从业禁止刑法规定的理解与适用分析

Understanding and Application of Employment Prohibition in Criminal Law

《刑法修正案（九）》第37条之一增设的3款规定属于从业禁止刑法规定。从业禁止刑法规定具有针对性、附属性、酌定性、补充性、过渡性等特征。利用职业便利包括但不限于利用职务便利,＂职业＂之理解必须结合前置法规范进行判断,且必须是合法有效的职业。确立行为人所应履行的＂特定义务＂的法律根据必须是施行于全国范围内、具有普遍适用性的法律、行政法规和部委规章,对于地方区域性的义务设定和行业性的自律义务设定应当从严认定和把握。该规定中的＂刑罚＂不包括免予刑事处罚、非刑罚处罚措施、附加刑、宣告缓刑等情形,而应是指死刑和无期徒刑减为有期徒刑、管制、拘役,但具体宣告时间需要区别对待。其适用对象必须是自然人,不包括单位。无论独立适用主刑或者主刑与附加刑并用,＂刑罚执行完毕之日＂应当仅指主刑执行完毕之日。从业禁止规定的效力应当适用于刑罚实际上就是主刑执行期间。对本条第3款的理解应当是行政法等前置法规定优先于刑法规定适用。从业禁止刑法规定的引入,凸显现代刑法对＂（行为）人＂要素、处遇个别化的关注和重视,应当通过建立和完善针对特定人群的社会调查制度和从业禁业规定适用必要性审查机制等实体、程序方面的举措,保障从业禁止刑法规定的准确理解和妥当适用。

Article 37 of the Amendment of the Criminal Law （Ninth） added three clauses to regulate employment prohibition. These prohibition regulations have attached discretionary, supplementary and tran- sitional characteristics. The use of professional facilitation, including but not limited to the use of job con- venience, ＂ occupation＂ understanding must be combined with the pre statutory norms to determine, and must be a legitimate and effective career. The legal basis for establishing the specific obligation of the actor must be the laws, administrative regulations and ministries and regulations that have been applied through- out the country and have universal applicability, the establishment of local regional obligations and the es- tablishment of industrial self - discipline obligations should be strictly recognized and grasped. The penalty in this provision does not include exemption from criminal punishment, non penalty punishment measures, additional punishment, declaration of probation, etc. , but refers to the death penalty and life imprisonment reduced to fixed - term imprisonment, control, criminal detention and imprisonment, but the specific an- nouncement time needs to be treated differently. Its applicable object must be natural person, not including Whether applying the principal penalty only or the principal and the supplementary punishment er, the date of completion of the execution of punishment should refer only to the date of the completion of the principal penalty. The validity of the prohibited provisions shall apply to the punishment which is actual- ly punished during execution. The introduction of the employment prohibition provisions of Criminal Law in practice highlights the attention and importance of the modem criminal law to the elements of ＂ behavior＂ and the individualization of cases. It is necessary to establish and improve the social investigation system for specific populations and the application of the necessary censorship mechanism for the prohibition of employ- ment, so as to ensure the accurate understanding and proper application of the prohibition of criminal law.