In December 15, 2009, a Jingan District * * said: I'm the general manager of * * company, business director company office believes that company owed her bonus (no matter), then secretly took me 200000 yuan worth of "dragon water bile agate", the report after the public security organs not identified as stolen, I had to bring a lawsuit, ask her to return the original "dragon water bile agate", the court trial, the defendant issued false particulars, I of course is not recognized, court final judgment according to the plaintiff to provide photos restitution, ruling the defendant refuses to refund, the court according to the law of the judicial detention of, still refusing to implement after release, please I should be how to protect their legitimate rights?

   Answer: first, the author thinks, the person to be enforced. "Refusing to implement the court decision, ruled that the crime", the enforcement applicant may request the court will perform the case to the case to the public security organ for investigation, criminal responsibility shall be investigated for the defendant. Why do you say, please see the following analysis.

   Second, the "PRC Criminal Law" the 313rd stipulation: "the people's court, ruling ability to perform and refused to perform, if the circumstances are serious, punishable by imprisonment less than three years, criminal detention or a fine". This is the legal basis the execution of criminal responsibility.

   Third, the provisions of the criminal law from the above point of view, the direct object of this crime is against the court decision, ruling authority, directly to the object function is the judgment of the court, and the court ruled that the executive is the normal enforcement activities. Jurisdiction is the constitutional court's power, it is an important symbol of national function, does not allow any group or person to the court's decision to contempt, must strictly fulfill the obligation of people, may not be hindered and for not agreeing to the content and refused to perform, execute the referee in fact or law. Mistakes are found even in the implementation process, only by the court in strict accordance with the legal procedures to be changed or revoked, and can not be used arbitrarily refusing to execute.

   Fourth, the crime objective aspect is the people's court, ruling ability to perform and refused to perform, if the circumstances are serious, it includes several main:

   One is the "executive ability". "Execution" is a prerequisite for refusing to implement the. Executive ability in determining the behavior of people, should be understood as including the ability and ability through the subjective efforts to win the. If the referee comes into force, by accident the obligor permanently lose the ability to perform or is declared bankrupt enterprises have been unable to pay off the debts, the court can only be terminated; because of objective reasons as a result of accidents obligations with no short-term executive ability, is the suspension of execution, to be its ability to enforce, but not to the offenses.

   In this case the enforcee must have the ability to execute, does not exist "reasons and difficulties without the ability to execute".

   The two is "refusing to execute". Refusing to implement the court decision, ruled that the essential feature of crime, is the behavior hinder the normal execution court, the court judge effect realization blocked, damaged the authority of judgment, mainly as follows: (1) the court attachment, seizure, freezing take mandatory measures, for the destruction of the execution of the court but the damage, preventing these measures; (2) to conceal, transfer, sale, or execution; (3) to laughing, shouting, rumors, coax Wei, sit ins and other methods, to obstruct the enforcement activities of the court; (4) to besiege, beaten, insulting, tied to detain the police have destroyed, seizes guns, executive vehicles and other violence, resist the enforcement activities of the court; (5) take enforcement measures in court that the content can be realized, and action has formed the destruction after the implementation of the legal state; (6) to specific delivery referee instruction delivery; (7) to the implementation of specific actions required by the referee.

   In this case the enforcee dormant, transfer execution behavior, and refuse to deliver the referee instruction delivered specific behavior.

   The three is to should not is the implementation of the court has a legally effective judgment, ruling. The judgment of the court, ruled that the existence, is the premise of the establishment of the. This verdict, ruling must be a legally effective judgment, if not have the force of law, not legally binding on the parties, there would be no performance problems. Must has may the execution, execution must be specific and clear.

   This decision has taken legal effect, and has entered the implementation procedures, with a clear implementation, implementation scope is very specific, is delivered to specific objects "dragon water bile agate".

   The four is "refusing to execute the serious". From the view of nature, the court's decision not to perform acts of authority, but the provisions of the criminal law of the crime is "circumstance crime", namely, only the implementation of behavior to serious punishment degree to conviction. In determining if the circumstances are serious, shall be the act against the court decision, ruling authority extent, caused by the size of social influence, according to the specific case with the above listed behavior to determine whether belongs to the normal execution of activities against the court or court of serious result objectively cannot be performed if the circumstances are serious.

   The author thinks, the court earnestly work to persuade them to execute judgment, people turn a deaf ear to be executed, as the court as a result; in detaining them but still does not perform the judgment, authority against the court decision; if its laissez faire infinite delay refuses to carry out, will cause serious adverse effects. So shall request the court to the public security organ for investigation, it shall be investigated for criminal responsibility.

   Fifth, the subject of this crime is a special subject, namely, responsible for enforcement of judgments, ruled that the obligations of the parties and to assist in the implementation of obligations. Subjective aspect of this crime is intentional mental state, not negligence.

