In the crime of malicious transfer of property, disputes over creditor's rights and debts often occur in life. It is said that it is natural to pay back debts, but some people will refuse to pay them. At this time, the creditor can sue, but what if the other party commits the crime of malicious transfer of property?
Crime of malicious transfer of property 1 How to judge the crime of malicious transfer of property?
Article 3 14 of China's criminal law stipulates the crime of illegally disposing of sealed-up, seized and frozen property, and the property that has been taken property preservation measures by the court according to law due to litigation shall not be arbitrarily disposed of or transferred.
The specific provisions are as follows: "Whoever conceals, transfers, sells off or intentionally damages the property that has been sealed up, detained or frozen by the court, if the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or a fine."
How to deal with the malicious transfer of property that has been preserved by the court;
1. Communicate directly with the actor and tell him that the property has been sealed up, detained and frozen by the court and cannot be transferred or changed at will.
If the other side stops acting, it's over.
2. If negotiation fails, you can contact the court in time, and the court staff will assign bailiffs to stop it and take judicial measures against the perpetrators as appropriate.
3. Report the case to the public security organ.
The police will control the perpetrators first, and if the facts are conclusive, they will be investigated for criminal responsibility for the crime of illegally disposing of seized, detained or frozen property.
legal ground
Article 15 of the Provisions of the Supreme Law on Several Issues Concerning the Handling of Property Preservation Cases by People's Courts
The people's court shall, according to the ruling on property preservation, take corresponding measures of sealing up, distraining and freezing.
If the overall value of real estate such as land and houses available for preservation is obviously higher than the amount determined by the preservation ruling, the people's court shall take measures of sealing up, distraining and freezing the corresponding value of the real estate, except that the real estate is inseparable in use or its value will be seriously impaired due to division.
Where measures are taken to freeze funds in bank accounts, the people's court shall specify the specific amount to be frozen.
Crime of malicious transfer of property 2 How to judge the crime of malicious transfer of property?
According to the relevant laws of our country, there is no crime of malicious transfer of property, and "malicious transfer of property" is a legal term. Malicious transfer of property refers to the act of hiding, transferring, selling or destroying property after legal documents become legally effective, which makes it impossible for people's courts to enforce them.
In view of this kind of behavior, the creditor can actually request the people's court to cancel the debtor's behavior. The scope of the creditor's right to cancel shall be determined according to the scope of his creditor's rights. Due to the limitation of its creditor's rights, some necessary expenses incurred by the creditor in exercising its cancellation right shall be borne by the debtor.
According to the provisions of China's Civil Procedure Law, if a litigant participant or other person maliciously transfers property, the people's court shall, according to the specific circumstances, impose a fine or detention on the principal responsible person or the person directly responsible; If it constitutes a criminal offence in accordance with the law, criminal responsibility shall be investigated in accordance with the relevant provisions. Malicious transfer of property means that the litigant participants or others deal with the property that has been sealed up or detained by means of hiding, transferring, selling or destroying.
Or transfer the property that has been counted and ordered to be kept, or transfer the frozen property, the people's court will impose a fine and detention on the perpetrator or the principal responsible person of the unit according to the specific act and the seriousness of the case. If the circumstances are serious enough to constitute a criminal offence, criminal responsibility shall be investigated according to law.
According to the provisions of relevant judicial interpretations in China, how to define the malicious transfer of property in practice is discussed in Several Provisions of the Supreme People's Court on the Application of the Civil Procedure Law of People's Republic of China (PRC): the interpretation of the people's court has made special provisions, that is, Article 188 stipulates the specific behavior of refusing to perform the effective judgment or ruling made by the people's court, of which items (1) and (2) are about the malicious transfer of property, specifically:
1. If the parties dispose of the property by concealing, transferring, selling or destroying after the legal documents become legally effective, or sell the property at an obviously unreasonable price, give up the due creditor's rights, or provide a guarantee for others free of charge, the people's court cannot enforce it;
2. The party concerned disposes of the property that has provided guarantee to the court by concealing, transferring, damaging or without the permission of the court.
Legally, both of these behaviors belong to malicious transfer of property.
Generally, in litigation, the court makes a judgment on the property of the parties, but if the parties transfer the property maliciously, the people's court may impose a fine or detention on the person who is mainly responsible for the act or the person who is directly responsible, and shall be investigated for criminal responsibility according to law. In the court execution procedure, if the person subjected to execution maliciously transfers the property, it constitutes a crime of refusing to execute the judgment or ruling, and he shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or fine according to law; The circumstances of the crime are particularly serious.
