Reconstruction of qualification penalty provisions of current criminal law --

Abstract:The qualifications punishment is a qualification of depriving criminal punishment. A certain act by depriving people of qualifications and ability to highlight its unique function, realizing special prevention of penalty purpose. Thus the qualifications punishment is necessary. Speaking of our country present situation, the current qualification penalty types of single, the pertinence is not strong, the design is not reasonable. Not only that, with a large number of property penalty free to deprive the penalty system, play the role of criminal status. Therefore, according to the provisions of the current criminal law, punishment against Qualifications in China need to change, a massive reconstruction.

 

Key word.The qualifications punishment; reconstruction; defects

 

One, the qualifications punishment theory to reconstruct the concept of Science

China's "criminal law" provisions are not "the qualifications punishment" such words, it is only a concept in theory of criminal law, there are different views on the terms and definitions. For example, honorary punishment, think "in modern criminal law to deprive the criminal to exercise certain power qualification punishment of honor". [1] The ability punishment, said: "the ability punishment for depriving the criminal penalty power has ability of scholars in the past, each with disfranchisement ability, namely impairment of honor, and the prisoner to shame, therefore also for honorary punishment, but under the modern special prevention of penalty doctrine, not only should not detract from the prisoner's personality, and to develop the shame heart, fame, objective was to improve the ability punishment, legal provisions, but the capacity limit prisoners, in order to prevent harm, not to deprive the honor for things, named known criminal said, far less if the ability punishment as appropriate". So, he thinks, the qualifications punishment is deprivation of criminals enjoy public power penalty. [II] In addition, some scholars think: "the qualifications punishment is deprive criminals to exercise certain rights of punishment". [3]

Honorary punishment that will be defined as "the right qualifications punishment depriving the qualification" is also insufficient, the definition is too general and broad, can not accurately explain the purpose of qualification penalty. In addition, "entitled qualification" understanding the closest should be "right", but we know that, "right" is the embodiment of human body in the legal status, cannot be deprived of. In addition, this definition is not the qualifications punishment and life penalty, freedom penalty punishment clearly distinguish. Therefore, the definition of I think there are certain undesirable aspects. "The ability punishment" will be defined as the right qualifications punishment of deprivation, as the definition is too narrow, is not conducive to the qualifications punishment, because the qualifications punishment to deprive the qualification is a kind of generalized qualification, contains many aspects, both public and private, such as France, in the criminal law against civil rights right, etc.; in addition also includes some neutral rights, such as the German criminal law prohibits driving, so the concept is certainly not desirable.

I think, first of all, the above two in the definition of "deprivation" two words are inappropriate, "deprivation" a word contains a strong class nature, cannot reflect the humane care of the criminal law, is not conducive to the transformation of criminals, definition of qualifications punishment throughout the world criminal law, most of the qualifications punishment is defined as "certain rights" forbidden subject, such as the French Criminal Law "prohibited in public, civil rights in criminal law", Germany "ban" etc.. The word "forbidden" relatively neutral, more in line with the legal features of vocabulary. Therefore, the author advocates the use of "ban" instead of "deprivation". Secondly, there should be clear in order to distinguish with other kinds of punishment in the definition of qualification penalty to prohibit the qualifications, the qualifications punishment is prohibited to engage in more aspects of crime and crime related activities, such as the crime of misuse law in adjudication of criminal judge barred from the judge for the activities, the use of computer crime the criminal prohibition related activities engaged in computer. In conclusion, the author thinks, the qualifications punishment is a kind of crime punishment prohibited people will engage in crimes related activities or exercise of its rights.

Two, China's criminal law of qualification penalty

China's current "criminal law" article34The types of supplementary punishments stipulated: fines, deprivation of political rights and confiscated property. Article54The provisions of deprivation of political rights include: the right to vote and to be elected; speech, publication, assembly, association, parade, demonstration of the right to freedom; rights of the position in state organs; a State-Owned Company, enterprise, institution or people's organization right. Article35Article: "to a foreigner who commits a crime, can be applied in an independent or supplementary deported." Deportation in our criminal law are foreigners forcing crime left Chinese country(Edge)The penalty method environment, although it does not have the property of general applicability, applicable only to a foreigner who commits a crime, not included in the general kind of punishment. However, the author thinks, depriving the deportation of criminals certain qualifications, the prevention of crime means consistent with the definition of qualifications punishment, should be included in the scope of qualification penalty. Our qualification penalty should include deprivation of political rights and deported two.

