Dehehantong's lawyer successfully pleaded not guilty and refused to execute the verdict, and was not arrested

The case of Zhang refusing to execute the judgment, which was handled by Chen Shilei, senior partner of Dehehantong Shanghai Office, and Zheng Chen, partner of Dehehantong , achieved good defense results. The lawyer successfully identified three major problems in the case after entrusting, and finally successfully changed the compulsory measures with unclear facts and insufficient evidence.

Maintain a not guilty plea

The parties in this case immediately found two lawyers after being detained. After preliminary understanding of the case, we believed that Zhang's behavior did not constitute a crime, especially after understanding the causes and consequences of the case and the operation of the company, we were more firm in the idea of innocence, and soon formed a complete opinion and communicated with the public security organs. However, as a refusal case transferred by the court to the public security organ insisted on reporting the arrest, the lawyer could only communicate with the prosecutor at the first time after reporting the arrest. Since there was only 7 days to decide whether to approve the arrest, the lawyer raced against time and seconds to exchange views with the host prosecutor repeatedly, and insisted on repeatedly explaining to the prosecutor that the case did not constitute a crime. Finally, on the last day to decide whether to arrest, we gave the decision not to arrest.

Basic case

Company A is A company engaged in the operation of hospital parking lots, and Zhang XX serves as the legal representative of Company A. In 2021, Company B, as the original, told Company A about the creditor's rights and debts dispute and obtained an effective judgment. However, Company A found that company B and its actual controller had committed fraud in the name of investment and filed criminal charges against the actual controller of Company B, and the public security organ filed a case of contract fraud to investigate and seal up the real estate worth about 30 million yuan of the actual controller of Company B. In 2024, Company C sued Company A due to A service contract dispute. During the litigation process, the two companies settled the case, and the court seized the bank card account of Company A during the execution process. Company A has fulfilled other debts of the company through Alipay and wechat after the seizure. In May 2024, the court sentenced Zhang to 15 days of judicial detention for refusing to execute the judgment. In August, the court transferred Company A to the public security organ for allegedly refusing to execute the judgment, and the public security organ detained Zhang for the crime.

Point of defence

1. Failure to meet the criteria of serious circumstances that make the people's court unable to carry out enforcement despite the exhaustion of some means

According to the provisions of judicial interpretation, the conduct of the person subject to execution must be sufficient to achieve circumstances that would render the court unable to enforce the case through normal channels, These include a series of measures that actively hinder execution, such as refusing to falsely report property after being fined and detained, forging and destroying important evidence to hinder execution, refusing to pay financial resources or refusing to move out of the house to make execution impossible, colluding with others to hinder execution through false litigation and other means, and obstructing execution by threatening violence. According to the provisions of judicial interpretation, it is not negative execution that constitutes this crime. “Unenforceable” means that even if the person under the obligation of execution has obstructed or resisted execution, the people's court still fails to realize the result determined by the judgment or order after exhausting all measures for compulsory execution. In practice, there are a large number of cases in which the person who has the obligation to enforce is resistant to enforcement or passive enforcement. Whether the effective legal instruments can be fully implemented depends on whether the enforcement court takes sufficient enforcement measures to a certain extent. It is not possible to identify the perpetrator as a crime just because he is resistant to enforcement or passive enforcement.

In this case, the property worth about 30 million yuan of Company B has been sealed up, and the case has entered the stage of review and prosecution. After the judgment of the case takes effect, Company C can execute the property of Company A through the repayment of Company B, which does not cause the people's court to be unable to execute.

2. The Company's transfer of property through Alipay, wechat, etc., does not objectively result in failure to perform, and subjectively does not have the intention to evade debts

The company does not transfer the money on Alipay's wechat, but uses it to pay off the debts of other creditors, and since its claims on Company B have been sealed by the public security organs, it is enough to cover the debts of Company C of 5 million yuan, which will not cause the consequences of failure to perform.

In addition, the company mainly operates the parking lot business, so its main daily payments are stored in the account associated with the wechat Pay QR code posted in the parking lot. The People's Court's failure to seal the company's wechat Pay account at the execution stage shows certain negligence, and the consequences of such negligence should not be borne by Company A.

3. Although Zhang is the legal representative, he does not perform his actual duties in the company

Zhang no longer served as the legal representative of Company A at the time of the incident, and did not change as soon as possible mainly in order to report to the public security organ as the representative of the company against the actual controller of Company B, and Company A and Company C no longer participated in the actual business activities of the company before the lawsuit. To take A step back, no matter whether A company bears the responsibility of refusing to commit the crime, Zhang does not constitute a crime.

Conclusion

The crime of refusing to execute the judgment and order has long been in the awkward position of resolutely not filing or dropping the case, mainly reflected in the fact that it is difficult for the victim to take the initiative to file a case, and it is even more difficult for the people's court to not commit a crime after the people's court takes the initiative to transfer the case to the public security organ. Moreover, since the crime is usually based on the judgment and order of civil cases, lawyers need to have a clear judgment on the legal relationship of civil cases. The legal relationship between prosecution and defence is more complex. The success of this case not only benefited from the lawyer's accurate grasp of the defense point, but also owed to the client's first time to seek legal services, which won time for the lawyer to play his role. Of course, in the context of the current judicial reform of abolishing indicators and assessment, it is also the basis for the success of this case that prosecutors can actively listen to the opinions of defenders to achieve a good prosecution law, and obtain a successful result through the joint efforts of many parties.