The Crime of Refusing to Enforce a Judgment and Ruling - Letting the Person Subject to Enforcement Be Executed
【Zhuhai lawyer, Zhuhai legal consultation, Zhuhai law firm, Jingshi law firm, Jingshi Zhuhai law firm】
A very ordinary enforcement case, but due to the refusal of the person subject to enforcement to maliciously transfer and conceal property for many times, more than a dozen litigation cases have been derived in the following years, such as the revocation of equity holding, the revocation of equity transfer, the confirmation of the invalidity of the contract, and the invalidity of the subdivision agreement. From civil litigation to administrative litigation to criminal private prosecution, under the persistence of Lou Guanhai's lawyer team for six years, we finally used criminal private prosecution to let the "old lai" be severely punished by the criminal law.
Basic facts of the case:
In November 2014, A and B signed an "investment agreement", stipulating that A contributed 4 million yuan to invest in a stone factory operated by B, and B settled 10% of the total investment to A before December 31 each year, and in the event of an accident and other circumstances, B could not guarantee the safety of A's investment principal and provide interest protection at a monthly interest rate of not less than 3 cents, and then because the above agreement was not actually performed, on November 8, 2017, A and B signed a "repayment agreement" It is agreed that the 4 million yuan paid by A will be converted into a loan at a monthly interest rate of 2%, which will be calculated from December 26, 2014. On December 16, 2017, A initiated arbitration, and on May 31, 2018, the H Municipal Arbitration Commission ruled that B should return RMB 6.9 million to A, and after December 16, 2017, the monthly interest rate of 2% was calculated until the payment was paid.
On July 5, 2018, A applied to the Intermediate People's Court of W City for compulsory enforcement, and on August 12, 2019, the Intermediate People's Court of W City ruled to terminate the enforcement procedure on the grounds that the person subject to enforcement had no other property clues available for enforcement.
Refusal:
1. On January 12, 2018, B and his son C signed an equity transfer agreement to transfer their 3 million yuan equity in Company D to C free of charge.
2. On January 18, 2018, B and D signed the "Equity Transfer Agreement" and the "Equity Holding Agreement" at the same time, in which it was agreed that B would transfer 81% of his equity in E Mining Company to D at a price of 810,000 yuan, and in the equity holding agreement, it was agreed that 81% of B's equity in E Mining Company would be held by D on behalf of D, and the industrial and commercial change registration was handled.
3. In the course of enforcement, after Mr. A applied for an investigation order, it was found that Mr. B owned two houses somewhere in City W, and because Mr. B refused to cooperate with the registration of the title, the Intermediate People's Court of City W City has not been able to seal the house, and in June 2020, the house was included in the scope of demolition, and on August 3, 2020, Mr. C, the son of Mr. B, and his daughter Mr. E submitted the "Application for Requesting the Separation of Property Rights and Independent Agreement" to the sub-district office of the district , demanding the division of the property rights of the expropriated house, and in the end, most of the compensation for the demolition of the house was obtained by his son and daughter.
4. B obviously had the intention of maliciously transferring property and evading enforcement, and the above-mentioned equity transfer agreement and equity holding agreement were all signed in a centralized manner after the arbitration notice was delivered to B, and he clearly knew that he owed a huge debt to A, but still transferred and concealed his property through the above-mentioned agreement. After entering the compulsory enforcement procedure, B has never declared the above-mentioned so-called legal equity held by D and the equity transferred to his son C free of charge.
5. On July 5, 2018, the Intermediate People's Court of W City issued an enforcement notice and an order to report property to B, ordering the person subject to enforcement to perform his obligations, but B did not truthfully report his property and did not perform the obligations determined by the effective legal documents, and in September 2018, the Intermediate People's Court of W City fined him 5,000 yuan, in December 2018, the Intermediate People's Court of W City detained him for 15 days, and in March 2023, because he refused to appear in court for an interview and failed to truthfully declare his property status, the Intermediate People's Court of W City decided to detain him for 15 days.
Private prosecution for the crime of refusal to execute:
On November 5, 2020, A requested the Intermediate People's Court of W City to transfer the clues of the case to the J District Public Security Bureau, but the bureau did not file the case for investigation within the statutory period, and on April 15, 2021, A reported the case to the J District Public Security Bureau of W City, requesting the J District Public Security Bureau to investigate and deal with it in accordance with the law, but the bureau did not file the case for investigation within the statutory period, and at the end of 2021, A filed a private prosecution with the J District Court, and the J District Court held that the arbitral award provided by A was dated May 31, 2018, and the time for applying for enforcement was July 5, 2018, and the equity transfer agreement signed by B and his son was January 12, 2018The "Equity Transfer Agreement" and the "Equity Holding Agreement" were signed with D on January 18, 2018, both before the award entered the enforcement procedure, and the equity transfer between B and his son C had been revoked, and the court held that the two agreements with D were only held on behalf of the people's court. Refusal to enforce the ruling with the ability to enforce it, and the circumstances are serious. Later, Mr. B appealed, and the Intermediate People's Court of City W remanded the case for retrial on the grounds that the facts were unclear. On October 19, 2023, the J District Court held that B, as the actual builder and owner of the above-mentioned house, donated all the expropriated houses to his children through household division after the case entered the enforcement stage, and carried out the act of transferring property, which constituted the crime of refusing to execute the judgment and ruling, and sentenced him to one year and six months in prison;
Brief analysis of the difficulties of the crime of refusal to execute in practice:
Article 313 of the Criminal Law stipulates that "a person who refuses to enforce a judgment or ruling of a people's court but has the ability to enforce it, and the circumstances are serious, shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or a fine." This article is located in Chapter VI of the Criminal Law in the chapter on crimes against the order of social management, and the crime of refusing to carry out a judgment or ruling upholds the authority represented by the effective court to ensure the normal operation of judicial order. Enforcement is an important guarantee for the realization of the legitimate rights and interests of creditors and the realization of the "last mile" of effective legal documents. In light of this case, the author will talk about the difficulties faced by creditors in advancing the crime of refusal to enforce in practice.
