Referee Rules
1. After a judgment or ruling with enforcement content takes legal effect, the person with the obligation to enforce has acts such as refusing to enforce it, such as concealing, transferring, or intentionally damaging property, making it impossible to enforce the judgment or ruling, and the circumstances are serious, constitutes the crime of refusing to enforce the judgment or ruling -- Mao XX's refusal to enforce the judgment or ruling [Gist of the case] The time for refusing to enforce the judgment or ruling is calculated from the time when the judgment or ruling takes legal effect. After a judgment or ruling with enforcement content takes legal effect, the person with the obligation to enforce has acts such as refusing to enforce 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. Case No.: (2014) Wen Ping Xing Chu Zi No. 314 Trial Court: Pingyang County People's Court of Wenzhou City, Zhejiang Province Case Source: Released by the Supreme People's Court on December 28, 2016 (Guiding Case No. 71)
2. Units and individuals with enforcement obligations obstruct enforcement by changing the name of the enterprise, concealing due income, etc., making it impossible to enforce a judgment or ruling that has already taken legal effect, and the circumstances are serious, they shall be prosecuted for the crime of refusing to enforce the judgment or ruling - Procuratorate Case No. 92: Shanghai A Building Decoration Co., Ltd., Lu X Refusal to Enforce the Judgment Case of Case Filing Supervision [Case Summary] Units and individuals with enforcement obligations to change the name of the enterprise, Where methods such as concealing due income obstruct enforcement, making it impossible to enforce a judgment or ruling that has already taken legal effect, and the circumstances are serious, it shall be prosecuted for the crime of refusing to enforce the judgment or ruling. Where the person applying for enforcement believes that the public security organ should file a case for investigation of the refusal to enforce a judgment or ruling but does not file a case for investigation, and submits an application for supervision to the procuratorate, the procuratorate shall request that the public security organ explain the reasons for not filing the case. Where, after investigation and verification, it is found that the public security organ's reasons for not filing a case cannot be sustained, the public security organ shall be notified to file the case. In cases of crimes involving enterprises that are notified for filing, the plea leniency system shall be applied in accordance with law. Case source: Supreme People's Procuratorate's 24th Batch of Guiding Cases, Procuratorate Case No. 92
3. The person subject to enforcement transfers the company's equity held by him without compensation and changes the registration, resulting in the inability to enforce the effective judgment, and the circumstances are serious, constituting the crime of refusing to enforce the judgment or ruling - Huang XX's refusal to enforce the judgment or ruling [Gist of the case] Where the person subject to enforcement transfers the company's equity held by him free of charge and goes to the industrial and commercial department for change of registration when he is aware of the effective judgment, making it impossible to enforce the effective judgment of the people's court, it is "having the ability to enforce but refusing to enforce it, and the circumstances are serious" as provided for in Article 313 of the Criminal Law , constituting the crime of refusing to enforce a judgment or ruling. Case No.: (2018) Su 0402 Xingchu No. 449 Trial Court: Tianning District People's Court of Changzhou City, Jiangsu Province Case Source: Gazette of Jiangsu Provincial High People's Court 2019 Volume 2 (Total Volume 62)
4. Where the person subject to enforcement pays a creditor who has not been confirmed by the effective legal documents of the people's court without authorization, causing the creditors determined by the court's judgment to suffer major losses, it constitutes the crime of refusing to enforce the judgment or ruling - Gu Mouxin's refusal to enforce the judgment or ruling [Gist of the case] After receiving the people's court's enforcement notice, the person subject to enforcement pays the creditor who has not been confirmed by the effective legal documents of the people's court without authorization, causing the creditor determined by the court's judgment to suffer significant losses, it shall be deemed to be a judgment against the people's court, Where there is a ruling that has the capacity to be enforced but refuses to do so, and the circumstances are serious or especially serious, it constitutes the crime of refusing to enforce the judgment or ruling. Trial court: Qidong Municipal People's Court of Jiangsu Province Case source: Jiangsu Court Network June 2, 2022
5. Failing to truthfully report property after the court judgment takes effect, using another person's bank card to collect construction money, making it impossible to enforce the effective judgment, constitutes the crime of refusing to enforce the judgment or ruling - Huang's refusal to enforce the judgment or ruling [Case Summary] After the court judgment takes effect, the actor does not actively perform the obligation to repay the loan, nor truthfully report the property, and uses another person's bank card to collect the project money on behalf of the actor, making the effective judgment unenforceable, it constitutes the crime of refusing to enforce the judgment or ruling, and the court should judge the punishment based on the facts of the perpetrator's crime and his expression of remorse. Trial court: Cuiping District People's Court, Yibin City, Sichuan Province Source: People's Court Daily, February 23, 2023, page 3
