The severity of criminal responsibility is not only reflected in the restriction and deprivation of the criminal's freedom, property and even life, but also in the criminal record effect accompanying the penalty. After the execution of the sentence or the pardon, the criminal record will have various legal consequences for the offender, which will bring continuous adverse effects on the daily life of the criminal citizen after returning to society.
1. The effect of compulsory disclosure of information on criminal records
Article 100 of the Criminal Code establishes the criminal record reporting system, so that criminal records have the effect of compulsory disclosure of information. This article is a criminal law provision added by the National People's Congress when revising the Criminal Law, and the Standing Committee of the National People's Congress has made some amendments to this article. It has general guiding significance and should not be easily denied its inherent institutional value. However, in reality, the alienation of the criminal record reporting system should cause enough attention and reflection.
Based on the public law nature of criminal law, the criminal record reporting system not only requires criminals with criminal convictions to compulsorily disclose criminal information, but also limits the scope of the state requiring criminals with criminal convictions to disclose criminal information. In modern society, the flow of personnel is frequent, and the asymmetry of criminal information makes social management innovation aimless. Under the guidance of the concept of statutory crime and punishment, the Criminal Code strictly limits the scope of criminal conviction reports, reasonably balancing public interests and private interests, thus effectively guaranteeing criminal convictions. legitimate interests.
2. The eligibility restriction effect of a criminal record
The qualification-limiting effect of criminal convictions is an important manifestation of the severity of criminal responsibility, and it is also the most influential factor in the life of citizens with criminal convictions after they return to society. The current non-criminal laws limit the qualifications of criminal convictions in many aspects, and these legal norms can be examined by types according to the different qualifications.
The first is eligibility restrictions on specific occupations. This is the main aspect of the eligibility restriction effect of previous convictions. According to the staged characteristics of career development in China, the current law restricts most of the occupations that have qualification standards in the aspect of criminal record.
One is the restriction on the career of civil servants, which stipulates that those who have received criminal punishment for crimes shall not be employed as civil servants.
The second is restrictions on working in public institutions. For example, those who have been criminally punished for intentional crimes or negligent crimes are not allowed to serve as a notary; Or those who intentionally commit a crime and receive a criminal punishment of fixed-term imprisonment or more, cannot serve as teachers, etc.
The third is restrictions on the qualifications of engaging in specific occupations in enterprises, such as being sentenced for specific economic crimes, or deprived of political rights for crimes, and not allowed to serve as directors, supervisors, or senior managers of the company within five years after the expiration of the execution period; Those who have received criminal punishment cannot serve as bankruptcy administrators; who have received criminal punishments, cannot obtain the qualifications for securities and futures investment consulting and the legal person responsible for insurance companies.
The second is restrictions on qualifications to work in specific industries. The current law mainly restricts the qualifications of ex-convict citizens to engage in specific industries from the perspective of industry access.
One is the restriction on obtaining specific professional qualification licenses. For example, those who have committed crimes related to accounting duties cannot obtain accounting qualification certificates; those who have been criminally punished for intentional crimes are not allowed to participate in the national judicial examination, customs declaration qualifications Examinations, patent agent qualification examinations, radio and television editors and journalists qualification examinations, announcer and host qualification examinations, and grass-roots legal service workers qualification examinations, cannot obtain tour guide licenses; those who have received criminal punishment are not allowed to participate in the qualification training for transportation administrative law enforcement personnel and exams, press cards are not issued, etc.
The second is to explicitly prohibit ex-convict citizens from engaging in specific industries. For example, those who have received criminal punishment for crimes are not allowed to engage in the legal profession; those who have committed specific crimes or have been deprived of political rights due to crimes are not allowed to engage in entertainment; Not to engage in forensic appraisal business; those who have been sentenced to criminal penalties for committing specific crimes, or who have been deprived of political rights due to crimes, are not allowed to serve as directors or senior managers of commercial banks, thus forming certain restrictions on their engagement in the financial industry; Personnel of food inspection agencies shall not engage in food inspection work within ten years from the date of execution of the penalty; those who have received criminal punishment for the crime of obstructing the national (border) management order shall not engage in intermediary activities such as entry and exit for private purposes.
The third is to restrict units with criminal convictions from carrying out specific businesses. For example, the fact that they have been criminally punished within two years will affect the identification of the qualification level of enterprises implementing foreign aid material projects; enterprises that have been criminally punished within three years cannot obtain general licenses for dual-use items and technology exports; Futures companies that have been criminally punished for operating in violation of laws and regulations within two years cannot apply for financial futures brokerage business qualifications; companies that have been criminally punished within three years lose their business qualifications to apply for the export of ephedrine precursor chemicals.
Again, restrictions on other rights and qualifications of ex-citizens. One is the restriction on labor and social security rights of citizens with criminal convictions. Labor contracts are an effective means to protect the legitimate rights and interests of workers, while criminal convictions become one of the conditions for exercising the employer’s right to rescind. The employer can terminate the labor contract; the restriction of social security rights mainly involves the retirement benefits of civil servants. According to the Renhan [2001] No. 27 document, if a retired civil servant violates the criminal law during his tenure or after retirement, and is sentenced to fixed-term imprisonment or more, he shall Retirement contributions and other retirement benefits will be cancelled from the month following the date of the sentence. The second is the restriction on the qualifications to perform specific obligations, that is, the restriction on the obligation to perform military service. According to the "Military Service Law of the People's Republic of China", persons who have been deprived of their political rights in accordance with the law shall not perform military service. The third is the limitation of obtaining honorary rights and honorary titles. According to the regulations of the highest judicial organs, honorary certificates and medals are generally not issued to those who have received criminal punishment. The fourth is the impact on the specific position of the ex-citizen, that is, if the perpetrator is a member of the village committee, his position will be terminated automatically after being sentenced to a penalty. The fifth is the impact on the identity documents of the former citizens, that is, if the perpetrator is criminally punished for obstructing national (border) management, the passport will not be issued within three years after the execution of the penalty.
