禁止从事职业处罚措施升格为资格刑的根据

Occupation Upgrading to the Qualification Penalty

长期以来,对利用职业便利或违背职业要求的特定义务实施犯罪的刑事责任的追究问题,我国刑法未予以明确规定,往往由行政机关来作出。《刑法修正案(九)草案》赋予了人民法院可以禁止犯罪行为人一定期限从事职业的自由裁量权,扩展了刑事责任的内容。但由于该修正案仅将禁止从事职业规定为非刑罚处置措施,附加于刑罚之后适用,容易产生处罚"过剩"的问题,而且对禁止从事职业的处置权分设为司法裁判权和行政处罚权,不仅不利于刑事司法权的独立适用,而且有悖于刑事责任追究的公平原则。因此,为解决这些问题,应当将禁止从事职业的非刑罚处置措施升格为一种资格刑。

For a long time,the criminal law has not been clearly defined the problem holding the criminally responsible to the offender for using the occupation facilitate or violating the requirements of specific professional obligations. Prohibition or restriction of the occupation or qualification to offender is often made by the executive. Criminal Law Amendment（ 9） of the Draft has given the courts some jurisdiction to prohibit the offenders a certain period of occupation. It has expanded the content of criminal responsibility. However,the punishment of prohibiting the occupation only serves as a non- punitive measure and is attached to penalties applicable. So it is inevitable to produce the phenomenon of ＂excessive punishment＂. In addition,the punishment of the prohibit occupation is divided into jurisdiction for judicial and administrative punishment. It is not conducive to the criminal jurisdiction of independence applicable,contrary to the realization of criminal liability of fairness. Therefore,it is necessary to change the non-punitive measures of the prohibiting occupation into the qualification penalty.