6. Where, in the course of the enforcement of an effective judgment of a people's court, the property that has been seized by the people's court is illegally disposed of, resulting in the failure to auction the property for realization, and the interests of creditors suffer major losses, it constitutes the crime of refusing to enforce the judgment or ruling - Case of Wang's refusal to enforce the judgment or ruling [Gist of the case] Where the actor clearly knows that the property has been seized by the court during the enforcement of the effective judgment of the people's court, but still illegally disposes of the seized property, resulting in the failure of the property to be auctioned for realization, and the creditor's interests suffer major losses, it constitutes refusal to enforce the judgment, In the case of a verdict, the court shall determine the sentence based on the facts of the perpetrator's crime and his expression of remorse. Case No.: (2020) Su 0682 Xingchu No. 778 Trial Court: Rugao Municipal People's Court, Jiangsu Province Case source: Jiangsu Court Network December 23, 2020
7. Where the person subject to enforcement and persons not involved in the case jointly maliciously collude to obstruct enforcement through methods such as inflating debts, making it impossible to enforce the judgment or ruling, it constitutes the crime of refusing to enforce the judgment or ruling -- Qiu X and Li's refusal to enforce the judgment or ruling [Gist of the case] Where the person subject to enforcement and persons not involved in the case jointly maliciously collude to obstruct enforcement through methods such as inflating debts, false litigation, or false settlement, making it impossible to enforce the judgment or ruling, it constitutes the crime of refusing to enforce the judgment or ruling, and the court should determine the punishment on the basis of circumstances such as the actor's voluntary surrender and admission of guilt and acceptance of punishment. Trial court: Rugao Municipal People's Court of Jiangsu Province Case source: Jiangsu Court Network October 21, 2021
Judicial perspectives
I. The determination of "ability to enforce" in the crime of refusal to enforce a judgment or rulingAt present, because the establishment of the mainland's credit reporting system is not yet complete, there are still many difficulties in the people's courts' verification of the "ability to enforce" of the person subject to enforcement. In judicial practice, attention should be paid to the following issues: 1. Where it is proved on the basis of verified evidence that a person with the obligation to enforce a judgment or ruling of a people's court has property that can be used for full or partial enforcement, or has the ability to perform all or part of the obligations of a specific act, it shall be found to be "capable of enforcement". 2. For cases of refusal to enforce judgments or rulings in the category of property payments, which are common and frequent in practice, a comprehensive judgment shall be made mainly through the verification of the property status of the person subject to enforcement, the ratio of performance of obligations to one's own ability to perform, and so forth. When specifically determining the enforcement capacity of the person subject to enforcement, the minimum necessary livelihood guarantee funds for the person subject to enforcement and their dependents shall be deducted, and the standard for the necessary livelihood guarantee funds may be determined with reference to the local minimum work standard or minimum subsistence support line standard. 3. In the current absence of a uniform quantitative standard for "ability to enforce", it is appropriate in judicial practice to reasonably determine "ability to enforce" based on the local economic and social development situation, combined with the situation of refusal to enforce and judgment ruling on criminal conduct. Where there is a huge disparity in the amount involved in a specific refusal to enforce a judgment or ruling, a reasonable judgment shall be made based on the specific circumstances of the case. In particular, in cases where alimony, child support, medical expenses and other expenses are paid, since the expenses that the person subject to enforcement needs to pay are usually smaller, it cannot be determined that the person subject to enforcement is "capable of enforcement" because the property status of the person subject to enforcement exceeds the enforcement obligation less. (Excerpted from The Complete Works of Understanding and Application of Judicial Interpretations: Criminal Volume 2, edited by the People's Court Press, August 2019, pp. 780-781.) ）
II. The time for refusal to enforce a judgment or ruling is calculated from the time when the judgment or ruling takes legal effectGuiding Case No. 71 confirms that the time for refusal to enforce a judgment or ruling is calculated from the time when the judgment or ruling takes legal effect. ...... The following is to be demonstrated and explained in conjunction with the relevant provisions of the Criminal Law, legislative interpretations, and judicial interpretations.
