Recently, the author handled a case of refusal to execute a judgment, and the whole case was very dramatic, so it aroused my interest in handling this case, and at the same time, I had doubts about the time of refusal to enforce the judgment or ruling in the crime of refusing to enforce the judgment or ruling. Below I will briefly describe the case and write down my gains, hoping that it will be helpful to you, and if there are any shortcomings, please point them out.
1. Brief description of the case:
In July 2015, Li's father changed the property rights of the house in his name (the joint property of the husband and wife, only registered in the name of Li's father) to Li's name, and Li's mother, brother and sister were unaware of it. In May 2016, Li's mother, brother and sister became aware of the aforesaid facts, so Li's mother, brother and sister went to the court to sue Li and Li's father, requesting that the property rights of the property at issue be restored to the name of Li's father. On July 4, 2016, the court of first instance ruled that Li should restore the registration of the property rights of the house to his father's name.
Li received the first-instance judgment, but Li felt that her mother, brother, and sister were robbing her house, so she did not change the house to her father's name, but took the opportunity of appealing against the first-instance judgment to the real estate agency company to list the house at issue**.
On August 29, 2016, Mr. Li gave the property at issue to an unsuspecting third party, Mr. Wang, and when Mr. Li received the down payment, the second instance had not yet been made. On October 18, 2016, the court of second instance rejected the appeal and upheld the original judgment. After the final judgment came into effect, Mr. Li ignored it, continued to deliver the property at issue to the buyer, and finally collected the balance of the sale of the house, and completed the final formalities of the transaction on October 22 of the same year, and completed the formalities for the change of registration of the immovable property on October 31 of the same year.
Second, my harvest
1. What is the crime of refusing to enforce a judgment or ruling? What circumstances would constitute the crime of refusing to enforce a judgment or ruling?
According to the first paragraph of article 313 of the Criminal Law of the People's Republic of China, it can be seen that the crime of refusing to enforce a judgment or ruling refers to refusing to enforce a judgment or ruling of a people's court when it is capable of enforcing it.
Among them, the following situations are included:
1) The person subject to enforcement conceals, transfers, or intentionally destroys property, or transfers property without compensation, or transfers property at an obviously unreasonable low price, making it impossible to enforce the judgment or ruling;
2) The guarantor or the person subject to enforcement conceals, transfers, intentionally destroys or transfers the property for which the guarantee has been provided to the people's court, making the judgment or ruling unenforceable;
3) After receiving the people's court's notice of assistance in enforcement, the person with the obligation to assist in enforcement refuses to assist in enforcement, making it impossible to enforce the judgment or ruling;
4) The person subject to enforcement, the guarantor, or the person with the obligation to assist in enforcement conspires with the staff of the state organ to use the authority of the staff of the state organ to obstruct enforcement, making the judgment or ruling impossible to enforce;
5) Other situations where there is a capacity to enforce but refusal to do so, and the circumstances are serious.
2. When does the time for refusal to enforce a judgment or ruling begin? (Refer to Guiding Case No. 71 - Mao Jianwen's Case of Refusal to Enforce a Judgment or Ruling).
1) The entry into the compulsory enforcement procedure of an effective legal document is not an element or prerequisite for constituting the crime of refusing to enforce a judgment or ruling, and the enforceability of an effective legal document does not arise after entering the compulsory enforcement procedure, but arises from the date on which the legal document takes effect.
2) The law clearly limits the refusal to enforce to the legal document after it has taken legal effect, and does not limit the subject of refusal to enforcement to the person subject to enforcement or the person assisting in the enforcement obligor after entering the compulsory enforcement procedure, and does not limit the scope of adjustment of the crime of refusal to enforce a judgment or ruling to the conduct that occurs after the effective legal document enters the compulsory enforcement procedure.
3) The legislative purpose of the crime of refusing to enforce a judgment or ruling is to solve the problem of "difficulty in enforcement" of effective judgments and rulings of the courts. Determining the date on which a judgment or ruling takes effect as the starting point for refusing to enforce a judgment or ruling can effectively prompt the obligor to take the initiative to perform the obligations determined by the effective judgment after the judgment or ruling takes effect, and avoid the effective judgment from becoming a dead letter, so that the public can truly respect judicial rulings, uphold the authority of the law, fundamentally solve the problem of "difficulty in enforcement", and achieve the legislative purpose of the crime of refusing to enforce judgments or rulings.
