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Notice of the Supreme People's Court on Issuing the Fifteenth Group of Guiding Cases [Effective]
最高人民法院关于发布第15批指导性案例的通知 [现行有效]
【法宝引证码】

Notice of the Supreme People's Court on Issuing the Fifteenth Group of Guiding Cases 

最高人民法院关于发布第15批指导性案例的通知

(No. 449 [2016] of the Supreme People's Court) (法〔2016〕449号)

The higher people's courts of all provinces, autonomous regions, and municipalities directly under the Central Government; the Military Court of the People's Liberation Army; and the Production and Construction Corps Branch of the Higher People's Court of Xinjiang Uygur Autonomous Region: 各省、自治区、直辖市高级人民法院,解放军军事法院,新疆维吾尔自治区高级人民法院生产建设兵团分院:
Upon deliberation and decision of the Judicial Committee of the Supreme People's Court, the case regarding the production and sale of toxic and harmful food by Beijing Sunshine 100 Biotechnology Development Co., Ltd., Xi Wenyou, et al. and other seven cases (Guiding Cases No. 70-77) are hereby issued as the fifteenth group of guiding cases for references in the trial of similar cases. 经最高人民法院审判委员会讨论决定,现将北京阳光一佰生物技术开发有限公司、习文有等生产、销售有毒、有害食品案等八个案例(指导案例70-77号),作为第15批指导性案例发布,供在审判类似案件时参照。
Supreme People's Court 最高人民法院
December 28, 2016 2016年12月28日
Guiding Case No. 70 指导案例70号
Case regarding Production and Sale of Toxic and Harmful Food by Beijing Sunshine 100 Biotechnology Development Co., Ltd., Xi Wenyou, et al. 北京阳光一佰生物技术开发有限公司、习文有等生产、销售有毒、有害食品案
(Issued on December 28, 2016 as deliberated and adopted by the Judicial Committee of the Supreme People's Court) (最高人民法院审判委员会讨论通过2016年12月28日发布)
Keywords: criminal; crime of production and sale of toxic and harmful food; toxic and harmful non-food raw materials 关键词 刑事/生产、销售有毒、有害食品罪/有毒有害的非食品原料
Key Points of Judgment 裁判要点
Where, although the substance an actor adds in the food production and trading activities is not substance in the List of Possible Non-Edible Substances Illegally Added to Food and the List of Possible Substances Illegally Added to Dietary Supplements as published by the relevant departments of the State Council, if such substance has the same attribute as that of the substance as included in the aforesaid lists, and it can be determined on the basis of inspection reports, expert opinions, and other relevant materials that such substance has the same harm to the human body, it should be determined as “toxic or harmful non-food raw material” as prescribed in Article 144 of the Criminal Law of the People's Republic of China. 行为人在食品生产经营中添加的虽然不是国务院有关部门公布的《食品中可能违法添加的非食用物质名单》和《保健食品中可能非法添加的物质名单》中的物质,但如果该物质与上述名单中所列物质具有同等属性,并且根据检验报告和专家意见等相关材料能够确定该物质对人体具有同等危害的,应当认定为《中华人民共和国刑法》第一百四十四条规定的“有毒、有害的非食品原料”。
Legal Provisions 相关法条
Article 144 of the Criminal Law of the People's Republic of China 中华人民共和国刑法》第144条
Basic Facts 基本案情
In 2001, defendant Xi Wenyou incorporated Beijing Sunshine 100 Biotechnology Development Co., Ltd. (hereinafter referred to as “Sunshine 100 Company”) and he was the actual person in charge of the production and operation of this Company. Since 2010, defendant Sunshine 100 Company purchased raw materials for the production of dietary supplements from defendant Tan Guomin at the price of CNY 600 per kilogram. The raw materials were processed after being purchased by defendant Tan Guomin from defendant Yin Lixin at the price of CNY 2,500 per kilogram. After purchasing the raw materials, Sunshine 100 Company processed and produced a dietary supplement with functions of assisting in lowering blood sugar level, Shanqi Ginseng capsules with the brand of Sunshine 100, and sold such capsules to Jinfuhai Health Food Store in Guangling District, Yangzhou City and other regions across the country. Defendant Yang Lifeng took charge of production and defendants Zhong Limeng and Wang Hailong took charge of sale. From May to September 2012, it was found upon inspection of Shanqi Ginseng capsules sold to Shanghai, Hunan, Beijing, and other places that they contained buformin hydrochloride. The food and drug administrative department informed Sunshine 100 Company and Xi Wenyou of the inspection results. After knowing the inspection results, Xi Wenyou immediately informed Tan Guomin and Yin Lixin. Although he knew that there was buformin hydrochloride in the dietary supplements Sunshine 100 Company produced and sold, Xi Wenyou still continued the purchase of raw materials from Tan Guomin and Yin Lixin and organized Yang Lifeng, Zhong Limeng, Wang Hailong, and other persons to produce and sell Shanqi Ginseng capsules. After knowing the inspection results, Tan Guomin and Yin Lixin continued the sale of such raw materials to Xi Wenyou. 被告人习文有于2001年注册成立了北京阳光一佰生物技术开发有限公司(以下简称阳光一佰公司),系公司的实际生产经营负责人。2010年以来,被告单位阳光一佰公司从被告人谭国民处以600元/公斤的价格购进生产保健食品的原料,该原料系被告人谭国民从被告人尹立新处以2500元/公斤的价格购进后进行加工,阳光一佰公司购进原料后加工制作成用于辅助降血糖的保健食品阳光一佰牌山芪参胶囊,以每盒100元左右的价格销售至扬州市广陵区金福海保健品店及全国多个地区。被告人杨立峰具体负责生产,被告人钟立檬、王海龙负责销售。2012年5月至9月,销往上海、湖南、北京等地的山芪参胶囊分别被检测出含有盐酸丁二胍,食品药品监督管理部门将检测结果告知阳光一佰公司及习文有。被告人习文有在得知检测结果后随即告知被告人谭国民、尹立新,被告人习文有明知其所生产、销售的保健品中含有盐酸丁二胍后,仍然继续向被告人谭国民、尹立新购买原料,组织杨立峰、钟立檬、王海龙等人生产山芪参胶囊并销售。被告人谭国民、尹立新在得知检测结果后继续向被告人习文有销售该原料。
