On Occupation Prohibition In Criminal Law

The Ninth Amendment to Criminal Law set up Occupation Prohibited Provision which enlarged the scope of non-imprionsonment and benefit benefited the majorization of the structure of penalty in our country.The Ninth Amendment to Criminal Law stipulates the applicable organ,applicable objects,applicable conditions,applicable term,the legal consequences of the violation of the provision and the coordination between the professional prohibited provisions and the related provisions stipulated in other laws or administrative laws and regulations.However,this new provision is not specific enough,the defects contain that the nature of Occupation Prohibited Provision is not explicit,the applicable conditions are not concrete enough and the applicable procedures are not set up.The views about the nature include qualification penalty、non-penalty measure and security measure,the author of this essay supports the last one.The nature of this provision demands the applicable principles of it,they are the principle of purposiveness,the principle of necessity and the principle of proportionality.The principle of purposiveness emphasizes the relation between occupation and behavior;the application of this provision or not should be weighed between the right to work of citizens and social public interests,it should not be applied when it’s not beneficial to realize the object of preventing criminals or applying it would bring more harm than benefits.The principle of necessity shows that the applicable objects are the people who are sentenced to penalty or have conditional release;it can only be applied when people have realistic and clear possibilities of committing a further crime;when the Criminal Law and other laws or administrative laws and regulations can be applicable to one situation at the same time,if the application of latter ones can achieve the purpose of preventing subsequent crimes,that regulation should be applied directly with no thought of Occupation Prohibited Provision;the scope of it should not bring unnecessary obstacles to people who are sentenced to it;the process of execution can be postponed or stopped postponement according to the changes of the dangers of people.The principle of proportionality requests that it should be applied when the risks of committing crimes are big;and that applicable term and scope should be adapted to the necessity of preventing subsequent crimes,and that the provision should not be applicated when the application of it would do harm to the purpose or it or bring more defects than benefits.When a judge decides to applicate the provision or not,he should be guides by the three principles and based on specific regulations.