete and reasonable constitutional basis for the state to restrict this basic right,and also provides constitutional support for the citizens to request the state to fulfill the obligation to protect their basic rights.However,the application of this system should be reasonably applied within the limits of the constitution.On the one hand,it should follow the formal limit--the principle of legal reservation;on the other hand,the restriction of basic rights should use the substantial limit of the principle of proportionality and follow the requirements of the principle of proportionality.In the labor right,the most core right is the citizen's right to get a job.Restrictions on a certain right other than the right to work in the connotation of the labor right cannot constitute an infringement on the core of the citizen's labor right.The state can restrict the labor right of citizens within the limits of the principle of target,the principle of appropriateness,the principle of necessity,the principle of narrow sense of proportion.The constitution requires the country protect the fundamental rights of citizens,the state of citizens' basic rights has a positive or negative security obligations,so in addition to follow the above mentioned the constitution requires the state according to the basic rules of constitutional restrictions to limit of fundamental rights,against punishment nine 37 amendment limits on labor rights of the constitution,the author thinks that the constitution also requires countries to restrictions on their rights behavior from four aspects of constraints,in particular,for narrowed the sexual interpretation of the "related profession",formulate feasible evaluation standard,standard of personal danger in its implementation way and the content,and to establish the corresponding right recovery system,etc.,The state and relevant organs can have more detailed and clear standards to refer to when implementing the provisions on the prohibition of employment,and can conduct discretionary and disposal on the same basis for the contents with relatively professional identification requirements such as the personal danger of relevant professions and criminals.Finally,there is a close connection between the prohibition of employment in the administrative regulations and the prohibition of employment in the criminal law,and there is a huge difference in the nature,purpose,application procedure,specific enforcement organs and the legal consequences of the violation.In terms of specific application,the compatibility clause in Article 37(3)--"according to its provisions" should be analyzed on a case-by-case basis.If there are regulations on the prohibition of administrative practice in related industries,the provisions can be followed if it is highly professional,and it is not directly "according to the provisions of administrative law".The court still needs to review and announce the judgment.Must be strictly in accordance with the requirements of the principle of proportion of necessity,as well as review would be a ban on the applicable form elements and substantial elements,only the realization of the purpose of prevention must be employed to safeguard and maintain the ability when the clause,prevent the excessive expansion of scope of application,at the same time,also want to the special provisions of administrative rules and regulations to meet,and then a preliminary implementation from banned the execution of the cohesion of coordination.In conclusion,through to the practitioner to ban system to enrich the perfect legal system construction in our country,in order to help the reasonable working system,scientifically apply more effective play to prohibit the utility of practitioners,to avoid personal danger crime prevention legislation purpose,thus forming with characteristic of our country from ban system suitable to China's national conditions.