Occupational Prohibition Of Judicial Application

The new provisions on occupational prohibitions in Article 37 of the Criminal Law Amendments fill the gaps in our criminal legislation on the use of the crime of professional convenience,which shows the importance of our country’s interest in the use of professional or professional activities.,Significant.But the legal nature of the prohibition of the legal profession has been a lot of controversy,and its applicable standards,the application and application procedures are not clear,deprived of the duration of employment,the parties to the rights protection also need further regulation and refinement,otherwise Which is not conducive to the system in the judicial practice to give full play to its legal effect.The study and regulations of the prohibition of occupation abroad are earlier than that of our country.The criminal law of the German criminal law,the Italian criminal law and the criminal law of the Republic of the Russian Federation stipulates that the criminal law of Germany,Portugal and other countries shall be stipulated as security sanctions.China’s study of the prohibition of occupation started late,did not make a clear and systematic provision for this system,but mainly scattered in some administrative regulations,mainly including two categories: the first category is prohibited as a public official.For example,article 26 of the People’s Police Act,article 9 of the Judges Act,and article 10 of the Prosecutor’s Law stipulate that the perpetrators of criminal offenses have been disqualified from being members of the People’s Police,prosecutors and judges.The second category is prohibited from engaging in specific professional activities.For example,Article 14 of the "Teacher Law" stipulates that the deprivation of political rights and the perpetrators of life are prohibited.Article 9 of the Lawyers Act provides for the prohibition of entry into the solicitor profession by criminals other than negligent offenses.In this paper,through the comparison of security sanctions and penalties,the two differences are the following: First,the legal attributes are different,security measures are administrative law on the prevention and sanctions,and the penalty is the legal consequences of criminal law,the former belongs to administrative sanctions,The latter is the judicial punishment;second,the two basis is different,although the penalty and security sanctions are based on the existence of criminal acts as a prerequisite,the penalty is based on the responsibility,and security is the perpetrator of the risk of committing the crime According to the law of the Criminal Law of the General Administration of the Criminal Law,Yang Meng translation,Law Press,2006 edition,p.19.] Third,the purpose of the two different.The main purpose of the punishment is to prevent the occurrence of the crime,that is,to prevent the occurrence of the crime.It is mainly an individual prevention.It is a kind of active prevention of the danger of eliminating the personal risk of the criminal.The main purpose of the penalty is special prevention and general prevention.Impose a penalty to make it feel painful,to dispel the idea of crime,while preventing others from committing crimes.From the following aspects of the prohibition of professional prohibition should be a security punishment rather than punishment: from the content of the law point of view,the prohibition of the perpetrators of the crime and the risk of further crimes based on the logic of the provisions of the law,From the date of the offender "pawn date" began to implement,parole that no more dangerous,without the need for punishment,but there is a need to prohibit the occupation to prevent the need for security;from its purpose,the prohibition of the starting point Is to help the perpetrator to eliminate the risk of re-crime through the mandatory professional restrictions,the nature of which is a kind of improvement of punishment;from the professional prohibition of the application point of view,after the implementation of the penalty began to implement,that it does not belong to our system of punishment,so the occupational prohibition should be a security offense.And to explore the necessity and feasibility of adding the security system in the penalty system of our country.Occupational prohibition should be noted in the application with the penalty and injunction,non-penalty punishment measures to distinguish.The application of the provisions should be further clarified,in which the definition of "occupation",the object of professional prohibition,the "crime situation" and "prevention of further crimes" considerations should be clear.The definition of "occupation" includes the following: the profession should be clear and specific,different from the position(so the public officer should be excluded),with sensitivity,the specific type of occupational crime rate is higher,Occupational facilitation of the implementation of the relevant crime should be their occupation or industry is extremely dangerous.The object of professional prohibition may be the general citizen of our country,or it may be a foreigner or a stateless person,but must have the following two conditions: First,the perpetrator must use the occupation,the business or the use of his own special skills to commit the crime;Second,the perpetrator must objectively carry out the use of occupation,business or special skills to commit the crime,this behavior must be with the harm between the results of a direct causal relationship.The criteria for "crime situation" and "prevention of further crimes" are clear that the circumstances of the crime are from the circumstances of the crime itself,the performance of the offender in relation to the crime before and after the crime,the personal circumstances of the offender,and the effect of the penalty Five aspects of comprehensive consideration.Prevention of recidivism should not only be the prevention of an individual committing a crime or a crime in a particular chapter.The preconditions for the prohibition of professional prohibition should include control,criminal detention and life imprisonment,excluding life imprisonment,death penalty and additional penalty.The delineation of the "occupation" of the prohibition of conduct should ensure that the perpetrator’s survival and development after reintegration is in harmony with the risk of the offender’s recidivism.On the duration of the legislation should be more than a few intervals to deal with different industries of crime,but also through the introduction of the relevant judicial interpretation of the occupation of the prohibition of the plot and discretion to refine the provisions of the provisions of the Supreme Court can also be issued to guide the case provided for the court Case for reference."Where other laws and administrative regulations are otherwise prohibited or restricted by a relevant occupation," it means that when other laws have a lower threshold for professional prohibition,longer term and more stringent requirements,Occupational prohibition of this security measure,but also to comply with other non-criminal laws of the additional requirements.The prohibition of the implementation of the criminals shall be declared by the people’s court in accordance with the procedure prescribed in the Criminal Procedure Law and shall be declared with the criminal judgment.At the same time,the right of appeal may be imposed by the establishment of the dangerous review system of the offender,the suspension of execution and elimination of the prohibition Right to protect the parties to the relief.Finally,to ensure the smooth implementation of occupational prohibition,can be improved from the following aspects: a clear community correction agencies as a professional prohibition of the implementation of the main body,improve the implementation of the system and related measures,give full play to the executive authorities in the "occupation prohibition".