The debtor's bad reputation, low debt repayment rate, and the low automatic and active performance rate and execution rate of the people's court's effective judgment documents are one of the major chronic diseases in the judicial field for many years. In order to avoid the debt, the debtor tried every means to transfer the property, even facing the compulsory execution of the people's court. In view of the fact that the current law is not perfect and the protection of creditors is not sufficient, how to provide creditor relief for debtors' actions of transferring property to evade debts, protect the legitimate rights and interests of creditors as much as possible, stop and sanction debtors' bad breach of contract as much as possible, and maintain the normal civil communication order seriously damaged by debtors who maliciously evade debts. The author puts forward how to relieve the debtor when the creditor transfers the property from the following places.

First of all, file a lawsuit for cancellation right.

Article 74 of the Contract Law stipulates: "If the debtor abandons the due creditor's rights or transfers the property for free, thus causing damage to the creditor, the creditor may request the people's court to cancel the debtor's behavior. If the debtor transfers the property at an obviously unreasonable low price, causing damage to the creditor, and the transferee knows the situation, the creditor may also request the people's court to revoke the debtor's behavior. "

It is also obvious that the debtor's abandonment of due creditor's rights or free transfer of property will cause damage to creditors, unless the debtor has a large amount of property, and after abandoning due creditor's rights or free transfer of property, there is still a large amount of property enough to pay off debts to creditors. Therefore, it is easier to identify the situation of giving up the due creditor's rights or transferring the property for free, and it is basically not difficult for the creditor to exercise the cancellation right. However, the purpose of the debtor's transfer of property is to escape the debt. Therefore, it is rare for the debtor to give up the due creditor's rights or transfer the property for free. Therefore, although the provisions of Article 74 of the Contract Law are good, they are not helpful to creditors because of their lack of pertinence. The debtor often transfers the property by covert means, for example, it clearly colludes with the transferee maliciously, but it appears in the form of paid transfer. For this reason, the two sides even forged receipts, cash receipts and other evidence to prove that the two sides transferred the property with compensation instead of free. Fake can't be true. Although the creditor can ask the transferee when and where he paid the cash transfer money to the transferor in court after resorting to the law, the debtor and the transferee who colluded with him often refused to answer in court, and the court often refused to pursue the above questions on the grounds that it was irrelevant to the case, and finally decided that it was a paid transfer with a false receipt. Therefore, in the aspect of changing the legislation and law enforcement that does not fully protect creditors, the author suggests that the Supreme People's Court make a further and more detailed judicial interpretation of Article 74, so as to fully stop and sanction the debtor's dishonesty and breach of contract.

The second half of Article 74 of the Contract Law also gives the creditor the right to revoke the debtor's transferred property at a low price, which is of course absolutely necessary. However, in the second half of this article, two restrictive conditions were attached to this revocation: first, "the debtor transferred the property at an obviously unreasonable low price"; Second, "the transferee knows the situation". Whether the transfer price is reasonable is controversial. At least this dispute can be solved through quantifiable judicial technical appraisal, and it is obviously difficult for creditors to prove that "the transferee knows". Because all revocable situations are caused by the debtor's malicious escape, it is really rare for the debtor to transfer the property at a low price in good faith, just as it is rare for the debtor to blatantly "give up the due creditor's rights or transfer the property for free". For this reason, the "low-cost transfer of property" stipulated in the second half of Article 74 of the Contract Law, like the "abandonment of due creditor's rights or free transfer of property" stipulated in the first half, lacks pertinence and effectiveness in practice. Since the debtor is maliciously transferring property, the object of transfer he is looking for must be an individual or an enterprise legal person and other organization closely related to him. It is difficult for creditors to produce evidence to prove that this is a black-box operation. Therefore, Article 74 of the Contract Law is more tolerant towards the debtor, and at the same time sets stricter conditions for the creditor's right to cancel. The current legislation only reverses the requirements of the two, which is a rare crux in judicial practice to truly protect creditor's rights through creditor's cancellation right. In any case, Article 74 of the Contract Law gives creditors a clear right to cancel, which deserves recognition and praise, but its legislative defects can not be ignored. Amending Article 74 of the Contract Law as soon as possible or making a more detailed judicial interpretation by the Supreme People's Court will undoubtedly give full play to the power and important role of the cancellation right in protecting the legitimate rights and interests of creditors and maintaining the normal civil communication order.

