To try criminal cases that refuse to execute judgments or orders.
Interpretation of some problems in the application of law
(201Adopted by the Judicial Committee of the Supreme People's Court at its1657th meeting on July 6th, May)
In order to punish the crime of refusing to execute the judgment or ruling according to law, ensure the execution of the judgment or ruling of the people's court according to law, and earnestly safeguard the legitimate rights and interests of the parties, according to the Criminal Law of People's Republic of China (PRC), the Criminal Procedure Law of People's Republic of China (PRC) and the Civil Procedure Law of People's Republic of China (PRC), some issues concerning the application of law in the trial of refusing to execute the judgment or ruling are explained as follows:
Rule number one If the person subjected to execution, the obligor assisting in execution, the guarantor and other persons with execution obligations refuse to execute the judgment or ruling of the people's court, and the circumstances are serious, they shall be punished for refusing to execute the judgment or ruling in accordance with the provisions of Article 313 of the Criminal Law.
Rule number two If a person who has the obligation to execute has the ability to execute one of the following acts, it shall be deemed as "other circumstances in which he has the ability to execute and refuses to execute, and the circumstances are serious" as stipulated in Article 313 of the Interpretation of Criminal Law of the NPC Standing Committee:
(1) Refusing to report or falsely report property, violating the people's court's order to restrict high consumption and related consumption, and refusing to implement it after taking compulsory measures such as fines and detention;
(2) Forging or destroying important evidence about the performance ability of the person subjected to execution, preventing others from testifying or instigating, buying or coercing others to commit perjury by means of violence, threat or bribery, and preventing the people's court from finding out the property of the person subjected to execution, so that the judgment or ruling cannot be executed;
(3) refusing to deliver the property and tickets determined by legal documents, or refusing to move out of the house or land, which makes the judgment or ruling unenforceable;
(four) collusion with others, through false litigation, false arbitration, false reconciliation and other means to hinder the execution, resulting in the judgment or ruling can not be executed;
(5) Obstructing the execution personnel from entering the execution site by violence or threat, or gathering people to make trouble or impact the execution site, so that the execution work cannot be carried out;
(6) Insulting, besieging, detaining or beating the enforcement personnel, which makes execution impossible;
(7) Damaging or robbing the data of execution cases, execution vehicles and other execution equipment, clothes of execution personnel, and official certificates, which makes execution impossible;
(8) Refusing to execute the judgment or ruling of the court, thus causing heavy losses to creditors.
Article 3 If the application executor has evidence to prove that he has the following circumstances at the same time, and the people's court considers that it meets the provisions of the third paragraph of Article 204 of the Criminal Procedure Law, it shall initiate a private prosecution and file a case for trial:
(a) the person who has the obligation to execute refuses to execute the judgment or ruling, which infringes upon the personal and property rights of the person applying for execution, and shall be investigated for criminal responsibility according to law;
(2) The applicant for execution has filed a complaint, but the public security organ or the people's procuratorate does not pursue the criminal responsibility of the person who has the obligation to execute.
Article 4? For the case of private prosecution stipulated in Article 3 of this Interpretation, according to Article 206 of the Criminal Procedure Law, the private prosecutor may reach a settlement with the defendant or withdraw the private prosecution before the judgment is pronounced.
Article 5? Refusing to execute a judgment or ruling in a criminal case is generally under the jurisdiction of the people's court where the enforcement court is located.
Article 6 Before the judgment of first instance is pronounced, if the defendant refuses to execute the judgment or ruling in whole or in part, he may be given a lighter punishment as appropriate.
Article 7 Whoever refuses to perform the judgment or ruling on payment of alimony, alimony, child care, pension, medical expenses and labor remuneration may be given a heavier punishment as appropriate.
Article 8? This interpretation shall come into force as of the date of promulgation. If the judicial interpretation and normative documents previously issued are inconsistent with this interpretation, this interpretation shall prevail. ?
The person in charge of the Executive Board of the Supreme People's Court answered a reporter's question on the judicial interpretation of the crime of refusing to execute.
Source: People's Court News
Release date: 2015-07-22 08: 08:15
Refine "serious circumstances" and crack down on refusing to commit crimes
-The person in charge of the Executive Board of the Supreme People's Court answered a reporter's question on the judicial interpretation of the crime of refusing to execute.
On July 2 1, the Supreme People's Court held a press conference to inform about the special action to focus on cracking down on criminal acts such as refusing to execute judgments and rulings, and announced the typical cases of 10. At the same time, the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Cases of Refusing to Execute Judgments and Rulings (hereinafter referred to as the Interpretation) was issued. Wu Shaojun, Deputy Director of the Executive Board of the Supreme Court, was interviewed by reporters on the main contents of the Interpretation.
