Article 276-1 Whoever evades payment of laborers' remuneration by transferring property or escaping. Or refuses to pay the laborer's labor remuneration after being ordered by the relevant government departments, and the amount is relatively large, he shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention and shall also or only be fined; If serious consequences are caused, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.
If a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the provisions of the preceding paragraph.
Whoever commits the acts mentioned in the preceding two paragraphs, but has not caused serious consequences, pays the laborer labor remuneration before bringing a public prosecution, and bears the corresponding liability for compensation according to law, may be mitigated or exempted from punishment.
In criminal judgment, Zhong Moumou refused to pay labor remuneration in the first instance.
People's Court of Liuzhi Special Zone, Liupanshui City, Guizhou Province
criminal judgement
(20 15) Liu Qian specially punished Zi Chu No.391
Public Prosecution Organ People's Procuratorate of Liuzhi Special Zone, Liupanshui City.
Defendant Zhong Moumou, with a college degree, is the labor contractor of the "Wei Long Rose Garden" project in Liuzhi Special Zone. On may 22nd, 20 15, he was criminally detained by the public security bureau of Liuzhi Special Zone on suspicion of refusing to pay labor remuneration. On June 5 of the same year, he was arrested with the approval of the People's Procuratorate of Liuzhi Special Zone in Liupanshui City, and was arrested the next day. He is now being held in Liuzhi District Detention Center.
Defender Xiao is a lawyer of Tuoxin Law Firm.
The People's Procuratorate of Liuzhi Special Zone in Liupanshui City accused the defendant Zhong Moumou of refusing to pay labor remuneration with indictmentNo. (20 15)323, and filed a public prosecution with our hospital on 20 1654381October 30. Our court formed a collegial panel according to law and heard the case in public. Procurator of the People's Procuratorate of Liuzhi Special Zone in Liupanshui City, defendant Zhong Moumou and his defender Xiao attended the lawsuit. The trial is now over.
The People's Procuratorate of Liuzhi Special Zone in Liupanshui City accused that on August 24th, 20 12, Liupanshui Wei Long Real Estate Development Co., Ltd. signed a construction contract with Liuzhi Branch of Guizhou Development and Construction Engineering Co., Ltd. (hereinafter referred to as Liuzhi Branch) to contract the "Wei Long Rose Garden" project in Liuzhi Special Zone (the original site of Liuzhi _ Xin beef jerky) to Liuzhi Branch for construction. On the 30th of the same month, Liuzhi Special Zone Development and Construction Branch signed a labor service construction contract with the defendant Zhong Moumou, and subcontracted the labor service part of the "Wei Long Rose Garden" project construction contract in Liuzhi Special Zone to Zhong Moumou for construction. Defendants Zhong Moumou and Hu Moumou jointly contracted and organized workers to enter the site for construction. From July 3, 20 13 to June 6, 20 15, Zhong Moumou received the progress payment of the labor service project of the sixth development and construction company, from August, 20 12 to the end of 20 165438 10, during the period, Zhong paid12.160,000 yuan to Yang for building a house in Jin Xin Building Materials City, Liuzhi Special Zone, and paid off Hu's debt with 446,000 yuan on September 4, 20 14 and bought out his shares in the "Rose Garden" labor contract project.
On February 3, 20 15, the Human Resources and Social Security Bureau of Liuzhi Special Zone received a complaint that Zhong Moumou owed workers more than 700,000 yuan in wages in the "Wei Long Rose Garden" labor contract project, and on June 15 of the same month, he issued the Labor Security Supervision Order Correction Decision to the defendant Zhong Moumou, ordering him to make corrections on February 16548. After the written decision was issued, Zhong refused to sign for it and perform relevant obligations.