Another way for debtors to transfer property to avoid debts is the separation of enterprises. The debtor used the name of the enterprise to transfer the property, evaded the debt and infringed on the creditor's rights. In this case, the creditor may cancel the debtor's enterprise division according to the provisions of Article 74 of the Contract Law.

There is another important way for the debtor to transfer property and evade debts, that is, the debtor guarantees the property that is not enough to pay off the debts of the existing creditors to other units and individuals through mortgage and pledge. Since the mortgage and pledge rights have priority over the creditor's rights, the debtor's guarantee behavior in this case obviously infringes on the creditor's rights, and the creditor may revoke the creditor's mortgage and pledge behavior according to the provisions of Article 74 of the Contract Law.

Article 75 of the Contract Law stipulates: "The right of revocation shall be exercised within one year from the date when the creditor knows or should know the reason for revocation. If the cancellation right is not exercised within five years from the date of the debtor's behavior, the cancellation right will be extinguished. "

This article stipulates the restrictions on the right of revocation. The limitation of revocation right has always been a dispute about the limitation of action and the scheduled period in academic circles. The author prefers a predetermined period, because one year and five years are the same period and cannot be suspended, interrupted and extended like the statute of limitations. At the same time, it is the substantive right, that is, the cancellation right, that will be eliminated within the scheduled period. No matter during the limitation period or the limitation period of litigation, this article stipulates the time and the longest time for the exercise of the right of revocation. Then, if the creditor misses the exercise of the cancellation right for various reasons, how to remedy it? At the same time, the Contract Law was implemented on June 1999 65438+ 10/day. Before the implementation of the contract law, there are no relief channels and ways for the cancellation right. How can creditors' claims be relieved? These questions will be answered below.

Two, bring a lawsuit to confirm the transfer of property to avoid debt is invalid.

Article 58 of the General Principles of Civil Law stipulates: "The following civil acts are invalid:

(1) It is committed by a person without capacity for civil conduct;

(2) A person with limited capacity for civil conduct cannot independently implement it according to law;

(3) One party makes the other party act against its true meaning by means of fraud, coercion or taking advantage of others' danger;

(4) Malicious collusion that harms the interests of the state, the collective or a third party;

(5) Violating laws or public interests;

(six) the economic contract violates the mandatory plan of the state;

(seven) to cover up illegal purposes in a legal form.

An invalid civil act is not legally binding from the beginning. "

Article 52 of the Contract Law stipulates: "In any of the following circumstances, the contract is invalid:

(1) One party enters into a contract by means of fraud or coercion, which harms the interests of the state;

(2) Malicious collusion that harms the interests of the state, the collective or a third party;

(3) Covering up illegal purposes in a legal form;

(4) damaging the public interest;

(5) Violating the mandatory provisions of laws and administrative regulations. "

The above two legal provisions are the legal basis for the creditor to file a lawsuit to confirm that the debtor is invalid and the third party maliciously transfers the property to escape the debt. However, in practice, there are different views and opinions about the creditor's lawsuit of confirming invalidity:

First, the creditor only enjoys the right to cancel, but not the right to confirm the invalidity of the contract, which is opposite to the right to cancel and the right to confirm the invalidity of the contract. The author thinks this view is obviously inappropriate: First, the right of cancellation was established by the Japanese Contract Law and was implemented on June 199965438+ 10/day. Prior to this, there was no cancellation right system in China. How can we talk about the opposition between the right to cancel and the right to confirm the invalidity of the contract? Second, Article 74 of the Contract Law gives the creditor the right to cancel, but it does not deny the creditor's right to confirm that the debtor's malicious transfer of property to avoid debt is invalid according to Article 52 of the Contract Law and Article 58 of the General Principles of the Civil Law. It can be seen that the two are not antagonistic, but only available for creditors to choose. Only in this way can creditors be protected as much as possible under extremely unfavorable legislative and law enforcement environments.