Buformin hydrochloride is the hydrochloride of buformin. At the present, buformin hydrochloride has not obtained the approval of the drug administrative department of the State Council for production or import and it cannot be produced, sold, and used in China as a drug. The expert opinions issued by Ge Xiaoqun, professor of Medical College of Yangzhou University and the expertise opinions issued by the Judicial Expertise Center of Nanjing Medical University proved that: With the function of lowering the blood sugar level, buformin hydrochloride has withdrawn from the Chinese market very early and the long-term meditation of dietary supplements to which buformin hydrochloride was added may cause adverse impacts on the human body or even endanger lives. 盐酸丁二胍是丁二胍的盐酸盐。目前盐酸丁二胍未获得国务院药品监督管理部门批准生产或进口,不得作为药物在我国生产、销售和使用。扬州大学医学院葛晓群教授出具的专家意见和南京医科大学司法鉴定所的鉴定意见证明:盐酸丁二胍具有降低血糖的作用,很早就撤出我国市场,长期使用添加盐酸丁二胍的保健食品可能对机体产生不良影响,甚至危及生命。
From the end of August 2012 to January 2013 when the case was exposed, Sunshine 100 Company produced and sold Shanqi Ginseng capsules with the value of over CNY 8 million. In particular, Xi Wenyou, Yin Lixin, and Tan Guomin engaged in the production and sale of Shanqi Ginseng capsules containing buformin hydrochloride with the value of over CNY 8 million; Yang Lifeng engaged in the production of Shanqi Ginseng capsules containing buformin hydrochloride with the value of over CNY 8 million; and Zhong Limeng and Wang Hailong engaged in the sale of Shanqi Ginseng capsules containing buformin hydrochloride with the value of over CNY 400,000. Yin Lixin, Tan Guomin, and Sunshine 100 Company jointly and deliberately committed the crime, which was a joint crime. Yin Lixin and Tan Guomin were aiders who provided toxic and harmful raw materials for the production and sale of toxic and harmful food and they were accomplices in the joint crime. Xi Wenyou, Yang Lifeng, Zhong Limeng, and Wang Hailong jointly and deliberately committed the crime, which was a joint crime. Yang Lifeng, Zhong Limeng, and Wang Hailong were instigated by Xi Wenyou to commit the criminal acts of producing and selling toxic and harmful food and they were accomplices. In the joint crime, Xi Wenyou played a leading role and he was the principal. After committing the crime, Yang Lifeng and Tan Guomin voluntarily surrendered themselves and truthfully confessed to the criminal facts, which was voluntary surrender, and they voluntarily pleaded guilty in court. After Xi Wenyou, Yin Lixin, and Wang Hailong were arrested, they truthfully confessed to the criminal facts and voluntarily pleaded guilty in court. After Zhong Limeng was arrested, he truthfully confessed to some criminal facts and voluntarily pleaded guilty of some criminal facts in court. 从2012年8月底至2013年1月案发,阳光一佰公司生产、销售金额达800余万元。其中,习文有、尹立新、谭国民参与生产、销售的含有盐酸丁二胍的山芪参胶囊金金额达800余万元;杨立峰参与生产的含有盐酸丁二胍的山芪参胶囊金额达800余万元;钟立檬、王海龙参与销售的含有盐酸丁二胍的山芪参胶囊金额达40余万元。尹立新、谭国民与阳光一佰公司共同故意实施犯罪,系共同犯罪,尹立新、谭国民系提供有毒、有害原料用于生产、销售有毒、有害食品的帮助犯,其在共同犯罪中均系从犯。习文有与杨立峰、钟立檬、王海龙共同故意实施犯罪,系共同犯罪,杨立峰、钟立檬、王海龙系受习文有指使实施生产、销售有毒、有害食品的犯罪行为,均系从犯。习文有在共同犯罪中起主要作用,系主犯。杨立峰、谭国民犯罪后主动投案,并如实供述犯罪事实,系自首,当庭自愿认罪。习文有、尹立新、王海龙归案后如实供述犯罪事实,当庭自愿认罪。钟立檬归案后如实供述部分犯罪事实,当庭对部分犯罪事实自愿认罪。
Judgment 裁判结果
On January 10, 2014, the People's Court of Guangling District, Yangzhou City, Jiangsu Province rendered a criminal judgment (No. 0330 [2013], First, Criminal Division, Yangzhou) that a fine of CNY 15 million should be imposed on defendant entity Beijing Sunshine 100 Biotechnology Development Co., Ltd. for committing the crime of producing and selling toxic and harmful food; defendant Xi Wenyou should be sentenced to imprisonment of 15 years with deprival of political rights for three years and a fine of CNY 9 million should be imposed for committing the crime of producing and selling toxic and harmful food; defendant Yin Lixin should be sentenced to imprisonment of 12 years with deprival of political rights for two years and a fine of CNY 1 million should be imposed for committing the crime of producing and selling toxic and harmful food; defendant Tan Guomin should be sentenced to imprisonment of 11 years with deprival of political rights for two years and a fine of CNY 1 million should be imposed for committing the crime of producing and selling toxic and harmful food; defendant Yang Lifeng should be sentenced to imprisonment of five years and a fine of CNY 100,000 should be imposed for committing the crime of producing toxic and harmful food; defendant Zhong Limeng should be sentenced to imprisonment of four years and a fine of CNY 80,000 should be imposed for committing the crime of selling toxic and harmful food; defendant Wang Hailong should be sentenced to imprisonment of three years