The public prosecution agency provided documentary evidence, witness testimony, victim's statement, defendant's confession and defense, identification transcripts, audio-visual materials, project contracts, receipts for current payments, etc. Based on this, it is considered that the defendant Zhong Moumou has the ability to pay but does not pay the remuneration of the workers, maliciously pays off the debts and makes false accounts, with a large amount, and still refuses to pay the wages of migrant workers after the relevant government departments issue the labor security supervision decision and order it to make corrections. His behavior has violated the provisions of Article 276 of the Criminal Law of People's Republic of China (PRC), and he should be investigated for criminal responsibility for refusing to pay labor remuneration, and it is recommended to be sentenced to fixed-term imprisonment of not more than three years.
Defendant Zhong Moumou disagreed with the criminal facts and charges alleged in the indictment, arguing that 1, 20 14 basically did not owe the wages of migrant workers, and after September, the construction company developed and built Liuzhi Branch, which owed the project payment of 1.7 million yuan, resulting in my lack of money to pay the wages of migrant workers; Besides doing other projects for me, Yang also worked in the rose garden site, so the money I paid him also included his salary in the rose garden. I gave him money from the project fund, and later I made up the money for the project.
Defender disagrees with the nature of the case and the sentencing facts, and thinks that: 1, the defendant Zhong Moumou owes the project money instead of the wages of migrant workers, because he has a labor contract relationship with Wang Moumou, the boss of the bricklayer's class, the carpenter's class and the steel bar class, and then the boss of the class hires workers to work, and Zhong Moumou has no labor contract relationship with the workers, so he has no obligation to pay the wages of migrant workers; 2. The defendant Zhong Moumou subjectively did not have the intention to pay the wages of the workers, and refused to pay. The money owed by Zhong Moumou to the owner of the garden project class occurred from September 4, 20 14 to165438+1October 30. However, the payment of 123980 yuan to Yang on August 8, 1965 and the payment of 446000 yuan to Hu on September 4, 1965 occurred before the project payment was in arrears, so the defendant's subjective intention of refusing to pay could not be proved, and the public prosecution agency could not prove that Zhong had the ability to pay on September 438+04, 1965. 3. The defendant Zhong Moumou has surrendered himself and should be given a lighter or mitigated punishment according to law. In summary, the court is requested to decide that the defendant Zhong Moumou is not guilty according to law.
It was found through trial that on August 24th, 2002, Liupanshui Wei Long Real Estate Development Co., Ltd. signed a construction contract with Liuzhi Development and Construction Branch to contract the "Wei Long Rose Garden" project in Liuzhi Special Zone (the original Liuzhi Xin beef jerky site) to Liuzhi Development and Construction Branch for construction. On the 30th of the same month, Liuzhi Special Zone Development and Construction Branch signed a labor service construction contract with the defendant Zhong Moumou, and subcontracted the labor service part of the "Wei Long Rose Garden" project in Liuzhi Special Zone to Zhong Moumou for construction, with a designed construction area of 24500m2 and a total project price of11025,000 yuan (RMB, the same below). After the contract was signed, the defendants Zhong Moumou and Hu Moumou contracted in partnership to organize workers to enter the site for construction. From July 3, 20 13 to June 6, 20 15, Zhong received 9.32 million yuan as the progress payment for the development and construction of the sixth branch company. During the period from June 20 13 to June 2014, Zhong paid Yang in Liuzhi. On September 4, 20 14, Hu's debt was paid off at 446,000 yuan, and Hu's shares in the rose garden labor contract project were bought out.
On February 3, 20 15, the Human Resources and Social Security Bureau of Liuzhi Special Zone received a complaint that Zhong Moumou owed workers more than 700,000 yuan in wages in the "Wei Long Rose Garden" labor contract project, and on June 15 of the same month, he issued the Labor Security Supervision Order Correction Decision to the defendant Zhong Moumou, ordering him to make corrections on February 16548. After the written decision was issued, Zhong refused to sign for it and perform relevant obligations.
During the criminal detention of the defendant Zhong Moumou, his relatives paid a total of 654.38+10,000 yuan to Tao Moumou, a carpenter class, and Jia Moumou, a rebar class, on June 3, 20 15. The above-mentioned victims expressed their understanding to Zhong Moumou and agreed to postpone the payment of arrears of wages.