Qualification penalty in our country has many defects, mainly are:

1Qualification penalty. Penalty system is not complete

The criminal law of our country only deprivation of political rights and deported two qualification penalty, so the species is single, can not play the qualifications punishment special prevention. The main performance is: in the criminal law of our country does not provide specific occupation or activity deprivation in qualification penalty. While in a foreign country, the relevant provisions of the criminal legislation of many countries all. For example: the current "criminal law" in Germany69The revocation of the driving license stipulates: "the occurrence of the illegal act, a driving motor vehicles. Or illegal acts relating to motor vehicle drivers, or breach of duty and was sentenced to a punishment, or because of the no responsibility or can't get rid of the people without ability of responsibility and was found not guilty punished, the behavior that is not suitable for driving motor vehicles, the court shall revoke the driving license. The application of this paragraph, does not need to be in accordance with Article62A further investigation." Article69Forbid license granted by the court, states: "a revocation of a driver's license, should also be specified in the6More than a month5During the following period, shall not be granted a new driver's license(Prohibited). If the statutory maximum term is still not enough to prevent the danger caused by the actor, can command forever banned the license granted. Behavior had not obtain a driver's license, only requires the ban grants can be." Article70Forbidden practice specification: due to the abuse of occupation or industry, or seriously violates the relevant obligations, has any illegal act and sentenced to penalties, or because there is no responsibility or liability cannot be excluded no ability but not sentenced, to conduct a comprehensive examination of the behavior and the behavior, that continue to be engaged in an occupation or occupation Department of business, or industry or industry sector business, still has any illegal act of dangerous, the court may prohibit the people in1Years or above5Implementation of occupation, occupation authorities within the term of the compulsory years. The current "French penal code" provisions suspended driving license, driving ban specific vehicle, driving license, cancellation shall be approved by the prohibition of holding or carrying weapons; recover the hunting license; prohibit the cheque and credit card payments; prohibit some occupation or social activities. Rob engaged in specific occupation or activity of the qualification is necessary. In the criminal offense, there are many using the specific occupation of crime, such as law, accounting, by using the special occupation and occupation related crimes, for these people engaged in specific occupation qualification by deprivation, in fact deprived of the ability of offender recidivism. Therefore, in a specific occupation or activity deprived qualification can be targeted to prevent the criminals after using their qualifications make similar crimes, thus playing a qualification penalty implementation of special prevention of penalty function.

2At present the design of deprivation of political rights is unreasonable

Design of deprivation of political rights is unreasonable, mainly as follows: firstly, deprived of its content is not reasonable. The deprivation of political rights are deprived of the contents of the criminal law article54Article four rights enumerated, including the deprivation of election

Right and the right to be elected, deprived of the right to hold a position in state organs, deprived of a State-Owned Company, enterprises and institutions, people's organizations under the leadership of the rights and freedom of speech, press, assembly, association, parade, demonstration of rights. The right to vote and be elected is a citizen, be in power for a basic political rights in the management of state affairs; position in state organs, enterprises and institutions, State-Owned Company, the group leadership, is the realization of national administration function, but also an important political rights. Therefore, the two deprivation of content is reasonable. But as another content of deprivation -- speech, publication, assembly, association, parade, demonstration is one of the basic rights of citizens, the range is wide, involving all aspects of social life, not just in politics. Therefore, the deprivation of political rights in criminal behavior is related to political content are deprived together is not scientific. Secondly, on the deprivation of political rights is unreasonable application. From the subject, the provisions of the criminal law shall be of additional deprivation of political rights of criminals, endangering State security was sentenced to death, life imprisonment of criminals; criminals to intentional homicide, rape, arson, explosion, poisoning, robbery and other serious damage to social order can be of additional deprivation of political rights; at the same time, also the provisions specific crime crimes of endangering national security, infringe upon citizens' personal rights, the democratic rights of crime, the hindrance social management order crime, the crime of endangering the interests of national defense can be applied independently of deprivation of political rights. For the criminals crimes of endangering the state security of the disenfranchised, the right to be elected, right to hold public office, stripped of its related to political aspects of speech, press, assembly, association, parade, demonstration of rights is reasonable; but on the death penalty, imprisonment and other ordinary criminals are not deprived of political rights much meaning. Although some scholars believe that the criminal to death, life imprisonment, deprivation of political rights that national politics for these criminals negation. In fact, from a deeper level, crime and punishment as the embodiment of the will of the ruling class, from the formulation will take that its political negative position. One was sentenced to death, life imprisonment should be deprived of political rights for life, in addition to promote strong political connotations and not more rationally reflect the purpose of penalty, so it is not desirable. At the same time, the provisions in China in terms of deprivation of political rights: for national staff to use public offenses no deprivation of political rights, on the contrary, some of the crime of insult, libel, try every trick to mislead the public and other crimes are stipulated to be deprived of political rights, lost the deprivation of political rights for its design, exposure at and chaos. From the mode of application, deprivation of political rights is the penalty for excess. Is mainly reflected in two aspects: first, the deprivation of political rights to vote, the right to be elected, such as public rights. And a suitable, these rights will be completely stripped, will form the penalty for excess; second, deprived of political rights for commutation of the sentence is not according to the actual extent of repentance, crime of qualification penalty decision, but when the main change we have to make changes. At the same time, the criminal detention, control of additional deprivation of political rights and may be sentenced to deprivation of political rights can not be commuted. All these will cause the penalty for excess.