and six months and a fine of CNY 60,000 should be imposed for committing the crime of selling toxic and harmful food; the People's Court of Guangling District should continue to recover the illegal gains of CNY 8 million from defendant entity Beijing Sunshine 100 Biotechnology Development Co., Ltd., the illegal gains of CNY 671,500 from defendant Yin Lixin, and the illegal gains of CNY 1.32 million from defendant Tan Guomin; and the impounded Shanqi Ginseng capsules and granule containing buformin hydrochloride should be confiscated. After the judgment was pronounced, defendant entity and defendants appealed. On June 13, 2014, the Intermediate People's Court of Yangzhou City, Jiangsu Province rendered a civil ruling (No. 0032 [2014], Final, Criminal DivisionII, Yangzhou) that the appeal should be dismissed and the original judgment should be affirmed. 江苏省扬州市广陵区人民法院于2014年1月10日作出(2013)扬广刑初字第0330号刑事判决:被告单位北京阳光一佰生物技术开发有限公司犯生产、销售有毒、有害食品罪,判处罚金人民币一千五百万元;被告人习文有犯生产、销售有毒、有害食品罪,判处有期徒刑十五年,剥夺政治权利三年,并处罚金人民币九百万元;被告人尹立新犯生产、销售有毒、有害食品罪,判处有期徒刑十二年,剥夺政治权利二年,并处罚金人民币一百万元;被告人谭国民犯生产、销售有毒、有害食品罪,判处有期徒刑十一年,剥夺政治权利二年,并处罚金人民币一百万元;被告人杨立峰犯生产有毒、有害食品罪,判处有期徒刑五年,并处罚金人民币十万元;被告人钟立檬犯销售有毒、有害食品罪,判处有期徒刑四年,并处罚金人民币八万元;被告人王海龙犯销售有毒、有害食品罪,判处有期徒刑三年六个月,并处罚金人民币六万元;继续向被告单位北京阳光一佰生物技术开发有限公司追缴违法所得人民币八百万元,向被告人尹立新追缴违法所得人民币六十七万一千五百元,向被告人谭国民追缴违法所得人民币一百三十二万元;扣押的含有盐酸丁二胍的山芪参胶囊、颗粒,予以没收。宣判后,被告单位和各被告人均提出上诉。江苏省扬州市中级人民法院于2014年6月13日作出(2014)扬刑二终字第0032号刑事裁定:驳回上诉、维持原判。
Judgment's Reasoning 裁判理由
In the effective judgment, the Intermediate People's Court of Yangzhou City held that: Article 144 of the Criminal Law provides that “Whoever mixes toxic or harmful non-food raw materials into food produced or sold or knowingly sells food mixed with toxic or harmful non-food raw materials shall be sentenced to imprisonment of not more than five years and a fine shall be imposed; if any serious damage is caused to the people's health or there is any other serious circumstance, shall be sentenced to imprisonment of not less than five years but not more than ten years and a fine shall be imposed; or if any human death is caused or there is any other especially serious circumstance, shall be punished according to the provisions of Article 141 of this Law.” Article 20 of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues concerning the Application of Law in the Handling of Criminal Cases of Jeopardizing Food Safety (hereinafter referred to as the “Interpretation”) provides that “The following substances shall be determined as ‘toxic or harmful non-food raw materials': (1) substances prohibited by laws and regulations from being added or used in food production and trading activities; (2) substances in the List of Possible Non-Edible Substances Illegally Added to Food and the List of Possible Substances Illegally Added to Dietary Supplements published by the relevant departments of the State Council; (3) pesticides, veterinary drugs, and other toxic or harmful substances prohibited from being used as announced by the relevant departments of the State Council; and (4) other substances harmful to human health.” Article 21 thereof provides that “Where it is difficult to determine whether an act is ‘sufficient to cause a serious food poisoning accident or any other serious food-borne disease' or whether ‘toxic or harmful non-food raw materials' are present, the judicial authorities may determine according to the inspection reports and in consideration of expert opinions and other relevant materials. When necessary, the people's courts may notify the relevant experts to testify in court according to the law.” In this case, buformin hydrochloride was a type of chemical substance whose production or import was not approved by the drug administrative department in China and that may not be produced, sold, and used as a drug in China; and it was not a food additive, either. Buformin hydrochloride was not substance as prescribed in items (2) and (3) of Article 20 of the aforesaid Interpretation. The expert opinions issued by Ge Xiaoqun, professor of Medical College of Yangzhou University and the expertise opinions of the Judicial Expertise Center of Nanjing Medical University proved that buformin hydrochloride had the same attribute and equal harm as those of other western drugs (metformin hydrochloride and phenformin hydrochloride ) with functions of lowering the blood sugar level included in the List of Possible Substances Illegally Added to Dietary Supplements in item (2) of Article 20 of the Interpretation. The long-term medication of “Sunshine 100 Shanqi Ginseng capsules” containing buformin hydrochloride may produce toxic side effects on human bodies, affect human health, and even endanger lives. Therefore, buformin hydrochloride should be determined “toxic or harmful non-food raw material” as prescribed in Article 144 of the Criminal Law in accordance with the provisions of item (4) of Article 20 and Article 21 of the Interpretation. 