The above facts are confirmed by the following evidence:
1, labor security supervision order correction decision, case transfer decision, case filing decision: It is confirmed that on April 2, 20 15, the Human Resources and Social Security Bureau of Liuzhi Special Zone transferred the case to the Public Security Police Brigade of Liuzhi Special Zone Public Security Bureau, and the case was filed for investigation on May 3, 20 15.
2. Household registration certificate, arrival process, detention certificate, arrest decision and detention certificate: confirm the identity of the defendant Zhong Moumou, the arrival process and the compulsory measures taken.
3. Construction contract of building project, labor contract agreement of Wei Long Rose Garden Project and photos in the transfer floor: It is confirmed that Liupanshui Wei Long Real Estate Development Co., Ltd. signed a construction contract with Liuzhi Special Zone Development and Construction Branch on August 24th, 20 12, and contracted the "Wei Long Rose Garden" project of Liuzhi Special Zone to Liuzhi Special Zone Development and Construction Branch for construction. On the 30th of the same month, Development and Construction Liuzhi Branch (Party A) signed a labor service construction contract with defendant Zhong Moumou (Party B), and subcontracted the labor service part of the construction contract (excluding the decoration works below the transfer floor) to Zhong Moumou for construction operation, with a designed construction area of 24500m2 and a total project price of1kloc-0/025,000 yuan. Both parties agree that Party B shall submit the progress of this month's completed project to Party A before 25th of each month, and Party A shall pay 80% of the project price of the completed project of Party B, and return 50% of the down payment after all the foundation parts are settled, and return all the down payment after the main structure is completed.
4. List, project payment details and receipts provided by Zhong Moumou: It is confirmed that the project department of Liuzhi Branch paid 9.32 million yuan to Zhong Moumou from July 3, 20 13 to June 6, 20 15, of which the shutdown loss was14.5 million yuan, and the deposit was refunded 63.8. It is also confirmed that from July 3rd, 20 13 to August, 2065 438+08, Zhong paid 13498 yuan to Yang and 446,000 yuan to Hu on September 4th, 20 14.
5. Termination of cooperation agreement for Liuzhi Rose Garden Project: Confirmation that on September 4th, 20 14, Zhong Moumou and Hu Moumou reached an agreement to pay Hu 446,000 yuan (including 1 1 10,000 yuan for the project, 80,000 yuan for the settlement of housing renovation by Long Mou and others, and 256,000 yuan for Hu Moumou), and the cooperation relationship between the two parties was terminated.
6. Complaint registration form, inquiry record of labor security supervision investigation, wages and benefits of migrant workers, IOUs, notes and photos of Zhong Moumou identifying IOUs, labor security supervision order correction decision, and document delivery receipt: it is confirmed that Zhong Moumou owes 8 10000 yuan to bricklayer class and carpenter class of Rose Garden Project. /kloc-in February, 2005, the Human Resources and Social Security Bureau of Liuzhi Special Zone issued a Decision on Correcting the Labor Security Supervision Order to Zhong Moumou, ordering him to verify and pay the wages of migrant workers before February, 2005.
7. Letter of Understanding and Receipt: It is confirmed that Zhong Moumou's family belongs to June 3, 20 15, and the unpaid wages paid to carpenter class Tao Moumou and rebar class Jia Moumou totaled 6,543,800 yuan. The above-mentioned victims expressed their understanding to Zhong Moumou and agreed to postpone the payment of unpaid wages.
8. Witness Han Moumou's testimony: According to the workload completed by Zhong Moumou, the Rose Garden Project Department paid him an extra 5,995,438+0,000 yuan and 8.72 million yuan, totaling 9323 1, 700 yuan. All the project funds were paid to Zhong Moumou, but some of the expenses declared to the Rose Garden Project Department were fictitious. One is to enjoy all the shares in the rose garden, and he paid more than 400,000 yuan for the project to his partner Hu Moumou. The other is to pay 654.38 million yuan to Yang who has no labor relationship with the Rose Garden Project. I asked Zhong Moumou in person why he bought Hu Moumou's shares with the rose garden project money and gave Yang a salary unrelated to the project. He didn't speak.