May be sentenced to three to seven years in prison and fined. If a unit commits the crime of refusing to execute a judgment or ruling, in addition to imposing a fine on the unit, the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the above provisions.
In judicial practice, cases of malicious transfer of property include: free transfer of property; Transferring property at an obviously unreasonable low price; If the court has executed it, the actor deliberately transferred his property to others in order to avoid the execution of the judgment, thus making the judgment or ruling unenforceable.
Crime of Malicious Transfer of Property 3 I. Definition Basis of Malicious Transfer of Property
1, judicial interpretation
There are legal restrictions on the definition of malicious transfer of property. The Supreme People's Court made this provision in his Opinions on Several Issues Concerning the Application of the Civil Procedure Law of People's Republic of China (PRC). Article 188 of the judicial interpretation clearly stipulates that in any of the following circumstances, the parties may be dealt with in accordance with the provisions of Item (6) of Paragraph 1 of Article 111 of the Civil Procedure Law:
(1) Concealing, transferring, selling, destroying or transferring property without compensation after legal documents become legally effective, trading property at an obviously unreasonable price, giving up due creditor's rights, providing guarantee for others without compensation, etc. , resulting in the people's court can not be enforced;
(2) Hiding, transferring, destroying or disposing of the property that has provided a guarantee to the people's court without the permission of the people's court;
(three) in violation of the [anti] people's court to limit the consumption of high consumption;
(4) Having the ability to perform, refusing to perform the obligations specified in the effective legal documents in accordance with the enforcement notice of the people's court;
(five) the individual who has the obligation to assist in execution refuses to assist in execution after receiving the notice of assistance from the people's court. Among them, "concealing, transferring, selling or destroying the property after the legal document takes legal effect, which makes it impossible for the people's court to execute it" is an act of malicious transfer of property.
2. Civil Procedure Law
Then, how does the people's court deal with the malicious transfer of property? The interpretation also stipulates that "it can be handled in accordance with the provisions of Item (6) of the first paragraph of Article 111 of the Civil Procedure Law". Namely:
If a litigant participant or other person commits one of the following acts, the people's court may impose a fine or detention according to the seriousness of the case; If the case constitutes a crime, criminal responsibility shall be investigated according to law:
(1) Forging or destroying important evidence, which hinders the people's court from hearing a case;
(2) using violence, threats or bribes to prevent witnesses from testifying or instigating, bribing or coercing others to commit perjury;
(3) Hiding, transferring, selling off or destroying the property that has been sealed up or detained, or transferring the property that has been counted and ordered to be kept;
(4) Insulting, slandering, framing, beating or retaliating against judicial personnel, participants in litigation, witnesses, translators, expert witnesses, inspectors and assisting executors;
(5) Obstructing judicial personnel from performing their duties by violence, threat or other means;
(6) Refusing to perform a legally effective judgment or ruling of the people's court.
Second, the remedy for malicious transfer of property.
1, investigation and evidence collection
At present, in some cases of economic disputes, although the court ruled that the debtor paid money or compensated the creditor for liquidated damages, the creditor could not get the corresponding money in the execution procedure. The judgment of the court has become a judicial blank in the hands of creditors.
Among many cases that cannot be executed in place, the reason why some cases cannot be executed in place is not that the debtor has no economic ability, but that the debtor maliciously transfers the property after the debt is formed. Faced with such a situation, we can take active measures to assist the court in execution through legal channels.
2. Investigate the debtor's property clues
Property with executive value mainly includes real estate, motor vehicles and stocks.
Real estate belongs to the registration of housing management department, and generally provides two inquiry methods, namely, according to the specific house number or property right certificate number of the house. The judicial department can inquire through the identity card number of the party concerned. For individual creditors, the applicant must know the room number or property certificate number before he can inquire about the two inquiry methods provided by the housing management department. After applying for enforcement, the court may be required to inquire whether the debtor has any real estate.
The housing management department can provide the original registration and change registration information of real estate. Motor vehicles are registered in the vehicle management office of the traffic police detachment of the Public Security Bureau. You can usually find it by knowing the license plate number. Lawyers can inquire with the power of attorney and the letter of introduction from the law firm, and after obtaining the change registration information, they can know whether the vehicle has been transferred and how to transfer it. The registration information of stocks is generally kept by the securities registration and settlement institutions and needs to be inquired by the judicial department.
After applying for enforcement, the creditor shall know the debtor's property clues through various channels and assist the court in enforcement. If the debtor is found to have transferred his property after the accident, he can safeguard his legitimate rights and interests through litigation.