Secondly, according to the principle of relativity of contract, the creditor's right to confirm invalidity is denied on the grounds that the creditor is not the relative person in the legal relationship between the debtor and the third party and cannot benefit from the transfer of property. The author believes that this statement not only has no legal basis, but also has no corresponding legal basis. Article 58 of the General Principles of the Civil Law and Article 52 of the Contract Law only stipulate that these acts are invalid, and it is not stipulated that only the signatory of the contract can request to confirm that the above acts are invalid. The debtor's assets are the general guarantee of the creditor's rights. If the debtor colludes with a third party and maliciously disposes of its property, it will inevitably infringe on the creditor's rights. The interest relationship between creditors and this malicious disposal is self-evident. The principle of contract relativity is also relative. Although the validity of a contract occurs between the parties, it is not limited to the parties. The preservation of the contract, that is, the right of subrogation and cancellation, is obviously a breakthrough in the relativity of the contract.

The third is the theory of limitation of action, which holds that some lawsuits that confirm the invalidity of contracts have passed the limitation of action for two years. The author believes that the invalidity of a contract is of course invalid, absolutely invalid, and invalid from beginning to end, and the passage of time cannot make an invalid contract effective. The confirmation of the invalidity of a contract is a factual confirmation, not a limitation of rights, and the limitation of action does not apply to the confirmation of the invalidity of a contract. The so-called "of course invalid" refers to whether the parties are aware of the invalid situation, whether someone has put forward an invalid claim, and whether it has been confirmed by any procedure, and the invalid contract is invalid. The judgment confirming invalidity is only declarative, and the invalid contract is not invalid because of the judgment. When the court hears a contract dispute, even if the parties do not claim it, the court should take the initiative to confirm that the contract is invalid ex officio, which can be said to be everywhere in civil trial practice, not to mention that a third party who has an interest in the contract takes the initiative to file a lawsuit to confirm that the contract is invalid.

In the judicial practice of the Supreme People's Court and provincial local people's courts, there are also many successful cases in which the third party confirms that the debtor and the third party collude maliciously to evade debts. In the case of Wuhan Office of China Great Wall Asset Management Company (hereinafter referred to as Great Wall Company) v. Hubei Fengyuan Group Co., Ltd. (hereinafter referred to as Fengyuan Company), Hubei Weibang Investment Co., Ltd. (hereinafter referred to as Weibang Company) and Hubei Hong Jun Economic and Trade Development Co., Ltd. (hereinafter referred to as Hong Jun Company), the Supreme People's Court held that: "According to the provisions of the People's Republic of China (PRC) Contract Law, the debtor transfers the property free of charge or at a low price. If the creditor thinks that his lawful rights and interests have been infringed, he may request to confirm the invalidity of the transfer act in accordance with the provisions of Item (2) of Article 52 of this Law, or request to cancel the transfer act in accordance with the provisions of Article 74 of this Law. At the same time, the scope of the creditor's invalid claim and cancellation right is limited to the scope of creditor's rights stipulated by law. " "The Wuhan Office of Great Wall Company requests the people's court to confirm that the property debt settlement agreement and property transfer agreement signed by Fengyuan Company and Weibang Company, Weibang Company and Hong Jun Company are invalid according to the provisions of Item (2) of Article 52 of the People's Republic of China (PRC) Contract Law, which is a lawsuit to confirm the invalid contract, which is in line with the legal provisions."

Zhejiang Wulian Construction Company (hereinafter referred to as Wulian Company) v. Hainan Changtai Burning Materials Corporation (hereinafter referred to as Changtai Company) and the third parties Fang Hui, Fang Yao and Fang Zhefu confirmed the invalidity of the land use right transfer contract. The Higher People's Court of Zhejiang Province held: "IOT Company believes that the land use right and transfer contract in this case are absolutely invalid, and the conclusion of this absolutely invalid contract has affected the realization of its creditor's rights. Therefore, it can be considered that it has a direct interest in this case. Therefore, it should be recognized that Wulian Company has the right to appeal that the contract in this case is invalid. "

Three, bring an administrative revocation lawsuit or confirm that the administrative act is illegal.

