Grasp the substantive legal relationship, accurately determine the enforcement of judgments, and rule on crimes of dereliction of duty

Author: Ren Lei (Procurator General of the People's Procuratorate of Boxing County, Shandong Province)

Source: Procuratorate Daily, April 10, 2024, page 3

　　The crime of dereliction of duty in the execution of judgments is a serious act of judicial corruption, including the crime of abuse of power in the execution of judgments and the crimes of dereliction of duty in the enforcement of judgments (hereinafter referred to as the "two crimes"). In judicial practice, there are varying degrees of controversy over the determination of the subject of the two crimes, the object of the crime, the criminal act, and the major losses. The author believes that for the judicial determination of the crime of dereliction of duty in the enforcement of judgments and rulings, on the basis of understanding the spirit of the rule of law in the legal provisions and accurately grasping the substantive legal relationship, adhere to the principle of legality of crimes, use systematic interpretation and objective interpretation methods, accurately apply judicial interpretations, scientifically limit the threshold and scope of application of crimes, accurately distinguish between crimes and non-crimes, and between this crime and other crimes, so as to maintain the uniform implementation of the law.

　　The basic standard for determining the eligibility of criminal entities is to bear or actually perform enforcement duties

　　The subject of the crime of dereliction of duty in the enforcement judgment is the judicial personnel who have or actually performed enforcement duties, and enforcement duties include duties such as decision-making, organization and command, supervision, participation, and assistance in the performance of enforcement cases related to enforcement cases, and judicial personnel who are responsible for or actually perform enforcement duties include: enforcement personnel who are specifically responsible for enforcement work; adjudicators who have the right to enforce cases tried by that division in accordance with law; judicial personnel who organize, direct, and approve specific enforcement work; and so on.

　　It is worth noting that the violation of the duty to enforce the law is a prerequisite for determining the composition of the crime, and the fact that judicial personnel bear or actually perform the duties of enforcement is the basic criterion for determining whether the subject of the crime is qualified or not, and that judicial personnel or other personnel who do not have the duty to enforce the judgment cannot become the subject of the crime of dereliction of duty in the enforcement of the judgment.

　　Whether or not a judgment has been made is to determine whether the relevant effective legal documents are judgments and rulings in the crime of enforcement of judgments and rulings

　　From the perspective of scope, judgments and rulings in the crime of dereliction of duty in the enforcement of judgments include both civil and administrative judgments and rulings, as well as criminal judgments and rulings. It is debatable that "the enforcement or non-enforcement of fines or confiscated property does not directly affect any loss of interests of the parties or other persons" in criminal cases, and that criminal judgments and rulings should be excluded.

　　From the perspective of legislative purpose, the crime of dereliction of duty in the enforcement judgment is established to better regulate the behavior of the enforcement personnel in the enforcement stage for personal gain, and does not exclude the enforcement of the criminal judgment and ruling. Therefore, whether from the perspective of literal interpretation, system interpretation, or purpose interpretation, the judgments and rulings in them include not only civil and administrative judgments and rulings, but also criminal judgments and rulings. In fact, it is entirely possible that the enforcement of a criminal judgment may cause losses to the parties or other persons, for example, if the enforcement personnel enforce the property of the person subject to enforcement by destructive means, causing serious damage to the property of the parties, the crime of abuse of power may be established.

　　In addition, the judgments and rulings in the crime of dereliction of duty in the enforcement of judgments and rulings shall include not only the judgments and rulings made by the court in accordance with the law that have the content of enforcement and have taken legal effect, but also the rulings made by the court for the lawful enforcement of payment orders, effective mediation documents, arbitration awards, notarized creditor's rights documents, etc.

　　Adhere to the position of objective interpretation to define the harmful conduct of crimes

　　From the standpoint of objective interpretation, the legal interests infringed by the crime of abuse of power in the enforcement of judgments and rulings focus on the evaluation of the illegal exercise of the right of enforcement and the major losses suffered by the parties and others due to the illegal exercise of the right of enforcement; There is a view that the harmful acts of the two crimes only include the abuse of power, that is, the illegal adoption of litigation preservation measures and compulsory enforcement measures, and the dereliction of duty, that is, the failure to perform litigation preservation measures and the failure to perform statutory enforcement duties, and any other harmful acts cannot be regarded as the types of harmful acts of the two crimes. In fact, this view equates or limits the abuse of power in the enforcement process to the illegal taking of litigation preservation measures and compulsory enforcement measures, and equates or limits the dereliction of duty in the enforcement of judgments and rulings to the acts of not taking litigation preservation measures and not performing statutory enforcement duties. This understanding is biased, does not conform to the principle of systematic interpretation, and will unduly narrow the scope of application of the two crimes. The rational interpretation of the harmful acts of the two crimes should adhere to the objective interpretation position, and regard the illegal adoption of litigation preservation measures and compulsory enforcement measures, as well as the failure to take litigation preservation measures in accordance with the law, and the failure to perform statutory enforcement duties, as emphasizing, reminding rather than restricting the most common situations of abuse of power and serious irresponsibility, that is, dereliction of duty, which is not only in line with judicial practice but also violates the logic of language.

