| Focused on employment prohibition,this study is aimed to further determinate the existing disputes about employment prohibition through in-depth analysis and discussion and put forward corresponding improvement suggestions regarding judicial application of employment prohibition after meticulous thinking based on the realities.In this study,the author elaborates the punishment based on basic theory of employment prohibition and defines entry point according to basic concept of employment prohibition;concludes features of employment prohibition under the premise of clear basic concept,analyzes criminal law value of the system systematically and points out that the establishment of employment prohibition is in favor of realizing special prevention,general prevention and legal interest protection against professional crime.The study lays emphasis on discussing the nature of criminal law of employment prohibition.Three views are prevailing with regard to the dispute about employment prohibition nature: punishment against competence,non-penalty punishment measure and security measure.The analysis on employment prohibition nature is the premise and basis of judicial application.In this study,the author believes after comparing the different theories that employment prohibition is nearer to security measure in terms of its applicable purpose and condition and the relationship with criminal penalty,and that it,in essence,should be security measure rather than punishment against competence or non-penalty punishment measure.In this study,applicable condition of employment prohibition is elaborated from three dimensions: object condition,material condition and punishment condition.Based on the normative interpretation of criminal legislation,this part explains legislative stipulation of employment prohibition.This study mainly analyzes the main problems of current employment prohibition in Chinese judicial application and carries out empirical analysis according to part of criminal trial cases and data.First,employment prohibition is very easily confused with injunction in practice and judicial application has identification deviation.Second,in judicial practice,the case against the doctrine of observing old laws and new ones in retroactivity of criminal law is not uncommon.Third,judicial application scope of employment prohibition is too narrow and usually centralized on several accusations,which,furthermore,restrains function of employment prohibition.Fourth,application procedure of employment prohibition is vague and lacking of definite provisions.The author also brings forth corresponding improvement suggestions oriented to the existing problems of employment prohibition in judicial practice and suitability.First,distinguish employment and injunction strictly.Second,formulate more flexible application period of employment prohibition and improve decision mechanism further.Third,expand application scope of employment prohibition.Fourth,improve application procedure. |
