On Occupational Prohibition In Criminal Law

China has long been influenced by the "severe punishment" thinking.In the penalty structure.the prison sentence is mainly used.However,the prisoner's penalty is high on the cost of reforming the offender.The recidivism rate after the reform is still there.In addition,the essence of imprisonment is deprivation.Human freedom is also inconsistent with the humanitarian spirit and therefore exposes more and more drawbacks.With the continuous progress and development of social civilization,more and more attention is paid to the protection of human rights.Penalty is the most severe punishment.Its value connotation should be based on the protection of the rights and interests of criminals.Therefore,the mitigation of punishment is inevitable,trend.China's criminal policy is based on the principle of tempering justice with strictness,constantly adjusting the penal structure,and paying more attention to the beneficial exploration of other measures besides penalties.In the judicial practice,the number of crimes committed through professional convenience is increasing.For the prevention of crimes and the protection of public safety and the public interest,China's Criminal Law Amendment(IX)for the first time incorporates occupational prohibition into China's criminal law system.At the same time,it also marks the official establishment of the occupational prohibition system in China.Occupational prohibition refers to the act of the actor who uses the professional convenience or the specific obligation to violate the professional requirements to commit a criminal act.The people's court may make a decision prohibiting him from engaging in the relevant occupation within a certain period of time.Through this arrangement,on the one hand,it is conducive to the purpose of defending the society and preventing duty crimes;on the other hand,it is also the enrichment and development of the criminal law sanctions model in China,and promotes the reform and innovation of the criminal justice system.However,as a new measure and regulation,due to the lack of corresponding judicial interpretation and trial experience,the theoretical and judicial practice circles have not yet been finalized on how to define,how to understand and apply,so the system of occupational prohibition is systematic.Research is extremely important and its value.This paper consists of three parts:The first part is the discussion of the relevant legislative background of occupational prohibition,mainly from the trend and requirements of the mitigation of punishment,the practical need of judicial practice for the prevention of occupational crime,and the impact of the establishment of the "professional prohibition" system on China.The second part is a comparative study on the legal nature of occupational prohibition.Now there are three main viewpoints on the nature of the judgment:the qualification penalty.the non-penalty measure and the security punishment,the overall conclusion is not conclusive.After comparison,we can understand that the characteristics of occupational prohibition and non-penalty measures are not consistent,but compared with security measures,the two analyze the relationship between the applicable purpose,the applicable conditions and the relationship between each other and the penalty.Close,so the nature of the occupational prohibition should be understood as a substantial security measure.In addition,in order to better use the occupational prohibition system in the judicial process,compare it with the prohibition order,and focus on grasping the difference between the two.The third part analyzes the problems existing in the current occupational prohibition of judicial application and proposes solutions to the problems based on the nature of the occupational prohibition.It mainly analyzes the principle of application of occupational prohibition,applicable conditions,applicable procedures,and the legal consequences of violation of occupational prohibition,as well as strict control of the content of "from its provisions" when the criminal law prohibits competition with other laws and regulations.