　　In practice, it is found that in addition to the above-mentioned typical acts, the harmful acts of the two crimes also include acts that lead to major losses to the interests of the parties and others, such as forcibly carrying out reconciliation against the true intentions of the parties, illegally repaying debts in kind, lifting the "restriction on high consumption" in violation of regulations, allowing creditors who are not qualified for distribution to participate in distribution, or reversing the priority of enforcement and giving priority to creditors with lower enforcement priorities.

　　Accurately grasp the "significant loss" in the outcome elements of the two crimes

　　According to the provisions of the two crimes, the legal interests protected by the two crimes are to ensure the normal conduct of enforcement activities and the legitimate interests of the parties and other persons, and only when the interests of the parties and other persons suffer significant losses due to dereliction of duty or abuse of power in the execution can the two crimes be constituted. Therefore, the significant loss, which is an element of the outcome of the two crimes, must be in the interest of the parties or other persons, and should not be interpreted broadly. Attention shall be paid to the following two aspects in determining the major losses of the two crimes:

　　First, the two crimes are typical result crimes, and there is no form of unfinished crime. According to the general theory of criminal law, the unfinished form of crime only exists in direct intentional criminal acts, while negligent crimes and indirect intentional crimes do not exist in the unfinished form of crimes. Obviously, there is no dispute that the crime of dereliction of duty is a crime of negligence and is a typical consequential crime, and there is no form of unfinished crime. However, there is controversy as to whether the crime of abuse of power has been unfinished in the enforcement of the judgment and ruling. In the author's opinion, the crime of abusing power in the enforcement of judgments and rulings is a typical intentional crime, and often occurs in the form of favoritism in the form of abuse of power in the enforcement of judgments and rulings. Although the general theory of criminal law holds that intentional crimes have an unfinished form of crime, since the criminal law adopts the typical consequential form of a criminal such as heavy losses in the constitutive conditions of the two crimes, in fact, it has clearly taken heavy losses as a necessary element for the establishment of the two crimes, and does not recognize and punish the unfinished form of the execution of the judgment ruling on the abuse of power. If the unfinished form of the crime adjudicated by the enforcement judgment is admitted and convicted and punished, it will directly contradict the result element of the heavy loss stipulated in the two crimes, and violate the principle of legality of crimes. In addition, the consequential element of causing significant losses to the parties and other persons stipulated in the charges of the two crimes is also intended to limit the scope of punishment for the two crimes.

　　Second, the losses that have been recovered at the time of filing the case should not be counted in the "actual property losses". According to the principle of systematic interpretation, the calculation of the major losses referred to in the two crimes shall be governed by the provisions of the Interpretation (1) on Several Issues Concerning the Application of Law in the Handling of Criminal Cases of Dereliction of Duty (hereinafter referred to as the "Interpretation (1)") jointly issued by the Supreme People's Court and the Supreme People's Procuratorate. Expenses, etc., economic losses that continue to occur after the case is filed and before the public prosecution is initiated, should be included in the economic losses caused by the crime of dereliction of duty. The "Interpretation (1)" also stipulates that the economic losses recovered by the criminals and their relatives and friends after the case is filed, the economic losses recovered by the judicial organs or the criminals' units and the competent departments at a higher level, or the economic losses reduced due to objective reasons, shall not be deducted and shall be included in the total losses. However, Interpretation (I) does not stipulate whether the losses recovered before the case is filed can be included in the amount of the crime. In this regard, there is a view that the losses recovered before the case is filed cannot be deducted from the amount of losses, and should be included in the total losses. In the author's opinion, this view is contrary to the provisions of Interpretation (I), which determines that the calculation point of loss is when the case is filed, then the actual loss caused at the time of case filing shall prevail, and the loss that has been recovered at the time of case filing shall not be counted in the "actual property loss".

Shanxi Taiyuan Chang Lawyer Key words:

Legal Advice, Professional Lawyer, Writing Complaints, Lawyer Consultation, Loan Disputes, Criminal Defense, Criminal Interviews, Release on Bail, Case Entrustment, Housing Leasing, Private Lending, Tort Disputes, Damages, Creditor's Rights and Debts, Legal Knowledge, Legal Knowledge, Legal Risks, Traffic Accidents, Contract Invalidation, Contract Termination, Third Party Revocation, Right of Revocation, Enforcement Objection, Enforcement, Judgment Debtor, Blacklist, Dishonest Person, Restricted Consumption, Equity Transfer, Company Business, Articles of Association, Partnership Disputes, Legal Counsel, Inheritance, Real Estate Inheritance, Testamentary Succession, Property Agreement, Joint Property, Property Division, Contract Law, Marriage Law, Divorce Disputes Divorce Agreement Divorce Case Litigation Representation Civil Dispute Hiring a Lawyer Contract Dispute Contract Review Contract Formation ......