1. In its interpretation of article 313 of the Criminal Law, the Standing Committee of the National People's Congress pointed out that the "judgments and rulings of the people's courts" in this article refer to judgments or rulings made by the people's courts in accordance with law that have enforcement content and have already taken legal effect. That is to say, only after a judgment or ruling with enforcement content has taken legal effect can it be legally binding and enforceable, and only then can the obligor have the responsibility to perform and actively perform the obligations set forth in the effective legal documents in a timely manner. The enforceability of an effective legal instrument does not arise after entering the enforcement procedure, but arises from the date of entry into force of the legal instrument. Although the Interpretation of the Standing Committee of the National People's Congress on Article 313 of the Criminal Law of the People's Republic of China uses the term "person subject to enforcement", from the original intent of the legislation, the use of this term does not mean that the subject of the crime is limited to the person subject to enforcement. ...... The discovery of the crime is generally in the enforcement stage of the case, and the criminal defendant is often the person subject to enforcement at the same time, but it cannot be reversed that the subject of the crime is limited to the person subject to enforcement, nor can it be concluded that the transfer of property after the judgment takes effect and before the enforcement case is filed, resulting in the inability to enforce the judgment, cannot be punished as the crime.
2. Consistent with the relevant provisions of the Civil Procedure Law and its judicial interpretations, Article 111 of the Civil Procedure Law of the People's Republic of China (Editor's note: Article 114 of the Civil Procedure Law of the People's Republic of China (2021 Amendment)) provides: Where litigation participants or other persons refuse to perform on a judgment or ruling of a people's court that has already taken legal effect, the people's court may impose a fine or detention on the basis of the severity of the circumstances; ...... The law clearly limits the refusal to enforce to the act after the judgment takes legal effect, but does not limit the scope of adjustment of the crime to the act that occurs after the judgment takes effect and enters the enforcement procedure, thus maintaining the harmonization and unity with the legal regulation of obstructing civil litigation in the legal normative system.
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 in accordance with the legislative purpose of cracking the "difficulty in enforcement" of effective judgments or rulings. It is the proper intent of the law to include evasion of performance of obligations after a judgment or ruling has taken effect and before filing a case for enforcement, within the scope of adjustment of the crime of refusing to enforce a judgment or ruling. Determining the date on which a judgment or ruling takes effect as the starting point for refusal to enforce a judgment or ruling can effectively prompt the obligor to take the initiative to perform the obligations determined by the effective judgment immediately after the judgment or ruling takes effect, forced by the deterrent effect of the criminal punishment, and avoid the effective judgment becoming a dead letter, so that the public can truly respect judicial rulings, safeguard 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 a judgment or ruling.
4. Conform to Judicial Practice PracticesFrom the perspective of judicial practice, the person subject to enforcement often refuses to perform their obligations through methods such as concealing, transferring, selling, or destroying property, making it impossible to enforce the judgment. Such acts are often completed before the enforcement procedure, but the consequences of the act "making the judgment unenforceable" need to be determined in the enforcement procedure. It can be said that only after entering the enforcement procedure can it be determined whether to refuse to perform the enforcement obligation, but it cannot be said that the act of transferring property after the judgment takes effect and before the case is filed does not belong to the act of refusal to enforce.
