Malicious Wage Problems Of Criminal Jurisprudence Interpretation

On February25th,2011, the Amendment Ⅷ to the Criminal Law of the People’s Republic of China was examined and adopted by Standing Committee of NPC. In this amendments,"malicious wages behavior" was to be crime in due form. In chapter of offences against property of Criminal Law, crime of refusing to pay remuneration was added,as article two hundred and seventy-six (a):"Whoever dodges labor remuneration payable to laborers by transferring property or escaping, or refuses to pay laborers although he/she has the capacity to make payment, if the amount is relatively large, and if he/she still refuses to pay after being so ordered by relevant government departments, shall be sentenced to fixed-term imprisonment of not more than three years or criminal detention, and be concurrently or separately fined. If serious consequences are caused, he/she shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and be concurrently fined. Where an entity commits the crime prescribed in the preceding Paragraph, the entity shall be fined, and the persons directly in charge and other persons subject to direct liabilities shall be punished in accordance with the provisions of the preceding Paragraph.Whoever commits the crime mentioned in the preceding two paragraphs but has not yet caused serious consequences may be given a mitigated punishment or be exempted from punishment, provided that he/she, prior to public prosecution, pays labor remuneration to laborers and bear the corresponding compensation liabilities in accordance with the law." Has a long history of unpaid wages problem, finally have more of the criminal law.On the Amendment Ⅷ to the Criminal Law, the so-called acts of refusing to pay remuneration, means the criminal dodges labor remuneration payable to laborers by transferring property or escaping, or refuses to pay laborers although he/she has the capacity to make payment, and the amount is relatively large, and he/she still refuses to pay after being so ordered by relevant government departments.But the problem of concrete definition of malicious wages behavior is exist in judicial practice, for example, about the problem of defining "malicious","labor" and "labor remuneration" And then characteristics and causes of malicious wages behavior are introduced. The present conditions of malicious wages in China are analyzed. In the second part,Ningxia migrant workers WangBinYu paid for wages didn’t succeed, kill the employer’s case and Hangzhou women pay for princes of the case are quoted to be analyzed the stipulation of malicious wages behavior in active law and regulations of our country. In stipulations of active law, though liability which the employing unit should bear with infringing labor’s labor wages relation is defined, the remedies of infringing labor’s labor wages relation are too general. Supervising function and powers of labor administrative department are only ordering to pay labor wages, economical compensations and ordering to pay compensation.In a word, dealing means is single, weak and lacking of rigidity. In view of the fore conditions, suggestions and proposals are provided for many times by deputies to the National People’s Congress, council department and labor union organization. Malicious wages behavior is pointed that, it is essential a kind of exploitation and fake act and it has badly infringed the labors’basic human right of rewarding labor wages. Under the conditional of malicious incidents being hardly contained by civil means or administrative means, criminal sanction means should be applied to deter and restrain its more and more strong momentum. Malicious wages behavior is to be crime. This is in favor of social harmony and stability and is also favorable to protect the human rights of vulnerable group. In the third part, criminal regulation of malicious wages behavior is explored as a key point. At first, it is to be discussed how to describe this accusation. In author’s point, the accusation should be crime of refusing to pay labor remuneration. This rule is to be reading and then constitutive elements of crime are analyzed from four aspects of subject, object, subjective aspect and objective aspect. The crime is to be distinguished from crime of embezzlement, refusing implement of court sentence, crime of false bankrupt and interference of the accounts settlement. In fourth part, some typical cases are applied to explain the results of malicious wages behavior being in Criminal Law. At the same time, since the Amendments VIII to the Criminal Law of People’s Republic of China at the beginning of this year,"crime of refusing to pay labor wages has aroused popular echo and it is to be "sword of state" to punish the malicious acts of back pay. But because the relevant judicial interpretations haven’t been unveiled, this legal weapon applied to punish back pay act cases is few in our country. The relevant judicial interpretations of the Amendments VIII to the Criminal Law should be made in tight and hope the new regulation be made in recent time. At the same time in author’s point, the act of refusing to pay labor wages is contained in criminal punishment that is not meaning the functions of labor union, labor arbitration, governmental authorities and civil remedies in dealing with the paying labor wages disputes between malicious back payer and back payee are neglected.