MAO Jianwen, CHINA GUIDING CASES PROJECT

Transcription

1 MAO Jianwen, A Case of Refusing to Carry Out a Judgment or Ruling Guiding Case No. 71 (Discussed and Passed by the Adjudication Committee of the Supreme People s Court Released on December 28, 2016) CHINA GUIDING CASES PROJECT English Guiding Case (EGC71) May 16, 2018 Edition The citation of this translation of this Guiding Case is: 毛建文拒不执行判决 裁定案 (MAO Jianwen, A Case of Refusing to Carry Out a Judgment or Ruling), STANFORD LAW SCHOOL CHINA GUIDING CASES PROJECT, English Guiding Case (EGC71), May 16, 2018 Edition, The original, Chinese version of this case is available at 最高人民法院网 ( See also 最高人民法院关于发布第 15 批指导性案例的通知 (Notice of the Supreme People s Court on the Release of the 15 th Batch of Guiding Cases), issued on and effective as of Dec. 28, 2016, This document was primarily prepared by Sean Webb and Dr. Mei Gechlik; it was finalized by Sean Webb, Dimitri Phillips, and Dr. Mei Gechlik. Minor editing, such as splitting long paragraphs, adding a few words included in square brackets, and boldfacing the headings, was done to make the piece more comprehensible to readers; all footnotes, unless otherwise noted, have been added by the China Guiding Cases Project. The following text is otherwise a direct translation of the original text released by the Supreme People s Court.

2 2 Keywords Criminal Crime of Refusing to Carry Out a Judgment or Ruling Start Time Main Points of the Adjudication The time from which [a person] has the ability to carry out a judgment or ruling but refuses to carry it out starts when the judgment or ruling comes into legal effect. Where, after the coming into legal effect of a judgment or ruling which has enforcement content, a person with the obligation to carry out [the judgment or ruling commits] an act of refusing to carry [it] out, including hiding, transferring, or intentionally damaging property, making it impossible [for a people s court] to enforce the judgment or ruling, and the circumstances are serious, [the person] should be convicted of and punished for the crime of refusing to carry out a judgment or ruling. Related Legal Rule(s) Article 313 of the Criminal Law of the People s Republic of China 1 Basic Facts of the Case On December 11, 2012, the Pingyang County People s Court of [Wenzhou Municipality,] Zhejiang Province[,] rendered the (2012) Wen Ping Ao Shang Chu Zi No. 595 Civil Judgment, ordering defendant MAO Jianwen to repay, within 15 days of the judgment s coming into effect, 2 CHEN Xianyin RMB 200,000, an amount invested in [MAO Jianwen s] Wenzhou Hongyuan 1 中华人民共和国刑法 (Criminal Law of the People s Republic of China), passed on July 1, 1979, issued on July 6, 1979, effective as of Jan. 1, 1980, revised on Mar. 14, 1997, effective as of Oct. 1, 1997, amended ten times, most recently on Nov. 4, 2017, effective as of Nov. 4, 2017, Given that the original judgment of this Guiding Case was rendered in June 2014 (see below), the Criminal Law referred to in this Guiding Case should mean the law as amended by Amendment VIII. See 中华人民共和国刑法修正案( 八 ) (Amendment (VIII) to the Criminal Law of the People s Republic of China), passed and issued on Feb. 25, 2011, effective as of May 1, 2011, Amendment IX of the Criminal Law amended Article 313 by adding other content, but the content that is relevant to this Guiding Case remains unchanged. 2 The original text reads 判决生效 ( the judgment s coming into effect ). According to Article 155 of the Civil Procedure Law of the People s Republic of China, judgments and rulings that have come into effect are judgments and rulings of the Supreme People s Court as well as judgments and rulings which, according to law, may not be appealed or which have not been appealed within the prescribed time limit. See 中华人民共和国民事诉讼法 (Civil Procedure Law of the People s Republic of China), passed on, issued on, and effective as of Apr. 9, 1991, amended three times, most recently on June 27, 2017, effective as of July 1, 2017,