The department in charge of real estate projects and real estate transactions is very strict with taxes. Without the tax payment certificate of the tax authorities, both parties to real estate projects and real estate transactions cannot go through the transfer registration procedures. Therefore, both parties to the transaction can take the initiative to pay taxes according to law. After both parties pay taxes to the tax authorities, the tax authorities only need to issue a "tax payment certificate for real estate transfer" to both parties, but in practice, the tax authorities add icing on the cake by issuing a "special invoice for real estate sale" to the buyers. On this "special invoice for real estate sale", indicate who is the payer, who is the payee, the transaction item, the unit price and the total transaction amount. The fact is that the buyer only paid the tax to the tax authorities according to the total transaction amount on the invoice, but did not pay the total transaction amount to the seller. As soon as this "Special Invoice for the Sale of Real Estate" came out, it was used by the transferor as evidence to pay the transaction price to the seller's creditors.

Why did the seller agree to transfer ownership for the buyer when the buyer failed to pay the real estate project and real estate transaction price? Because both are false transactions, their purpose is to help sellers transfer their property to avoid debts. This is also the reason why creditors oppose false transactions. The "special invoice for selling real estate" issued by the tax authorities only inadvertently helped the two parties to the false transaction. The two parties only used this "special invoice for selling real estate" delivered to the door without paying the transaction price to cheat money and color, against the seller's creditors.

When transferring real estate transactions, especially real estate projects under construction, government administrative departments such as land, planning, construction, real estate and taxation only require buyers and sellers to provide the transfer contract and tax payment certificate, but do not require buyers and sellers to provide whether they have fulfilled the transfer contract, that is, whether the buyers and sellers have paid the transaction price, bank vouchers and other procedures to the seller, resulting in loopholes for buyers who can handle the transfer and transfer procedures without paying the transaction price, making it possible for both parties to maliciously evade debts and make false transactions.

To say the least, if the relevant government administrative departments also turn off the payment, it is to check whether the buyer has really paid the transaction price to the seller, because the "special invoice for the sale of real estate" issued by the tax authorities has also artificially set obstacles for checking whether the buyer has paid the transaction price to the seller.

If the buyer and the seller are real transactions, whether the government administrative department examines the buyer's payment or not, the seller will examine it himself. If the buyer does not pay, the seller will naturally not cooperate with him to handle the transfer and transfer procedures, and the problem of false transactions will naturally not appear.

But the problem in practice is that the buyer and the seller just signed the so-called transaction contract, and there is no real transaction at all. Their purpose is to transfer property and avoid debts. The administrative department of the government does not examine whether the two sides have really fulfilled the contract, which is exactly what the fake traders want and is only used by both sides of the fake transaction. This directly harms the interests of the seller's creditors.

Creditors have the right to choose false transactions that have been transferred or transferred: on the one hand, they have the right to file civil lawsuits, that is, the aforementioned revocation and confirmation lawsuits; On the other hand, they also have the right to file an administrative lawsuit, that is, to file an administrative lawsuit against relevant government administrative departments such as planning, land, planning, environmental protection, construction, real estate, taxation, etc., and request to cancel the corresponding transfer and transfer procedures handled by these relevant government administrative departments for false exchanges according to law. In fact, creditors also have the right to file civil lawsuits against both parties to the false transaction, and at the same time file administrative lawsuits against the planning, planning, land, construction and other governments and their relevant competent departments that handle the transfer procedures of the false transaction.

Market economy is an honest economy and an economy ruled by law. False transactions are dishonest and illegal. However, this dishonest illegal act has not been stopped and sanctioned by the government and its relevant competent departments, but has been recognized and cooperated by the government and its relevant competent departments. On the contrary, it puts a legal coat and umbrella on dishonest and illegal false transactions, which is more difficult and costly to correct! While protecting false and illegal laws, government departments will inevitably attack and damage honesty and law-abiding, making the harm caused by false transactions more serious. This is a great damage to the economic order, and it does not meet the requirements of the rule of law economy at all.

