I. Introduction to the charges
The new crime of concealing and concealing comes from the Criminal Law Amendment (VI) passed and promulgated by the National People's Congress Standing Committee (NPCSC) on June 29th, 2006, which amended Article 3 12 of the Criminal Law to read: "Whoever knowingly conceals, transfers, purchases, sells on his behalf or conceals or conceals the proceeds of crime shall be sentenced to fixed-term imprisonment of not more than three years ...", In May, 2007 1 1 Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Laws in Handling Criminal Cases of Theft, Robbery, Fraud and Robbery of Motor Vehicles (hereinafter referred to as the Interpretation), the new crime of "concealing and concealing the crime" was further clarified.
At present, the common situations in practice are as follows: first, helping financial crimes and fraud crimes transfer the proceeds of crime; Second, help theft and robbery to transfer the proceeds of crime, sell stolen goods, collect stolen goods, etc. ; Third, countries that illegally hunt, cultural relics and other crimes especially protect the transfer and sale of stolen goods.
Second, cover up and conceal the crime and the punishment of the crime proceeds.
According to the criminal law and relevant judicial interpretations, whoever knowingly conceals, transfers, purchases, sells on behalf of others or conceals or disguises by other means shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also or only be fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.
In other words, there are only two sentencing ranges for this crime:
1, in general, fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and also or only a fine;
2. If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined.
It is worth mentioning that when handling such cases, Yu Lawyer noticed that from the perspective of legal theory, the constitutive requirements of this crime are not clearly stipulated in the criminal law, so in practice, we still need to pay attention to the conviction conditions of this crime, as follows:
(1) Conviction conditions:
(1) Concealing or concealing the proceeds of crime and the amount of the proceeds is between 3,000 yuan and 10,000 yuan;
(2) Having received administrative punishment for concealing or concealing the proceeds of crime and its proceeds within one year, and having carried out the act of concealing or concealing the proceeds of crime and its proceeds;
(3) Concealing or disguising the proceeds of crime as electric power equipment, transportation facilities, radio and television facilities, public telecommunication facilities, military facilities or funds and materials for disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration and relief;
(4) The act of concealing or disguising makes it impossible to investigate and deal with upstream crimes in time, resulting in irreparable losses to public and private property;
(five) the implementation of other acts of concealing and concealing the proceeds of crime and the income generated by it, and obstructing the judicial organs from investigating the upstream crimes.
(two) cases that can be sentenced to a penalty of not more than three years:
(1) Concealing or concealing the proceeds of crime, the total value of which has not reached more than 100,000 yuan;
(2) Concealing or concealing the proceeds of crime and the income generated by it for less than ten times, or less than three times, and the total value has not reached more than 50,000 yuan;
(3) Concealing or disguising the proceeds of crime as electric power equipment, transportation facilities, radio and television facilities, public telecommunication facilities, military facilities, emergency rescue, flood control, special care, poverty alleviation, immigration and relief funds and materials, with a total value of less than 50,000 yuan;
(3) More than three years:
(1) Concealing or concealing the proceeds of crime, the amount of which is more than 100,000 yuan;
(2) Concealing or concealing the proceeds of crime and the income generated by it for more than ten times, or more than three times, with a total value of more than 50,000 yuan;
(3) Concealing or disguising the proceeds of crime as electric power equipment, transportation facilities, radio and television facilities, public telecommunication facilities, military facilities, emergency rescue, flood control, special care, poverty alleviation, immigration and relief funds and materials, with a total value of less than 50,000 yuan;
(4) Concealing or disguising makes it impossible to investigate and deal with upstream crimes in time, resulting in heavy losses of public or private property or other serious consequences;
(5) Other acts of concealing or concealing the proceeds of crime and the income generated thereby, which seriously hinders the judicial organs from investigating the upstream crimes.
Third, the main defense points:
1, charging problem
He is essentially a downstream crime, so he is often associated with upstream crimes. At this time, as a defense lawyer, we should comprehensively consider the charges and sentencing of upstream and downstream crimes, make a concrete analysis, and make corresponding countermeasures in combination with the conviction opinions of the case-handling organs. In practice, it is common to directly commit upstream crimes without being convicted of this crime. In this case, if the sentencing range of the upstream crime is obviously higher than this crime, the defense lawyer should take a fraud case handled by Anhui Yu lawyer as an example, and the criminal suspect Zhang (pseudonym) used the bank card to transfer money for the upstream crime. At first, the case-handling organ investigated the criminal responsibility of the suspect Zhang for fraud and fraud. After the lawyer's intervention, through analysis, due to the large amount of transfer, if the sentencing range of fraud will exceed 10 years, it should be characterized as concealment if the case-handling organ cannot prove that it is intentional.
After understanding the above cases, we can also know, and vice versa.
2. The amount of crimes involved.
There are two common types of crime amount in this crime, one is the direct amount of funds, and the other is the physical value involved. In the first case, there must be a complete and continuous running water to reflect the relevant nature of money, otherwise, as a lawyer, you should fully question it. Second, the value of the object, the amount of crime proceeds and the income generated by it should be based on the act of concealing and concealing. If the price of purchasing or selling property on behalf of others is higher than its actual value, it shall be calculated according to the price of purchasing or selling property on behalf of others. Because the amount directly affects sentencing, we should pay full attention to the entity of financial and material evidence and the legitimacy of the evidence.
3. Predicate crimes
The important feature of this crime is that it belongs to the upstream crime. Therefore, when handling such cases, we should fully understand the upstream crimes of this crime and ask the case-handling organ to disclose relevant information. It cannot be taken for granted that all the criminal circumstances involved are presumed to be crimes. This is an appropriate meaning, but it is often ignored by some lawyers. For example, in a case of concealing the proceeds of crime handled by a lawyer in Nanjing, the public prosecution agency accused the suspect that all the running water in the bank card was the amount of crime. However, after repeated disclosure to the public prosecution organ and the court, the bank card involved mainly involves the transfer of two "organizations", one of which has been criminally dealt with, while the situation of the other organization is not clear, and even no criminal case has been filed, so it is not appropriate to treat it as a crime, although the transfer of the two organizations is very likely.
The above are the relevant points that Mr. Yu summed up according to his own experience in handling cases to cover up and conceal the crime. You can consult a lawyer for more legal questions.