9. Lou moumou's testimony: It was confirmed that the Rose Garden site stopped working from June 20 13 to June 20 14, and the project department paid the shutdown loss of1450,000 yuan through negotiation with Zhong moumou, and the site continued to start.
10, Wang Moujia's testimony: I am the person in charge of Wei Long Rose Garden. On February 20 14, there was a dispute between the development and construction of Liuzhi Sub-bureau and Zhong Moumou over the project payment. Zhong Moumou unilaterally notified the workers to stop work and asked Han Moumou to convey it to me. According to the contract, our company has paid 20 million yuan for the development and construction of Liuzhi Branch, and the labor service part has also been paid to Zhong Moumou. However, because he still had projects outside, he spent the project money in other places, robbing Peter to pay Paul, which led to the break of the capital chain and no money to pay the wages of migrant workers.
1 1, Yang Moumou's testimony: 20 13 In June, Zhong Moumou asked me to go to Liuzhi to help him repair Long Moumou's house. We agreed that the salary and living expenses should be around178,000. When I built Long Moumou's house, there were about 15 workers on the rose garden site, and their wages were also paid by Zhong Moumou. During this period, five of my workmates helped Zhong Moumou to work overtime for one night at the rose garden construction site, and the salary was 1400 yuan. By August of 20 13, Zhong Moumou paid me all my salary.
12. Hu moumou's testimony: It is confirmed that Hu moumou and Zhong moumou jointly undertake the rose garden service project. In September of 20 14, Zhong paid Hu 446,000 yuan to repay Hu's personal debt of 256,000 yuan, pay Hu's project cost and buy his shares in the rose garden project.
13, Li moumou's testimony: I borrowed 20,000 yuan from zhong moumou, and my cousin Wang's internship salary at the rose garden site was14,000 yuan. He always gives me 34,000 yuan. I have seen the detailed project expenditure made by Zhong Moumou, which records that he gave me more than 50,000. I asked him why he wrote this, and he said that he just wrote the money and made an account, so that when he settled the account later, Party A would think that the money they allocated had run out and continue to allocate funds.
14, victim Wang moumou's statement: zhong moumou is the general contractor of the rose garden construction project, and I am the team leader of the mason class he found. From August 30th, 20 12, I took over the bricklayer project in Wei Long Rose Garden. Zhong Moumou paid me 80% of the progress payment every month according to the labor service construction contract he signed with Party A's Development and Construction Sixth Branch, and I organized workers to enter the site for construction. He has paid me the progress payment for the four months from September 20 12 to February 2065 438+02, but since June 20 13, Zhong Moumou has not paid it again. 2014 65438+On February 5, 2004, after Zhong Moumou informed me to stop work, there was no more construction. Now 60% of all the projects have been completed, and Zhong Moumou has paid 6.5438+0.03 million yuan, which is 7.65438+0.00 million yuan short.
15. The victim Tao Moumou declared: It was confirmed that the carpentry part of the rose garden project subcontracted by Zhong Moumou to Tao Moumou had been completed, and both parties agreed to pay all the wages within one month after the carpentry was completed. I still owe Tao Moumou 2 1 10,000 yuan.
16, victim Jia moumou's statement: February 20 12, 12, I led the workers to work in Liuzhi Rose Garden. By September, 20 1 102750 yuan, but Zhong Moumou only paid 980,000 yuan.
17, victim Long Moujia's statement: 20 14 At the end of June, Liao and I went to the rose garden site to paint the interior wall. From the end of March to the end of September, we worked according to the workload. I worked 12000 in January, 1 10000 in the second month, and the third one. Therefore, Zhong Moumou still owes me and Liao Moumou 30,000 yuan each.