5. Coordination with the Evolution of the Criminal Law and Relevant Foreign ProvisionsFrom the perspective of the evolution of the mainland criminal law, Article 175 of the 1979 Criminal Law stipulates that anyone who refuses to carry out a judgment or ruling of a people's court that has already taken legal effect shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention, or other punishments. Since there was no separation between trial and enforcement at that time, as long as the judgment was refused to be enforced after it took effect, the crime of refusing to enforce the judgment or ruling could be punished. Judging from the provisions of foreign criminal laws, most of them also require refusal to carry out effective court judgments to constitute crimes. (Excerpted from the Editor-in-Chief of the Latest Legal Document Interpretation Series: Interpretation of Criminal Legal Documents, 2018, Volume 6, Volume 156, People's Court Press, October 2018, p. 62.) ）
Letters of the law
1. Criminal Law of the People's Republic of China (2020 Revision) Article 313, Paragraph 1 [Crime of Refusing to Enforce a Judgment or Ruling] Where a people's court's judgment or ruling is capable of being enforced 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;
2. Article 39 of Amendment (9) to the Criminal Law of the People's Republic of China amends Article 313 of the Criminal Law to read: "Where a judgment or ruling of a people's court is capable of being carried out 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 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. ”
3. "Judgment or ruling of the people's court" as provided for in Article 313 of the Criminal Law of the People's Republic of China (effective as of August 29, 2002) as provided for in Article 313 of the Criminal Law refers to the judgment or ruling made by the people's court in accordance with law that has enforcement content and has taken legal effect. Rulings made by the people's courts for the lawful enforcement of payment orders, effective mediation documents, arbitral awards, notarized creditor's rights documents, etc., are rulings provided for in this article. The following circumstances are the circumstances of "having the ability to enforce but refusing to do so, and the circumstances are serious" as provided for in Criminal Law article 313: (1) The person subject to enforcement conceals, transfers, or intentionally destroys property or transfers property without compensation, or transfers property at a clearly unreasonable low price, making it impossible to enforce the judgment or ruling; (3) After receiving a notice from the people's court to assist 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 a state organ to use the authority of the staff of the state organ to obstruct enforcement, making it impossible to enforce the judgment or ruling; (5) Other situations where they have the ability to enforce but refuse to do so, and the circumstances are serious. Where employees of state organs exhibit the conduct described in item 4 above, they are to be pursued for criminal responsibility as accomplices to the crime of refusing to enforce a judgment or ruling. Where employees of state organs accept bribes or abuse their authority, and have the conduct provided for in item 4 above, and at the same time constitute the crimes provided for in Criminal Law articles 385 or 397, they are to be convicted and punished in accordance with the provisions for the heavier punishment.
4. Article 1 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 or Rulings (2020 Revision): Where persons subject to enforcement, persons assisting in enforcement, guarantors, and other persons with enforcement obligations have the ability to enforce a people's court's judgment or ruling but refuse to do so, and the circumstances are serious, they shall be punished as the crime of refusing to enforce a judgment or ruling in accordance with article 313 of the Criminal Law. Article 2: Where a person with an obligation to enforce has the ability to enforce but carries out any of the following conduct, it shall be found to be "other circumstances where there is the 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) There is refusal to enforce the 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 refusal to enforce it even after compulsory measures such as fines or detention are employed; (3) Refusing to hand over property or tickets specified in legal documents, or refusing to move out of the house or land, making it impossible to enforce the judgment or ruling; (5) Using violence or threats to obstruct enforcement personnel from entering the enforcement site, or gathering crowds to make noise or storming the enforcement site, making enforcement work impossible; (6) insulting, besieging, seizing, or beating enforcement personnel, making enforcement work impossible; (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) refusing to enforce a court judgment; ruling, causing the creditor to suffer significant losses. Article 6: Where defendants who refuse to enforce a judgment or ruling perform all or part of their enforcement obligations before the first-instance judgment is announced, they may be given a lenient punishment as appropriate. Article 7: Those who refuse to enforce judgments or rulings such as on the payment of alimony, alimony, child support, pensions, medical expenses, or labor remuneration may be given a heavier punishment as appropriate.