法院生效裁判认为:刑法一百四十四条规定,“在生产、销售的食品中掺入有毒、有害的非食品原料的,或者销售明知掺有有毒、有害的非食品原料的食品的,处五年以下有期徒刑,并处罚金;对人体健康造成严重危害或者有其他严重情节的,处五年以上十年以下有期徒刑,并处罚金;致人死亡或者有其他特别严重情节的,依照本法第一百四十一条的规定处罚。”最高人民法院、最高人民检察院《关于办理危害食品安全刑事案件适用法律若干问题的解释》(以下简称《解释》)第二十条规定,“下列物质应当认定为‘有毒、有害的非食品原料':(一)法律、法规禁止在食品生产经营活动中添加、使用的物质;(二)国务院有关部门公布的《食品中可能违法添加的非食用物质名单》《保健食品中可能非法添加的物质名单》上的物质;(三)国务院有关部门公告禁止使用的农药、兽药以及其他有毒、有害物质;(四)其他危害人体健康的物质。”第二十一条规定,“‘足以造成严重食物中毒事故或者其他严重食源性疾病'‘有毒、有害非食品原料'难以确定的,司法机关可以根据检验报告并结合专家意见等相关材料进行认定。必要时,人民法院可以依法通知有关专家出庭作出说明。”本案中,盐酸丁二胍系在我国未获得药品监督管理部门批准生产或进口,不得作为药品在我国生产、销售和使用的化学物质;其亦非食品添加剂。盐酸丁二胍也不属于上述《解释》二十条第二、第三项规定的物质。根据扬州大学医学院葛晓群教授出具的专家意见和南京医科大学司法鉴定所的鉴定意见证明,盐酸丁二胍与《解释》二十条第二项《保健食品中可能非法添加的物质名单》中的其他降糖类西药(盐酸二甲双胍、盐酸苯乙双胍)具有同等属性和同等危害。长期服用添加有盐酸丁二胍的“阳光一佰牌山芪参胶囊”有对人体产生毒副作用的风险,影响人体健康、甚至危害生命。因此,对盐酸丁二胍应当依照《解释》二十条第四项、第二十一条的规定,认定为刑法一百四十四条规定的“有毒、有害的非食品原料”。
Knowing that the dietary supplements, Shanqi Ginseng capsules, contained buformin hydrochloride, the adding thereof was prohibited by the State, defendant entity Sunshine 100 Company and defendant Xi Wenyou (person directly in charge of the production and sale of Shanqi Ginseng capsules) and defendants Yang Lifeng, Zhong Limeng, and Wang Hailong (directly responsible personnel of Sunshine 100 Company for the production and sale of Shanqi Ginseng capsules) still produced and sold such dietary supplements; knowing that the raw materials they provided containing buformin hydrochloride, the adding thereof was prohibited by the State, were used by defendant Xi Wenyou for the production of dietary supplements, Shanqi Ginseng capsules and the sale thereof, defendants Yin Lixin and Tan Guomin still provided Xi Wenyou with such raw materials. Therefore, the acts of the aforesaid defendant entity and defendants constituted the crime of producing and selling toxic and harmful food according to the law. In particular, the acts of defendant entity Sunshine 100 Company and defendants Xi Wenyou, Yin Lixin, and Tan Guomin constituted the crime of producing and selling toxic and harmful food. The acts of defendant Yang Lifeng constituted the crime of producing toxic and harmful food; and the acts of defendants Zhong Limeng and Wang Hailong constituted the crime of selling toxic and harmful food. The Intermediate People's Court of Yangzhou City rendered the aforesaid judgment according to the criminal circumstances and the amounts involved and by taking into full account of such sentencing circumstances as positions and roles of all defendants in the joint crime, voluntary surrenders, and attitudes of confession. 被告单位阳光一佰公司、被告人习文有作为阳光一佰公司生产、销售山芪参胶囊的直接负责的主管人员,被告人杨立峰、钟立檬、王海龙作为阳光一佰公司生产、销售山芪参胶囊的直接责任人员,明知阳光一佰公司生产、销售的保健食品山芪参胶囊中含有国家禁止添加的盐酸丁二胍成分,仍然进行生产、销售;被告人尹立新、谭国民明知其提供的含有国家禁止添加的盐酸丁二胍的原料被被告人习文有用于生产保健食品山芪参胶囊并进行销售,仍然向习文有提供该种原料,因此,上述单位和被告人均依法构成生产、销售有毒、有害食品罪。其中,被告单位阳光一佰公司、被告人习文有、尹立新、谭国民的行为构成生产、销售有毒、有害食品罪。被告人杨立峰的行为构成生产有毒、有害食品罪;被告人钟立檬、王海龙的行为均已构成销售有毒、有害食品罪。根据被告单位及各被告人犯罪情节、犯罪数额,综合考虑各被告人在共同犯罪的地位作用、自首、认罪态度等量刑情节,作出如上判决。
(Judges of the effective judgment: Yang Yongmei, Chen Shengyong, and Tang Junqi) (生效裁判审判人员:汤咏梅、陈圣勇、汤军琪)
Guiding Case No. 71 指导案例71号
Case regarding Mao Jianwen's Refusal to Satisfy a Judgment or Ruling 毛建文拒不执行判决、裁定案
(Issued on December 28, 2016 as deliberated and adopted by the Judicial Committee of the Supreme People's Court) (最高人民法院审判委员会讨论通过2016年12月28日发布)
Keywords: criminal; crime of refusing to satisfy a judgment or ruling; starting time for computation 关键词 刑事/拒不执行判决、裁定罪/起算时间
Key Points of Judgment 裁判要点
The start time for a person's refusal to satisfy a judgment or ruling while he or she is able to do so should be computed from the time when the judgment or ruling comes into force. After a judgment or ruling requiring satisfaction comes into force, where the person liable for satisfaction hides, transfers, deliberately damages the property, or commits any other act of refusing to satisfy the judgment or ruling, causing the failure to satisfy the judgment or ruling, and the circumstances are serious, the person shall be convicted and punished for the crime of refusing to satisfy a judgment or ruling. 有能力执行而拒不执行判决、裁定的时间从判决、裁定发生法律效力时起算。具有执行内容的判决、裁定发生法律效力后,负有执行义务的人有隐藏、转移、故意毁损财产等拒不执行行为,致使判决、裁定无法执行,情节严重的,应当以拒不执行判决、裁定罪定罪处罚。
Legal Provisions 相关法条
Article 313 of the Criminal Law of the People's Republic of China 中华人民共和国刑法》第313条
Basic Facts 基本案情