Countermeasures to plug the main loopholes in the current real estate projects, real estate transfer and transfer procedures.

1. The tax authorities can only issue a "tax payment certificate for real estate transfer" and cannot issue a "special invoice for real estate sale".

Tax authorities should issue "special invoices for the sale of real estate" not only on the basis of paid taxes, but also on the basis of paid contributions. The buyer only pays taxes and does not pay the transaction price to the seller, and the tax authorities cannot issue a "special invoice for real estate sale" for him.

In the case that the purchaser only pays the taxable amount of the total transaction price, but does not pay the total transaction price, the tax authorities can only issue the corresponding Tax Certificate for Real Estate Transfer, and may not issue the Special Invoice for Real Estate Sales. It is a fraud for tax authorities to issue "special invoices for real estate sales" just because both parties have paid taxes, which must be resolutely stopped. If the tax authorities insist on issuing a "special invoice for real estate sales", the buyer must produce a "bank voucher" and other relevant evidence materials that have paid the transaction price agreed in the seller's contract and paid the tax.

2, real estate projects, real estate transactions related government administrative departments in strict "tax clearance" at the same time, the addition of "payment clearance".

The government departments in charge of planning, land, planning, construction, real estate and other real estate projects and real estate transfer should strictly control both parties to the transaction and the buyer's payment at the same time. The buyer must provide a "bank voucher" to the relevant government departments to prove that the transaction price has indeed been paid, otherwise, the relevant government departments will not handle the transfer and transfer procedures.

You can also consider adding publicity procedures in the process of transfer and transfer, that is, after accepting the application for real estate projects and real estate transfer and transfer, the relevant government departments will publish an announcement in the local authoritative media to solicit transaction objections. If there is no objection or the objection cannot be established at the expiration of the objection period, the transfer and transfer procedures shall be handled. Otherwise, it will not be handled, and the relevant parties will be informed to solve the disputes or objections between the parties through litigation procedures.

It is necessary and feasible to set up publicity procedures in trading links. Because the real estate project is under construction, the ownership of property rights has not been confirmed by law, and its property rights are in a state of legal instability. In this unstable state, transactions and even frequent transactions are prone to disputes. It goes without saying that it is beneficial to the security and stability of trading order to set up publicity procedures in the trading links that are prone to disputes and increase the transparency of transactions. In fact, the current real estate transactions have taken this approach. The real estate transaction of existing property rights is still so cautious, and the transfer and transfer of real estate projects with unstable property rights need to be more cautious. At the same time, the transaction amount of real estate projects is huge, and there is no reason not to be cautious about such a huge real estate transaction.

3. Revise and improve the existing real estate legislation.

The real estate transaction authorities, including the tax authorities, do not substantially examine false transactions, including payment of transaction price, because there are no laws, regulations, rules or even normative documents requiring them to do so.

Although the Urban Real Estate Management Law has a special chapter on "real estate transaction", it only emphasizes that "a written transfer contract should be signed for the transfer of real estate" and there is no clear stipulation on the payment of the transfer price of real estate. In the whole real estate law, the provisions of real estate are emphasized, but the provisions of real estate are ignored. As for what is real estate, it is an unclear concept. Land use rights and the transfer of existing houses and even faster houses are clearly defined and easy to understand and operate. In practice, the transfer of real estate projects under construction is almost the same as the transfer of land use rights, existing houses and forward houses, but there is no clear and specific provision in the Real Estate Law, which is a great regret of the Urban Real Estate Management Law.

The Regulations on the Management of Urban Real Estate Development is an extremely important administrative regulation on real estate development formulated by the State Council according to the Urban Real Estate Management Law. It is gratifying that the concept of "transfer of real estate development projects" is clearly put forward in this Ordinance, but unfortunately there are only two, one of which is still applicable to Articles 38 and 39 of the Urban Real Estate Management Law. In this administrative regulation, we still don't pay enough attention to the transfer of real estate projects, and we don't pay due attention to the complexity of the transfer of real estate projects. The transfer of real estate projects is different from the transfer of land use rights, the transfer of existing houses and the transfer of faster houses. As a result, the provisions on the transfer of real estate projects in this extremely important administrative regulation are not operational enough to regulate and guide a large number of disputes on the transfer of real estate projects in practice.