   Sixth, "eight the provisions on the trial of refusing to implement the decision, ruled that several issues concerning the specific application of law case" policy interpretation of the Supreme People's Court: "the people's court in the execution of a judgment, ruling process, without judgment, ruling out serious people to refuse, to advance judicial detention. Refusing to implement the decision, ruled that the act constitutes a crime, shall be the case in accordance with the law to acts to the public security organs on file for investigation and prosecution." Accordingly, the enforcement applicant can ask the court to submit the case to the public security organ.

Interpretation of the Supreme People's Court on the trial of refusing to implement the decision, ruled that several issues concerning the specific application of law cases

(in April 8, 1998, the Supreme People's court, the 974th meeting of the Judicial Committee since April 25, 1998 law of release [1998) No. 6)

   In order to correctly apply the criminal law 313rd stipulation, to ensure that the people's court, the execution of the ruling, the court refused to implement the decision, ruled that several issues concerning the specific application of law cases are interpreted as follows:

   The first article of the criminal law 313rd stipulation "the court's decision, ruling", refers to the people's court according to law, with the implementation of the content and the legally effective judgment, ruling.

   Article secondThe people's court a legally effective judgment, ruling "has the ability to perform", refers to the investigation of evidence, the people's court for execution, ruling ability of the obligation has property for execution or have obligations to fulfill specific behavior.

   Article third the people's court for execution, ruled that the obligations of people with one of the following circumstances, should be identified as refusing to implement the judgment of the people's court ruled that "if the circumstances are serious, the behavior of":

   (a) after the people's Court issued the executive notice, hidden, transfer, sale, damage has been to attachment, seizure or have been inventoried and property shall be ordered to safekeeping, transfer of property that has been frozen, the decision, ruled that cannot be executed;

   (two), transfer, sale, the hidden damage to provide security to the people's court in the implementation of the property, the decision, ruled that cannot be executed;

   (three) by violence, threat or refuses to perform the prejudice, perform the work cannot be carried out;

   (four) the impact of noise, the execution scene, siege, detained, beaten executive, the executive work cannot be carried out;

   (five) damage, to snatch the implementation of case materials, implementation of official vehicles and other equipment, clothing and execute executive enforcement credentials, causing serious consequences;

   (six) or other prejudice to resist the implementation caused serious consequences.

   Article fourth the people's court for execution, ruled that the directly responsible personnel obligations of the unit and other persons directly responsible for the interests of the unit, the implementation of the third interpretation of one of the acts specified, if the consequences are especially serious, the person in charge and other directly responsible personnel in accordance with the provisions of article 313rd of the criminal law, refused to execution of a judgment, ruling convicted and punished.

   Fifth and the execution implementation of this interpretation of article third (three), (four), (five), (six) one of the acts listed in paragraph, if the circumstances are serious, refused to implement the decision, ruled by an accomplice of the crime shall be prosecuted for criminal responsibility.

   Article sixth violent resistance to a people's court judgment or ruling, killed, wounded personnel, in accordance with the provisions of article 232nd of the criminal law, article 234Th paragraph second of conviction and punishment.

   Article seventh of refusing to implement the judgment, the court ruled that the case shall be under the jurisdiction of the people's crime occurred.

   Policy eight when a people's court in execution of a judgment, ruling process, without judgment, ruling out serious people to refuse, to advance judicial detention. Refusing to implement the decision, ruled that the act constitutes a crime, shall be the case in accordance with the law to acts to the public security organs on file for investigation and prosecution.

   The people's court according to law for refusing to implement the conviction, ruling people sentenced to judicial custody, the date shall be offset.

What is "refused to implement court ruling sin" (He Wen)

   In August 8th, the Shanghai second intermediate people's court not to refuse execution of the judgment of the court ruling to open court, and the court made the first instance judgment: defendant Zhong Xiqin was sentenced to two years. Zhong Xiqin, general manager of Shanghai law mank clothing company, due to a contract dispute case, by the Shanghai second intermediate people's court in 1997 June the company all the property sealed up, and pay the advance payment amount in July of the same year that the company. The decision has been in effect for the case, Zhong Xiqin is still to some mank company seizure of property transfer, and shall lease. Because the clock if the circumstances are serious, the Shanghai second intermediate people's court made the above decision. It is reported, this is the first person to be enforced to "refused to implement court convicted of" the trial of the case.

   Recently, the author interviewed on the matter, Tsinghua University law school professor, tutor of Mr. Zhang Weiping.

   I: May I ask you, what is "refused to implement court ruling crime"?

   Prof. Zhang: according to the "criminal law" the 313rd regulation, "refused to implement court convicted" refers to the people's court has occurred, the effectiveness of the ruling ability but refuses to do so, if the circumstances are serious behavior. The key of the crime is constituted, the actor has the ability but not deliberately executed.

   I: what do you think of this trial?

Zhang: the trial court, that consciousness to strengthen the ruling executive. In the former case, people usually do not resist the implementation as a crime. In essence, the judgment is a court in the name of the country, refused to implement will affect the judicial authority. The strike this kind of crime, helps to enhance and strengthen the judicial authority. It should be said, this is the embodiment of the further development of legal construction.

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