拒不执行判决、裁定罪的司法认定

发布时间：2019-05-24 05:14

【摘要】：自上世纪八十年代以来,“执行难”问题就一直困扰着法院的执行工作,为维护当事人合法权益与法院司法形象,必须尽快着手解决这一问题。本文尝试以执行实践为研究基础,分析解决“执行难”问题的刑法路径,全文共分为引论、概论、分论、结语四大部分,其中分论部分详细阐述拒不执行判决、裁定罪司法认定的困境与完善途径。引论部分介绍了拒不执行判决、裁定罪的立法背景,分析“执行难”问题的具体内涵、形成原因及解决进路,提出采用多种手段尤其是法律手段合力解决这一难题的思路。第一章“拒不执行判决、裁定罪的现状与存在问题”部分,该部分以厦门市两级法院适用该罪的具体情况调研为基础,分析了该罪适用的司法现状与立法规定中存在的相关问题,指出了对该罪进行司法认定的难点所在。第二章“侵害的法益与犯罪对象的思考”部分,具体剖析了拒不执行判决、裁定犯罪行为所侵害的法益；同时,对刑法第313条及立法解释与司法解释中规定的本罪犯罪对象进行梳理分析,明确界定本罪的对象范围,为本罪的具体适用提供法律依据。第三章“主体认定与共同犯罪”部分,结合执行实践,从立法精神、刑法基本原则等角度对案外人、执行人员以及单位能否成为本罪的犯罪主体问题进行探讨,以及与案外人、协助执行人的共犯认定问题,并提出了相应的意见和建议。第四章“罪状解读及客观方面的确定”部分,以刑法第313条的罪状规定为切入点,从刑事司法实践、立法精神等角度具体分析了“有能力执行”、“拒不执行”、“情节严重”的内涵,对本罪客观要件相关要素进一步明确和细化,提高了本罪适用的统一性和准确性。第五章“与它罪的区别、竞合与转化”部分,具体分析了本罪与妨害公务罪、非法处置查封、扣押、冻结的财产罪等罪名的区别、竞合与转化问题,进一步厘清了本罪与它罪的界限,为司法实践中准确认定本罪进行了必要探索。结语部分回归引论,指出“执行难”问题不仅是法院的问题,也是全社会面临的问题,必须采取法律、科技、行政等多重手段解决这一社会难题。
[Abstract]:Since the 1980s, the problem of "difficult execution" has been perplexing the enforcement work of the court. In order to safeguard the legitimate rights and interests of the parties and the judicial image of the court, it is necessary to solve this problem as soon as possible. Based on the practice of execution, this paper attempts to analyze the criminal law path to solve the problem of "difficult execution". The full text is divided into four parts: introduction, sub-theory and conclusion, in which the part expounds in detail the refusal to execute the judgment. The dilemma and perfect way of judicial cognizance of adjudication and conviction. The introduction part introduces the legislative background of refusing to execute the judgment and finding the conviction, analyzes the concrete connotation of the problem of "difficult execution", the causes of formation and the way to solve it, and puts forward the train of thought of using various means, especially legal means, to solve this problem together. The first chapter is "the present situation and existing problems of refusing to execute the judgment and finding the conviction", which is based on the investigation of the specific situation of the application of the crime by the courts at the two levels of Xiamen. This paper analyzes on the judicial present situation of the application of the crime and the relevant problems existing in the legislative provisions, and points out the difficulties in the judicial cognizance of the crime. The second chapter, "thinking about the legal interest of infringement and the object of crime", concretely analyzes the legal interest of refusing to execute the judgment and determining the infringement of the criminal act. At the same time, this paper combs and analyzes the object of the crime stipulated in Article 313 of the Criminal Law and the legislative interpretation and judicial interpretation, and clearly defines the scope of the object of the crime, so as to provide the legal basis for the specific application of the crime. The third chapter, "subject identification and joint crime", combined with the implementation practice, from the legislative spirit, the basic principles of criminal law and other angles to explore whether the outsider, the executor and the unit can become the subject of the crime, as well as with outsiders in the case. Assist the executor to identify the accomplice, and put forward the corresponding opinions and suggestions. The fourth chapter, "interpretation of guilt and determination of objective aspects", takes the provision of guilt in Article 313 of the Criminal Law as the starting point, and concretely analyzes the "ability to implement" and "refusal to execute" from the perspective of criminal judicial practice and legislative spirit. The connotation of "serious circumstances" further clarifies and refines the relevant elements of the objective elements of the crime, which improves the unity and accuracy of the application of the crime. The fifth chapter, "the difference between this crime and other crimes, concurrence and transformation", analyzes the difference between this crime and the crime of hindering public service, illegal disposal and seizure, frozen property and so on, as well as the problem of concurrence and transformation. It further clarifies the boundary between this crime and its crime, and makes a necessary exploration for the accurate identification of this crime in judicial practice. The conclusion is a partial regression introduction, pointing out that the problem of "difficult execution" is not only a problem of the court, but also a problem faced by the whole society. It is necessary to solve this social problem by means of law, science and technology, administration and so on.
【学位授予单位】：厦门大学
【学位级别】：硕士
【学位授予年份】：2014
【分类号】：D924.36

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