Research On Conviction And Sentencing Of The Crime Of Refusing To Pay Labor Remuneration

Since the establishment of the crime of refusing to pay remuneration for labor as a newly added crime in the Criminal Law Amendment(VIII),there have been many disputes,at present,the debates focus on "Capacity to pay",the subject of payment,the time limit after payment and the cognizance of the subject of crime.Therefore,it is not clear how the crime is applied in judicial practice,and whether the judgment is what scholars think it should be.Based on the sample of 1065 judgments of the crime of refusing to pay labor remuneration from 2020 to 2022,this paper makes an empirical study on the part of conviction of the sample by means of descriptive statistical analysis,and probes into the law of the determination of the crime by judges,at the same time,through the software of SPSS,the author carries out the regression analysis on the sentencing of the crime of refusing to pay labor remuneration,and finds out the features and deficiencies of sentencing,and put forward the suggestion of standardized sentencing.The full text of more than 60,000 words,in addition to the introduction and conclusion,a total of four parts.The first part,theoretical realm debates about the constitution of the crime and the measurement of penalty’s research is blank.In the aspect of criminal identification,first of all,the objective aspect,one of the modes of behavior,the criterion of“Being able to pay”,has different viewpoints,such as carrying funds,accumulating property,etc.,then there is the administrative presupposition of the crime: there is controversy over the scope of the relevant government departments except for Department of Human Resources and Social Security,and there is also disagreement over whether the period of post-order payment is clearly limited to a certain time frame;Secondly,because of the widespread phenomenon of attachment in practice,whether the subject of the crime should be recognized as a general subject or be dealt with in a special way is controversial.Finally,because the academic research on this crime focuses on the conviction,not enough attention is paid to the sentencing,so the scope of sentencing remains in theory,the sentencing rules of the study is almost blank,whether the judicial practice is accurate sentencing and sentencing justice is in doubt.The second part,carries on the empirical analysis to this crime’s cognizance.The paper makes descriptive statistics on“Capacity to pay”,the subject of order to pay,the time limit after order to pay,and the cognizance of the subject of crime in the sample.The study finds that payment capacity’s cognizance doesn’t distinguish among different situations,the subjects of payment by order are also various,and the period of payment after the order is either very long or very short,while the subjects of crime basically rely on the authority of the order and have not been examined,and they mainly commit crimes by natural persons,there are few cases of unit crime.That is to say,in the objective aspect,the crime has the tendency of enlarging its application,while in the subject of crime,it has certain limitation.The third part,carries on the description statistics and the regression analysis to the sample sentencing part.The first is the sentencing level,the“Causing serious consequences” of the situation statistics,found that there is no case.The payment before prosecution and the payment before sentencing in the first instance have no significant influence on sentencing.The regression analysis of fixed-term imprisonment shows that the amount of unpaid labor remuneration plays a leading role in the term of imprisonment,while the fine,because there is no limit,appears to be biased,that is to say,it is applied more arbitrarily.Putting on probation depends on the length of time,and there is no supporting system based on the special of this crime.Therefore,the crime of refusing to pay remuneration for labor is not standardized sentencing.The fourth part,according to the empirical findings and combined with the theory to make recommendations.The“Capacity to pay” of a unit should be judged by its stage,amount of remuneration in arrears and type of unit.The payment authority should be limited to Department of Human Resources and Social Security and the agency entrusted by it.It links with other departments’ laws,consists with the integration of criminal law and practical practice.The period of payment after the order should be relatively clear,may stipulate generally for 7 days,under the special circumstance carries on the extension,takes“The day” as the unit,by the construction domain to explore first.The cognizance of the subject of crime should be based on the theory of danger actualization in causality,and combined with labor relation.Unit crime should be extended.In the aspect of sentencing,it is necessary to identify the“Causing serious consequences”,change the status quo of the second penalty vacancy,and influence the choice of punishment by dividing the proportion of payment for labor in the two stages of litigation.While the amount of unpaid labor remuneration should be divided into different grades,which will have an impact on the two prison camps respectively;the calculation of the fine penalty should be based on the length of the free sentence or the amount of unpaid labor remuneration;while announcing the reprieve,where necessary,conduct a trade ban or issue a restraining order to enhance the effect.