Q: Please introduce the background of the judicial interpretation of refusing crime.
A: First of all, it is the need of judicial practice to issue a judicial interpretation of refusing to commit a crime. In recent years, the court's enforcement work has adhered to the general idea of "one word, two characters" and continuously strengthened the enforceability, standardization and informatization of the enforcement work, which has opened up a new situation for fundamentally solving the difficult problem of enforcement, among which cracking down on the crime of refusing to execute judgments and rulings is an important starting point for further strengthening the enforceability of the enforcement work. With the continuous development and deepening of enforcement work, the controversial issues of refusing to execute judgments and ruling criminal cases in the process of conviction, sentencing and prosecution in judicial practice are becoming more and more prominent, which hinders its compulsory role to a certain extent and needs to be solved in time.
It is also the need of the judicial situation to refuse the judicial interpretation of crime. After the Fourth Plenary Session of the 18th CPC Central Committee made an important decision to "effectively solve the difficulties in execution" and "improve the legal provisions for punishing illegal and criminal acts such as refusing to execute effective judgments and decisions", Zhou Qiang, President of the Supreme People's Court made an instruction to "concentrate on cracking down on refusing to execute crimes". 20 14 1 1 the Supreme People's Court, together with the Supreme People's Procuratorate and the Ministry of Public Security, launched a special campaign to crack down on criminal acts such as refusing to execute judgments and rulings.
In order to implement the important decision of the central government, make the special activities go smoothly and achieve the expected results, and at the same time, according to the needs of judicial practice, it is imperative to further clarify the legal application of refusing to execute judgments and ruling criminal cases.
Q: What principles were followed in the drafting of the judicial interpretation of refusal to commit a crime?
A: During the drafting process, we mainly grasped the following principles: First, ensure that the relevant provisions conform to the legislative spirit, and fully consider the connection with the relevant provisions of the existing legislative interpretation and the upcoming Ninth Amendment to the Criminal Law. The second is to take into account the laws and characteristics of criminal trial and execution to ensure that the interpretation conforms to the reality of trial and execution. The third is to fully embody the criminal policy of combining leniency with severity, strictly define the conditions for conviction, and clarify the circumstances of lenient punishment and heavier punishment as appropriate.
Q: What are the main provisions of the judicial interpretation of refusing to commit a crime?
A: The full text consists of eight articles, including substantive provisions on conviction and sentencing of refusing crime and procedural provisions on prosecution and jurisdiction of refusing crime.
In substance, mainly on the basis of the legislative interpretation in the National People's Congress Standing Committee (NPCSC), the specific manifestations of the crime of refusing to execute are further clarified, and three types of * * * eight kinds of refusal behaviors that can constitute the crime of refusing to execute are listed; The lenient and heavier sentencing circumstances are also stipulated as appropriate.
In terms of procedure, first, it is stipulated that some cases that refuse to commit crimes can be prosecuted according to the procedure of private prosecution. If it is clearly stated that the case of refusing to commit a crime meets the conditions stipulated in Article 204 of the Criminal Procedure Law, the people's court may accept it as a case of private prosecution; At the same time, according to Article 206 of the Criminal Procedure Law, the private prosecutor can reconcile with the defendant or withdraw his private prosecution before sentencing, thus changing the prosecution procedure of refusing to commit a crime from a single public prosecution procedure to a parallel procedure of public prosecution and private prosecution. The second is to stipulate the general principle of refusing jurisdiction over criminal cases. It is clear that under normal circumstances, cases of refusing to commit crimes shall be tried by the court where the enforcement court is located.
Q: What are the specific manifestations that meet other "serious circumstances"?
A: In addition to the four situations stipulated in the National People's Congress Standing Committee (NPCSC)'s legislative interpretation, the interpretation lists eight situations that can constitute the crime of refusing to execute. The first category is "refusing to implement after taking compulsory measures such as fines and detention". For example, refusing to report or falsely report property, violating orders restricting high consumption and related consumption, and refusing to implement after taking civil compulsory measures should be serious; The second category is "circumstances that make the judgment or ruling of the people's court impossible to be executed or impossible to be executed", such as preventing the person subjected to execution from entering the execution site by violence or threats, or gathering people to make trouble to attack the execution site, insulting, besieging, detaining and beating the person subjected to execution, which makes execution impossible. Most of these acts are "under the eyes of judges", which are violent to some extent, greatly infringe on the judicial credibility and hinder the implementation of the people's courts, and should be severely cracked down; The third category is the situation that leads to heavy losses for creditors.
