Shenzhen Longgang District People's Procuratorate:
For this case, the defender believes that this case is a serious procedural error, and the facts of the crime are like finding bones in an egg. People who live in China and have a little common sense of life will not think that this case is a crime, and there is no need to defend this case. This case obviously belongs to the wrong case at this stage. I hope that the procuratorate can take the facts as the basis and the law as the criterion, end this case under the sword of justice, let the petitioners petition, and the law belongs to the law.
Defenders believe that there are no criminal facts in this case, and Chen has no intention to commit a crime subjectively, which does not constitute a crime. At the same time, the investigation organ in this case found the facts wrong and deliberately omitted the facts that were beneficial to Chen. Therefore, it is suggested that the procuratorate make a decision not to prosecute Chen in accordance with the provisions of Article 173 of the Criminal Procedure Law.
Several brief reasons for innocence are as follows:
1. The investigation organ in this case found that there was a major error in the facts, and the true facts are as follows.
Plaintiff Chen and defendant Longgang District Housing Security Management Center (hereinafter referred to as Longgang Housing Management Center) had a house lease dispute at Room 709, Building B, Dafen Palace, Longgang District. Longgang Housing Management Center sued for the termination of the contract, and asked Chen to pay the occupation fee, return the house and go through the check-out procedures. In the course of litigation, due to various reasons, the court could not serve the litigation materials to Chen, but only through newspaper announcements. In the absence of Chen, Longgang District People's Court made a judgment in support of Longgang Housing Management Center, but the judgment was only served on the bulletin board at the entrance of the court. Therefore, Chen did not receive the relevant judgment documents, and did not know the specific content and time limit in the judgment documents.
Houlonggang Housing Management Center applied for compulsory execution, and the Longgang District Court posted an execution notice and a property declaration order in Room 709, Building B, Dafen Palace on October 27th, 2011.The main content of the execution notice was "the court applied for executor on October 27th+65438+". Request to order the person subjected to execution to pay RMB 10 1438 yuan ... You are now ordered to perform the obligations specified in the effective legal documents within five days from the date of service of this notice ... If you fail to do so within the time limit, the court will enforce it according to law. "The main content of the property declaration order is" ... If all obligations are not fulfilled within the time limit stipulated in the execution notice, the current property status and the property status of the year before the date of receiving the execution notice shall be truthfully reported within five days after the expiration of the time limit stipulated in the execution notice ... If the report is refused or false, the court will take measures such as fines and detention according to the seriousness of the case. "
After seeing the enforcement notice, Chen took the initiative to deposit10/40 yuan into the enforcement account of Longgang District Court through the Agricultural Bank on February 4, 20 17. On 20 17 12 1, on the grounds that the house involved was Chen's only residence, he submitted a letter of execution guidance to the Longgang District People's Court to apply for suspension of execution, but he did not get a reply.
The announcement in the document ordered Chen to move out of the house before 2065438+February 5, 2007. The surveillance video shows that Chen started from 709 with his belongings around 0: 00 on February 5, 20 17.
According to the registration form of accepting cases in this case, the time when Longgang District Public Security Bureau accepted the case was 2065438+65438+0: 09 on February 6, 2007, just 9 minutes after the departure time stipulated by Longgang District Court, indicating the arrest. According to the testimony of witness Zhong, Chen was arrested in Baoan at around 0: 00 on February 6, 20 17, and the summons card showed that Chen was summoned to Luogang police station at 2: 40 on February 6, 20 17.
In addition, the date of the transfer investigation letter issued by Longgang District People's Court is 20 17 12.6.
Therefore, at least four facts were omitted from the prosecution opinion: first, Chen did not receive the effective judgment from beginning to end and did not know the specific content of the effective judgment. Second, after seeing the notice of execution, Chen voluntarily paid all the execution funds according to the requirements of the notice, which is a fact of voluntary performance. 3. Chen started to move the articles in the house on February 4th and 5th, 20th17th. 4. The time limit for moving out of this case was 20 17 65438+24: 59 on February 5, but Luogang police station took over the case at 0: 09 on February 6, and Chen was arrested in Baoan District around 0: 00 on February 6. It's not normal to handle this case so quickly.
Second, this crime is consequential, and Chen's behavior has not yet reached the serious consequences of refusing to execute the judgment or ruling.
Refusing to execute the judgment or ruling of the people's court as stipulated in Article 313 of the Criminal Law, if the circumstances are serious, constitutes the crime of refusing to execute the judgment or ruling.
The National People's Congress Standing Committee (NPCSC)'s interpretation of Article 313 of the Criminal Law of People's Republic of China (PRC) stipulates that the following situations belong to the situation of "refusing to execute if the circumstances are serious" as stipulated in Article 313 of the Criminal Law, among which item (5) stipulates: refusing to execute if the circumstances are serious.
Article 2 of the Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Refusing to Execute Judgments and Ruling Criminal Cases (Law Interpretation [20 15] 16) stipulates that a person who has the obligation to execute has the ability to execute, and if he commits one of the following acts, he shall be deemed as "having the ability to execute and refusing to execute," as stipulated in Article 313 of the Interpretation of Criminal Law of the NPC Standing Committee. Article 3 stipulates that: refusing to deliver the property or tickets specified in legal documents or refusing to move out of the house or land, which makes the judgment or ruling impossible to execute.