On December 11, 2012, the People's Court of Pingyang County, Zhejiang Province rendered a civil judgment (No. 595 [2012], First, Commercial Division, Pingyang) that defendant Mao Jianwen should, within 15 days after the judgment came into force, return the investment fund of CNY 200,000 of Wenzhou Hongyuan Packaging Products Co., Ltd. affiliated to him and the interest thereof. This judgment came into force on January 6, 2013. Since Mao Jianwen failed to voluntarily perform the obligation as determined in the effective legal instrument, on February 16, 2013, Chen Xianyin filed an application for enforcement with the People's Court of Pingyang County. After the case was placed on file, the People's Court of Pingyang County found in the enforcement that on January 17, 2013, Mao Jianwen sold a small general passenger automobile (plate number: Zhe CVU661) under his name at the price of CNY 150,000, the proceeds were used in personal expenses, and Mao Jianwen refused to satisfy the effective judgment. Mao Jianwen truthfully confessed to the aforesaid facts after he was arrested on November 30, 2013. 浙江省平阳县人民法院于2012年12月11日作出(2012)温平鳌商初字第595号民事判决,判令被告人毛建文于判决生效之日起15日内返还陈先银挂靠在其名下的温州宏源包装制品有限公司投资款200000元及利息。该判决于2013年1月6日生效。因毛建文未自觉履行生效法律文书确定的义务,陈先银于2013年2月16日向平阳县人民法院申请强制执行。立案后,平阳县人民法院在执行中查明,毛建文于2013年1月17日将其名下的浙CVU661小型普通客车以150000元的价格转卖,并将所得款项用于个人开销,拒不执行生效判决。毛建文于2013年11月30日被抓获归案后如实供述了上述事实。
Judgment 裁判结果
On June 17, 2014, the People's Court of Pingyang County, Zhejiang Province rendered a criminal judgment (No. 314 [2014], First, Criminal Division, Pingyang) that defendant Mao Jianwen should be sentenced to imprisonment of ten months for committing the crime of refusing to satisfy a judgment. After the judgment was pronounced, Mao Jianwen did not appeal, nor did the public prosecution, and the judgment has come into force. 浙江省平阳县人民法院于2014年6月17日作出(2014)温平刑初字第314号刑事判决:被告人毛建文犯拒不执行判决罪,判处有期徒刑十个月。宣判后,毛建文未提起上诉,公诉机关未提出抗诉,判决已发生法律效力。
Judgment's Reasoning 裁判理由
In the effective judgment, the People's Court of Pingyang County held that: Defendant Mao Jianwen was liable for performing the obligation of satisfaction as determined in the effective judgment. After the judgment or ruling requiring satisfaction came into force, Mao Jianwen committed such acts of refusing to satisfy the judgment or ruling as hiding and transferring property, causing failure to satisfy the judgment or ruling. With serious consequences, his acts constituted the crime of refusing to satisfy a judgment. The charge filed by the public prosecution organ was correct. After being arrested, Mao Jianwen truthfully confessed to his crime and may be given a lighter punishment. 法院生效裁判认为:被告人毛建文负有履行生效裁判确定的执行义务,在人民法院具有执行内容的判决、裁定发生法律效力后,实施隐藏、转移财产等拒不执行行为,致使判决、裁定无法执行,情节严重,其行为已构成拒不执行判决罪。公诉机关指控的罪名成立。毛建文归案后如实供述了自己的罪行,可以从轻处罚。
The issue in this case was how to determine the starting time for computing the act of “refusing to satisfy a judgment or ruling while the actor is able to do so” as prescribed in the crime of refusing to satisfy a judgment or ruling, namely, whether defendant Mao Jianwen's act of refusing to satisfy the judgment should be computed by starting from the time when the relevant civil judgment came into force or the time when the application for enforcement was placed on file. For this issue, in the view of the People's Court of Pingyang County, the entry of an effective legal instrument into the enforcement procedure was not the essential condition and premise for constituting the crime of refusing to satisfy a judgment or ruling; and Mao Jianwen's act of refusing to satisfy the judgment should be computed by starting from January 6, 2013 when the relevant civil judgment came into force mainly on the following grounds: First, it conformed to the original intention of legislation. The interpretation of the Standing Committee of the National People's Congress on the provisions of Article 313 of the Criminal Law provides that “a judgment or ruling of the people's court” referred to an effective judgment or ruling requiring enforcement as rendered by the people's court according to the law. In other words, only after a judgment or ruling requiring enforcement came into force, it had the legal binding effect and enforceability and the obligor was responsible for performing the obligation as determined in the effective legal instrument in a timely and active manner. The enforceability of an effective legal instrument was not generated after the legal instrument entered into the enforcement procedure, but was immediately generated at the time when the legal instrument came into force. Second, it was consistent with the Civil Procedure Law and its judicial interpretations. Article 111 of the Civil Procedure Law of the People's Republic of China provides that “Where a litigation participant or any other person refuses to satisfy an effective judgment or ruling of a people's court, the people's court may, in light of the seriousness of circumstances, impose a fine on him or detain him; and if a crime is constituted, the litigation participant or any other person shall be subject to criminal liability according to the law.” Article 188 of the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China provides that “The acts of refusing to satisfy an effective judgment or ruling of a people's court as prescribed in paragraph 1 (6), Article 111 of the Civil Procedure Law include hiding, transferring, selling, damaging property, or transferring property free