18. Statement of the victim Long Mou and others: It was confirmed that Zhong Moumou owed Long Mou a salary of 26,000 yuan from July 20 14 to June 201/kloc-0; Arrears Yang Moujia's salary of 2065438+20000 yuan in June 2004; 2065438+salary owed to Zhang Moumou in June 2004 1.8 million yuan; Arrears Wang Mouyi's salary of 40,000 yuan from July to June, 2065,438 165438+ 10; Arrears Li's salary of 29,000 yuan from July 20 14 to June 0/kloc-0; Arrears Lin's salary of 24,000 yuan from July 20 14 to June 0 10; Owe Zuo Moumou 201June to June 1 1.4 million yuan in salary; The salary in Zhang Moumou from June 20 14 to June 1 1 year was 27,000 yuan; Arrears Tang's 20** annual salary of 45,000 yuan.
19, defendant zhong moumou's confession: 20 12 on August 30th, I signed the rose garden labor service construction contract agreement with Liuzhi Branch of Guizhou Development and Construction Engineering Co., Ltd., but actually I contracted the project with Hu moumou, and then I contacted the workers and called the carpentry foreman Tao moumou, the reinforcement foreman Jia moumou, Wang moumou and others. I signed a payment agreement with each team leader, and paid the salary to the team leader according to the progress, and then the team leader paid it to the workers. The project started in September 20 12 and stopped in February 20 14. During the period of 20 13 10 to June 20 17, my downtime was lost. By February 20 14 14, the project was stopped again because of a dispute between the housing development company and the construction unit. At this point, the construction party only paid me 9.32 million yuan for the project, including the shutdown loss of/kloc-0.45 million yuan, and refunded the deposit of 638,000 yuan. At present, the development and construction of Liuzhi Branch Company still owes me RMB 6.5438+0.6755 million, but it owes about RMB 700,000 to Wang Moumou, the monitor of bricklayer, and RMB 6.5438+0.00 million to Tao Moumou, the monitor of carpenter.
2065438+August 9, 2003, the construction party paid me 780,000 yuan for the progress of the project. I took12160,000 yuan from it and paid it to Yang who repaired my house in Longjia, Liuzhi Jin Xin Building Materials City. I didn't pay attention to put this money on my payroll for the Wei Long Rose Garden project.
On September 4th, 20 14, I bought out Hu's shares in the rose garden project, and spent a total of 446,000 yuan, of which 256,000 yuan was lent to me by my father-in-law to repay Hu's usury,1/kloc-0,000 yuan was given to Hu, and 80,000 yuan was given to us in 20/kloc-.
On February 15 and 10, the Human Resources and Social Security Bureau of Liuzhi Special Zone issued a rectification order to me, ordering me to pay the wages of migrant workers the next day. I didn't sign it because I didn't have any money in my hand and felt that the construction party was in arrears with my project payment.
In addition, the employment agreement, wage list of migrant workers, bank account details, wage processing table of migrant workers, synchronous audio and video recordings and other evidence confirmed that the above evidence was presented in court and cross-examined, which was in line with the authenticity, relevance and legality of the evidence, and our hospital confirmed it.
Defendant's defense: 1 20 14 Before September, the wages of migrant workers were basically not in arrears. After September, the construction company developed and built Liuzhi Branch, which was in arrears with 1.7 million yuan, resulting in my lack of money to pay the wages of migrant workers. The receipt presented by Zhong Moumou to Han Moumou shows that he received the project progress payment of 1.26 million yuan paid by Han Moumou on July 24, 1965 and July 30, 438+04 respectively, which proves that he has the ability to pay. However, on September 4 of the same year, Zhong Moumou gave priority to the payment of the project funds to buy Hu Moumou's shares, which reflected his subjective mentality and objective fact that he refused to pay the wages of migrant workers when he had the ability to pay. The project party's default on his project funds has nothing to do with this case. Besides doing other projects for me, Yang also worked in the rose garden site, so the money I paid him also included his salary in the rose garden. I gave him money from the project payment, and later I made up the money for the project. According to the available evidence, Zhong arranged for Yang to take five workers to the Rose Garden for night shift, and Zhong paid Yang and others 1400 yuan. In addition, Yang never participated in the rose garden project again. However, from July 3, 20 13 to August, 2065 438+065 438+0, Zhong Moumou paid Yang the total amount of the rose garden construction project 1338 yuan in four times. Zhong's excuse is inconsistent with the facts, and there is no evidence to prove that the defendant has made up the money paid to Yang to the rose garden project, so this excuse is not accepted.
