The Dilemma Of Judicial Application And Solution To The Crime Of Refusing To Pay Labor Remuneration

The crime of refusing to pay labor remuneration which was added to The amendment Ⅷ to The Criminal Law has not been used widely in the judicial practice in the case of the labor dispute cases increased year by year. Based on in-depth interpretation of the crime of refusing to pay the labor remuneration concepts and the combination of judicial cases, this article will analyze the difficulties in the judicial practice. First of all,there is no guiding standard of the capacity to pay which is the core concept in criminal behavior.Next,the subject of the administrative procedures called "Ordered to pay" is unknown,the approach of indwelling served is not precise enough and it is not conducive to the protection of workers’ rights due to lengthy process which lacks of timeliness.At last,the absolute value of the amount of crime can not take into account the dynamic setting mode changes in economic and social development and the facts of refusing to pay labor remuneration many times but not meetting the amount required in conviction have been neglected in legislation. The writer thinks that the capacity to pay should be determined by establishing the standards,the deadline and the burden of proof based on the rule of protecting the right of labor remuneration in priority both the right to exist in the employer due to the human rights attribute of labor remuneration.In order to protect the legitimacy of the administrative procedures for the foundation, we should clear the main range of subject in "ordered to pay", select the prudent approach of delivery and enhance the timeliness. We also should reset the calculation based on total wages or minimum wage standards and take behavior frequency into account. These initiatives have made recommendations for the legislation.