Legal Analysis on the Nature and Function of Prohibited Crimes
According to the provisions of the first and third paragraphs of Article 37- 1 of the Criminal Law, the prohibition of criminal acts means that the people's court, according to the circumstances of the crime and the need to prevent recidivism, sentences people who use their professional convenience to commit crimes or perform specific obligations that violate professional requirements. If other laws and administrative regulations do not prohibit or restrict him from engaging in related occupations, he shall be prohibited from engaging in related occupations for three to five years from the date of completion of punishment or parole. By prohibiting ex-prisoners or parolees from engaging in occupations related to criminal record, the system isolates the mechanism influence of related occupations on recidivism, such as encouragement, convenience and specific obligations, fills the loopholes in prevention and management, and effectively prevents recidivism. Its significance is embodied in three aspects: functional isolation, prevention and reinforcement.
1. Isolation function
The first paragraph of Article 37- 1 of the Criminal Law stipulates that "it is forbidden to engage in related occupations within three to five years from the date of completion of punishment or parole", which indicates that it is forbidden to physically isolate specific objects from related occupations in criminal practice, and the isolation function is the most basic and direct function prohibited in criminal practice. If a person who has been sentenced for committing a crime by taking advantage of professional convenience or specific obligations required by his profession is still at risk of recidivism after being released from prison or released on parole, it will take three to five years to isolate and block the risk of recidivism caused by related occupations.
2. Preventive function
Article 37- 1 of the Criminal Law stipulates that the people's court needs to prevent recidivism according to the criminal situation, which shows that the fundamental purpose of establishing the criminal practice prohibition system is to prevent recidivism. Through practice, the system prohibits isolation and blocks the specific connection between specific criminals returning to society and related occupations, strengthens the effectiveness of prevention and governance, and achieves the purpose of preventing recidivism. Obviously, we must follow the principle of proportionality, that is, there is no other lighter means to eliminate the danger of recidivism, and there is no need to declare a ban on criminal acts to prevent recidivism.
3. Strengthen the function
Paragraph 3 of Article 37- 1 of the Criminal Law stipulates that "if other laws and administrative regulations prohibit or restrict them from engaging in related occupations, those provisions shall prevail", which shows that the prohibition of criminal acts has the function of filling the vacancies prohibited by other laws and administrative regulations, thus realizing the full coverage of prohibited occupations; As a non-penalty preventive measure, the prohibition of criminal acts is applicable to the execution of the principal penalty, and its function is to strengthen the execution effect of the penalty, so it has the function of supplementing the insufficient execution effect of the penalty; When the prohibition of criminal acts is consistent with other laws and administrative regulations prohibiting or restricting them from engaging in related occupations, they can declare that they are prohibited from practicing, so as to realize the focus of preventive measures.
Secondly, the discussion on the applicable conditions of the prohibition of criminal acts in the practical circle.
Prohibiting criminal practice needs to uphold the concept of two-way protection, accurately investigate the legal relationship between the former crime and related occupations, the collateral effect of punishment and the influence of the reproduction (reproduction) of the legal relationship of related occupations on recidivism, adhere to the applicable principle that not declaring prohibition of practice is not enough to prevent recidivism (it is really necessary), and effectively achieve a high degree of unity between preventing recidivism and equally protecting employment rights.
1. The internal relationship between crime and related occupations
It is the key to accurately apply the prohibition of criminal behavior to accurately investigate the legal relationship between the former crime and related occupations, the influence of the internal relationship between related occupations and crimes on recidivism and the necessity of preventing recidivism.
Legal connection between crime and related occupations. First, there should be a legal relationship between the crime of "taking advantage of professional convenience" or the crime of "violating specific obligations of professional requirements" and related occupations, that is, the concrete manifestation of the internal relationship between the perpetrator's criminal behavior and his occupation. The second is the standard "occupation" elements. The prohibited occupation should be limited to the occupation categories specified by the state, and the occupation that the perpetrator engaged in when committing a crime should be regarded as the statutory occupation category as the premise for the application of the prohibited criminal behavior, and the restriction on "related occupation" should be interpreted as "corresponding occupation" or "original occupation".
