1. The concept of money laundering crime
Money laundering crime refers to drug crimes, organized crimes of a mafia nature, terrorist activities, smuggling crimes, The source and nature of the illegal gains and benefits from corruption, bribery and financial fraud crimes, and provide fund accounts, or assist in converting property into cash, financial instruments or securities, or assist in transferring funds through transfers or other settlement methods, or assist in transferring funds The act of remitting overseas.
2. Components
The author, lawyer Ye, uses two types of crime theories to analyze the crime of money laundering: (Note: The two types are progressive, and only when the former is satisfied, the latter should be considered. )
(1) Elements of illegality (infringement of legal interests)
1. Actor
The subject of this crime is a general subject, including those who are over 16 years old , a natural person with the capacity for criminal liability. Units can also commit this crime.
2. Behavior
The behavior of this crime is as follows:
(1) Providing a capital account: refers to opening a bank capital account for a criminal, or Providing existing bank fund accounts to criminals;
(2) Assisting in converting property into cash or financial instruments: This includes converting physical objects into cash or financial instruments, and converting cash into financial instruments Or convert the financial instrument into cash, convert the cash (such as RMB) into other cash (such as US dollars), convert the financial instrument (such as issued by a foreign financial institution) into other financial instruments (such as issued by a Chinese financial institution);
(3) Assisting in the transfer of funds through transfer or other settlement methods;
(4) Assisting in the remittance of funds overseas;
(5) Disguising it in other ways Concealing the illegal proceeds from crime and the source and nature of the income: refers to the behavior of concealing the illegal proceeds from crime and the nature and source of the income by other methods, such as investing the proceeds from crime in a certain industry, using the proceeds from crime to purchase real estate, etc.
3. Objects of the crime
The objects of this crime are drug crimes, underworld organized crimes, terrorist crimes, smuggling crimes, corruption and bribery crimes, crimes that disrupt financial management order and financial fraud crimes illegal gains and gains.
4. Result
This crime violates a complex object, that is, it violates not only the financial order, but also the social and economic management order, and it also violates the country’s normal financial management. activities and foreign exchange management regulations.
(2) Liability element (subjective)
The subjective manifestation of this crime is intentionality, that is, the perpetrator knows that his behavior is to cover up the illegal proceeds of the crime and conceals its source and nature , do it deliberately for profit and hope that this result will happen.
The judgment of "knowingly" in criminal intent should be based on the defendant's cognitive ability, his connection with other people's criminal proceeds and interests, the type and amount of criminal proceeds and their interests, the criminal proceeds and their Subjective and objective factors such as the transformation of interests, the method of transfer, and the defendant’s confession.
If any of the following circumstances occurs, the defendant may be deemed to have known that the proceeds were proceeds from crime and the proceeds thereof, except where there is evidence to prove that he or she was unaware of the crime:
(1) Knowing that others were committing crimes Activities, assisting in the conversion or transfer of property;
(2) Assisting in the conversion or transfer of property by illegal means without justifiable reasons;
(3) Without justifiable reasons, in a manner that is significantly lower than Purchasing real estate at market prices;
(4) Assisting in the conversion or transfer of property without justifiable reasons, and charging "handling fees" that are significantly higher than the market price;
(5) Without justifiable reasons , assisting others to deposit huge amounts of cash into multiple bank accounts or make frequent transfers between different bank accounts;
(6) Assisting close relatives or other closely related people to change or transfer their occupation or property status Property that is obviously inconsistent with the circumstances;
(7) Other circumstances that are known to the perpetrator can be determined.
Note: If the defendant misunderstands the income and proceeds from a predicate crime of a money laundering crime as other income and proceeds within the scope of other predicate crimes of this crime, it is an object error in the misunderstanding of specific facts and does not Affects the determination of "knowingly" for the crime of money laundering.
