Discussion on whether the offence of malicious wages should be entered into crime

-Pay attention to criminal law amendment our correspondent Chen Liping our reporter Li Jibin the 18th meeting of the NPC Standing Committee held in Beijing before long ago, again considered the draft Penal Code amendment (eight), and proposed to increase the crime of malicious wages in criminal law. The specific provisions of the draft are: in order to evade payment of labor remuneration by means of transferring property or guaranty, or having the ability to pay without paying the laborer's remuneration, or having a large amount or other serious circumstances, he shall be sentenced to three years ' imprisonment or criminal detention, with or without a single penalty; For three years and more than seven years of imprisonment, with a fine. If the unit commits the crime of the preceding paragraph, the Unit shall be sentenced to a fine and the supervisor and other persons directly responsible shall be punished according to the provisions of the preceding paragraph.　　The first two acts, has not yet caused serious consequences, before the prosecution to pay the labor remuneration of workers, and according to the corresponding liability for compensation, can not be investigated for criminal responsibility. This rule caused the NPC Standing Committee members and experts to discuss the hot. The main issues that have been debated are: should the malicious wage of wages be included in the adjustment of criminal law? In the procedure, whether the crime is a private prosecution?　　Can the "not constitute a crime paid before the indictment" be replaced by "not committing a crime before the hearing"? Mainly to solve the problem of money not to question the NPC Standing Committee member Kim Yong in favor of the malicious wage Act into the Criminal Law adjustment category. He says such problems are more pronounced in some places, especially at the end of each year. The malicious act of wage-arrears seriously affects social stability. This offence is added to the bill with the aim of ensuring that wages are paid to the workers.　　Therefore, in the application must be prudent, to strictly grasp the boundaries of crime and non-crime. There are certain boundaries between civil and criminal, but many criminal offenses are also civil infringement. Therefore, the State may, according to the actual situation, put some civil liability under the jurisdiction of criminal law.　　Deng, a researcher at the Institute of Law at the Chinese Academy of Social Sciences. Deng explained that the malicious wages stipulated as a crime, will not prevent citizens through civil channels to solve such problems. The criminal law mainly solves those problems which cannot be solved in civil. Moreover, the draft stipulates very clearly that the malicious wage is a crime, that is, the money is not given.　　This is easier to prove.　　Some people think that it is necessary to be cautious in entering into crime. Zhang Yuping, deputy director of the Tibet Autonomous Region Standing Committee, proposed that it is not appropriate to include malicious wages in the Penal Code, because the criminal law is the most severe and final relief, and malicious wage is a widespread problem in the economy, if the malicious wages into the Criminal Code, it will be scattered criminal trial power, And it causes the reuse and waste of civil and criminal trial resources.　　As soon as possible, the laws and regulations on civil enforcement should be promulgated and standardized. "The criminal law has the final sex and the stern, therefore the ' hand ' cannot extend too long, if the administrative and the civil adjustment means can obtain the relatively good effect, the populace is satisfied, there is no need to use the criminal law to adjust." "The criminal Department of CeslProfessor Xu Jiusheng of law school said in an interview with the legal daily. Xu Jiusheng Analysis, the practice of these years shows that in the problem of arrears, administrative and civil adjustment means is not very good, affecting the social order, but also affect the image of the government.　　Therefore, to solve the problem of wage arrears, especially the problem of wages owed to migrant workers is a relatively important thing at present. "But the key question or what is the malicious wage, should be the judicial interpretation by the Supreme People's Court, so as to avoid excessive involvement of criminal means in the civil field."　　Xu Jiusheng stressed. "The proposed transfer of property, guaranty and other methods is the ability to pay and do not pay the specific mode of conduct, will have the ability to pay without paying such a substantive connotation and transfer of property, guaranty such a specific way to make a parallel statement, logically appear confused."　　Lianggenlin, a doctoral tutor and professor of criminal law, Peking University Law School. As for malicious wages should not enter the crime, Lianggenlin that the following aspects of the problem: first, if the malicious wages into sin, how to prove that malicious or well-meaning? The determination of malice and goodwill is subjective judgment, which needs to be proved by the prosecution. Legislation to establish this charge, first of all, must think of the prosecution to bear the burden of proof can be effectively completed in the case.　　How to identify the ability to pay without paying, there are many practical operational obstacles. Secondly, when setting up the crime of malicious wages, we should also consider whether the existing laws can solve such problems.　　Criminal law is not necessary to intervene in all aspects of social life, some can be solved through civil litigation, administrative means, there is no need to use the means of punishment to solve. Finally, it is not impossible to use the penalty means to punish the malicious acts of non-payment of wages which are bad, serious and far-reaching. But is it not necessary to add a malicious wage offence to solve the problem?　　Unless the possible space stipulated in the current criminal law is exhausted, it is necessary to study the crime of setting up a separate malicious wage. The proposal may stipulate for the private prosecution case "for the Malicious wage Act, must have one mentality in the criminal law legislation, is to make it the private prosecution case, must stipulate clearly in the provision to the crime tells the processing."　　"Kim Yong proposed that this can retain the possibility of criminal law investigation, is a compromise plan." NPC Representative Qin Xiyan is the director of Hunan Qin Xiyan joint law firm.　　He also suggested that this article should be added as a private prosecution case only under the threat of violence. "The right to bring a lawsuit to the debt collector is also not a must."　　Xu Jiusheng that the malicious wages can be specified as private prosecution cases.　　Deng also believes that the initiation of such crimes is actually "private prosecution", the state can not directly to the enterprise to ask who owed wages. "The reason why the law is not in accordance with private prosecution, the main consideration is designated as the crime of malicious wages, will not be owed only one employee's money, but owed a group of people's money." "Deng that if a group of people, the crime of private prosecution in the process of the difficulties, must have an agent, and the selection of agents is very complex, if all to private prosecution, there are other difficulties, but also a waste of judicial resources。 Deng For example, a boss owed 10,000 people's money, 1000 people to private prosecution, the remaining without private prosecution is not to return it?　　If it is private prosecution, do not sue, so do not prescribe for private prosecution, or take into account the majority of the possibility of litigation.　　How to set the draft exemption conditions, the malicious wage has not yet caused serious consequences, before the prosecution to pay the laborer's remuneration, and the corresponding liability for compensation, can not be investigated for criminal responsibility. "This is a very good, very specific provision. "Xu Jiusheng that this is exactly what is malicious set a scope, whether before the indictment or before the trial to return, is to judge malicious or not a point in time." The reason for such a proposal, mainly because of the difficult to determine the malicious wage, the law stipulates such a point in time, the relatively good grasp, with considerable operability.　　However, the specific point of time, although not related to the issue of principle, but legislators need to weigh.　　Deng that it was not feasible to pay before the indictment or before the trial. "If this is the case, those who wage arrears will be in circles with the Justice Department." Knowing that it was not a crime to pay before the indictment or before the trial, it was dragged until the indictment or court session. This makes the arrears of wages more fearless, not conducive to the solution of the problem. "Deng said.