Amendment IX to the Criminal Law of the People⊙s Republic of China (9th Amendment), which starts to take effect as from November 1, 2015, prescribes rules on prohibition from engaging in the relevant occupations for specific crimes. It is called “job prohibition” or “occupational prohibition”, which is a non-penalty mandatory measure to prevent a criminal from further taking advantage of its occupation or position to commit crimes.
Crimes that may result in occupational prohibition
Occupational prohibition may apply to crimes committed by taking advantage of its occupation. Such crimes include crime of accepting bribes by non-State functionary and crime of Professional Embezzlement committed by staff members from companies, enterprises or any other unit; also, crime of illegally managing the same business committed by directors or managers from state-owned companies and enterprises; as well as crime of insider trading, crime of disclosing inside information and crime of using of unpublished information trading committed by employees from securities exchanges, futures exchanges, security companies, futures brokerage companies, fund management companies, commercial banks, insurance companies or any other financial institution or committed by staff members from relevant supervision departments or industry associations.
Occupational prohibition may also apply to crimes committed in violation of the specific obligations required by its profession, which include the crime of infringing listed company against good faith committed by directors, supervisors and senior managers of listed companies; crime of using funds illegally committed by commercial banks, securities exchanges, futures exchanges, security companies, futures brokerage companies, insurance companies or any other financial institution.
However, such prohibition will not necessarily be imposed on such crimes. Reasonable discretion may be used upon consideration of reason, nature, means of crime and criminal⊙s repentance after a crime, personal performance of the criminal and need for prevention of further crime.
Legal consequences of occupational prohibition
Where a criminal is sentenced to punishment for the above crimes, it is possible to prohibit him from engaging in the relevant profession within a term of three to five years from the date when the criminal punishment is served or the date when he is released on parole. If the criminal under occupational prohibition engages in the relevant profession
This punishment of occupational prohibition, prohibiting the actor from engaging in the relevant occupations within a term of three to five years from the date when the criminal punishment is served, directly affects his/her re-employment. Considering the complexity of the application of occupational prohibition, the manager convicted of the above-mentioned crimes is suggested to seek advices as to whether and how the court may exercise the discretionary power with respect to occupational prohibition.