Liu Mouhai refused to execute the judgment
- Have partial enforcement capacity to transfer property before being sued
It may constitute the crime of refusing to enforce a sentence
One
Basic facts of the case
Defendant Liu Mouhai. In 2014, he was sentenced to eight months in prison, suspended for one year, for extortion. He was arrested on November 7, 2019 in connection with the case.
The People's Procuratorate of Guiyang County, Hunan Province, charged the defendant Liu Mouhai with the crime of refusing to carry out the judgment, and filed a public prosecution with the Guiyang County People's Court of Hunan Province.
Defendant Liu Mouhai denied the crime, arguing that he had declared his property to the court, was incapable of performing the effective judgment, that the house was purchased by his parents, and that he did not drive a small ordinary passenger car to "run for rent". The defender submitted that Liu Mouhai was incapable of performing the effective judgment due to family difficulties, and had no intention of refusing to enforce the effective judgment, and his conduct did not constitute the crime of refusing to enforce the judgment.
The People's Court of Guiyang County, Hunan Province ascertained through public trial that on July 18, 2017, the defendant Liu Mouhai drove a small ordinary passenger car No. ×××××× Xiang and took Ou and others in a car accident in the section of Liutang Village, Huangshaping Town, Guiyang Avenue, Guiyang County, Hunan Province, causing injuries to Ou and others, and the Traffic Police Brigade of the Guiyang County Public Security Bureau of Hunan Province determined that Liu Mouhai bore full responsibility for the accident. On January 22, 2018, Liu Mouhai and his wife Tan went through divorce procedures and negotiated the joint property during the existence of the marital relationship, that is, the façade house on the left side of the Lotus Town Government (without applying for the real estate certificate) and a Wuling brand small ordinary passenger car belonged to Tan, and the debt of 40,000 yuan was repaid by Liu Mouhai. On March 20 of the same year, Ou sued Liu Mouhai to this court, demanding that Liu Mouhai compensate for losses. On August 6 of the same year, this court ruled that Liu Mouhai should compensate Ou for losses of 227,4993 yuan in the (2018) Xiang 1021 Min Chu No. 384 Civil Judgment. On October 18 of the same year, Ou applied for compulsory enforcement. On April 25, 2019, this court issued an enforcement notice and an order to report assets to Liu Mouhai in accordance with the law, but Liu Mouhai did not perform the effective judgment and failed to declare his assets after receiving the documents. On August 14, 2019, Liu Mouhai was sentenced to 15 days of judicial detention for refusing to perform effective legal documents. Liu Mouhai has still not fulfilled the effective judgment of this court.
It was also ascertained that the defendant Liu Mouhai and Tan had been living together since their divorce, using the car under Tan's name to engage in the "running rent" business, with a monthly income of about 3,000 yuan, and had the ability to partially perform the (2018) Xiang 1021 Min Chu No. 384 civil judgment.
The Guiyang County People's Court of Hunan Province held that the defendant Liu Mouhai's refusal to enforce the effective judgment of the people's court despite having the ability to enforce it, the circumstances were serious, and his conduct constituted the crime of refusing to enforce the judgment. With regard to Liu Mouhai and his defender's opinion that Liu Mouhai's conduct did not constitute the crime of refusing to enforce the judgment, upon investigation, it was found that Liu Mouhai and his wife Tan Mouhai used the storefront house they purchased to operate a car wash shop, purchased vehicles for rent, and had a relatively stable income and a certain ability to perform. In order to evade the liability for compensation, Liu Mouhai went through the divorce procedures with his wife after the accident, and agreed that Liu Mouhai would be responsible for all the child's maintenance expenses and bear the responsibility for repaying the debts during the existence of the husband and wife, and Tan would enjoy the property interests during the existence of the husband and wife, trying to create the illusion that the family was in financial difficulties and unable to perform. In fact, Liu Mouhai and Tan still live together after going through the divorce procedures, jointly producing and operating businesses, and maintaining family stability and integrity. During the enforcement phase, after this court served Liu Mouhai with an enforcement notice and an order to report assets in accordance with law, Liu Mouhai refused to enforce it, nor did he declare his assets as required, and still refused to enforce it after this court took compulsory measures of judicial detention against him. Therefore, the not-guilty opinion put forward by Liu Mouhai and the defender is inconsistent with the facts and contrary to the provisions of the law, and is not adopted. In accordance with the first paragraph of article 313 of the Criminal Law of the People's Republic of China, the first paragraph of article 2 of the "Supreme People's Court Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Refusal to Enforce Judgments and Rulings", and the first paragraph of article 200 of the Criminal Procedure Law of the People's Republic of China, the defendant Liu Mouhai was found guilty of refusing to enforce the judgment and sentenced to one year and six months imprisonment.