It is not difficult to see that most of the qualification restriction effects of a criminal record are based on the premise of having received criminal punishment. The criminal punishment here refers to the announcement of the sentence, not the execution of the sentence, and most qualifications are restricted for life, and only a few have a certain period of time. . Therefore, the qualification restriction effect of the criminal record in our country is extremely severe, in a sense, it even exceeds the severity of the punishment itself.
3. The kinship effect of the previous family
One of the basic principles of criminal law is to assume one's own guilt, but the effect of the criminal record system is not only limited to the criminal record citizens, but also has an implicated impact on their relatives. Relatives of ex-convict citizens will be adversely affected by the conspiracy effect in various aspects, and relevant news reports are constantly appearing in the newspapers, arousing high attention and strong comments from the public.
The link effect of criminal record widely exists in various aspects such as admission, employment, conscription, and enrollment in public security and judicial colleges. In terms of admission, it is mainly the political review conditions in the admissions of special colleges and universities. According to the regulations, if my immediate blood relatives, closely related collateral blood relatives and other direct supporters are sentenced, but I cannot treat them correctly, they cannot pass the political trial. In terms of occupational access, the "Measures for the Employment of the People's Police of Public Security Organs" stipulates that those who have been sentenced to death or are serving prison sentences, or who are engaged in subversion of our country's political power within or outside the country, shall not apply for the examination. People's Police. In the occupational admission of some special industries such as pilots and crew members in the non-public domain, the criminal record of one's immediate family members is used as the reason for failing the political examination. In terms of military service, if the main family members, direct supporters, main social relations members or other relatives who have a greater influence on the person are criminally punished, they shall not be recruited as recruits.
Due to the political trial incidents in recent years, the affiliation effect of criminal record has entered the public's field of vision. In 2008, Zhejiang university student Lan Zefeng was disqualified from being a civil servant in the civil service exam because of his uncle's criminal record; in 2009, Hebei candidate Hu Jiajia was unable to apply for the Central Judicial Police School because of his parents' criminal record; some public schools in Ningbo City, Zhejiang Province Parents are required to provide materials such as a "no criminal record certificate" before students can enter the school; however, a girl in the third year of high school in Longyao County, Hebei Province, because her father once petitioned her, which affected her daughter's application to the judicial school. Regarding this series of political trial incidents, the People's Daily Online said in a report that this was "the pedigree of a father, a hero and a hero, and the connection thinking of one person committing crimes and escorting the whole family". Most netizens believe that these cases of criminal affiliation are unreasonable and discriminatory regulations, which is in sharp contrast to the conclusion that nearly 80% of the public supports the criminal record system through empirical investigations by scholars.
4. Criminal legal effects of previous convictions
The effect of the criminal record system in criminal law is mainly reflected in the sentencing of recidivists with previous criminal records. When determining the statutory sentencing range, the behavior of persons with a specific criminal record will serve as an important basis for the upgrade of the statutory sentence, thereby increasing the penalty for the defendant. For example, the Supreme People's Court's "Interpretation on Several Issues Concerning the Specific Application of Law in the Trial of Fraud Cases" stipulates that a person whose amount of fraud is more than 100,000 yuan and who has been criminally punished for fraud should also be identified as "especially serious". Thus, the defendant is determined to be sentenced to more than ten years in prison.
Recidivism and drug recidivism are the statutory provisions of the criminal law for criminals with severe punishment. Although criminal misdeeds are not the circumstances of statutory severe punishment, they have always been considered as discretionary severe punishment in judicial practice. After the implementation of the "Criminal Law Amendment (VIII)", the recidivism system specifically targets the intentional crimes of adults, and clearly should be severely punished. The "Guiding Opinions on Sentencing of People's Courts (Trial)" further stipulates that for repeat offenders, the nature of the crime before and after the crime, the length of time from the completion of the execution of the sentence or the time after the pardon to the re-offending, and the severity of the crime before and after the crime, etc., can be increased by 10% of the standard penalty. %-40%. The drug recidivism system embodies the criminal law's spirit of severely punishing drug crimes. For drug recidivism, the base sentence can be increased by less than 30%, and for defendants who constitute repeat offenders and drug recidivism at the same time, the criminal law on repeat offenders and drug recidivism should be cited at the same time. terms of severe penalties. In addition, if a citizen with a criminal record does not constitute a recidivist or drug recidivism, it constitutes a criminal record as a circumstance of discretionary sentencing. According to the "Guiding Opinions on Sentencing of the People's Court (for Trial Implementation)", the nature, time interval, frequency, and punishment of the criminal record should be comprehensively considered. In serious cases, the penalty may be increased by less than 10% of the standard penalty.
Article source: Tianjin Court Network (with deletion and modification)