of charge, trading property at an obviously unreasonable price, abandoning matured claims, or providing guarantee for other persons free of charge after a legal instrument has came into force, causing the failure of the people's court to enforce the legal instrument.” Thus it can be seen that a judgment or ruling was explicitly limited by the law after the legal instrument has came into force instead of only limiting the subject refusing to satisfy a judgment or ruling to the person subject to enforcement or the obligor assisting in enforcement after the legal instrument entered the enforcement procedure and the adjustment scope for the crime of refusing to satisfy a judgment or ruling should not be limited to acts committed after the effective legal instrument entered the enforcement procedure. Third, it conformed to the legislative purpose. The legislative purpose of the crime for refusing to satisfy a judgment or ruling was to solve the problem of “difficult enforcement” of effective judgments of rulings rendered by the people's courts. Including an act of evading the performance of obligations after a judgment or ruling came into force and before the case was placed on file for enforcement into the adjustment scope of the crime of refusing to satisfy a judgment or ruling should be the due intention for setting this crime by the law. The setting of the date when a judgment or ruling comes into force as the starting time for computing an act of refusing to satisfy a judgment or ruling in the crime of refusing to satisfy a judgment or ruling can effectively urge the obligor to voluntarily perform the obligations as determined in the effective judgment immediately after the judgment or ruling comes into force under the deterrent force of a penalty, and prevent the effective judgment from becoming a mere scrap of paper. In this way, the public can truly respect judicial judgments and maintain legal authority, so as to fundamentally solve the problem of “difficult enforcement” and realize the legislative purpose of the crime of refusing to satisfy a judgment or ruling. 本案的争议焦点为,拒不执行判决、裁定罪中规定的“有能力执行而拒不执行”的行为起算时间如何认定,即被告人毛建文拒不执行判决的行为是从相关民事判决发生法律效力时起算,还是从执行立案时起算。对此,法院认为,生效法律文书进入强制执行程序并不是构成拒不执行判决、裁定罪的要件和前提,毛建文拒不执行判决的行为应从相关民事判决于2013年1月6日发生法律效力时起算。主要理由如下:第一,符合立法原意。全国人民代表大会常务委员会对刑法三百一十三条规定解释时指出,该条中的“人民法院的判决、裁定”,是指人民法院依法作出的具有执行内容并已发生法律效力的判决、裁定。这就是说,只有具有执行内容的判决、裁定发生法律效力后,才具有法律约束力和强制执行力,义务人才有及时、积极履行生效法律文书确定义务的责任。生效法律文书的强制执行力不是在进入强制执行程序后才产生的,而是自法律文书生效之日起即产生。第二,与民事诉讼法及其司法解释协调一致。《中华人民共和国民事诉讼法》第一百一十一条规定:诉讼参与人或者其他人拒不履行人民法院已经发生法律效力的判决、裁定的,人民法院可以根据情节轻重予以罚款、拘留;构成犯罪的,依法追究刑事责任。《最高人民法院关于适用〈中华人民共和国民事诉讼法〉的解释》第一百八十八条规定:民事诉讼法一百一十一条第一款第六项规定的拒不履行人民法院已经发生法律效力的判决、裁定的行为,包括在法律文书发生法律效力后隐藏、转移、变卖、毁损财产或者无偿转让财产、以明显不合理的价格交易财产、放弃到期债权、无偿为他人提供担保等,致使人民法院无法执行的。由此可见,法律明确将拒不执行行为限定在法律文书发生法律效力后,并未将拒不执行的主体仅限定为进入强制执行程序后的被执行人或者协助执行义务人等,更未将拒不执行判决、裁定罪的调整范围仅限于生效法律文书进入强制执行程序后发生的行为。第三,符合立法目的。拒不执行判决、裁定罪的立法目的在于解决法院生效判决、裁定的“执行难”问题。将判决、裁定生效后立案执行前逃避履行义务的行为纳入拒不执行判决、裁定罪的调整范围,是法律设定该罪的应有之意。将判决、裁定生效之日确定为拒不执行判决、裁定罪中拒不执行行为的起算时间点,能有效地促使义务人在判决、裁定生效后即迫于刑罚的威慑力而主动履行生效裁判确定的义务,避免生效裁判沦为一纸空文,从而使社会公众真正尊重司法裁判,维护法律权威,从根本上解决“执行难”问题,实现拒不执行判决、裁定罪的立法目的。
(Judges of the effective judgment: Guo Zhaohui, Zeng Hongyu, and Pei Lun) (生效裁判审判人员:郭朝晖、曾洪宁、裴伦)
Guiding Case No. 72 指导案例72号
Tang Long, Liu Xinlong, Ma Zhongtai, and Wang Honggang v. Xinjiang Erdos Yanhai Real Estate Development Co., Ltd.(Case about disputes over a contract on the sale of commercial houses) 汤龙、刘新龙、马忠太、王洪刚诉新疆鄂尔多斯彦海房地产开发有限公司商品房买卖合同纠纷案
(Issued on December 28, 2016 as deliberated and adopted by the Judicial Committee of the Supreme People's Court) (最高人民法院审判委员会讨论通过2016年12月28日发布)
Keywords: civil; a contract on the sale of commercial houses; a loan contract; liquidation of debts; legal effect; examination 关键词 民事/商品房买卖合同/借款合同/清偿债务/法律效力/审查
Key Points of Judgment 裁判要点
Where both parties to a loan contract terminate the loan contract upon negotiation and establish a new contract on the sale of commercial houses, the principal and interest of the loan is transformed into the paid house purchase fund upon account checking and clearing, the aforesaid arrangement does not fall under the prohibitive circumstance as prescribed in Article 186 of the Property Law of the People's Republic of China, and the purpose for the conclusion of the contract on the sale of commercial houses is not “guarantee for the private lending contract” as prescribed in Article 24 of the Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Private Lending Cases. Where there is no circumstance as prescribed in Article 52 of the Contract Law of the People's Republic of China, the contract on the sale of commercial house has legal effect. However, the people's court should examine the amount of the principal and interest of the loan that has transformed into the paid house purchase fund on the basis of the loan contract and other evidence, so as to avoid the party's transformation of high interest exceeding the ceiling protected by the law to the paid house purchase fund. 借款合同双方当事人经协商一致,终止借款合同关系,建立商品房买卖合同关系,将借款本金及利息转化为已付购房款并经对账清算的,不属于《中华人民共和国物权法》第一百八十六条规定禁止的情形,该商品房买卖合同的订立目的,亦不属于《最高人民法院关于审理民间借贷案件适用法律若干问题的规定》第二十四条规定的“作为民间借贷合同的担保”。在不存在《中华人民共和国合同法》第五十二条规定情形的情况下,该商品房买卖合同具有法律效力。但对转化为已付购房款的借款本金及利息数额,人民法院应当结合借款合同等证据予以审查,以防止当事人将超出法律规定保护限额的高额利息转化为已付购房款。
