Judicial Application Of The Crime Of Refusing To Pay Labor Compensation

Before rhe criminal acts of malicous arrears are imposed,when the laborers are in arrears with labor remuneration,the remedies available to the workers are as follows:First,negotiate with the unit;second,mediation by the labor dispute handling agency;third,arbitration by the labor dispute arbitration institution;fourth,file a lawsuit with the people's court.With the development of society,the social problems caused by the arrears of wages of workers have become increasingly serious.On February 25,2011,the 19th Session of the 11th National People's Congress Standing Committee adopted the Criminal Law Amendment(8),of which Article 41 provides for the addition of a clause after Article 276 of the Criminal Law of the People's Republic of China.The crime was officially determined as a refusal to pay labor compensation.Since then,the malicious arrears have been officially sentenced.Although this crime has been implemented,there is still much controversy in the theoretical and practical circles.The theoretical circles still have controversy about the understanding of the legal interests and objective aspects of the protection of the crime,the identification of the subject,and the determination of subjective intentions.In the judicial practice,there still exists the situation that the maneuverability is not strong.Through the analysis of three cases and theoretical perspectives,study problems about the subject and scope of burden of proof of "capacity to pay",subjective intention,"serious consequences".Find out the countermeasures.In the judicial interpretation,the government can require someone to pay for the laborers.The government has burden of proof.When a case is transferred to a public security organ,the public security organs bear the second burden of proof.If we can improve the investigation interface of the government and the public security,it is conducive to the full collection of evidence."Capacity to pay" can be divided into individual employers and employers to determine.We can't find someone's subjective intention from his excuse.We also think about the reflection of subjective mentality from objective behavior.The property rights of the laborers and the impact on State are the two parts of the "capacity to pay".