According to the above-mentioned legal provisions, this crime should meet two conditions, one is the act of refusing to move out of the house, and the other is the serious consequence that the judgment or ruling cannot be executed.
According to the interpretation of the Chinese Dictionary and the legislative intent of the Civil Procedure Law, execution refers to implementation and actual performance. Legally, it refers to the meaning of putting into practice the contents determined in the effective judgments, rulings and conciliation statements of the court. Execution includes active execution and enforcement. Inability to execute means that no matter what means are taken, including enforcement, the content of the judgment cannot be realized, that is, execution cannot be realized. Therefore, from the original intention of legal and judicial interpretation, there should be serious consequences of "inadequate execution" to constitute this crime, that is, after Chen's behavior, the court cannot complete the execution of the judgment by any means (including enforcement), and only when this state or consequence is reached can this crime be constituted.
In this case, House 709 was not destroyed or sealed up, let alone damaged, and Chen Ye did not refuse to leave. The court or enforcement applicant only needs to unlock the house by himself or forcibly, so as to achieve the purpose of repossession of the house. There is no result of "execution failure". In fact, in the lease contract signed by Longgang Housing Management Center and Chen, there is a way for Longgang Housing Management Center to unlock the house by itself.
Third, in behavior, Chen did not refuse to move out of the house. He moved out of the house at 0: 00 on February 5, 20 17, and he took the initiative to fulfill the judgment. Not moving out completely, or abandoning things and refusing to move out, are two completely different States.
Fourth, Chen subjectively has no criminal intention of refusing to execute the judgment.
Chen did not receive the civil judgment and did not know the specific content of the judgment, which is the reason why his performance of the judgment could not fully meet the requirements of the judgment. Even so, after seeing the enforcement notice, Chen immediately fulfilled his obligation to pay the occupation fee in time according to the requirements of the notice, which is a concrete manifestation of his initiative to fulfill the effective judgment.
Chen raised an execution objection because there is only one residence in Shenzhen, and it is impossible to find a suitable residence in a short time, hoping to suspend the execution. This is legal and correct. Even so, Chen left his job.
According to the above-mentioned behavior of Chen, Chen has no subjective intention of refusing to implement it.
Four, this case is completely divorced from the judicial practice of our country, and it belongs to a typical unfounded law enforcement choice. Because people handle cases, there are obvious traces of human intervention in handling cases, and it should be abolished under the rule of law.
The difficulty of execution is a long-standing judicial problem in China. In reality, the difficulty in execution means that the judgment cannot be realized by compulsory execution. However, in this case, the enforcement method is not used. The practice of moving out of the house for 9 minutes before filing a criminal case far exceeds the normal practice and cannot explain the reasons for choosing law enforcement. The fundamental significance of criminal compulsory filing is that. How many enforcement cases have not fulfilled their monetary obligations within the time limit, and how many enforcement cases have not moved out of the house within the time limit? Are they all criminally arrested?
If there are no other similar cases except this case, how can such law enforcement be convincing? I am afraid that the three cases of Longgang Public Prosecution Law are handled in this way, which is only in the country. However, the unjust judicial act is probably more harmful than the illegal act itself, because it damages the judicial authority and the source of justice and should be avoided.
Both criminal law and criminal procedure law require procuratorates and people's courts to handle cases independently, excluding the influence of other individuals and units. However, this case is full of traces of human intervention, which makes people feel sad and can never be tolerated by governing the country according to law!
5. If the decision not to prosecute is not made, it shall be submitted to the Shenzhen Municipal People's Procuratorate for examination and prosecution or other district procuratorates shall be designated for examination and prosecution.
This case began with the execution of the case by Longgang court, and the executor was a witness and an interested party. Longgang court had an interest in the handling of this case. Therefore, if you think this case needs to be prosecuted, it should also be submitted to the higher-level procuratorate for review and prosecution, or other procuratorates designated by the higher-level procuratorate for review and prosecution, so as to avoid being both an athlete and a referee after Longgang Court appeals to Longgang Court.
To sum up, the case is simple, the facts are clear, there is no so-called criminal fact at all, and it has not reached the result that the judgment cannot be executed, which does not constitute a crime at all. Therefore, as Chen's defender, I sincerely hope that the procuratorial organs can strictly abide by the law, eliminate the interference of other people's non-legal factors, and make a decision not to prosecute Chen in accordance with the provisions of Article 173 of the Criminal Procedure Law, so as to reflect the fairness and justice of the law.
The French open is long and sparse, but it does not leak. As the saying goes, there are three gods on the head, and the sword of justice is never biased, and it is the same for everyone! I hope that judicial people can uphold their conscience, only obey the truth, only handle cases according to law, be worthy of their own hearts, and dare to clap their chests and say that we have never taken the initiative to handle unjust cases.
I am here to convey
Guangdong hantai lawyer office
2065438+7 March 2008