3The qualification penalty. The penalty system has many shortcomings, mainly are:

1.No qualification penalty, qualification penalty in line

The criminal law of our country only deprivation of political rights and deported two qualification penalty. Deprived of political rights for criminals to the crime of endangering national security, intentional homicide, rape, arson, explosion, poisoning, robbery and other serious damage to social order, deprived of the right to participate in the national management and political activities of the penalty method; deportation is deprived of a foreigner who commits a crime in our country(Edge)Exit residence or stay right, is forced to leave China country foreigner crime(Edge)The penalty method environment. Provisions of punishment does not deprive criminals engaged in a specific occupation or activity of qualification. Engaged in a specific occupation or activity and deprived of qualification penalty exists in other laws and regulations, such as "Teachers Law", "law", "law of registered accountant", "accounting law", "auction law", "medical practitioners law", "commercial bank law", "company law", "Securities Law", "road traffic safety law" provisions of the crime: teachers, lawyers, accountants, auctioneers, physicians and other deprived of its qualification. People usually put these rules referred to as administrative punishment. But these Provisions blur the distinction between administrative penalty and criminal punishment. Although the administrative penalties and criminal penalties has many similarities, but both have quite different. The administrative punishment is made with the right of administrative punishment administrative organ or organization authorized by laws and regulations, legal sanctions for violations of administrative law of the citizens, legal persons or other organizations to carry. The criminal penalty is the judicial organ in violation of state criminal laws, and regulations constitute a crime, a criminal sanctions in accordance with the relevant legal provisions to give. In terms of China's current legislation, general from several illegal nature, seriousness of consequences, size etc. to establish the scope of administrative punishment and penalty. For acts of nature, circumstances or consequences of minor, generally applicable administrative punishment; acts of nature, if the circumstances are serious or if the consequences are serious, be characterized as criminal law is applicable penalty. That is to say, the administrative punishment is for administrative illegal acts in violation of laws and regulations; and criminal penalties for the crime. The severity of their point of view, the administrative punishment than criminal penalties light. In view of this, the laws and regulations in a specific occupation or activity deprived of qualification penalty in essence is beyond the category of administrative punishment. Because: first, administrative punishment as the administrative relative person because of administrative violations and take the administrative illegal behavior, the legal provisions on certain occupation identity of people when the crime and take measures for the qualification, it is a crime, namely deprives some occupation identity the legal consequences of crime. Therefore, the above provisions into the regulation of the criminal law too; second, the purpose of punishment from the point of view, for the crime, lawyers, teachers, doctors, accounting, the auctioneer deprived of its qualification in addition to punishment, more in order to prevent the use of qualification of crime. Although, some law only provides for crime and deprivation occupation qualification, no clear the nature of the crime and occupation related. For example, "lawyer law", "Teachers Law" the relevant provisions. The occupation qualification that is deprived of lawyers, teachers after the crime may be the inevitable result of occupation occupation identity contains the moral requirements of society high on it. But does not exclude the lawyers, teachers use their occupation qualification of crime. On the judicial practice, the majority of lawyers, teachers in the implementation of crime related with occupation. Therefore, from the establishment of the punishment of the purpose and role, is to deprive actor qualification is because under some sort of crime, deprived of its qualification of criminal punishment, but also to prevent its repetition. The penalty is in response to a crime from this point of view, is deprived of qualification penalty measures. Therefore, the "administrative punishment is deprivation in occupation qualification penalty in the play the role of. It is in this sense, the system of punishment and qualification punishment will be confused between administrative penalty and criminal punishment, there is no qualification penalty, qualification penalty implementation flaws.