After the judgment is announced, there is no appeal or prosecutorial counter-appeal within the statutory time limit, and the first-instance judgment has taken legal effect.
Two
Problems
Does the fact that the defendant has partial capacity to enforce and transfers property before being prosecuted, making it impossible to enforce the judgment of the people's court, constitutes the crime of refusing to enforce the judgment?
Three
Grounds for the Trial
In recent years, the problem of parties in some cases evading enforcement has become more and more serious, and there are more and more means, and they have challenged the authority of the judiciary, seriously damaged the credibility of the judiciary in the hearts of the people, and undermined people's faith in the law. The people's courts have cracked down on conduct that has the ability to enforce the people's court's judgments or rulings but refuses to do so, and the circumstances are serious, through conviction and sentencing, and has achieved relatively good legal and social effects. In this case, the defendant Liu Mouhai had partial enforcement capacity and transferred property before being prosecuted, making it impossible to enforce the judgment, and it is disputed whether his conduct constituted the crime of refusing to enforce the judgment. In our view, such acts should be convicted and punished in accordance with the offence of refusal to carry out a sentence.
(1) "Refusal to enforce" should generally be calculated from the time the judgment or ruling takes effect
There are considerable differences in theory and practice on the starting point of the crime of refusing to enforce a judgment or ruling. The doctrine of the commencement of litigation holds that whether the perpetrator has refused to enforce should be determined from the time of the commencement of the litigation. The theory of obligation to know holds that whether the actor refuses to perform should be determined from the time when he knew or should have known the obligation determined in the legal document, whether the party has signed for it, whether the performance period has expired, and whether the legal document has taken legal effect. The Doctrine of Enforcement Begins to Hold that whether the perpetrator has refused to enforce should be determined from the date on which the people's court files the case. The doctrine of the effectiveness of the instrument holds that whether the actor has refused to enforce should be determined from the time when the instrument takes effect. In response to the above disputes, the Supreme People's Court issued Guiding Case No. 71 on December 28, 2016, namely the case of Mao Mouwen's refusal to enforce a judgment, puts forward a guiding opinion: "The time for having the ability to enforce a judgment or ruling for refusal to enforce shall be counted from the time when the judgment or ruling takes legal effect. "The object of the conduct regulated by the crime of refusal to enforce a judgment or ruling is the person obligated to enforce, and the obligation to enforce begins when the judgment or ruling takes effect, and the 'refusal to enforce' should also be counted from the time the judgment or ruling takes effect. This view is more reasonable and has guiding significance for similar cases in the future.
(2) The review of "ability to enforce" shall be extended to before the judgment or ruling takes effect
The legislative intent of the crime of refusing to enforce a judgment or ruling is to punish the enforcement obligor who has the ability to do so but refuses to do so. In judicial practice, some actors begin to deliberately transfer or conceal assets after debts are incurred, in order to avoid the enforcement of effective judgments and rulings in the future. After the judgment or ruling takes effect, the perpetrator refuses to enforce it on the grounds that it lacks the ability to perform. This type of conduct is the same as the transfer or concealment of property after a judgment or ruling takes effect, and can reflect that the perpetrator "has the ability to enforce but refuses to do so", and is no different in terms of social harmfulness, and there should be no distinction in characterization. Therefore, it is necessary to extend the review of whether the defendant has the ability to enforce in the crime of refusing to enforce a judgment or ruling until the judgment or ruling takes effect. "Before a legal document with enforcement content takes effect, a party maliciously transfers, conceals, or destroys property that can be used by the court for enforcement in the future in order to avoid legal risks or avoid bearing legal responsibility, resulting in the impossibility of enforcement, and is punished as the crime of refusing to enforce an effective legal document. [1] Guiding Case No. 1396 published in the Criminal Trial Reference, i.e., the case of Yang Mourong, Yan Mouying, and Jiang Moufu's refusal to enforce a judgment or ruling, also supports the above opinions, clearly stating that in order to evade enforcement, the act of transferring property before a civil judgment and continuing to the enforcement stage shall be punished as the crime of refusing to enforce a judgment or ruling.