Therefore, the time for refusal to enforce a judgment or ruling that has the ability to enforce is calculated from the time when the judgment or ruling takes legal effect. After a judgment or ruling with enforcement content takes legal effect, and the person with the obligation to enforce has acts such as refusing to enforce it, such as concealing, transferring, or intentionally destroying property, making it impossible to enforce the judgment or ruling, and the circumstances are serious, it shall be convicted and punished as the crime of refusing to enforce the judgment or ruling.
3. Combined with the case
The date of the first-instance judgment involved in the case was July 4, 2016, and Li appealed after receiving the first-instance judgment, and the date of the second-instance judgment was October 18, 2016. After the final judgment came into effect, Mr. Li ignored it and continued to deliver the house at issue to the buyer, and finally collected the balance of the sale, completing the final formalities of the transaction on October 22 of the same year, and completing the registration procedures for the change of immovable property on October 31 of the same year.
In addition, one difference between this case and the aforesaid Guiding Case is that the court did not make a final judgment during the second-instance trial when Li sold the house. That is, there was no effective judgment when Li transferred the property, so why did Li constitute the crime of refusing to execute the judgment in this case? It's becauseWhen Li received the second-instance judgment, he did not suspend the transaction, but chose to complete the final transaction procedures and go through the formalities for the change of registration of the immovable property。That is, after the legal documents took legal effect, Li still carried out the act of refusing to execute, so the public prosecution found that Li constituted the crime of refusing to enforce the judgment and prosecuted Li.
To sum up, if the entry of an effective legal document into the compulsory enforcement procedure is taken as an element and prerequisite for constituting the crime of refusing to enforce a judgment or ruling, then a person like Li in this case who took the opportunity to file an appeal to transfer property, after the effective judgment is rendered and before entering the compulsory enforcement procedure, cannot be tried without suspending the refusal to enforce the act. There will also be more people who take advantage of the loopholes in the law and make effective judgments a dead letter. Therefore, the time when there is a ability to enforce but refuses to enforce a judgment or rulingIt is calculated from the time when the judgment or ruling takes legal effect
3. Relevant legal provisions:
1. Article 313 of the Criminal Law of the People's Republic of China:
Crime of refusing to enforce a judgment or ruling] Where there is a capacity to enforce a judgment or ruling of a people's court but refuses to do so, and the circumstances are serious, a sentence of up to three years imprisonment, short-term detention, or a fine is to be given; where the circumstances are especially serious, the sentence is between three and seven years imprisonment and a concurrent fine.
Where a unit commits the crime in the preceding paragraph, the unit is to be fined, and the directly responsible managers and other directly responsible personnel are to be punished in accordance with the provisions of the preceding paragraph.
2. Article 2 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Refusal to Enforce Judgments and Rulings":
Where a person with an obligation to enforce has the ability to enforce but commits any of the following conduct, it shall be found to be "other situations where there is a capacity to enforce but refusal to do so, and the circumstances are serious" as provided for in the Standing Committee of the National People's Congress's interpretation of article 313 of the Criminal Law
1) Refusal to report or falsely report the circumstances of assets, violation of the people's court's orders restricting high spending and related spending, and refusing to enforce it even after employing compulsory measures such as fines or detention;
2) Fabricating or destroying important evidence related to the person subject to enforcement's ability to perform, using violence, threats, or bribery to prevent others from testifying, or instigating, bribing, or coercing others to give false testimony, obstructing the people's court from ascertaining the circumstances of the person subject to enforcement's assets, making it impossible to enforce the judgment or ruling;
3) Refusal to hand over property or tickets specified in legal documents, or refusal to move out of the house or land, making it impossible to enforce the judgment or ruling;
4) Colluding with others to obstruct enforcement through methods such as sham litigation, sham arbitration, or sham settlement, making it impossible to enforce judgments or rulings;
5) Using violence or threats to obstruct enforcement personnel from entering the enforcement site, or assembling crowds to make noise or storm the enforcement site, making enforcement work impossible;
6) Insulting, besieging, seizing, or beating enforcement personnel, making it impossible to carry out enforcement work;
7) Destroying or snatching enforcement case materials, enforcement vehicles and other enforcement equipment, enforcement personnel's clothing, and enforcement documents, making enforcement work impossible;
8) Refusal to enforce a court judgment or ruling, causing the creditor to suffer major losses.