2.The design system of foreign qualification penalty is unreasonable

Unreasonable design system of foreign capital of qualification penalty. Mainly: first, failed to properly handle the relationship with the penalty. Besides the mentioned as to the administrative punishment features of the system of foreign qualification penalty penalty category invasion, mainly as follows: in the system of foreign qualification penalty in taking public punishment can't be penalty to absorb. For example: "people's police law", "prosecutor law", "law of judges" provisions for crimes punished shall not act as the police, prosecutors and judges. Without the corresponding provisions of deprivation of office in the penalty; in administrative law and regulations deprived of taking public office is not the same thing in the penalty system, which can not be replaced each other. For example, some illegal administrative actions can be constrained by the administrative punishment for the crime; it is necessary to deprive the office should be in the penalty in terms of. For some the use of official crime, in criminal punishment does not require depriving the public service, but by the administrative punishment instead of practice, ignored the boundaries of administrative penalty and criminal punishment, so it is not reasonable; second, no will deprive the qualification content and crime linked. In addition to "road traffic safety law", "commercial bank law", "company law", "Securities Law", "accounting law" provisions deprive criminals of their qualification for its crime and occupation qualification related laws and regulations, most only stipulates: as long as the implementation of crime will be stripped of its occupation qualification. In fact the crime intentionally, negligence, there is stress, there is the occupation qualification of. If indiscriminately shall be deprived of occupation qualification, this is hardly a rational countermeasures to deal with crimes; third, deprived of qualification period provided no scientific basis. For example: "company law", "Securities Law", "medical practitioners law" provisions to determine the term of deprivation of qualification, and the end of the period, the qualification to restore; and "lawyer law", "teacher's law", "accounting law", "auction law" has no limit, the qualification of the strip is lifelong. Such provisions exist many obvious defects. For example: why lawyers, teachers, behoove accounting crime than physicians crime punishment to serious consequences(?Because according to the provisions of the former deprived of qualification for life; the latter is generally after five years of eligibility to restore.)From the criminal law stipulated on the use of the corresponding occupation of the crime, it is difficult to explain using what kind of occupation crime will inevitably than other occupation crime, penalties should also be re. At the same time, non occupation crime, it is also difficult to behoove that a lawyer or accountant intentional killing or stealing than doctors intentionally killing or stealing to serious. Therefore, the law provides only as long as the intentional crime deprive or life or certain period of the qualification, regardless of their intentional crime nature, the seriousness of the circumstances, it is not scientific. This is one; second, to design the deprivation of qualification for a certain period of time and life and deprive the qualification of automatic recovery is also not scientific. The above in accordance with the provisions of arbitrary deprivation of life or occupation qualification or deprived of a certain period of time after the qualification without any substantive conditions will be automatically restored. Can not fully take into account the subjective malignant size, considering the actual need to deprive of. Such design can not objective embodies a legal measures, and deprive the qualification to prevent recidivism special prevention from.

Three, reconstruction of qualification penalty contents

The qualifications punishment has the politics of the offender to negative evaluation, restrict and eliminate the crime of specific criminal recidivism possibility function, and in accordance with the non imprisonment, the mitigation of the world trend of penal reform. So in the future China in the penalty system, will still occupies a space for one person. At present Chinese criminal law deprivation of political rights, unreasonable lies mainly in its content design not science, politics and the color is too strong, so it is necessary to adjust the qualification penalty contents to be deleted, weakening the political color, which is more suitable to the needs of the development of modern society. Therefore, the author proposes the following suggestions to rebuild our country's qualification penalty contents:

1Prohibits the exercise of specific power.

This is the deprivation of political rights to be reasonable reconstruction, the punishment and penalty in accordance with. "Crime is commit crimes in violation of the law of people, is the environment or character flaws, in spite of the prison to be improved, but not completely change in the environment or character before, so he exercised power, or as a public service, lest there should not be, is harmful to social welfare." [4] The author thinks, exercising the public power should include specific:(I)A prohibition against civil servants: servants here the country is generalized, its extension should be included in the state legislature, judicial organs, administrative organs, political parties, institutions, state-owned enterprises engaged in management responsibility, should also include a ban on the army. Notable is, in view of people's assessors enjoy the rights and obligations of other members of the collegiate bench in a collegial panel in the same. Therefore, the people's assessors should be prepared for the civil service of the country.2.Exercising the right to vote and to be elected. Here the right to elect and be elected the scope should be limited in the election of state organs on behalf of the right and the right has been selected as the national authorities on behalf of, the limit, in order to avoid and as national authorities are repeated. Because the state authorities are elected, so defined, in order to avoid repetition.