The Interim Measures for the Development and Management of Urban Real Estate formulated by the Ministry of Construction 1995 according to the Urban Real Estate Management Law, the Provisions on the Transfer of Urban Real Estate and the Measures for the Management of Commercial Housing Sales issued by the Ministry of Construction 200 1 are the three most important departmental regulations on real estate development after the aforementioned laws and administrative regulations. In the Interim Measures for the Administration of Urban Real Estate Development, a special chapter on "Real Estate Development Projects" has also been set up. However, from the content of the three provisions, we still pay attention to the contract, tax payment, and even the declaration and evaluation of the transaction price, but do not stipulate the payment of the transaction price, which is the core factor in determining the transfer of real estate. Judging from the contents of the three pieces of legislation, real estate development, real estate transfer and commercial housing sales are all included, which are obviously repetitive, scattered, inconsistent and unsystematic, and need legislative integration urgently.

Although Article 19 of the Property Law stipulates such systems as "correction registration" and "objection registration", it cannot prevent the occurrence of this false property right behavior of transferring property and evading debts.

Imagine, as a government department in charge of real estate projects and real estate, it doesn't even care whether the transaction between the parties is true, that is, it handles the transfer and transfer procedures for both parties without asking questions. What is the competent government department? However, as mentioned above, there are actually no laws, regulations, rules and normative documents that require the relevant authorities to review the authenticity of both parties to the transaction, which is obviously a lack of law. How to solve the problem of lack of law? First, amend the existing relevant laws, administrative regulations and rules, and give the relevant government administrative departments the administrative responsibility of examining real estate projects and real estate transactions and paying authenticity to prevent false transactions. The second is to formulate special laws and regulations on real estate projects and real estate transfer. The provisions of the three departments of the Ministry of Construction have made different provisions on the transfer of real estate, including real estate projects, at different times and from different angles. It is not only necessary but also feasible to integrate these three laws and regulations and formulate unified laws and regulations on real estate transactions. As for localities, corresponding local laws and regulations can be formulated according to different local actual conditions. Whether it is new legislation or amending existing legislation, it takes a long process. Before the introduction of relevant laws, in order to stop such false transactions that may occur every day, it is suggested that the government or relevant government departments immediately control them in the form of normative documents.

4. Immediately and thoroughly clean up the false transactions that have occurred and the administrative litigation caused by them.

For unfinished real estate projects and real estate transfers, the government and its relevant competent departments should immediately take the initiative to correct and restore the original state, so that the government and its relevant competent departments and parties can get rid of unnecessary administrative litigation and civil litigation as soon as possible. Both sides should stop wasting manpower, financial resources, material resources and valuable judicial resources, restore normal property rights and transaction order as soon as possible, and ensure legal and orderly economic exchanges and market flows.

Four, according to the criminal charges of malicious transfer of property to avoid debts, the third party and other relevant personnel refused to execute the judgment.

According to Article 3 13 of Criminal Law 1997, the crime of refusing to execute a judgment or ruling refers to the act of refusing to execute a judgment or ruling of a people's court with serious circumstances. Whoever commits this crime shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or a fine.

On August 29th, 2002, the 29th session of the 9th the National People's Congress Standing Committee (NPCSC) adopted the "About"

"Judgments and rulings of the people's courts" refer to: "Judgments and rulings made by the people's courts according to law that have executive content and have taken legal effect. Rulings made by the people's court, such as enforcement payment orders, effective conciliation statements, arbitration awards, notarized creditor's rights documents, etc., belong to the rulings stipulated in this article. "

"If the circumstances are serious, he refuses to execute" means: "(1) The person subjected to execution conceals, transfers, intentionally damages or transfers his property for free, or transfers his property at an obviously unreasonable low price, which makes the judgment or ruling impossible to execute;

