从业禁止的司法适用

Judicial Application of Employment Prohibition

刑法修正案(九)新增了从业禁止制度,以遏制行为人再次实施与特定职业相关的犯罪。从业禁止适用的前提条件是行为人因利用职业便利或违背职业要求的特定义务而实施犯罪且被判处刑罚,适用的根据是基于行为人的犯罪情况,在其刑罚执行完毕或假释后仍有预防其再犯罪的必要。适用从业禁止的决定机关是人民法院,对象是被判处刑罚且有再犯可能性的特定犯罪人。禁止行为人从事的相关职业应以国家职业分类中细类为原则,以中类为限,以保障犯罪人的合法权利。

To prevent the perpetrators from recommitting crimes that related to the particular occupations, the regulation on employment prohibition was added to the ＂Ninth Amendment to the Criminal Law ＂. The prerequisite for the application of employment prohibition is that the perpetrators have taken occupational advantages to commit crimes or violated the specific obligations required by their occupations. The application of employment prohibition shall be based on the perpetrators＇ actual situation and there should the necessity to prevent the perpetrators from recommitting the crimes after their penalty has been executed or they have got parole. Only a people＇s court can determine whether a particular offender who has been sentenced to a penalty and has the possibility of recidivism should be prohibited from taking some related occupations. To protect the legitimate rights of the perpetrators, the prohibited occupations should follow the principle of the smallest classification and be within the medium classification in the national occupational classification.