2Additional prohibited certain occupation or activity's qualifications

Some crime can be implemented, because the actor has to carry out a certain activity or engaged in a certain occupation qualification, deprivation is engaged in this kind of occupation qualification on this kind of crime or engage in certain activities of rights, in a certain sense, is of positive significance to realize the purpose of special prevention of penalty. It should be noted that, in the provisions of deprivation in particular occupation or the qualifications for the activity, must emphasize the deprived of the qualification must be crime to crime of occupation or activity's qualifications. Otherwise, not only difficult to criminal punishment, but also impede the penalty implementation of special purpose. According to the actual situation of China, referring to foreign criminal legislation, in particular occupation qualification of deprivation should at least include: deprivation engaged in industrial and commercial business right; deprivation as physicians, teachers, lawyers, accountants, auditors, the auctioneer, non state owned listing Corporation senior management personnel occupation; it is forbidden to drive or deprive the driver qualification.

3Additional prohibited crime units engaged in a specific business or activity and the dissolution of the crime unit

The penalty to the crime, the crime unit deprived of certain qualifications, in accordance with the aim of penalty requirements, development trend and legislation and criminal law in the world is the same. And the legal person to apply object qualification punishment can have three kinds, namely: rectification, limit business activities, forced cancellation. [⑤]

4Additional military rank deprivation content

As noted above, in the relevant regulations of China regarding the crime of servicemen, the court sentenced the military rank deprivation. However, the military rank deprivation belong to what kind of punishment, but not without problems. If you think it belongs to the kind of punishment, a punishment means, which is contradictory with the legal principle of crime and punishment. If you think it does not belong to the kind of punishment, but from its belong to the criminal consequences and by the court sentenced, seems to have a problem. So, I think it will clear up for the penalty, so it can be right and proper.

5Transformation of deportation

In China's criminal law provisions, deported more rough fuzzy, for example, when can the crime the expulsion of foreigners, whether with Chinese citizen married and settled in China criminal aliens can be deported, and so on, these problems with the scope of Chinese and foreign exchange and degree of expansion will become increasingly prominent, therefore in the criminal law should apply to the object, the deportation of execution, further defined.

6Additional qualifications system of rehabilitation.

The rehabilitation system refers to the qualification penalty crime when the legal conditions, to restore its were forbidden to exercise their rights and are prohibited from engaging in activities. The rehabilitation system namely the qualifications punishment relief system, to make good transformation of offenders to better integrate into society, to avoid the penalty for excess. "Rehabilitation into law on the rehabilitation and the referee on the rehabilitation of two, the law on the rehabilitation, refers to with the conditions required by law, criminals banned rights without court judgment and automatic recovery; rehabilitation, refers to the legal provisions of the conditions, the offender is prohibited right after the court ruling and recovery." [6] The author thinks, the criminal law of our country should adopt the referee on the right, the fairness is guaranteed to rehabilitation.

7A system of elimination of criminal record

Elimination of criminal record, is convicted or sentenced person in legal conditions, cancellation of the criminal record system. "After the crime, the law has to bear criminal responsibility commensurate with the severity of the crime, which is an embodiment of justice, but let a man of perfect penalty in the legal case has been performed, and for a long period, continue to suffer the crime brings a kind of revenge, it is unfair. We can't have committed, if as a reality bound forever reason, this, the criminals will not become an empty phrase?" [7] Especially for the qualifications punishment, because the qualifications punishment more for criminal activities against future. So it is necessary to adopt the system of elimination of criminal record, to highlight the humanity of criminal law. In addition, the rehabilitation system and the system of elimination of criminal record used in combination, the legal effect is more outstanding.

Four, the conclusion

The qualifications punishment has been paid much attention by the criminal law, also plays a role which cannot be replaced by other kinds of punishment is more and more important, our country criminal law should not be an exception, this paper also aims to arouse the attention of qualification penalty, in order to enable the qualification penalty in China really show its unique function of punishment.

 

 

 

 

 

 

 

 

Reference

 

 

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