The application of refusing to execute the judgment In order to ensure that the parties can consciously and automatically perform the judgment or ruling of the people's court after it takes effect, the crime of refusing to execute the judgment or ruling of the court is stipulated in 1979, and it is also stipulated after the revision of 1997 criminal law. 1In April 1998, the Supreme People's Court adopted the Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Cases of Refusing to Execute Judgments and Orders. In August 2002, the Ninth National People's Congress further explained the application of the crime of refusing to execute judgments and orders. However, in judicial practice, there are many acts of refusing to execute judgments and rulings, which are rarely cracked down by the courts, and have not played an educational and deterrent role in punishing such crimes with punishment. The difficulty of implementation has not been solved for many years.
On the application of refusing to execute the judgment
There are many factors that lead to the above problems, and the nonstandard and imperfect legal provisions are the important reasons. Integrating the research viewpoints of all parties, it is mainly manifested in the following aspects:
1. Unit crime does not constitute the subject of the crime of refusing to execute a judgment or ruling, and its scope of application is too narrow. Therefore, many administrative organs, enterprises, institutions and social organizations ignore the court's judgments and rulings and adopt various ways to evade the court's execution, but the court cannot impose criminal penalties on them.
2. The fees are not rigorous enough and there is misunderstanding. Many people think that only refusing to execute the court's judgment or ruling constitutes a crime if the circumstances are serious. In fact, refusing to execute the arbitration commission's ruling, the court's conciliation statement, payment order, notarized creditor's rights documents and other judicial documents, if the circumstances are serious, should also constitute a crime.
3. The statutory punishment is too light, and the balance between crime and punishment is biased. The criminal law stipulates this crime? Be sentenced to fixed-term imprisonment of not more than three years, criminal detention or a fine? It is unfair not to distinguish between cases. If the size of the litigation object is not divided, it may lead to the phenomenon that the same case is judged with different objects.
4. There are rules inversion problems in the procedure, and the prosecution channels are not smooth. According to the relevant regulations, if the court considers that it has constituted a crime during the execution, it will transfer the case to the public security organ where the act occurred for investigation.
However, since the court has considered that the behavior of the person subjected to execution constitutes a crime and transferred it to the public security organ for examination and filing, what is the use of the investigation by the public security organ and the approval of the arrest procedure by the procuratorial organ? If the public security organ does not file a case for investigation and the procuratorial organ does not consider it a crime, what position will the court be in? Some courts are afraid that it is difficult to prosecute such crimes because of the problem of face. In addition, China's laws have relaxed the requirements for retrial, and the proportion of retrial cases remains high, which is also an important reason for cracking down on this crime.
In view of the shortcomings of the above-mentioned legal provisions, scholars have put forward suggestions for improvement: 1. Change the charge to? Crime of refusing to execute effective legal documents? All valid legal documents are included in it; 2. Pursuit? Crime of refusing to execute effective legal documents? The starting procedure should stipulate the principles of public prosecution priority and victim's private prosecution priority. If the person subjected to execution or the relevant personnel refuses to execute the effective legal documents, it is the obligee who suffers the damage and shall have the right to bring a lawsuit; 3. Empower the court judicial police to investigate such crimes. Fundamentally solve the problem that evidence collection is out of line with public security criminal investigation in the execution process of court enforcement organs, and the procuratorate is responsible for reviewing and prosecuting; 4. The range of sentencing and punishment should be treated differently. According to the seriousness and consequences, it can be divided into two ranges: fixed-term imprisonment of not more than three years or criminal detention, and fixed-term imprisonment of not less than three years but not more than seven years.
In the field of enforcement, there are many laws and regulations that give the court strong coercive power. The main reason for the long-term law enforcement dilemma is that these laws and regulations have not been well implemented. In some execution cases, when the person subjected to execution begins to execute, criminal prosecution is meaningless, and the evidence collection is not timely and comprehensive, which leads to the fact that the person subjected to execution who has violated the criminal law cannot be transferred to the relevant authorities because the court enforcement agency does not have sufficient evidence, and then criminal responsibility can be investigated. In the process of execution, those who should take enforcement measures, especially those who refuse to execute judgments and rulings, are investigated for criminal responsibility, shouting more and doing less, and applying wider punishment without principle, even in the face of relationships, money and human feelings, making illegal and criminal acts less and less.