(3) Property transferred by a pre-litigation "sham divorce" shall be used as the basis for determining "the ability to enforce".
From a legal point of view, there is no such thing as a so-called "sham divorce" in the mainland. Once the husband and wife go to the civil affairs department to obtain a divorce certificate or are approved by the people's court, it constitutes a "real divorce" in the legal sense. In practice, it often happens that through divorce procedures, property is transferred or concealed in the name of property division to evade the performance of debts. Defendants Liu Mouhai and Tan went through divorce formalities, transferred all the joint property of the husband and wife to Tan's name, and the debts were repaid by Liu Mouhai alone, evading the payment obligation to be assumed. After the divorce, although Liu Mouhai and Tan could not be legally named husband and wife, they still lived together, operated together, and maintained the stability and integrity of the family, which is a typical transfer and concealment of property through "fake divorce". Assets transferred by "sham divorce" before litigation should be included in the scope of enforcement capacity, and used as the basis for determining "enforcement capacity".
(4) Only partial enforcement capacity cannot absolutely prevent the establishment of the crime of refusing to enforce a judgment or ruling
The crime of refusing to enforce a judgment or ruling is a circumstantial offense, and it is required that "refusal to enforce it despite having the ability to do so" reaches the level of "serious circumstances". In August 2002, the Standing Committee of the National People's Congress adopted the Interpretation of Article 313 of the Criminal Law of the People's Republic of China, which stipulates that "refusal to enforce the Criminal Law of the People's Republic of China is serious if the circumstances are serious". In July 2015, the Supreme People's Court issued a further interpretation of the above-mentioned catch-all provisions. In judicial practice, the people's court should not only judge that the defendant "has the ability to enforce but refuses to do so" in accordance with the provisions of the above-mentioned legislative and judicial interpretations, but also needs to make a substantive judgment on whether the defendant's refusal to enforce meets the criterion of "serious circumstances" in light of the specific facts of the case, such as the size of the subject matter, the amount of property transferred, and the strength of the enforcement ability. As far as enforcement capacity is concerned, the defendant has partial enforcement capacity, which affects but cannot certainly prevent the establishment of the crime of refusing to enforce a judgment or ruling. For example, if the subject amount of enforcement is 1 million yuan, and the defendant only has the ability to enforce 500 yuan, even if he has transferred or concealed assets and refuses to enforce the law, it should not be found that the circumstances are "serious";
Specifically, in this case, the defendant Liu Mouhai drove a small ordinary passenger car, and after a traffic accident, he was liable for compensation to Ou. In order to evade the liability for compensation, Liu Mouhai went through divorce procedures with his wife Tan, transferred the real estate and vehicles to Tan's name, and assumed a debt of 40,000 yuan alone. After that, Liu Mouhai used the car under Tan's name to engage in the "running rental" business, with a monthly income of about 3,000 yuan. Combined with Liu Mouhai's property and income status, he has at least partial execution ability. Ou sued Liu Mouhai to the court, demanding that Liu Mouhai compensate for the loss, and the court ordered Liu Mouhai to compensate Ou for more than 220,000 yuan. After the judgment took effect, Liu Mouhai neither fulfilled the effective judgment nor declared his assets as required, and even refused to carry it out after being sentenced to judicial detention for 15 days for refusing to perform on effective legal documents. In accordance with the provisions of the relevant interpretations of the Standing Committee of the National People's Congress and the Supreme People's Court, and in light of the substantive judgment of Liu Mouhai's obligation to compensate, his ability to enforce, and his refusal to enforce, it should be determined that Liu Mouhai's "ability to enforce but refusal to enforce" has reached the level of "serious circumstances", and his conduct has constituted the crime of refusing to enforce the judgment.
[1] Hu Yunteng and Cui Yadong, eds., Trial Practice and Typical Cases of the Crime of Refusal to Enforce Judgments and Rulings, Law Press, 2015, p. 36.
Written by: Chen Jianhua, Intermediate People's Court of Chenzhou City, Hunan Province
Editor: Zhang Jie, Second Criminal Division of the Supreme People's Court