The Preceding Procedure Of The Crime Of Refusing To Pay Labor Remuneration Should Be Amended.

< p > in order to effectively crack down on malicious arrears of wages, and earnestly safeguard the legitimate rights and interests of < a href= "http://www.91se91.com" > laborers < /a >, the criminal law amendment (eight) stipulates the crime of refusing to pay labor remuneration.

According to the author's understanding, the penalty for the crime is "zero filing" in some areas. The main reason is that the pre procedure of the crime "ordered by the relevant government departments to pay is still not paid" has seriously hindered the implementation effect.

In order to get rid of this obstruction, the pre procedure of the crime should be amended.

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< p > "the relevant government departments ordered to pay" is an administrative order, and it is a specific administrative act.

In the specific practice, the administrative behavior is shown by the labor resources protection department in accordance with the existing labor laws and regulations, exercising the law enforcement power against the illegal behavior of the administrative counterpart (labor main body) who underpaid the labor remuneration, and ordered the workers to pay the wages within a specified time.

The crime of "refusing to pay labor remuneration" includes two kinds of natural persons and units.

The "employment subject" in the labor law refers to the employing units, including enterprises in People's Republic of China, individual economic organizations, private non enterprises, and state organs, institutions and social organizations that establish labor relations with workers.

Obviously, natural persons are not within the scope of "employment subject".

The difference between the scope of the crime subject and the main body of employment will lead to problems and conflicts between administrative law enforcement and criminal justice.

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< p > the ninety-first provision of the labor law stipulates that the employer shall order the laborers to pay the wages of the laborers if they infringe upon the workers' < a href= "http://www.91se91.com/news/index_s.asp > > legal rights > /a >.

The eighty-fifth provisions of the labor contract law and the twenty-sixth regulations of the labor and social security supervision Ordinance have similar provisions.

If the labor and social security department has ordered a correction to the behavior of the natural person who underpaid the labor remuneration, it violates the above labor laws and regulations, which is a major and obvious violation of the law. If the administrative counterpart brings up an administrative lawsuit, the administrative act will be declared invalid or revoked, and the preceding procedure of "crime of refusing to pay labor remuneration" can not be established, thus leading to the subsequent procedure of prosecution.

More serious is, for example, in the field of construction, due to the level of subcontracting, contractor workers hire illegal workers to contract projects, become the actual employment subject.

If the contractor (natural person) underpaid the labor remuneration and complies with other objective aspects of the crime, the labor and resources protection department shall order the foreman (natural person) to make corrections, whether or not the deadline is issued. According to the above analysis, all the leading procedures can not be established, and the natural person like a contractor can not be regulated by the criminal law, which is against the principle of statutory crime and violates the principle of equality of criminal law.

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< p > criminal law amendment (eight) the original intention of setting up a prepositional procedure against the crime of refusing to pay labor remuneration is to embody the principle of modesty and restraint of criminal law, prevent abuse of penalty power and avoid the wide scope of criminal law. However, the original intention of good legislation has caused negative effects, resulting in a number of natural persons suspected of committing crimes away from criminal law regulations.

In order to maximize the protection of the legitimate rights and interests of workers and avoid such a situation, legislation can consider modifying the preposition procedure.

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< p > first, to fix the criteria for determining the principal part of labor relations involved in the preceding procedure.

We should learn from the continental law system that the main criterion of labor relations is "attribution theory", that is, whether the laborers belong to the labor force or learn from the standard of the main body of the labor relations in the Anglo American law system, that is, whether the employers have control over their workers.

No matter what standard of recognition is adopted, natural persons will be included in the labor relations and become the principal part of the legal employment, which will be consistent with the main body of the crime of "refusing to pay labor remuneration", and the administrative law enforcement and criminal justice can be linked up.

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< p > Second, changing precondition to time constraint.

The precondition procedure for abolition of the crime of "refusing to pay remuneration for labor" has been abolished.

The limitation of time provides certain leeway for the unpaid persons, which embodies the principle of modesty and restraint in criminal law.

Not only that, to a certain extent, it can also play the guiding function and deterrent function of criminal law.

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< p > before correcting the prepositional procedure of the crime, when a natural person is seriously underpaid as an employer, he may suggest that the worker file a civil "a href=" http://www.91se91.com/news/index_q.asp > litigation < /a >. If the court decision comes into force, the employer still fails to perform the case, and if the circumstances are serious, he may be punished according to the refusal to execute the judgment or order.

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