The crime of refusing to execute judgment or ruling
Author of article: Lawyer of Shandong Win & Win Co. Law Firm
*The original text is Chinese and has been translated into English for reference only. If there is any inconsistency or ambiguity between the Chinese version and the English version, the Chinese version shall prevail.
In practice, some defendants transfer their property in the lawsuit, resulting in the applicant for execution judgment. According to the law, the crime of refusing to execute a judgment or ruling is that it has the ability to perform but fails to perform the effective judgment or ruling. Therefore, for the transfer of property at the trial stage, most cases believe that it does not constitute a crime. According to the criminal trial reference and guidance case No. 1396, if the person conceals property from the trial stage to the execution stage, it constitutes the crime of refusing to execute the judgment and ruling. This provides a relief for the enforcement applicant.
A. Legal provisions on the crime of refusing to execute a judgment or ruling
According to the provisions of the criminal law, refers to the crime of refusing to execute judgments and rulings with execution content and legal effect made by the people’s court according to law. Therefore, if property is transferred only at the trial stage, it does not constitute the crime of refusing to execute judgments and rulings.
Article 313 Whoever refuses to execute a judgment or written order of a people’s court if he is capable of executing it, if serious, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or a fine; if the circumstances are especially serious, 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.
The Standing Committee of the National People’s Congress discussed the meaning of “refusing to execute a people’s court’s judgment or order if it is capable of execution, and the circumstances are serious”, as stipulated in Article 313 of the criminal law. The interpretation is as follows:
The “judgments and orders of the people’s court” as stipulated in Article 313 of the criminal law refers to the judgments and orders made by the people’s court according to law with enforcement and legal effect. The ruling made by the people’s court to execute the payment order, mediation statement, arbitration award, notarized creditor’s right document, etc. according to law belongs to the ruling.
B. Judicial rules
a. The transfer of property only at the trial stage shall not constitute the crime of refusing to execute the judgment or order
Related case: Criminal ruling made by Wuhan intermediate people’s Court of Hubei Province. Facts of the case: the people’s Court made a judgment on December 23, 2016; The defendant sold the house during the first instance and withdrew the house sales money on October 14, 2016. The applicant Peng applied to the People’s Court for enforcement on September 8, 2017 and May 23, 2018 respectively. On April 4, 2019, Peng filed a lawsuit with the People’s Court, claiming that the person subjected to execution sold the house during the first instance and withdrew the house sales money on October 14, 2016, which was to evade debt and conceal property, and should be investigated for his criminal responsibility for refusing to execute the judgment and ruling according to law.
the court held that according to the complaint and evidence provided by the appellant Peng, Xiong cashed out all the 450000 yuan of his house sales before the civil judgments in the above two cases came into force, so Peng’s request to investigate the criminal responsibility Xiong for refusing to execute the judgment and ruling was insufficient.
b. Before the judgment takes effect, the perpetrator conceals or transfers property in order to avoid execution. If he continues to hide property after the judgment takes effect, it can be regarded as that the behavior is in a continuous state, which also constitutes the crime of refusal to execute
Relevant cases: Case facts: in the case of private loan dispute between the plaintiff Wang and Pan, court made a judgment on June 15, 2017, ordering Pan to pay 85000 yuan and interest, which was enforced on July 21, 2017. It was found that during the trial, in order to avoid execution later, Pan withdrew his time deposit of RMB 700000 in the bank on April 25, 2017, transferred RMB 680000 to his nephew’s bank account, and his nephew transferred it to Pan’s second son’s account. On July 28, 2017, the court served an enforcement notice and property reporting order on Pan, but the defendant Pan continued to hide his property, failed to declare his property to the court, and failed to perform the obligations determined in the effective judgment, resulting in the unenforceability of the judgment of the people’s court.
The time of “being able to execute and refusing to execute” is generally from the time when the judgment or ruling takes effect. However, if the perpetrator conceals or transfers property in order to avoid execution before the judgment takes effect, and continues to hide property after the judgment takes effect, it can be regarded as that the behavior is in a continuous state, which also constitutes the crime of refusal to execute. Therefore, it is not only in the process of execution that the transfer and concealment of property constitute a crime. During the trial of the case, in order to avoid execution, the defendant Pan transferred property bank deposits and continued to hide property in the execution process after the judgment came into force. His behavior has constituted the crime of refusal to execute