刑法“从业禁止”法条的法律性质及改革方向

Study on the Legal Nature and Reforming Direction of the Criminal Law on Employment Prohibition

"从业禁止",是对经济主体职业自由权的一种剥夺,有碍 "人的自由与尊严"这一价值的维护,但为了维护公共利益及弥补现行立法的缺陷,在刑法上增设"从业禁止"实属必要。从刑罚体系的科学化、条款的适用及避免司法实践的刑罚过剩来看,刑法修正案(九)增设的"从业禁止"性质上定性为一种资格刑,而非保安处分为宜。为了让该制度在实际中更好地发挥作用,应排除假释之日起对"从业禁止"的适用、限制或剥夺犯罪单位某种特有的资格及增设从业复业权。

It would be banned, is a kind of economic subject professional liberties denied, hazardous to human freedom and dignity ＂this value of maintenance, but in order to safeguard public interests and make up for the defect of current legislation, the criminal law on the add from ban is necessary. From scientific punishment system in judicial practice, the terms of the applicable and avoid excess punishment, criminal law amendment 9 to establish the employed banned as a kind of qualification punishment in nature, rather than a security disciplinary action is advisable. In order to make the system better play a role in practice, should be ruled out as of the date of parole on the application of the employed prohibited, restricted or deprived of some specific qualifications and add would be a crime units right to resume operation.