At present, the crime of refusal of execution can theoretically be initiated in the following ways:
(1) Submit an application to the court's enforcement department, and the court's enforcement department will transfer the case to the public security organ for filing and investigation;
(2) file a criminal complaint with the public security organ;
(3) In the event that the public security organ decides not to file the case/not to accept it/does not reply within 60 days after acceptance/the procuratorate decides not to prosecute, the applicant for enforcement may also file a criminal private prosecution with the enforcement court.
In this case, on November 5, 2020, A requested the Intermediate People's Court of W City to transfer the clues of the case to the District J Public Security Bureau, but the District J Public Security Bureau did not file the case for investigation within the statutory period, and on April 15, 2021, A reported the case to the District J Public Security Bureau of W City, requesting the District J Public Security Bureau to investigate and deal with it in accordance with the law, but the bureau did not file the case for investigation within the statutory period on the grounds of insufficient manpower, until the end of 2021, A filed a criminal private prosecution with the District J Court.
It is not difficult to see that in practice, it is extremely difficult to rely on the public security force to promote the crime of refusal to execute, as a creditor, the corresponding evidence can only be obtained through the court issuing an investigation order, and there is also a lag in the creditor's acquisition of information on hidden assets. In practice, the property information in the name of the "old lai" is often very "clean", and most of them transfer their own property through unconventional means, such as borrowing a name to make a deposit, buying a house or a car in a borrowed name, evading enforcement through a fake divorce between husband and wife, or maliciously colluding to fabricate creditor's rights and debts, debt agreements in kind, guarantee obligations, etc.
In this case, B and D signed the "Equity Transfer Agreement" and the "Equity Holding Agreement" at the same time, and A went through dozens of lawsuits and failed to revoke the above agreement. The Provincial High Court made an administrative judgment in March 2023, and the municipal government of S paid 6 million yuan in compensation for the closure of Company E, which was controlled by the nominee D, and A needed to try to recover the compensation through a series of lawsuits, which not only increased the burden of litigation and wasted judicial resources, but also made the repayment of A's claims illusory.
The author believes that for the "old lai" who maliciously transfer or conceal assets, inclusion in the list of judgment defaulters cannot and should not be the end, and that promoting the identification of the crime of refusal to enforce in judicial practice will, on the one hand, give the "old lai" a more severe punishment, and on the other hand, based on this deterrent effect from the criminal law, it will also be conducive to alleviating the current problem of difficulty in enforcement.
The lawyers involved in this series of cases include Lou Guanhai lawyer, Xu Liyan lawyer, Zhou Tianlei lawyer, Lu Tianhui lawyer, Zha Xiaoxu lawyer, and Li Xun (intern) lawyer.
Lawyer Lou Guanhai, education background: Bachelor of Laws from Anhui University Law School, Master of Business Administration degree from Anhui Institute of Business Administration, Practice Introduction: Obtained the qualification of lawyer in 1998 and the qualification of corporate legal counsel in 1999, is the founding partner of Beijing Jingshi (Hefei) Law Firm, and serves as the executive director of Beijing Jingshi (Hefei) Law Firm. He has served as an administrative law enforcement supervisor in Anhui Province and an expert in the food safety expert database of Anhui Province. Mr. Lou Guanhai not only has a deep theoretical cultivation of basic legal science, but also has strong legal business practice, and has rich experience in the operation and management of large state-owned enterprises, so he can better coordinate and coordinate legal affairs and the actual operation of enterprises and companies. Focus on litigation and non-litigation legal affairs such as corporate legal counsel, investment and financing, private equity funds, disposal of non-performing assets, corporate restructuring, corporate mergers and acquisitions, retrials, etc.
Lawyer Zhou Tianlei, graduated from Anhui University, full-time lawyer of Hefei Branch of Beijing Normal University, member of the Contract Law Committee of Beijing Normal Lawyer (National), specializes in litigation and non-litigation legal business in economic, civil and other aspects for a long time, and has handled various types of cases with diverse and complex case types, including contract disputes, corporate disputes, economic disputes, real estate disputes, construction project disputes, financial disputes, Intellectual property disputes, etc., with strong professional skills, since the practice of dedication, loyal to the entrustment, always take the interests of the client as the greatest pursuit of practice, won the praise and recognition of many clients.
Lawyer Lu Tianhui, graduated from Shanghai University of Finance and Economics, full-time lawyer of Jingshi Hefei Law Firm, mainly engaged in civil and commercial litigation and corporate compliance governance, specializing in handling various contract disputes, economic disputes, corporate disputes, construction disputes and labor management. Ms. Lu Tianhui is kind and patient in handling cases, loyal to the client, and is committed to providing high-quality legal services for every client through her professional ability and efficient communication.
Zha Xiaoxu, a full-time lawyer at Beijing Jingshi (Hefei) Law Firm, a member of the Corporate Compliance Legal Affairs Department, and a member of the China Democratic League, has served in a municipal procuratorate, and his main business areas are civil and commercial cases, administrative litigation, criminal cases, etc. Adhere to a solid legal foundation and solid work practice to provide customers with refined and professional legal services.
Contributed by: Lou Guanhai
Zha Xiaoxu
Editor: Qian Kaixia