Legal Provisions 相关法条
Article 186 of the Property Law of the People's Republic of China 中华人民共和国物权法》第186条
Article 52 of the Contract Law of the People's Republic of China 中华人民共和国合同法》第52条
Basic Facts 基本案情
Plaintiffs Tang Long, Liu Xinlong, Ma Zhongtai, and Wang Honggang alleged that: As agreed in the contract concluded by and between both parties, Xinjiang Erdos Yanhai Real Estate Development Co., Ltd. (hereinafter referred to as “Yanhai Company”) should deliver houses conforming to the stipulations of the contract to these four persons on September 30, 2014. However, up to now, Yanhai Company refused to perform the obligation of delivering the houses. Therefore, plaintiffs requested the Higher People's Court of Xinjiang Uygur Autonomous Region to order that: (1) Yanhai Company should pay Tang Long, Liu Xinlong, Ma Zhongtai, and Wang Honggang the liquidated damages of CNY 60 million; (2) Yanhai Company should bear the losses of CNY 416,300 to Tang Long, Liu Xinlong, Ma Zhongtai, and Wang Honggang in the process of claiming rights; and (3) Yanhai Company should bear all litigation costs of the case. 原告汤龙、刘新龙、马忠太、王洪刚诉称:根据双方合同约定,新疆鄂尔多斯彦海房地产开发有限公司(以下简称彦海公司)应于2014年9月30日向四人交付符合合同约定的房屋。但至今为止,彦海公司拒不履行房屋交付义务。故请求判令:一、彦海公司向汤龙、刘新龙、马忠太、王洪刚支付违约金6000万元;二、彦海公司承担汤龙、刘新龙、马忠太、王洪刚主张权利过程中的损失费用416300元;三、彦海公司承担本案的全部诉讼费用。
Yanhai Company contended that: Tang Long, Liu Xinlong, Ma Zhongtai, and Wang Honggang should file separate lawsuits. These four persons and Yanhai Company had no intention of purchasing and selling houses, the contract on the sale of commercial houses was actually a loan contract in the name of a sale contract, and it was guarantee for the loan contract, the stipulation thereof violated the provisions of Article 40 of the Guarantee Law of the People's Republic of China and Article 186 of the Property Law of the People's Republic of China. The contract on the sale of commercial houses concluded by and between both parties was obviously unfair by taking advantage of Yanhai Company's difficulties. The liquidated damages and losses claimed by these four persons also lacked factual basis. 彦海公司辩称:汤龙、刘新龙、马忠太、王洪刚应分案起诉。四人与彦海公司没有购买和出售房屋的意思表示,双方之间房屋买卖合同名为买卖实为借贷,该商品房买卖合同系为借贷合同的担保,该约定违反了《中华人民共和国担保法》第四十条、《中华人民共和国物权法》第一百八十六条的规定无效。双方签订的商品房买卖合同存在显失公平、乘人之危的情况。四人要求的违约金及损失费用亦无事实依据。
After a trial, the Higher People's Court of Xinjiang Uygur Autonomous Region found that: In 2003, Tang Long, Liu Xinlong, Ma Zhongtai, and Wang Honggang concluded multiple loan contracts with Yanhai Company respectively and they obtained the creditor's rights of the loans borrowed by Yanhai Company, CNY 260 million in total, by means of lending and accepting the creditor's rights transferred from other persons. In order to provide guarantee for the performance of such loan contracts, the four persons and Yanhai Company concluded multiple contracts on the presale of commercial houses and they handled formalities for recordation and registration at the local real estate transaction management center. After the creditor's rights were successively mature, since Yanhai Company failed to repay the principal and interest of the loans, it was confirmed upon account checking between both parties that Yanhai Company still owed these four persons CNY 361,398,017.78, which was the principal and interest of the loans. Subsequently, both parties concluded a new contract on the sale of commercial houses, which stipulated that Yanhai Company sold houses under its name to these four persons, the principal and interest of the aforesaid loans were transformed into the paid house purchase funds, and the remaining house purchase funds of CNY 38,601,982.22 would be paid in a lump sum to Yanhai Company after the formalities for the property transfer registration of all subject matter were handled. The sheets of account checking between Tang Long and other three persons and Yanhai Company submitted by Tang Long and other three persons showed that the monthly interest rates of the loans between both parties were 3% and 4%, the overdue interest rate was 10%, and compound interest was also calculated. 法院经审理查明:汤龙、刘新龙、马忠太、王洪刚与彦海公司于2013年先后签订多份借款合同,通过实际出借并接受他人债权转让,取得对彦海公司合计2.6亿元借款的债权。为担保该借款合同履行,四人与彦海公司分别签订多份商品房预售合同,并向当地房屋产权交易管理中心办理了备案登记。该债权陆续到期后,因彦海公司未偿还借款本息,双方经对账,确认彦海公司尚欠四人借款本息361398017.78元。双方随后重新签订商品房买卖合同,约定彦海公司将其名下房屋出售给四人,上述欠款本息转为已付购房款,剩余购房款38601982.22元,待办理完毕全部标的物产权转移登记后一次性支付给彦海公司。汤龙等四人提交与彦海公司对账表显示,双方之间的借款利息系分别按照月利率3%和4%、逾期利率10%计算,并计算复利。
Judgment 裁判结果