This not only damages the image of the court, but also seriously weakens the punishment and educational function of refusing to execute the judgment, which directly leads some people who evade legal responsibility to doubt and despise the law, and even many people simply don't know that their actions have violated the criminal law. This also greatly challenges the dignity and authority of the existing laws, which in turn makes many of the original execution of the courts a bit? Afraid? The person who is executed in my heart dares to tentatively resist the execution of the court. What about the person who gets it? Success? The person subjected to execution will break the law even more unscrupulously.
For a long time, when they refused to commit the act, they had no impression of whether their act was illegal or not and whether it could constitute a crime. Strict law enforcement can solve the problem. Only in this way can a good social order be truly standardized, people can benefit, and society can be harmonious and stable. Severely crack down on the criminal acts of refusing to execute judgments and rulings, illegally disposing of the seizure and seizure of frozen property, and the problem of difficult enforcement that plagues the court can be fundamentally solved.
The court should also conduct all-round publicity and reports on the process of cracking down on the criminal act of refusing to execute the judgment during the execution, thus forming a right? Lao lai? The children's high-pressure state. In China, drunk driving used to be as difficult as the death penalty. After drunk driving was sentenced, all parts of the country intensified efforts to strictly investigate drunk driving, severely cracked down on drunk driving crimes, and made standardized publicity reports in the media, forming a strong atmosphere of public opinion. The effect is that the education and deterrent effect of the powerful criminal punishment measures for drunk driving is very obvious, and the drunk driving behavior is greatly reduced. We should learn from this practice in cracking down on criminal acts of refusing to execute judgments and rulings.
Related reading:
Judicial interpretation of the crime of refusing to execute
Article 313 Whoever refuses to execute a judgment or written order, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or a fine.
Interpretation of the NPC Standing Committee on Article 313th of the Criminal Law of People's Republic of China (PRC) 2002-8-29.
The NPC Standing Committee discussed the provisions of Article 3 13 of the Criminal Law? Refusing to execute the judgment or ruling of the people's court, and the circumstances are serious? The meaning of the problem is explained as follows:
Under article 3 13 of the criminal law? Judgments and rulings of the people's courts? , refers to the people's court in accordance with the law with the implementation of the content and has taken legal effect of the judgment and ruling. Rulings made by the people's court, such as execution payment orders, effective conciliation statements, arbitration awards, notarized creditor's rights documents, etc., belong to the rulings stipulated in this article according to law.
The following situations belong to the provisions of Article 313 of the Criminal Law: refusing to execute if the circumstances are serious? Situation:
(1) The person subjected to execution conceals, transfers, intentionally damages the property or transfers the property at a low price without compensation, which obviously makes the judgment or ruling unenforceable;
(2) The guarantor or the person subjected to execution conceals, transfers, intentionally damages or transfers the property that has provided a guarantee to the people's court, so that the judgment or ruling cannot be executed;
(3) The obligor for assisting in execution refuses to assist in execution after receiving the notice from the people's court for assisting in execution, which makes the judgment or ruling unenforceable;
(4) The person subjected to execution, the guarantor or the obligor assisting in execution colluded with the functionaries of state organs to obstruct the execution by taking advantage of their functions and powers, so that the judgment or ruling could not be executed;
(five) other circumstances in which the ability to execute is refused, and the circumstances are serious.
Any functionary of a state organ who commits the act mentioned in Item 4 of the preceding paragraph shall be investigated for criminal responsibility for refusing to execute a judgment or ruling. Any functionary of a state organ who commits the above-mentioned fourth act by accepting bribes or abusing his power, which at the same time constitutes the crime of accepting bribes as stipulated in Article 385 and the crime of dereliction of duty as stipulated in Article 397 of the Criminal Law, shall be convicted and punished in accordance with the provisions of heavier punishment.
Have you seen it? On the application of refusing to execute the judgment? People have seen:
1. Six classic cases of refusal of private prosecution by the Supreme Court
2. The Higher People's Court of Guizhou Province issued disciplinary cases 10 for the person who has been executed for breach of trust.
3. Is the illegal claim of legal creditor's rights legal?
4. Wang Haizhong: an executive judge with iron bones and tenderness
5. Interpretation of Criminal Law Amendment (IX)