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Analysis and Thinking on Qualification Penalty

Author: YangXiaoQiang
Tutor: ZhengWei
School: East China University of Political Science
Course: Criminal Law
Keywords: Qualification Penalty Necessity Value Restructure
CLC: D924.1
Type: Master's thesis
Year: 2010
Downloads: 166
Quote: 0
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Abstract

"Qualification Obtaining Clan", a group constantly obtaining different qualification certificates, witnesses enduring increase in recent years, which draws the author’s concern. Qualification examinations organized or certificates approved by relevant departments in China reach over one hundred species, of which more than half are vocational qualifications. Along with growing certificate qualified personnel, the proportion of crimes related to certificate is also rising. Under such circumstance, relevant legal provisions are amended accordingly, including the Criminal Law constantly adjusted in the form of amendments, for sake of stabilizing social order. However, criminal law is considered from the perspective of“crime and non-crime”,“This offense and that offense”, thus penalties are not involved in such amendments. Undeniably, our penalty system with free penalty as the core plays an important role in all aspects of social development. However, as time changes, the existing penalty system is now found difficult to meet the needs of combating and preventing crimes. Standing at the crossroad, to which direction shall we lead the Criminal Law? In my view, complement and improvement of Qualification Penalty System will be an effective solution to this issue.Upon writing this paper, the author accessed to China Journal Net to search relevant information. As of February 21, 2010, there are 112 papers related to Qualification Penalty, among which 23 are core journal papers. These papers research on following issues: deficiencies in existing Qualification Penalty, comparison between China and other countries’foreign Qualification Penalty, application scope of Qualification Penalty, the relationship between Qualification Penalty and relevant administrative penalties, proposal for improvement of Qualification Penalty, application of Qualification Penalty in specific crimes (such as corruption, economic crime, copyright crime and so on). At present, there is only one monograph on Qualification Penalty research, i.e. "Study on Qualification Penalty" written by Wu Ping. Within this monograph, Qualification Penalty was comprehensively researched, which is of great help and inspiration to the writing of this paper.Although the research on Qualification Penalty has attained to many achievements, this paper still makes breakthrough in the following aspects. Firstly, the necessity to improve Qualification Penalty is strictly demonstrated from five approaches. Among them, it is the first time in this paper to observe the necessity to improve Qualification Penalty from the perspective of status crime. Also, thorough analysis is made to the relationship between Qualification Penalty and relevant administrative punishments as well as the possibility of coexistence. Secondly, legal value for the improvement of Qualification Penalty is firstly brought forward and in-depth discussed. Thirdly, origin of Qualification Penalty is rigorously studied in this paper, clarifying long-standing misunderstandings. Fourthly, rights recovery system of Qualification Penalty is deeply explored in this paper instead of unsubstantial discussion in the existing research achievements.The paper tries to dissertate on Qualification Penalty in four parts, i.e. overview of Qualification Penalty, necessity to improve Qualification Penalty, legal value for the improvement of Qualification Penalty and basic ideas to improve Qualification Penalty. Within the first part, origin, definition and classification of Qualification Penalty are primarily introduced. It is generally believed that Qualification Penalty can be traced back to Xiang Penalty. But according to Mr. Cai Shuheng’s textual research, Xiang Penalty actually is Mo Penalty [(a punishment in ancient China) tattooing the face]. True origin of Qualification Penalty should be flutter beat. Also, the definition of Qualification Penalty varies, entangled in reputation, rights, capabilities statement. Based on summary and analysis of existing theory, Qualification Penalty in the paper is defined as general penalty that is to deprive the offender’s qualification to engage in certain activities. As to the introduction of classification, with an aim to promoting the paper’s perspectives as well as providing necessary groundwork for the writing, the research is extended to cover six countries’Qualification Penalty. Within the second part, from five aspects the necessity to improve Qualification Penalty is carried out with in-depth study. Large quantity of status crime is included in the Criminal Law. In the Crime chapter, qualification is presented in the form of status; while in the Penalty chapter, Qualification Penalty corresponding to status crime is not fully presented. Qualification Penalty featured by light penalty and probation will also benefit the structural optimization of the existing heavy penalty as well as crime prevention. Administrative punishment with its content to deprive the qualification has always been regarded as sound barrier for improving Qualification Penalty, however,“Twice Lawbreaking”in the Criminal Law,“no one should be twice punished for the same cause”in the Administrative Law and“The principle of non bis in idem”in the Criminal Law provide basis and possibility for their coexistence. Meantime, the author refutes the statements of unnecessary to improve Qualification Penalty from both theoretical and empirical approaches in this part. Within the third part, legal value for the improvement of Qualification Penalty is commented, which is unfolded from two aspects: first, the value of justice. Justice, as the ultimate value of the law, can be described as freedom and order. Qualification Penalty protects freedom of most people via restricting on individual freedom, realized in a visible way. Concerning the social order, it is maintained by external force. External force is a must for social stability, but not all. To a certain extent, external forces should be minimized to maintain social stability, which Qualification Penalty is consistent with. Within part four, basic ideas to improve Qualification Penalty are put forward on basis of previous discussion, which including, Split and integration of political rights deprivation, adding "deprivation of qualifications in specific activities" and“targets on organization crime" to the Qualification Penalty. Application term and condition of Qualification Penalty is also touched. Preliminary ideas also refer to rights recovery system of Qualification Penalty, including necessity, conditions and cancellation of rights recovery system.

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