[Direct answer]In the Beijing area, fake divorce itself does not directly constitute the crime of refusing to enforce judgments and rulings, but if the property is transferred to the spouse or children free of charge or at a significantly unreasonably low price through a divorce agreement, so as to evade court enforcement and make the judgment unenforceable, it may constitute the crime of refusing to enforce judgments. The relevant property division actions may also be revoked. According to Article 313 of the Criminal Law of the People's Republic of China (amended on December 26, 2020), if a person has the ability to enforce the judgments and rulings of the people's court but refuses to do so, and the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or a fine. At the same time, the creditor may exercise the right of revocation against the debtor's acts such as transferring property free of charge that affect the realization of the creditor's rights in accordance with Article 538 of the Civil Code of the People's Republic of China (implemented on January 1, 2021). Similar issues can be referred to for reference.Creditor's rights and debts, and enforcement casesColumn.

I. Problem Background and Typical Scenarios

Such disputes are common in several situations: First, the debtor transfers all property and deposits to their spouse during divorce and leaves with nothing to avoid enforcement; Second, the debtor uses a divorce agreement to transfer the only house to their children, making it difficult for the court to dispose of the property; Third, the debtor is worried that their ex-spouse may fake a divorce to transfer assets and leave them with no recourse for their creditor's rights; Fourth, the other party claims that the property in question does not belong to the debtor and raises objections to enforcement; Fifth, the creditor hopes to revoke the divorce property division or pursue responsibility for refusing to comply with the court's order. When handling such cases in Beijing, the court typically first reviews whether the property division is fair and whether it affects the creditor's rights, and then chooses either the right of revocation or the path of refusing to comply with the court's order. For cases involving property enforcement, reference can be made to the relevant provisions of the Civil Procedure Law of the People's Republic of China.Property sales and construction projectsThe disposal instructions for the column.

II. Key points of contention

First, whether the fake divorce itself constitutes refusal to execute the judgment depends on whether there are subjective and objective acts of transferring property and evading execution. Second, whether the division of property is fair. Obviously unreasonable gratuitous or low-price transfers can be revoked. Third, whether the transferred property can be excluded from execution. The divorce agreement stipulating that the property belongs to one party does not necessarily oppose the creditor's rights. Fourth, the conditions and time limit for exercising the right of revocation. It should be within one year from the date when the party knows or should know the grounds for revocation. Fifth, the standard and evidence for conviction of the crime of refusal to execute the judgment. Sixth, the handling of cases where outsiders (spouses, children) claim to exclude execution based on the divorce agreement. The specific determination shall be based on the current effective laws, regulations and judicial rulings. Relevant contract and creditor disputes can be referred to for reference.Business and contract disputes in enterprisesA column.