On April 27, 2015, the Higher People's Court of Xinjiang Uygur Autonomous Region rendered a civil judgment (No. 2 [2015], First, Civil DivisionI, HPC, Xinjiang) that: (1) Yanhai Company should pay Tang Long, Ma Zhongtai, Liu Xinlong, and Wang Honggang the liquidated damages of CNY 9,275,057.23; (2) Yanhai Company should pay Tang Long, Ma Zhongtai, Liu Xinlong, and Wang Honggang the lawyer's fees of CNY 416,300; and (3) other claims of Tang Long, Ma Zhongtai, Liu Xinlong, and Wang Honggang should be dismissed. The aforesaid funds should be paid in a lump sum within ten days after the judgment came into force. After the judgment was pronounced, Yanhai Company appealed on the grounds that the sale contract concluded by and between both parties was guarantee for the loan contract, it was not the true intention of both parties, and the arrears included high interest. On October 8, 2015, the Supreme People's Court rendered a civil judgment (No. 180 [2015], Final, Civil DivisionI, Supreme People's Court) that: (1) The civil judgment (No. 2 [2015], First, Civil DivisionI, HPC, Xinjiang) as rendered by the Higher People's Court of Xinjiang Uygur Autonomous Region should be vacated; and (2) The claims of Tang Long, Liu Xinlong, Ma Zhongtai, and Wang Honggang should be dismissed. 新疆维吾尔自治区高级人民法院于2015年4月27日作出(2015)新民一初字第2号民事判决,判令:一、彦海公司向汤龙、马忠太、刘新龙、王洪刚支付违约金9275057.23元;二、彦海公司向汤龙、马忠太、刘新龙、王洪刚支付律师费416300元;三、驳回汤龙、马忠太、刘新龙、王洪刚的其他诉讼请求。上述款项,应于判决生效后十日内一次性付清。宣判后,彦海公司以双方之间买卖合同系借款合同的担保,并非双方真实意思表示,且欠款金额包含高利等为由,提起上诉。最高人民法院于2015年10月8日作出(2015)民一终字第180号民事判决:一、撤销新疆维吾尔自治区高级人民法院(2015)新民一初字第2号民事判决;二、驳回汤龙、刘新龙、马忠太、王洪刚的诉讼请求。
Judgment's Reasoning 裁判理由
In the effective judgment, the Higher People's Court of Xinjiang Uygur Autonomous Region held that: Before the conclusion of the contract on the sale of commercial houses in dispute, there were actual loan contracts between Yanhai Company and Tang Long and other three persons and for the purpose of performing such loan contracts, both parties concluded the corresponding contract on the presale of commercial houses and handled the formalities for the advance-notice registration of pre-sold commercial houses. However, the contract on the sale of commercial houses in dispute was transformed from loan contracts upon renegotiation and account checking under the circumstance where Yanhai Company failed to repay the principal and interest of the loans. The principal and interest of the loans have been transformed into the paid house purchase funds, and the contract in dispute stipulated such rights and obligations as house delivery, balance payment, and liability for breach of contract. In addition to be based on the special legal provisions, the establishment, alteration, or elimination of a civil legal relationship should be formed through consistent intention of participants of the legal relationship. In civil trading activities, it was not rare that the intention of a party changed. The change in the intention should be permitted unless otherwise prohibited by the special legal provisions. Upon consensus reached between both parties, the loan contracts were terminated and a new contract on the sale of commercial houses was established. It was not guarantee provided for the performance of the loan contracts between both parties, but a transaction arrangement for realizing the balance of both parties' rights and obligations by means of selling the commercial houses owned by Yanhai Company to Tang Long and other three creditors when the loan contracts were expired and it was difficult for Yanhai Company to repay the debts. This transaction arrangement did not violate the mandatory provisions of laws and administrative regulations, did not fall under any prohibitive circumstance as prescribed in Article 186 of the Property Law of the People's Republic of China, and was not governed by the provisions of Article 24 of the Provisions of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Private Lending Cases. Respecting the subsequently-formed consistent intention of the parties to change the nature of the legal relationship should be the due intention for implementing the principle of freedom of contract. The claim of Yanhai Company that the contract on the sale of commercial houses involved was invalid should not be admitted.
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 法院生效裁判认为:本案争议的商品房买卖合同签订前,彦海公司与汤龙等四人之间确实存在借款合同关系,且为履行借款合同,双方签订了相应的商品房预售合同,并办理了预购商品房预告登记。但双方系争商品房买卖合同是在彦海公司未偿还借款本息的情况下,经重新协商并对账,将借款合同关系转变为商品房买卖合同关系,将借款本息转为已付购房款,并对房屋交付、尾款支付、违约责任等权利义务作出了约定。民事法律关系的产生、变更、消灭,除基于法律特别规定,需要通过法律关系参与主体的意思表示一致形成。民事交易活动中,当事人意思表示发生变化并不鲜见,该意思表示的变化,除为法律特别规定所禁止外,均应予以准许。本案双方经协商一致终止借款合同关系,建立商品房买卖合同关系,并非为双方之间的借款合同履行提供担保,而是借款合同到期彦海公司难以清偿债务时,通过将彦海公司所有的商品房出售给汤龙等四位债权人的方式,实现双方权利义务平衡的一种交易安排。该交易安排并未违反法律、行政法规的强制性规定,不属于《中华人民共和国物权法》第一百八十六条规定禁止的情形,亦不适用《最高人民法院关于审理民间借贷案件适用法律若干问题的规定》第二十四条规定。尊重当事人嗣后形成的变更法律关系性质的一致意思表示,是贯彻合同自由原则的题中应有之意。彦海公司所持本案商品房买卖合同无效的主张,不予采信。
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