3 3 Packaging Products Co., Ltd., plus interest. The judgment came into effect on January 6, Because MAO Jianwen did not, on his 3 own initiative, perform the obligation as determined in the effective legal document, CHEN Xianyin applied to the Pingyang County People s Court on February 16, 2013, for compulsory enforcement. After the case was registered, the Pingyang County People s Court ascertained during enforcement that, on January 17, 2013, MAO Jianwen resold his small and ordinary passenger vehicle [bearing the license plate] Zhe CVU661 4 at the price of RMB 150,000 and used the proceeds for personal expenses, refusing to carry out the effective judgment. On November 30, 2013, after he was apprehended, MAO Jianwen gave a true account of the aforementioned facts. Results of the Adjudication On June 17, 2014, the Pingyang County People s Court of [Wenzhou Municipality,] Zhejiang Province[,] rendered the (2014) Wen Ping Xing Chu Zi No. 314 Criminal Judgment: defendant MAO Jianwen committed the crime of refusing to carry out a judgment [or ruling] and is [therefore] sentenced to a limited-term imprisonment of ten months. After the judgment was pronounced, MAO Jianwen did not appeal and the public prosecution organ did not protest. The judgment has already come into legal effect. 5 Reasons for the Adjudication In the effective judgment, the court opined: defendant MAO Jianwen was responsible for performing the enforcement obligations determined in the effective adjudication [document]. After the coming into legal effect of a people s court s judgment or ruling which has enforcement content, [MAO Jianwen] committed acts of refusing to carry it out, including hiding and transferring property, making it impossible [for the people s court] to enforce the judgment or ruling. The circumstances were serious. His acts constituted the crime of refusing to carry out a judgment [or ruling]. [He] was guilty of the crime as alleged by the public prosecution organ. 3 Masculine pronouns are used to refer to the defendant because the name 毛建文 ( MAO Jianwen ) is more likely to be a name for a male. The gender of MAO Jianwen cannot be asercertained because the original judgment has not been found and may have been excluded from publication. 4 The identifier 浙 ( Zhe ) preceding the alphanumeric CVU661 is the abbreviation of Zhejiang Province, where the license plate CVU661 was registered. 5 The original text reads 判决已发生法律效力 ( the judgment has already come into legal effect ). According to Article 248 of the Criminal Procedure Law of the People s Republic of China, judgments and rulings that have already come into legal effect are judgments and rulings which have not been appealed or protested within the prescribed time limit, judgments and rulings of the final instance, as well as death sentences approved by the Supreme People s Court and death sentences with a two-year suspension of execution approved by a Higher People s Court. See 中华人民共和国刑事诉讼法 (Criminal Procedure Law of the People s Republic of China), passed on July 1, 1979, issued on July 7, 1979, effective as of Jan. 1, 1980, amended two times, most recently on Mar. 14, 2012, effective as of Jan. 1, 2013,

4 4 After MAO Jianwen was apprehended, he gave a true account of his crime and [therefore his] punishment could be reduced. The focal point of the dispute in this case was how to determine the start time for [a defendant s] act [showing] having the ability to carry out [a judgment or ruling] but refusing to carry it out, as provided in the crime of refusing to carry out a judgment or ruling (i.e., whether defendant MAO Jianwen s act of refusing to carry out a judgment [should] start from the time when the related civil judgment came into legal effect or from the time when the case was registered for enforcement). On this, the court opined that the entry of an effective legal document into compulsory enforcement procedures does not constitute an element of or a prerequisite for the crime of refusing to carry out a judgment or ruling. MAO Jianwen s act of refusing to carry out a judgment should start from January 6, 2013, when the related civil judgment came into legal effect. The main reasons were as follows: (1) [This conclusion] accords with the original meaning [of Article 313]. When the Standing Committee of the National People s Congress interpreted Article 313 of the Criminal Law, it pointed out that [the phrase] a judgment or ruling of a people s court in that provision refers to a judgment or ruling which has enforcement content, is rendered by a people s court in accordance with law, and has already come into legal effect. This is to say that only after the coming into legal effect of a judgment or ruling which has enforcement content will [(a) the judgment or ruling] have legal binding force and compulsory enforcement force and [(b)] the obligor have the responsibility to promptly and actively perform an obligation determined in the effective legal document. The compulsory enforcement force of an effective legal document does not come into existence only after the compulsory enforcement procedures are entered into, but comes into existence immediately on the date when the legal document comes into effect. (2) [This conclusion] is consistent with the Civil Procedure Law and its judicial interpretation. Article 111 of the Civil Procedure Law of the People s Republic of China provides[, inter alia,] that where a litigation participant or another person refuses to carry out 6 a judgment or ruling of a people s court that has already come into legal effect, [ ]a people s court may, according to the severity of the circumstances, fine or detain him. 7 Where [the refusal] constitutes commission of a crime, criminal liability shall be pursued in accordance with law[ ]. 8 Article 188 of the Interpretation of the Supreme People s Court on the Application of the Civil Procedure Law of the People s Republic of China provides: 9 6 The original text reads 履行 ( perform ), which is translated here as carry out ( 执行 ) for the sake of consistency with the crime described in Article 313 of the Criminal Law, supra note 1. 7 The word him as used here may also refer to her or it. 8 中华人民共和国民事诉讼法 (Civil Procedure Law of the People s Republic of China), supra note x. 9 最高人民法院关于适用 中华人民共和国民事诉讼法 的解释 (Interpretation of the Supreme People s Court on the Application of the Civil Procedure Law of the People s Republic of China ), passed by the Adjudication Committee of the Supreme People s Court on Dec. 18, 2014, issued on Jan. 30, 2015, effective as of Feb.

