Research On The Problems Of Criminal Liability Of Malicious Evasion For Debts

In recent years, all kinds of behaviors of malicious evasion for debts make a lot of variety and emerge in an endless stream in China, the method of malicious invasion for obligatory right is more commonly used by quite a number of people for shifting operating risk and even for getting rich in disguised form. If this kind of unhealthy tendencies and evil influences can't be strictly inhibited as soon as possible, it is bound to run rampant, and if things continue this way, market credit system will be seriously destroyed so as to produce panic on transaction, destroy the business environment of market, influence normal operation, damage legal authority and provoke the prevailing of dark deeds. This kind of situation is also brought the attention of related departments of the state and many people of vision, with the joint efforts of all social circles, relevant laws which are revised up to the minute, such as Law of Corporation, Enterprise Bankruptcy Law, Criminal Law Amendment (6) etc., are passed one after another in recent years, which strengthen the force of restriction and sanction for debtors'behaviors of evasion for debts in certain aspects of respective field, for example: abuse of corporation personality is stipulated in the new Law of Corporation which unveils one angle of the veil of corporate juridical person; in Enterprise Bankruptcy Law, for debtors'behaviors of malicious evasion for debts during the process of bankruptcy, such as violating duty of loyalty, obligation of diligence, obligation of submission, obligation of explanation and handover obligation, faking or destroying related evidence material of property, transferring property without compensation, carrying out transaction with obviously unreasonable prices, providing property guarantee for the debts without property guarantee, malicious individual liquidating, free from encumbrances, hiding or transferring property, making up debts or recognizing unreal debts in order to evading debts, malfeasance of administrators etc. in the procedure of bankruptcy, the provisions of civil responsibility are made almost in detail from every aspect; the new accusation of the crime of false bankruptcy is stipulated in Criminal Law Amendment (6), which further strengthen the criminal responsibility of malicious evasion for debts in the procedure of bankruptcy. However, we have to see that there are also great limitations for the progress acquired in the above fields, among which, the most important point is that the behaviors of malicious evasion for debts that violate common claims which are apart from most procedures of bankruptcy are still not brought into the category of criminal attack. Therefore, the current situation that the events of malicious evasion for debts take place frequently still can't be improved fundamentally. Based on the relevant examples in judicial practice and theoretical researches on the aspect of criminal laws and starting from analyzing the current situation of legislation concerning the claims protection in our country and the situation of legislation with each characteristics concerning the crime of malicious evasion for debts in the international society, the theoretical idea to suggest our country's criminal law to set up the new accusation of the crime of malicious evasion for debts is set forth in the paper, at the same time, the aspects of accusation's enactment, constitutive elements of crime, judicial procedure etc. concerning the crime are analyzed and investigated and the opinion of the author is proposed. There are nearly 30,000 characters in the paper, and the paper is divided into five parts to discuss. The contents are summarized as follows:The first part is the current situation of credit system in our country. And contents of two parts are included in this part: firstly, the current situation of serious lack of credit in our country's economic field is discussed, from the old chain debts of 1990s to the new chain debts in today's society, from the problem of wage arrears for migrant rural workers which is solved by Party and government and shown great attention by society in recent years to the social problem arose by the occurrence of numerous lack of credit and the behaviors of malicious evasion for debts under international financial crisis, all the above show that it is extremely urgent to strengthen the force of judicial protection for credit. Secondly, the central status of credit transaction in market economy is discussed from the angle that honesty is the core values of market economic system, the both sides of commodity and currency are indispensable in market economy, therefore, strengthen the judicial protection for credit is the actual meanings for establishing the relationship of production of market economy.The second part is the necessity for establishing crime of malicious evasion for debts in criminal law. And contents of two parts are included in this part: firstly, that the substance of law for the protection of transaction credit is the protection for obligatory right as well as the several main forms of expression for current malicious evasion for debts are explained from the angle that credit system is seriously destroyed by the behaviors of malicious evasion for debts. Secondly, the dangerous behaviors and harmful consequences of the behaviors of malicious evasion for debts are separately analyzed for the social harm of behaviors of malicious evasion for debts, and through comparing with other several kinds of crimes against property; it further explains that obligatory right is the same with real right which need be protected by criminal law. Moreover, behaviors of malicious evasion for debts should also be stipulated to crime from the angle of social effect.The third part is feasibility analysis for establishing the crime of malicious evasion for debts. It is mainly divided into three parts: the first part is that the claims protection has been one of the most important contents of criminal law in history. From Hanmurabi Code of ancient Babylon, Law of the Twelve Tables of ancient Rome to Law of the Tang Dynasty which is the representative code in the ancient feudal society of China, obligatory right is given the protection of criminal law in all the above codes. It is shown that the ebb for debtors'criminal responsibility in modern society absolutely can't become the reason for the complete exit of criminal law in the fields of the claims protection. The second part is that the obligatory rights of overseas countries (regions) have already been brought into the scope of the protection of criminal law. Firstly, various crimes which encroach on the interests of creditors in the procedure of bankruptcy are looked around, and the situations of legislation in America, Russia and Taiwan in our country are separately listed. Secondly, the crimes which stipulate the obligatory right of infringement in the crimes against property are looked around, the provisions of criminal responsibility for debtors'behaviors of malicious evasion for debts in France, Canada, Britain as well as Italy, Switzerland, Korea and Macao, Hong Kong in our country are separately listed. It is shown that the behaviors of malicious evasion for debts are disciplined by enactment of criminal law have already become the legislative trend of today's world, when perfecting the claims protection of criminal law, our country should also pay attention to research and draw lessons from overseas advanced legislation. The third part is to see the criminal responsibility for behaviors of violating obligatory right from the angle of economics of law, crimes and legal issues of malicious evasion for debts are analyzed from the unique angle of economics of law which rose in America in 1960s.The fourth part is the current situation concerning related legislations for the claims protection in our country. And contents of three parts are included in this part: firstly, it is explained that the protection of civil litigation system for the interests of creditor is so weak in our country from analyzing the drawbacks for protecting obligatory right only through civil law in our country. Secondly, the situation that criminal law's provisions for the claims protection are so little and the scope is so narrow in our country is explained by analyzing scanty accusations of the claims protection in our country's criminal law. Thirdly, it is explained that most behaviors of malicious evasion for debts are still in the blank space regulated by criminal law and there are space of legislation for setting up new accusations through comparing the behaviors of malicious evasion for debts with other relevant crimes.The fifth part is the assumption of setting up the crime of malicious evasion for debts in the criminal law of our country. It is mainly divided into four parts, firstly, it is the enactment for the accusation of the crime to infringe on ordinary obligatory right, it is suggested by the author that the accusation should be enacted as crime of malicious evasion for debts. Secondly, the constitutive elements of crime of malicious evasion for debts are analyzed, and discussions are made from the following aspects separately: criminal object, objective aspect of crime, subject of crime and subjective aspect of crime. Thirdly, it is investigated that the investigation for the crime could have certain particularity from analyzing judicial procedure. Fourthly, it is the problem concerning that criminal protection of obligatory right should correctly use public power, which shows that the public power not only should insist on the principle of prudent use and no abuse, but also have suitable intervention so as to safeguard the normal order of market transaction.