The influence of the internal relationship between related occupations and crimes on recidivists. It is forbidden to commit a criminal act after the execution of the penalty or parole. It is a kind of social defense behavior to prevent the perpetrator from committing criminal acts that violate legal obligations in a short period of time by taking advantage of professional convenience after returning to society. The "need" to prevent recidivism should focus on the influence of the internal relationship between related occupations and crimes on recidivism. We should take the concrete expression of the internal relationship between the situation before, during and after the crime and the actor's occupation and the influence of the specific expression on recidivism as the main basis for applying the prohibition of employment, that is, what kind of professional convenience the actor uses to commit crimes, the specific way of using it, the mechanism and effect of professional convenience on crimes, the specific content and degree of specific obligations that violate professional requirements, the relationship between specific obligations and crimes, and how violations of specific obligations affect crimes. Whether it can be copied. In the evaluation and prediction of penalty execution effect, we should not only consider the personal danger of the actor and the reduction of the personal danger of the criminal by the penalty, but also consider the incidental consequences of the penalty. If the incidental consequences of punishment actually play an objective role in preventing the recurrence of crimes, there is no need to prohibit criminal acts. If a state functionary is sentenced to life imprisonment for intentional crime, he will not be able to obtain his identity again or commit it again; Teachers will not be qualified as teachers because of intentional crimes, and will be banned from practicing for life, so there is no need to apply the prohibition of criminal acts, which reflects the application and exclusion of the collateral effect of punishment to the prohibition of criminal acts.
As a useful supplement and emphasis of non-penalty measures, there is no "penalty shortage" that needs to be made up. For accidental crimes with low correlation between professional behavior and criminal behavior, as well as first-time offenders, occasional offenders and juvenile crimes with little subjective malignancy and little personal danger, considering that the penalty execution of the perpetrator is enough to eliminate the risk of recidivism, there is naturally no "necessity to prevent recidivism" and no need to apply the prohibition of criminal behavior.
2. Explain the relationship between the prohibition of criminal acts and other prohibitions.
According to the provisions of other laws and administrative regulations, the prohibition of employment can be roughly divided into three categories: first, it is forbidden to hold certain public offices, and certain public offices such as civil servants, police, judges and prosecutors are prohibited from holding criminal punishment. For example, Article 24 of the Civil Service Law stipulates that a person who has been criminally punished for a crime cannot serve as a civil servant. Second, it is forbidden to engage in specific occupations. Notaries, teachers, lawyers and other specific occupations prohibit or restrict people who have been criminally punished. For example, Article 14 of the Teachers' Law stipulates: "Those who have been deprived of political rights or have received criminal punishment of more than fixed-term imprisonment for intentional crimes cannot obtain the qualification of teachers, and those who have already obtained the qualification of teachers will lose their qualification." Third, it is forbidden to engage in specific activities. For example, Article 101 of the Road Traffic Safety Law stipulates: "If a major traffic accident occurs in violation of the provisions of road traffic safety laws and regulations, which constitutes a crime, criminal responsibility shall be investigated according to law, and the traffic administrative department of the public security organ shall revoke the motor vehicle driving license. If you escape after a traffic accident, the traffic administrative department of the public security organ shall revoke the motor vehicle driver's license and shall not re-obtain the motor vehicle driver's license for life. " Therefore, only when other laws and administrative regulations do not prohibit practicing, can the prohibition of criminal acts be applied, but it is necessary to apply it. If other laws and administrative regulations have stipulated that employment is prohibited for life, for example, the Teachers Law restricts the employment of those who intentionally commit crimes or prohibits the qualifications of teachers, and the incidental effect of punishment effectively isolates the danger of committing crimes again and related occupations, then applying the prohibition of criminal employment to specific criminals is redundant and repetitive punishment, which violates the principle of proportionality and is not conducive to maintaining the unity of the legal system, and application is misuse. Therefore, the prohibition of criminal acts can and can only be supplemented and emphasized according to law.
To sum up, the prohibition of criminal acts must adhere to the concept of two-way protection, take the prevention of recidivism as the purpose, take the specific expression of the internal relationship between crime and related occupations as the statutory applicable conditions, take the integrity of the legal system as the basic basis for judging legality, accurately grasp Article 37 of the Criminal Law, accurately judge the applicable conditions, and achieve a high degree of unity between preventing recidivism and equally protecting the right to employment.