浙江工商大学学报

行为人违反从业禁止实施违法犯罪的，存在罪与非罪、此罪与彼罪、一罪与数罪的定罪争议。原因在于，理论与实践中对违反从业禁止型拒不执行判决、裁定罪中的“情节严重”缺乏统一认定标准，以及对刑法中的罪数问题判断规则存在争议。应明确，前述“情节严重”应结合拒不执行判决、裁定罪的立法目的、构成要件来理解。该罪中的“情节严重”表征的是行为的违法性程度，违背从业禁止的行为使得法院判决目的无法实现，且与前罪之间存在关联性时，应肯定为“情节严重”;对罪数问题的判断要以“充分但不重复评价原则”为依据，评价对象是行为的不法与罪责内涵，当一行为具备多重不法与罪责内涵时，成立一罪还是数罪的标准是不法与罪责内涵是否存在重复。若不重复则成立数罪，反之则成立一罪。

Where the perpetrator violates the prohibition of practice to commit a crime or crimes' there are controversies over the conviction of crime and non-crime' this crime and other crimes' and one crime and multiple crimes. The reason for this is that there is a lack of unified criteria for determining “serious circumstances” in the crime of violating the prohibition of practice and refusing to enforce a judgment or ruling in theory and practice' and there are controversies over the rules for judging the number of crimes in the Criminal Law. It should be made clear that the aforesaid “serious circumstances” should be understood in conjunction with the legislative purpose and constitutive elements of the crime of refusing to enforce a judgment or ruling. The “serious circumstances” in this crime represent the degree of illegality of the act' and when the violation of the prohibition of practice makes it impossible to achieve the purpose of the court's judgment' and there is a connection between it and the previous crime' the affirmation as “serious circumstances” is necessary. The judgment on the issue of the number of crimes should be based on the “principle of full but non-repetitive evaluation”' and the object of evaluation is the connotation of illegality and culpability of the act' and when an act has multiple connotations of illegality and culpability' the criterion for establishing one crime or several crimes is whether there is duplication of the connotation of illegality and culpability. If there is no repetition' then it is several crimes' and if there is repetition' then it is one crime.