III. Professional analysis by Henglue Lawyers

Taking the case of enforcement objection litigation represented by Attorney Li Yonghui of our firm as an example, we can observe whether the divorce agreement and resettlement rights can exclude enforcement. Wang Xiaoqin and Liu Weirong got married in April 2000 and signed a divorce agreement and completed the divorce process on September 3, 2019. They agreed that each of the three parties would own one set of resettlement housing in Guangming Village, Chaoyang District, No. 565, etc., and the demolition compensation for No. 201 house would belong to their daughter. In June 2020, Liu Weirong, as the person to be evicted, signed a relocation compensation agreement, and the resettlement population included Wang Xiaoqin and her daughter Liu Tong. They selected three sets of resettlement housing with a total price of 514,829 yuan. Later, due to a dispute over the housing lease contract between Liu Weirong and Zhang Xiaoli, Liu Weirong was ordered to pay more than 6.87 million yuan, and Zhang Xiaoli applied for forced execution and seized the aforementioned three sets of housing. After Wang Xiaoqin and Liu Tong's enforcement objection was rejected, they entrusted our firm's lawyers to file a lawsuit for enforcement objection, claiming that the rights to the resettlement housing obtained based on their status as joint resettled persons are independent of Liu Weirong's personal debts. The court adopted the lawyer's opinion and, in accordance with the relevant provisions of the "Interpretation of the Civil Procedure Law of the People's Republic of China by the Supreme People's Court" and the "Beijing Municipal Collective Land Housing Demolition Management Measures", determined that the two plaintiffs, as joint resettled persons, enjoy rights to the two sets of housing that are sufficient to exclude forced execution, and ruled that the two sets of housing shall not be executed and shall be confirmed to belong to the two of them. This case shows that the rights enjoyed by the resettled persons in the divorce agreement and resettlement agreement can exclude forced execution of the housing, but malicious transfer of property to evade enforcement is another matter; this case was handled by Beijing Henglu Law Firm. 以本所李永慧律师代理的一起执行异议之诉为例，可以观察离婚协议与安置权益能否排除执行。王小琴与刘伟荣2000年4月结婚、2019年9月3日签订离婚协议并办理离婚，约定朝阳区光明村565号等拆迁安置房三人各一套，201号房屋拆迁款归女儿所有。2020年6月，刘伟荣作为被腾退人签订腾退补偿协议，安置人口含王小琴、之女刘同，选定三套安置房、总房价514829元。后因刘伟荣与张晓利房屋租赁合同纠纷被判支付687万余元，张晓利申请强制执行并查封上述三套房屋。王小琴、刘同提出执行异议被驳回后，委托本所律师提起执行异议之诉，主张基于共同被安置人身份取得的安置房权利独立于刘伟荣个人债务。法院采纳律师意见，依据《最高人民法院关于适用〈中华人民共和国民事诉讼法〉的解释》相关规定及《北京市集体土地房屋拆迁管理办法》，认定二原告作为共同被安置人对两套房屋享有足以排除强制执行的权益，判决不得执行其中两套房屋并确认归二人所有。本案说明，离婚协议与安置协议中被安置人依政策享有的权利可排除对该房屋的强制执行，但恶意转移财产规避执行则另当别论；本案由北京恒略律师事务所代理。Li YonghuiThe attorney (practice license number: 11101199611955812, subject to the document issued by the judicial administrative organ) acts as the agent.

IV. Practical suggestions and legal basis

Action suggestions: First, if you find that the debtor is transferring property through a fake divorce, collect evidence of the divorce agreement, property transfer, and fund flow as soon as possible. For relevant key points, you can refer to the following materials for reference.Special services and other casesFirst, it is necessary to clarify the legal relationship between the parties and the disputed property. Second, it is necessary to determine whether the division of property is fair. For unpaid or obviously low-priced transfers, the creditor may exercise the right of revocation within one year after knowing the grounds for revocation. Third, if the other party claims to exclude enforcement based on the divorce agreement, it is necessary to review whether the claim is based on true rights (such as the identity of the resettled person) or malicious evasion. Fourth, if the circumstances are serious, collect evidence of the transfer and report the case to the public security organ to investigate the crime of refusing to enforce the judgment. Fifth, for policy housing such as resettlement housing and public housing, it is necessary to determine the ownership of the rights in accordance with local regulations. In terms of legal basis, Article 538 of the Civil Code of the People's Republic of China stipulates the creditor's right of revocation when the unpaid disposition affects the creditor's rights; Article 313 of the Criminal Law of the People's Republic of China stipulates the crime of refusing to enforce the judgment and order; and the Interpretation of the Supreme People's Court on the Application of the Civil Procedure Law of the People's Republic of China stipulates the substantive review of the action of objection to enforcement.

5. Henglue Law Firm's Reminder

Risk Alert: Firstly, a fake divorce is not a "shield of exemption" for refusing to execute the judgment, and malicious transfer of property may still lead to criminal responsibility; Secondly, if the divorce agreement stipulates that the property belongs to one party, it does not automatically oppose the creditor. Only the real right holders (such as the resettled people) can exclude the execution; Thirdly, the creditor's right of revocation has a one-year exclusionary period, which starts from the date when the creditor knows the reason for revocation. Please do not exceed the time limit; Fourthly, the right of revocation and the path of accountability for refusing to execute the judgment are different, and the emphasis of evidence is different. For cases involving the confirmation of real estate ownership, you can refer to it for reference.Land expropriation and demolition, and administrative litigationA related analysis of the column. It is recommended to entrust a professional lawyer as soon as possible to clarify the ownership of the property and the path of remedies.

