英美法视阙下的拒不执行判决、裁定行为刑法规制比较 - 以中国刑法为立足点 -

As a long-standing phenomenon in China's judiciary, difficult execution not only harms the legitimate rights and interests of the winning party, but also damages the judicial authority. How to better realize the content of court judgment through the criminal law, and effectively protect the legal rights of the winning party, the criminal law of the common law countries or regions has practical reference significance for the regulation of the refusal to execute the judgment and order. Most countries or regions of the common law system regard the refusal to enforce the judgment of the court as the crime of contempt of court. However, the scope of application of the contempt of court is much broader than that of the crime of refusal to enforce the judgment or order of the Chinese criminal law. Tracing back to the development of the contempt of court, it originated from the British common law in the 12th century and has exerted a profound influence on the laws of many colonial regions. The traditional contempt of court can be divided into criminal contempt and civil contempt. The civil contempt is the most consistent with the crime of refusing to enforce the judgment or order in the Chinese criminal law. However, refusal to enforce a judgment or order can also constitute criminal contempt, which is why many scholars believe that there is no clear distinction between criminal contempt and civil contempt. The penalties for both criminal contempt and civil contempt include a fine and imprisonment, but the period of imprisonment for criminal contempt is usually clearly defined, while for civil contempt the period of imprisonment may continue until the actor has complied with the court's decision. Both the crime of refusing to carry out a judgment or order and the contempt of court must be on the premise of the behavior person can actually perform court, when a person as long as the implementation may endanger the related behavior of the court to achieve, through certain procedures and the judge to confirm briefly, contempt can early intervention, and linkage melts penetration of contempt of court and implementation system, makes the court for enforcement. The flexible mechanism of contempt of court makes the realization of legal purpose especially remarkable. Compared with China's judicial practice, there is still a surplus of criminal law intervention in the lenient punishment for the offender's performance of obligations, while the tension of penalty is insufficient for the offender who refuses to fulfill his obligations despite accepting a limited term of imprisonment. In legal proceedings, as long as the implementation of offender endanger court judge implementation of relevant behavior, criminal law can early intervention, and not be restricted by the general procedure, mostly linkage melt injection combined with contempt of court and implementation system, has played a good role in the implementation effect, is worth the Chinese criminal justice thinking and using for reference.