Analysis On The Cases Of Refusal To Perform Effective Custody Judgments

Custody has a high identity ethics attribute,so its enforcement is special,which is different from the general enforcement based on property payment.Regarding the behavior of refusing to perform custody judgments or rulings,under what circumstances should the criminal liability be investigated and how to apply the crime,there is a big difference in the practice of the courts in various regions.The boundary between crime and non-crime is blurred and different judgments of the same cases are very common.Judging from the four sample cases such as "Refusal to perform custody judgments committed by Xu Xu",as the relevant judicial interpretations do not expressly stipulate,there are many different opinions in the academic and practical circles about whether the custody rights are enforceable and whether the refusal circumstances meet the criminalization standard.By analyzing and summarizing the controversial focus in the sample cases,the following aspects should be paid attention to in the specific application of the refusal crime in the field of custody.First of all,the effective custody judgment belongs to the scope of enforcement.Custody is a right of identity which is enforceable and the object of enforcement is the behavior of the person subjected to execution to deliver the children.Secondly,the behavior of the executed person hiding his or his child’s whereabouts in order to evade the effective custody judgment should be considered as“serious circumstances”.The behavior of hiding whereabouts is a passive act of refusal to execute,which is not expressly provided but of the same harmful nature as the “serious circumstances” stipulated by the legislation and judicial interpretation.Thirdly,according to the principle of modesty and restraint of the criminal law,non-punishment pre-measures should be exhausted for the person being executed.The enforced person of custody is not dangerous.If he can repent and fulfill his obligations through mediation,fines or detention before the trial,he does not have to enter the next stage of litigation and be held accountable for criminal responsibility,which not only saves a lot of judicial resources but also maintains judicial authority.Finally,two suggestions are put forward for dealing with the refusal to perform effective custody judgments or rulings.One is to perfect the enforcement model of custody and the other is to regulate the application of the crime of refusal to perform judgments or rulings in custody field.