Problems of criminal prosecution of persons guilty of malicious non-compliance with a court decision or other judicial act in civil and administrative cases

Abstract

Malicious non-enforcement of a judicial act entails criminal liability under Article 315 of the Criminal Code only if the offence has been committed by a special subject (an official, head of a body or organisation) or if the person has been previously held administratively liable under Article 17.15(4) of the CAO. The authors draw attention to the fact that in cases where a person who has failed to fulfil a legal obligation is sentenced to execution by a court, then the further non-fulfilment of such obligation now constitutes not only a failure by the subject to fulfil a duty but also an infringement of the interests of justice whose demands are ignored by the obligated person. In this regard, the criminal law criminalises not only the "general" malicious non-execution of a judicial act, but also certain forms of non-execution in relation to certain types of proceedings and to certain categories of cases (e.g. failure to pay alimony, evasion of payment of accounts payable, etc.). The authors, in relation to civil, administrative cases, and cases of economic disputes, prove inconsistency in criminalizing forms of non-execution of judicial acts and discover the potential for expanding situations in which persons could be criminally liable, which would contribute to improving the level of performance discipline. The authors base their argumentation system on a number of criteria, among which: determination of the legal basis for the execution of judicial acts; identification of the range of judicial acts, the non-execution of which may lead to criminal prosecution; characteristics of the requirement set forth in the judicial act, the non-fulfillment of which may entail criminal prosecution; determination of the circle of subjects obligated to the execution of the judicial act and the subjects to whom the person is obliged to execute the judicial act; distribution of responsibilities for the execution of the judicial act between the recoverer (creditor), the debtor and the enforcement authority from the point of view of possible substitution of the debtor as a subject obligated to execution; legal characteristics of the criminal-legal sign of "malice" of nonfulfillment of the requirements of the judicial act; disclosure of possible forms of nonfulfillment. Each of the listed criteria allows you to make a judgment about the presence of signs of the analyzed corpus delicti in the actions (inaction) of the subject. The authors also address the assessment of the illegality of non-execution of a judicial act from the positions of various branches of law, emphasizing the role of criminal liability measures as the most repressive measures to restore legality in this area.