债权人在来函中自述其公司因“特殊原因”无法正常收付款项，经客户单位查询，债权人已经被人民法院列为失信被执行人，说明其有生效判决尚未履行完毕。其所谓“特殊原因”大概率系其公司账户已经被法院采取了冻结措施。债权人来函要求客户单位将判决款项支付至其提供的第三方银行账户，有较大可能系其为转移、隐匿财产，逃避执行而采取的措施。对此，根据《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》第一百八十九条第（五）项“接到人民法院协助执行通知书后，给当事人通风报信，协助其转移、隐匿财产的”和《最高人民法院关于人民法院执行工作若干问题的规定（试行）》第五十七条第（二）项“案外人与被执行人恶意串通转移被执行人财产的”等相关规定，要构成妨碍执行的行为，一般应符合“接到人民法院协助执行通知书后”仍协助被执行人转移、隐匿财产，或者有“与被执行人恶意串通转移被执行人财产”情形。本案中，客户单位并未接到人民法院协助执行通知书，不符合前述第一种情形，但对于“恶意串通转移被执行人财产”的理解和把握实践中可能会存在分歧，甚至不排除相关机构会进行扩大解释。经检索案例后亦发现，部分法院认为“明知被告身为负有执行人民法院判决义务的被执行人，且有拒不执行已经生效的人民法院民事判决的意图，仍帮助被告转移财产，抗拒执行，构成拒不执行判决、裁定罪”。【参考案例：刘正甲、刘正乙等拒不执行判决、裁定罪一审刑事案，（2017）浙0327刑初1035号，裁判主旨：被告人刘正甲身为负有执行人民法院判决义务的被执行人，恶意转移财产，拒不执行已经生效的人民法院民事判决，情节严重；被告人刘正乙、郑某明知被告人刘正甲身为负有执行人民法院判决义务的被执行人，且有拒不执行已经生效的人民法院民事判决的意图，仍帮助刘正甲转移机器设备，抗拒执行，其行为均已构成拒不执行判决、裁定罪，依法均应当予以追究刑事责任。】对此，若客户单位在明知债权人系负有履行人民法院判决义务的被执行人的情况下，仍然按其要求向第三方转账，同样无法排除因债权人恶意转移财产、逃避执行的行为被发现后受到牵连的可能。届时，客户单位很可能会被牵扯到债权人被执行案件中，不但造成诉累，甚至存在被认为构成拒不执行判决、裁定的扰乱司法秩序的违法行为甚至犯罪行为。

 

A Issue

 

    The customer unit consulted, that as a debtor, it had more than one million yuan due debt determined by effective judgment to the creditor. Before it wanted to pay the amount adjudged to the creditor’s public account, the creditor sent a letter to the customer unit, saying that the creditor could not normally receive and pay the money for “special reasons”, and asked the customer unit to pay the amount adjudged to designated third-party receive account. After inquiry, the creditor unit has been listed as dishonest persons subject to enforcement by the people’s court. In this situation, can the customer unit pay the amount adjudged to receive account of the third-party unit?

B Conclusion

 

    From the perspective of prudent management of legal risks, we advised that the customer unit refuse the creditor’s request to pay the amount adjudged to the third party’s account, and exhorted the creditor not to have the idea of transferring property and evading execution. For the issue of how to perform the judgment, we advised that the customer unit takes the initiative to communicate with the court about relevant matters, stating that there are obstacles to active performance of the judgment, hoping to pay the amount adjudged to the court’s account to avoid to incurring interest due to the delayed performance of the debt, and also asks and listens to the opinions and suggestions of the people’s court. In addition, if the customer unit and the creditor have ever conducted capital transactions through a certain bank account, it may also consider paying the judgment through that account after informing the creditor.

C Analysis

 

   The creditor stated in the letter that his company could not receive and pay the money normally due to “special reasons”, and after the inquiry by the customer unit, the creditor has been listed as dishonest persons subject to enforcement by the people’s court, indicating that the execution of the effective judgment has not been performed. The “special reasons” most likely means that the company’s account has been frozen by the court. The creditor in the letter requested the customer unit to pay the amount adjudged to the third-party bank account provided by himself, it may be a measure taken by the creditor to transfer or hide the property and evade execution. In this regard, according to Article 189 (5) of the Interpretation of the Supreme People’s Court on the Application of the Civil Procedure Law of the People’s Republic of China stipulates that “Revealing information to a party and assisting the party in transferring or hiding property after receiving a written notice of enforcement assistance from the people’s court”, Article 57(2) of the Provisions of the Supreme people’s court on Several Issues Concerning the Enforcement Work of the People’s Courts (for Trial Implementation) stipulates that “A party not involved in a case colludes with the judgment debtor in maliciously transferring the property of the judgment debtor” and other related regulations, an act that constitutes obstructing the execution  shall generally comply with the situation of assisting the judgement debtor to transfer or hide property “after receiving a written notice of enforcement assistance from the people’s court”, or have the situation that “colludes with the judgment debtor in maliciously transferring the property of the judgment debtor”. In this case, the customer unit had not received a written notice of enforcement assistance from the people’s court, which does not meet the first situation mentioned above. However, there may be differences in the understanding and grasp of “maliciously colluding and transferring the property of the judgment debtor” in practice, and it is even not excluded that relevant institutions will expand the interpretation. After retrieving the cases, we also found that some courts believe that “If a person, knowing that the defendant is the judgment debtor who has the obligation to execute the judgment of the people’s court and has the intention to refuse to execute the civil judgment of the people’s court that has already entered into force, still helps the defendant to transfer the property and resist the execution, which will constitute the crime of refusing to execute the judgment or ruling”. [Reference case: Liu Zheng A, Liu Zheng B and others refused to execute the judgment and ruling in the first instance criminal case, Case (2017) Zhe 0327 Criminal First Trail No. 1035, purpose of the trial：the defendant Liu Zheng A, as the judgment debtor with the obligation to execute the people’s court judgment, maliciously transferred property and refused to execute the civil judgment of the people’s court that had already entered into force, and the circumstances were serious. The defendants Liu Zheng B and Somebody Zheng knew that the defendant Liu Zheng A was the judgment debtor who has the obligation to execute the judgment and has the intention to refuse to execute the civil judgment of the people’s court that has already entered into force, but they still helped Liu Zheng A to transfer the machinery and equipment, and resist the execution, their acts have constituted the crime of refusing to execute the judgment and ruling, and they should be investigated for criminal liability according to the law]. In this regard, if the customer unit, knowing that the creditor is the judgment debtor who has the obligation to perform the judgment of the people’s court and still transfers money to the third party according to the creditor’s request, which cannot exclude the possibility of being implicated after the creditor’s maliciously transfer of property and evade of execution is discovered. At that time, the customer unit is likely to be implicated in the case of the creditor being executed, which will not only cause the burden of litigation, but may even be considered as illegal acts or even criminal acts that disruption of judicial order by refusing to execute judgment and ruling.

本期撰稿：桂进莫、许灿虎

本期译稿：解 佳、张 川

本期编辑：尤 喆