Research Of "Comply With Its Provisions" Clause In The Occupation Prohibition

China adopts a dualistic legislative model for the occupational prohibition system,namely,the "criminal law provisions + other legal provisions" model.In order to distinguish the two systems,the author refers to the former as the "criminal occupation prohibition system" and the latter as the "administrative occupation prohibition system".Because there are many differences in the two occupational prohibition systems and they overlap with each other,legislators try to coordinate the relationship between them by "comply with its provisions".However,there are lots of controversies in the theoretical circle about how to coordinate the relationship between the two systems.There are also different practices in judicial practice.This article analyzes the clause of"comply with its provisions" to explore how to coordinate the two professional prohibition systems.This article is divided into three parts:The first chapter of this paper is an overview of the legislative status quo of the occupation prohibition system.Through the analysis and summary of the legislative status quo of the two major occupational prohibition systems,particularly,combing numbers of rules of the administrative occupation prohibition system in a form,the different characteristics of the two occupational prohibition systems are clearly defined.The two major occupational prohibition systems differ greatly in terms of applicable preconditions,the specific content of occupational prohibitions,the applicable procedures,and the penalties for violations.This is precisely the problem of applying the "comply with its provisions"clause and coordinating the two major professional prohibition systems.The second chapter of this article is an analysis of the current processing model of the "comply with its provisions" clause.The problem in judicial practice is that the judge doesn’t "comply with its provisions"to declare the criminal prohibition.The first is that when the judges should declare occupational prohibition by use "comply with its provisions" clause,there is no announcement.The second is that the judges declare occupational prohibition,they don’t "comply with its provisions" in terms of start time,prohibition period,and the content of prohibition.The theoretical controversy over the "comply with its provisions" clause is manifested in two aspects:First,in the scope of"comply with its provisions",some scholars believe that the preconditions and prohibited contents of the criminal professional prohibition system should "comply with its provisions",while some other scholars believe that the preconditions shouldn’t "comply with its provisions".Second,scholars also have different views on the validity of the "comply with its provisions" clause.There are many problems with the current model of dealing with "comply with its provisions" clauses.For example,the scope of the punishment is too wide,and the legal norms are misplaced.The third chapter is to discuss the way of application of the "comply with its provisions" clause.Based on the value position of promoting the institutionalization of the two major occupational prohibition systems,the"comply with its provisions" clause should be applied as follows:First,the preconditions for the criminal occupation prohibition system shouldn’t "comply with its provisions".The three preconditions must be observed,that is the occupational relevance,penalty punishment,and necessity of crime prevention.Second,if other laws or administrative regulations have special provisions on crime conditions and penalties,they shall "comply with its provisions".Third,the contents of the criminal occupation prohibition should "comply with its provisions." It should be emphasized that the scope of occupational prohibition should"comply with its provisions",but does not mean that only "its provisions"can be used.It is also possible to increase the content of occupational prohibition based on the needs of crime prevention.When there are conflicts in the range of occupational prohibition jurisdiction between the court and the administrative organization,it can be solved according to different circumstances,but the court cannot renounce the power of declaring the criminal occupational prohibition.