Research On Restricting Employment In China’s Administrative Punishment Law

The newly revised Administrative Punishment Law of the People’s Republic of China has been implemented since July 15,2021.The new law clarifies the concept of administrative punishment,and also explicitly stipulates the restriction of employment among the categories of administrative punishment in Article 9.Restricting employment will affect citizens’ exercise of employment rights,which is closely related to every citizen.Correctly understanding the restriction of employment is very important to standardize the application of this punishment and protect the legitimate rights and interests of citizens.This thesis discusses the interpretation and application of restricted employment by means of comparative analysis and normative analysis.Restricting employment not only has the six elements of traditional theoretical judgment,but also meets the functional consideration standard.By restricting the relative person’s right to choose a job freely,the purpose of impairing rights and interests,that is,increasing obligations,is achieved.Therefore,restricting employment belongs to the system of administrative punishment and has the nature of administrative punishment.In terms of attributes,the author thinks that the restriction of employment is more inclined to prevention,and the understanding of preventive restriction of employment is more in line with the spirit of the rule of law and conducive to the realization of administrative objectives.At present,there are still some problems in the application of restricted employment.Firstly,for the lack of uniform applicable standards,it is clear that the main elements of restricting employment are limited to the state administrative organs,so as to avoid the phenomenon that some organizations or associations that are not authorized to impose administrative penalties infringe on the rights and interests of the counterpart.Subjectively,there is no need to prove the subjective fault of the offender,and the principle of no-fault liability is adopted.In the scope of application,the regulation of industry qualifications is conducive to the healthy development of the industry,and the scope of restrictions on employment should be relaxed to a certain extent.For some industries with great social influence,they should be appropriately included in the scope of restrictions on employment punishment;however,for some illegal acts,whether to apply restrictions on employment should be carefully decided to avoid excessive infringement of individual rights by state power.The object of application should be clear that both individuals and units can be regulated by restricting employment.When applying the punishment of restricting employment to units,we should strictly follow the three principles of appropriateness,necessity and pertinence,and pay special attention to the principles that should be followed in the application process to avoid unnecessary and excessive infringement on the legitimate rights and interests of the counterpart.Secondly,for the unreasonable time limit,the subject of life-long prohibition can be limited to the fact that this situation can only be stipulated by the law,and it is forbidden to set life-long restrictions on the relative person by laws and regulations other than the law,so as to guard against the abuse of life-long restriction punishment and consider the unity of necessity and proportionality.Once again,for the problem of imperfect relevant regulations,it can be stipulated in four aspects: perfecting the hearing procedure in restricted employment,clarifying the disciplinary measures for violating the punishment of restricted employment,improving the relief mechanism and improving the relief channels.Finally,for the problem of poor connection with relevant systems,we can analyze the intersection of the prohibition of criminal practice and the punishment of dishonesty,and analyze the differences and similarities between the restriction of practice and the two,so as to better straighten out the connection and application of the prohibition of practice and the punishment of dishonesty.When applying restricted employment,we should still pay attention to the application conditions,procedures and principles.Hearing procedure is the embodiment of the principle of due process,which is conducive to supervising administrative organs and correctly exercising administrative power.Whether the procedure is perfect or not is related to whether substantive justice can be realized.When exercising the power of administrative punishment,we should follow certain legal principles,such as the principle of legal reservation and the principle of combining punishment with education.Taking the restriction of employment as the breakthrough point,this paper distinguishes the administrative restriction of employment from the prohibition of criminal employment,and improves the corresponding solutions such as the connection and application of administrative restriction of employment and the prohibition of criminal employment.Although the restriction of employment is widely used in the regulatory measures of various industries,it should still be applied cautiously based on the nature of its impairment of rights and interests,not only considering the disciplinary effect,but also not ignoring the educational significance of punishment and the prevention of illegal behavior of the relative person.Only by applying restrictions on employment in accordance with the law,making the severity and punishment moderate,can we give full play to its role in maintaining social order.