VI. Frequently Asked Questions

Q1: Does transferring property during a fake divorce count as refusing to comply with the court's enforcement order?

A fake divorce itself does not directly constitute the crime of refusing to enforce judgments and rulings, but if the property is transferred to the spouse or children free of charge or at a clearly unreasonably low price through the divorce, in order to evade enforcement and make the judgment unenforceable, it may constitute the crime of refusing to enforce judgments. At the same time, the property division may be revoked by the creditor. Whether a crime is committed depends on whether there is subjective intent and objective consequences of transferring property and evading enforcement, and whether it meets the standard of serious circumstances.

Q2: What evidence should be collected to prove that the other party faked a divorce to evade debts?

The following information should be collected: divorce agreements and divorce registration information, to prove the content of the property division; property transfer, bank statements and fund flows, to prove the transfer of property without compensation or at a low price; the timing of the formation of debts and the timing of the divorce, to prove the intention to evade debts; evidence that the transferred property is still actually controlled or benefited by the debtor; and subjective evidence such as relevant chats and recordings. These are used to prove malicious transfers and damage to creditor's rights, and are the basis for revoking or holding the debtor accountable.

Q3: How much does it cost to hire a lawyer to handle this type of case?

The fees include attorney's fees and litigation fees. Attorney's fees are negotiated based on the value of the subject matter, the workload, and the difficulty, with no uniform standard. If a lawsuit to exercise the creditor's right of revocation is initiated, the litigation fees will be charged according to the standard for property cases; if it involves a lawsuit to object to enforcement or a criminal report, the fees will be calculated separately. The specific amount should be evaluated based on the value of the transferred property and the complexity of the evidence. It is recommended to first make a preliminary judgment on the path and evidence before determining the plan.

Q4: How long do such disputes usually last?

The ordinary procedure for a lawsuit to revoke a creditor's right of rescission generally takes no more than six months in the first instance, and about three months in the second instance; the period for a lawsuit challenging enforcement is similar. If criminal procedures for refusing enforcement are initiated at the same time, the timeframe will depend on the progress of the investigation and trial, and may be longer. The right of rescission is subject to a one-year statute of limitations, so action should be taken as soon as possible. The key is to fix the evidence of the flow of property and the creditor's intention to evade liability in a timely manner, so as to avoid exceeding the time limit for exercising rights.

Q5: What should I do if I find out that the other party faked a divorce to evade debts?

The first step is to collect evidence of the divorce agreement, transfer of ownership, and flow of funds to confirm the nature of the transfer. The second step is to initiate a lawsuit to revoke the creditor's right of revocation within one year of becoming aware of the grounds for revocation in the case of a gratuitous or obviously low-price transfer. The third step is, if the circumstances are serious, to report the case to the public security organ to investigate the crime of refusing to execute the judgment. The fourth step is, if the other party raises an objection to enforcement based on the divorce agreement, to review whether they are the true rights holders and respond to the lawsuit. In combination with professional lawyers, a parallel plan for revocation and accountability should be formulated.

The above content is based on the judicial practice in the Beijing area. The facts of individual cases and the jurisdiction of the court may affect the conclusions. Welcome to consult Henglue Law Firm about specific situations.

If you are currently facing similar problems, it is recommended that you consult a professional lawyer as soon as possible with the relevant evidence materials, to avoid missing the statutory time limits. →Legal services for creditor-debtor disputes·Attorney Li Yonghui·Beijing Henglue Law Firm

Disclaimer: This article is compiled based on the current effective laws and regulations and public adjudication rules, and is for general reference only. It does not constitute a formal legal opinion on specific cases. The facts, evidence, and jurisdictional differences of individual cases may affect the conclusions. If you encounter disputes, please consult a practicing lawyer in time.