5 5 The act of refusing to carry out 10 a judgment or ruling of a people s court that has already come into legal effect as provided for in Article 111 Paragraph 1 Item 6 of the Civil Procedure Law includes[:] [(1)] after a legal document has come into legal effect, hide, transfer, sell, or damage property, transfer property for free, trade property at a clearly unreasonable price, give up matured claims of debt, or provide other people with guarantees for free, etc., making it impossible for a people s court to enforce [the judgment or ruling.] This shows that the law clearly defines the act of refusing to carry out [a judgment or ruling] as [an act that occurs] after a legal document has come into legal effect. [The law] does not confine the subject who refuses to carry out [a judgment or ruling] to a person subject to enforcement after the compulsory enforcement procedures begin or to a person who assists in carrying out an [enforcement] obligation [after the compulsory enforcement procedures begin]. Neither does [the law] confine the regulatory scope of the crime of refusing to carry out a judgment or ruling to an act that occurs after an effective legal document enters into compulsory enforcement procedures. (3) [This conclusion] accords with the legislative purpose [of Article 313]. The legislative purpose [underlying] the crime of refusing to carry out a judgment or ruling is to resolve the difficulty of enforcement problem of courts effective judgments and rulings. Bringing an act of evading performance obligations that [occurs] after a judgment or ruling has come into effect but before the case is registered for enforcement into the regulatory scope of the crime of refusing to carry out a judgment or ruling should be the intent of establishing that crime in the law. Setting the date on which a judgment or ruling comes into effect as the start time for the act refusing to carry out [stated] in the crime of refusing to carry out a judgment or ruling can effectively make an obligor, who is deterred by criminal punishment, take the initiative to perform the obligation 4, 2015, (hereainafter the 2015 Interpretation ). Given that the 2015 Interpretation did not come into effect until February 4, 2015, a few months after the original judgment of this Guiding Case was rendered (i.e., June 17, 2014), it cannot be a document upon which the original judgment was based. As mentioned above, the original judgment has not been found and may have been excluded from publication. However, if the original judgment contained a point similar to the one made here in the Guding Case, the reference was likely to Paragraph 123 Item (1) of the then-effective Opinions of the Supreme People s Court on Several Issues Concerning the Application of the Civil Procedure Law of the People s Republic of China (hereainafter the 1992 Opinion ), which was repealed by the 2015 Interpretation. The relevant text of the 1992 Opinion was essentially the same as that of Article 188 Item (1) of the 2015 Interpretation except that the former had no reference to transfer property for free, trade property at a clearly unreasonable price, give up matured claims of debt, provide other people with guarantees for free, etc. ( 无偿转让财产 以明显不合理的价格交易财产 放弃到期债权 无偿为他人提供担保等 ). See 最高人民法院关于适用 中华人民共和国民事诉讼法 若干问题的意见 (Opinions of the Supreme People s Court on Several Issues Concerning the Application of the Civil Procedure Law of the People s Republic of China ), passed by the Adjudication Committee of the Supreme People s Court on, issued on, and effective as of July 14, 1992, 10 The original text reads 履行 ( perform ), which is translated here as carry out ( 执行 ) for the sake of consistency with the crime described in Article 313 of the Criminal Law, supra note 1.

6 6 determined in the effective adjudication immediately after the judgment or ruling comes into effect. This avoids turning an effective adjudication into a piece of blank paper, thus making society and the public truly respect judicial adjudications, safeguarding the authority of law, fundamentally resolving the difficulty of enforcement problem, and realizing the legislative purpose [underlying] the crime of refusing to carry out a judgment or ruling. (Adjudication personnel of the effective judgment: GUO Chaohui, ZENG Hongning, and PEI Lun)