Research On The Professional Qualification Penalty

With the progress and development of society,professional qualifications play a more and more important role in people's daily lives,using professional facilitate the Commission of crime or the crime of violation of specific professional obligations is also endless.In order to effectively regulate this phenomenon,Amendment(IX)to the Criminal Law added "career against" non-penalty punishment measures,in addition to penalties applicable.But this is prone to a range of issues,such as prone to punishment "excessive" question and disposition of prohibited occupations is divided into jurisdiction and administrative punishment,is not conducive to criminal jurisdiction independently,and was contrary to the equitable principles of criminal liability,and so on.Therefore,in order to solve these problems,non-penal measures against occupation should be upgraded to a qualification penalty.This article includes the following five parts:The first chapter is an overview of professional qualification penalty.As one of the qualification penalty,studying on the concept of professional qualification penalty mustl clarify the qualification penaltyfirst,and derived concepts and features specific to professional qualification penalty.professional qualification penalty refers to the use of professional facilitate the Commission of crime or the natural or legal persons against occupational crime requires a specific obligation,deprivation or restriction of the corresponding provisions under the Criminal laws by the Court within a certain period or permanently engaged in some kind of vocational qualification penalty.It has targeted,better prevention and the implementation of convenient features.Current judicial practice in China,there are many legal measures of professional qualification penalty similar,such as security measures,injunction of public surveillance and suspension,administrative penalties,as well as accompanying consequences of punishment,and so on,but professional qualification penalty and there are still many differences between these measures.The second chapter is a set of professional qualification penaltyfoundation.Firstly,professional qualification penalty set theory based analysis,professional qualification penalty as the basis for the legitimacy of the sentence from the retributive theory and punishment theory of the purpose to find.So-called retribution penalty theory that because has crime so only will has penalty,on career qualification penalty,,because criminals using career convenience implementation crime or implementation against career specific obligations requirements of crime,so only on its applies career qualification penalty;so-called purpose penalty theory that to no crime and impose financial penalty,if criminals penalty implementation finished zhihou still has again using career convenience implementation crime of possibilities,so on its should applies career qualification penalty to prevention crime.Then proceed from the reality of occupational qualifications sets of analyses,additional professional qualifications in the Chinese criminal law is not only the mitigation of punishment trends and the expansion of non-custodial penalty situation,but also on China's implementation of the balance policy of the strict and mild.The thirdchapter introduces provisions on occupational ban in civil law countries.Such as Germany,France,Russia,Italy and other countries are clearly set out in the Criminal Laws prohibition on professional qualification penalty applies,such as Germany qualified criminal rehabilitation systems,France unit vocational qualifications applicable to crime punishment,Russia relating to professional qualifications,the application deadlines,and Italy the discretionary application of relevant vocational qualifications are worth our reference.The fourth chapter is restrictions or prohibition of review of the laws,such as Amendment(IX)to the Criminal Law added "career against" non-penalty punishment and administrative laws and regulations on the deprivation or restriction of certain types of employment in the "qualifications-to-be".Occupational ban as one of the non-penalty punishment measures should rise to professional qualification penalty in order to meet our country's criminal law punishment and crime prevention needs of "qualification-to-be" only transformed into professional qualification penalty can literally apply to criminals.The fifth chapter is the concrete establishment of professional qualification penalty.Established in professional qualification penalty should pay attention to in carrying out ultima ration of penalty principle,measuring principle and the principle of the punishment individualization;also resolved to set up professional qualification penalty and qualification of administrative penalty of our existing legal system both convergence credit principle and the principle of prohibition repeatable evaluations can be the basis for coexistence between them.In career qualification penalty of applies process in the to clear its applies object both including natural,also including units;its applies type has four species,that professional type career,and positions type career,and skills type career and need administrative license of business;its applies way is and mining independent applies and additional applies,and statutory applies and discretionary applies of way;its applies term is for regularly deprived(1 years above 5 years following)and lifelong deprived two species case.In criminals after transformation does has repentance,and not has again using the career implementation crime then against social of possibilities Shi,has implementation has half sentence above of criminals can by community correction institutions according to terms or criminals I according to application to made original judgment court proposed,court should composition full for trial,for meet complex right real conditions of,ruled be complex right,non-by statutory program shall not complex right.Of course if you find rehabilitation program or entity does not meet the relevant provisions of the Chinese criminal law,or criminals after rehabilitation implement intentional crimes or other serious violations,the courts may declare withdrawal of rehabilitation.