An Empirical Research On Conviction Against Refusing Judgment Of Execution Or Orders

Over the past few years,with the prudent social economic growth of China,it is indicated that acquaintances society has been gradually transformed into strangers society,which results in that resorting to justice has been a significant measure for various dispute settlements.As a matter of fact,the situation where executors evade execution is not uncommon,which puts the court in a dilemma that it is difficult to carry out execution.Therefore,it is of urgent necessity to dissolve the difficulty in execution.By means of criminal penalty,the measures against the conviction against refusing judgment of execution or orders have been carried out for 41 years,which is demonstrated by the following three stages that in 1979,the criminal law of the People's Republic of China,short of the PRC was brought into the rules and regulation on the crime of disrupting public service;then,in 1997,the conviction against refusing judgment of execution or orders was defined and established;and in 2015,amendment of criminal law of the PRC(nine)extended its subject and increased the extent for measurement of punishment.It is obvious that efforts on the legislative level are lasting.In addition,certain effect on execution work has been delivered,but the problem that it is difficult to perform execution has not been solved completely,thus closer attention paid to and further research on this matter are of necessity.Having collected the 971 judicial documents of Hebei Province publicized on the judgment document website from 2011 to June,2019,the author carried out data analyses from the following aspects: case quantity,punishment measurement,private prosecution,judgment content,regional differences of judgments and individual case solution,etc..From the analysis of the constituent elements,it is found that there are some misunderstandings about the understanding of “capable execution” and “act of execution refusal” in judicial practice,and there are disputes on the determination of “performing natural claims”.From the analysis of the system application,there are the main problems such as the limitation of prosecution can not be applied and the design of private prosecution system is unreasonable.From the analysis of the judgment documents,it is found that the relevant judgment documents are not standardized,and the written judgment reasoning is not sufficient,and some are even quite simple.In view of the above problems,it is suggested to further clarify the verified criteria of “capability of performing the legalized obligations” by means of legislation or quasi-legislation.The time nodules of“capability of performing the legalized obligations” shall be clearly defined in the legislation as the judgment,which shall run after the judgment and adjudication takes effect.The act of fulfilling natural claims shall be made clear in the legislation.As for the problems existing in the private prosecution system,the right of settlement and withdrawal shall be clearly regulated,and the private prosecution system shall be improved to a certain extent.The logical dilemma of the limitation of action shall be clarified by judicial interpretation that the starting point of the limitation of action shall be the time when the applicant applies for enforcement for the first time.And the relevant problems of judgment documents shall be regulated in practice.Meanwhile,in terms of the occasion where the punishment measurement is light,further determined guidance on such punishment measurement shall be carried out so that as the punishment measurement for conviction against refusing judgment of execution or orders is performed,more distinct differences on the term of imprisonment can be embodied and the fundamental principal which adapts punishment to the correspondent criminal law can be better reflected.