(2) The guarantor or the person subjected to execution conceals, transfers, intentionally damages or transfers the property that has provided a guarantee to the people's court, so that the judgment or ruling cannot be executed;

(3) The obligor for assisting in execution refuses to assist in execution after receiving the notice from the people's court for assisting in execution, which makes the judgment or ruling unenforceable;

(4) The person subjected to execution, the guarantor or the obligor assisting in execution colluded with the functionaries of state organs to obstruct the execution by taking advantage of their functions and powers, so that the judgment or ruling could not be executed;

(five) other circumstances in which the ability to execute is refused, and the circumstances are serious. "

1On April 25th, 998, the Supreme People's Court implemented the Interpretation on Several Issues Concerning the Specific Application of Laws in the Trial of Cases of Refusing to Execute Judgments and Rulings. According to the judicial interpretation, the meaning of "execution ability" is: "According to the verified evidence, the person who has the obligation to execute the judgment or ruling of the people's court has executable property or the ability to perform specific behavioral obligations." With regard to what is the "serious circumstances" stipulated in the crime, the judicial interpretation stipulates: "(1) After the people's court issues a notice of execution, it conceals, transfers, sells, destroys the property that has been sealed up, detained according to law or has been counted and ordered to be kept, and transfers the frozen property, so that the judgment or ruling cannot be executed;

(2) Hiding, transferring, selling off or destroying the property that provides guarantee to the people's court during the execution, which makes the judgment or ruling unenforceable;

(3) Obstructing or resisting execution by means of violence or threat, which makes execution impossible;

(four) gathering people to make trouble, attacking the execution place, besieging, detaining and beating the execution personnel, which makes the execution impossible;

(5) Damaging or robbing the case data, vehicles and other execution equipment, clothing and official certificates of the execution personnel, thus causing serious consequences;

6) Other acts that hinder or resist execution and cause serious consequences. "

According to the provisions of Article 4 of the judicial interpretation, the person in charge of the unit and other persons directly responsible for the execution of the judgments and rulings of the people's courts are the subject of this crime. According to Article 5 of the judicial interpretation, if the person subjected to execution commits any of the acts listed in Items (3), (4), (5) and (6) of the aforementioned judicial interpretation, he shall be investigated for criminal responsibility according to law.

According to the aforementioned Article 3 13 of the Criminal Law and the legislative and judicial interpretation of this crime, the creditor has the right not only to sue the debtor who refuses to execute the judgment or ruling to the public security organ, but also to institute criminal proceedings against the third person who maliciously colludes with it, even the debtor who assists in execution. The obligor for assistance in execution here can be a natural person, an enterprise legal person and other organizations, or a staff member of a government functional organ. It stands to reason that the provisions of the crime of refusing to execute a judgment or ruling are not detailed and specific. Then why is it that most of Lao Lai is at large in judicial practice, and few people are really investigated for this crime? The author believes that the main contradiction and problem of the crime of refusing to execute a judgment or ruling is not in legislation, but in law enforcement, the public, procuratorial and legal organs should obviously strengthen the law enforcement of this crime. At present, the main problem is that crimes are directly under the jurisdiction of the public security organs, but the public security organs often do not accept the direct accusations of the parties, but always ask the people's courts to transfer such cases, and the public security organs will file a case for investigation. Whether the people's court decides to transfer such cases often leads to repeated tug-of-war between the original defendant and the defendant in the execution stage, which is often a case that should have been transferred to the public security organ for investigation, but the people's court has been slow to transfer it, or even dragged it to the end. After the most powerful judicial defense line of the people's court in the execution of a case is broken, there will often be a vicious circle of "difficulty in execution", which will make the case impossible to execute and the person who refuses to execute the judgment or ruling cannot be transferred. It should be said that the public security organs only accept cases transferred by the people's courts that refuse to execute judgments or orders, and do not accept the direct accusations of the parties, which is also contrary to relevant laws and regulations. In addition to being corrected by the public security organs or supervised by the procuratorial organs according to law, it will undoubtedly give full play to the due role and power of this crime by giving the parties the right of private prosecution for refusing to execute the judgment or ruling.