Q: It is stipulated that the defendant who refuses to execute the judgment or ruling before the verdict is pronounced in the first instance can be given a lighter punishment as appropriate. For what reason?
A: The main purpose is to crack down and punish the crime of refusing to execute, and at the same time, encourage the defendant to actively fulfill the legal obligations determined by the judgment and ruling, so that the execution case can be actually executed. When applying this provision, we should pay attention to the following two points: First, the time limit for leniency is "before the verdict is pronounced in the first instance", that is, before the verdict is pronounced in the first instance, those who have the obligation to execute will have the opportunity to receive leniency in sentencing. Second, those who perform all or part of their obligations can be given a lighter punishment. As for the leniency, the criminal judge will give them a lighter or exempted punishment according to their share of fulfilling their obligations and the specific circumstances of the case.
Q: It is stipulated that some cases of refusing crimes can be treated as cases of private prosecution. Will it lead to a sharp increase in the number of cases of refusing crimes and private prosecution?
A: First of all, it must be clear that not all cases of refusing crimes are prosecuted by private prosecution, but the public prosecution procedure and private prosecution procedure are parallel; Secondly, the crime of refusing to execute in the procedure of private prosecution must meet two conditions stipulated by law at the same time, both of which are indispensable. That is, the executor of the application must have evidence to prove that: 1, the person who has the obligation to execute refuses to execute the judgment or ruling, which infringes on the personal and property rights of the executor of the application and should be investigated for criminal responsibility according to law; 2. The application executor has filed a complaint, but the public security organ or the people's procuratorate will not pursue the criminal responsibility of the person who has the obligation to execute. If the court considers that it meets the conditions for filing a case of private prosecution, it shall file a case for trial. As for the specific operational procedures such as filing and trial, we will issue a notice to further refine and clarify. It is expected that after the release of the Interpretation, some cases will be changed from public prosecution to private prosecution, and the specific number of cases remains to be tested in practice.
Q: How do you understand that "it is generally tried by the people's court where the enforcement court is located"?
A: According to the relevant provisions of the Criminal Procedure Law and its interpretation, criminal cases are under the jurisdiction of the court where the crime occurred, including the place where the crime occurred and the place where the crime resulted. The main result of refusing to commit a crime is that the judgment or ruling cannot be executed. Therefore, the location of the enforcement court can be included in the scope of criminal results, and the jurisdiction of the enforcement court conforms to the law.
In 2007, the "two houses and one department" jointly issued a notice stipulating that the case of refusing to commit a crime shall be under the jurisdiction of the judicial organ where the crime occurred. In practice, the courts other than the executive court lack enthusiasm for the punishment of the crime of refusing to execute, which is not conducive to the collection and fixation of relevant evidence, nor to the prosecution and crackdown on the crime of refusing to execute, and it is necessary to further clarify the general principles of jurisdiction; At the same time, considering the level jurisdiction of refusing criminal cases, there will be inconsistency between the enforcement court and the court that hears refusing criminal cases, so it is stipulated that "it is generally tried by the people's court where the enforcement court is located".
Q: How does this interpretation relate to the effectiveness of previously published normative documents?
A: In the drafting process, the Interpretation fully considered the interconnection with the previously released judicial interpretations and normative documents, which basically supplemented and further refined the original provisions. The original relevant provisions of this interpretation are not repeated and still apply; Where the original relevant provisions are inconsistent with this interpretation, this interpretation shall prevail. Specifically, the inconsistency mainly includes the following aspects:
1. On the nature of refusing to execute in Item (5), (6) and (7) of Article 2. According to the provisions of the 2007 "two houses and one department" circular, everyone will be punished for obstructing official duties. The interpretation stipulates that a person who has the obligation to execute commits one of the above acts and will be punished as refusing to commit a crime. If there are cases of concurrence and involvement with other criminal acts in a specific case, and the relevant acts of others other than those who have the obligation to execute constitute a crime of * * *, criminal judges shall deal with it according to the specific circumstances.
2. About the prosecution procedure. 1998, six ministries and commissions stipulate that the case of refusing to execute is a public prosecution case. However, after the revision of the Criminal Procedure Law in 20 12, six ministries and commissions re-formulated the Provisions on Several Issues Concerning the Implementation of the Criminal Procedure Law, and it was not clear whether the case of refusing to implement the crime was a public prosecution case. The interpretation stipulates that public prosecution and private prosecution can go hand in hand.
3. On jurisdiction. According to a circular of the two houses in 2007, it is under the jurisdiction of the court where the crime occurred, while this interpretation is generally tried by the people's court where the enforcement court is located. (Reporter Jing Long)?