5. "Notice of the Supreme People's Court, Supreme People's Procuratorate, and Ministry of Public Security on Issues Concerning the Lawful Investigation and Punishment of Criminal Acts Involving Refusal to Enforce Judgments and Rulings and Violent Resistance to Court Enforcement" (Fa Fa [2007] No. 29) 1. The following acts of refusal to enforce judgments or rulings are to be punished as the crime of refusing to enforce judgments or rulings in accordance with the provisions of Criminal Law article 313. (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 property that has been provided as a guarantee to the people's court, making it impossible to enforce the judgment or ruling; (3) After receiving the notice of assistance in enforcement, the person with the obligation to assist in enforcement refuses to assist in enforcement, making the judgment or ruling unenforceable; (4) The person subject to enforcement, the guarantor, (5) Other situations where the person who has the ability to enforce conspires with the staff of a state organ to obstruct enforcement by using the authority of the staff of a state organ to obstruct enforcement, making it impossible to enforce a judgment or ruling;
6. "Notice of the Supreme People's Court on Issues Concerning the Acceptance of Private Prosecution Cases for the Crime of Refusal to Enforce Judgments or Rulings" (Fa [2018] No. 147) The High People's Courts of all provinces, autonomous regions, and municipalities directly under the Central Government, the Military Courts of the People's Liberation Army, and the Production and Construction Corps Branch of the High People's Court of the Xinjiang Uygur Autonomous Region: Recently, some High People's Courts have requested instructions from our court, and the person applying for enforcement is suspected of refusing to enforce the judgment on the grounds that the person who has the obligation to enforce the judgment is suspected of refusing to enforce the judgment. Where a verdict submits an accusation to the public security organs, but the public security organs do not accept the accusation materials or do not give a written reply after accepting the accusation materials; where the people's court transfers to the public security organs clues on the crime of refusing to enforce a judgment or ruling, and the public security organs do not give a written reply or give a clear reply that they will not file the case, or the people's procuratorate decides not to prosecute, how should it be handled? In view of the general nature of the issues requested by some high people's courts, after study, and in accordance with relevant laws and judicial interpretations, the following notice is hereby given: 1. Where the person applying for enforcement makes an accusation to the public security organ that the person with the obligation to enforce is suspected of the crime of refusing to enforce a judgment or ruling, and the public security organ does not accept the accusation materials or does not respond in writing within 60 days of accepting the accusation materials, and the person applying for enforcement has evidence showing that the refusal to enforce the judgment or ruling violated their personal or property rights and shall be pursued for criminal responsibility in accordance with law, the people's court may file a private prosecution case for trial. 2. Where a people's court transfers leads to the public security organs on the crime of refusing to enforce a judgment or ruling, and the public security organs decide not to file the case or do not give a written response within 60 days of accepting the case leads, or the people's procuratorate decides not to prosecute, the people's court may explain this to the person applying for enforcement; Where the person applying for enforcement has evidence showing that the refusal of a person with an obligation to enforce violates his or her personal or property rights by refusing to enforce a judgment or ruling, and shall be compelled to pursue criminal responsibility in accordance with law, the people's court may file and try the case as a private prosecution. 3. Where the public security organs decide to file a case after 60 days of accepting the accusation materials of the person applying for enforcement or the leads on the crime of refusing to enforce a judgment or ruling transferred by the people's court, the people's court is to rule not to accept the private prosecution of the person applying for enforcement, and where it has already been accepted, it may explain to the private prosecutor that they should return the prosecution or rule to terminate the trial. Where there are subsequent circumstances in which the public security organs or people's procuratorates do not pursue the case, the person applying for enforcement may initiate a new private prosecution in accordance with law.
Source: Faxin WeChat public account