Defender argued that: 1, defendant Zhong Moumou owed the project money instead of the wages of migrant workers, because he had a labor contract relationship with the bricklayer's class, the carpenter's class and the monitor of the steel bar class Wang Moumou, and the latter monitor hired the workers to work. There was no labor contract relationship between Zhong Moumou and the workers, so he had no obligation to pay the wages of migrant workers. After investigation, Zhong Moumou signed an agreement with Wang Moumou, the person in charge of the mason class, Tao Moumou, the person in charge of the woodworking class, and Jia Moumou, the person in charge of the steel bar class, stipulating that each class leader would contact and organize the workers to enter the site for construction, and Zhong Moumou would uniformly allocate the wages to the class leader and then distribute them to the workers. Therefore, the relationship between Wang Moumou and Zhong Moumou is actually an employment relationship, and the wages of laborers belong to the "labor remuneration of laborers", so this statement is not adopted; 2. The defendant Zhong Moumou subjectively did not have the intention to pay the wages of the workers, and refused to pay. The money owed by Zhong Moumou to the owner of the garden project class occurred from September 4, 20 14 to165438+1October 30. However, the payment of 123980 yuan to Yang on August 8, 1965 and the payment of 446000 yuan to Hu on September 4, 1965 occurred before the project payment was in arrears, so the defendant's subjective mentality of refusing to pay because of his ability to pay could not be confirmed, and the public prosecution agency could not confirm that the clock was on September 438+04, 1965. According to the victim's statement, since 2065438+June 2004, Zhong Moumou has been in arrears with the wages of migrant workers, which is caused by his malicious debt repayment, so this excuse is inconsistent with the facts and will not be adopted; 3. The defendant Zhong Moumou has surrendered himself and should be given a lighter or mitigated punishment according to law. After investigation, the public security brigade of Liuzhi Special Zone grasped the evidence and facts of Zhong Moumou's refusal to pay labor remuneration, and summoned him in writing to the case-handling organ for investigation on May 22, 201May. Therefore, his behavior does not meet the requirements of surrender, and this excuse is not accepted.
We believe that the defendant Zhong Moumou has the ability to pay, and evaded the payment of labor remuneration by maliciously paying off debts and tampering with accounts. The amount is large, but he still refused to pay after being ordered by the relevant government departments. His behavior has violated the criminal law and constituted the crime of refusing to pay labor remuneration. The accusation of the public prosecution agency is clear, the evidence is true and sufficient, and the accusation is established. In view of the fact that during the criminal detention of the defendant Zhong Moumou, his relatives have paid unpaid labor remuneration (654.38+ 10,000 yuan) and obtained understanding, some workers have also issued statements agreeing to postpone payment, and may be given a lighter punishment as appropriate. The sentencing suggestion of the public prosecution agency is appropriate and adopted. Accordingly, according to the first paragraph of Article 276-1 of the Criminal Law of People's Republic of China (PRC) and the provisions of Article 2, Paragraph 1, Article 3, Paragraph 1, Item 2, Article 4, Paragraph 1 and Article 7 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Laws in the Trial of Criminal Cases of Refusing to Pay Labor Remuneration, the judgment is as follows:
Defendant Zhong Moumou was convicted of refusing to pay labor remuneration, sentenced to one year's imprisonment and fined RMB 10000.
(The term of imprisonment shall be counted from the date of execution of the judgment. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment. That is, May 22nd, 20 15 to May 2nd, 20 16/day. )。
(The fine shall be executed within three months from the effective date of the judgment).
If you refuse to accept this judgment, you can appeal to the Intermediate People's Court of Liupanshui City, Guizhou Province through our hospital or directly within ten days from the second day of receiving the judgment. If a written appeal is filed, one original and two copies of the appeal shall be submitted.
Presiding judge Li Juan
People's company