3. Relevant Provisions
1. Article 191 of the Criminal Law
Knowingly that it is a drug crime, a crime of a gangland organization, a crime of terrorist activities, a crime of smuggling, a crime of corruption and bribery Whoever conceals the source and nature of the proceeds from a crime, a crime that disrupts financial management order, or a crime of financial fraud, and commits any of the following acts shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also be fined not less than 5% and 2% of the amount of money laundered A fine of not less than 10%; if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and a fine of not less than 5% but not more than 20% of the money laundered amount:
(1) Provide a capital account;
(2) Assist in converting property into cash, financial instruments and securities;
(3) Assist in fund transfer through transfer or other settlement methods;
(4) Assisting in the remittance of funds abroad;
(5) Concealing or concealing criminal proceeds and the source and nature of the proceeds by other means.
2. The Supreme People’s Court’s interpretation of several issues concerning the specific application of law in the trial of criminal cases such as money laundering.
In order to punish criminal activities such as money laundering, concealment, concealment of criminal proceeds, and financing of terrorist activities in accordance with the law, in accordance with the relevant provisions of the Criminal Law, several issues regarding the specific application of law in the trial of such criminal cases are hereby explained as follows:
Article 1 "Knowingly" as stipulated in Articles 191 and 312 of the Criminal Law shall be combined with the defendant's cognitive ability, connection with other people's criminal proceeds and their interests, criminal proceeds and Determination of subjective and objective factors such as the type and amount of benefits, criminal proceeds and the transformation and transfer methods of the benefits, and the defendant’s confession.
If any of the following circumstances occurs, the defendant may be deemed to have known that the proceeds were proceeds from crime and the proceeds thereof, except where there is evidence to prove that he or she was unaware of the crime:
(1) Knowing that others were committing crimes Activities, assisting in the conversion or transfer of property;
(2) Assisting in the conversion or transfer of property by illegal means without justifiable reasons;
(3) Without justifiable reasons, in a manner that is significantly lower than Purchasing real estate at market prices;
(4) Assisting in the conversion or transfer of property without justifiable reasons, and charging "handling fees" that are significantly higher than the market price;
(5) Without justifiable reasons , assisting others to deposit huge amounts of cash into multiple bank accounts or make frequent transfers between different bank accounts;
(6) Assisting close relatives or other closely related people to change or transfer their occupation or property status Obviously inconsistent with the property;
(7) It can be determined that other circumstances known to the perpetrator are known.
If the defendant mistakes the criminal proceeds and proceeds of a certain predicate crime stipulated in Article 191 of the Criminal Law for other criminal proceeds and proceeds within the scope of the predicate crime stipulated in Article 191 of the Criminal Law, this does not affect Article 191 of the Criminal Law. Determination of “knowingly” as stipulated in Article 1.
Article 2: Anyone who has any of the following circumstances may be deemed to be “concealing or otherwise concealing criminal proceeds and proceeds thereof” as stipulated in Article 191, Paragraph 1, Item (5) of the Criminal Law. "The source and nature of the crime":
(1) Assisting in the transfer and conversion of criminal proceeds and their proceeds through pawning, leasing, trading, investment, etc. ;
(2) Assisting in the transfer and transformation of criminal proceeds and their interests by mixing them with operating income from cash-intensive places such as shopping malls, restaurants, entertainment venues, etc.;
(3) Through fictitious transactions , fictitious claims and debts, false guarantees, false income, etc., to help transform criminal proceeds and their proceeds into "legal" property.
(4) Helping to transform criminal proceeds and their proceeds through the sale and purchase of lottery tickets and lottery tickets;
(5) Helping to transform criminal proceeds and their proceeds into gambling proceeds through gambling;
(6) Assisting in carrying, transporting, and mailing criminal proceeds and their proceeds into and out of the country;
(7) Assisting in the transfer or conversion of criminal proceeds and their proceeds by means other than the above provisions .
Article 3 Concealing or concealing criminal proceeds in disguise, knowing that they are proceeds from crime, constitutes a crime specified in Article 312 of the Criminal Law and Articles 191 and 349 of the Criminal Law. Anyone who commits a crime stipulated in Article 1 shall be convicted and punished in accordance with the provisions of heavier punishment.
Article 4 The crimes specified in Articles 191, 312, and 349 of the Criminal Law shall be determined on the premise that the predicate criminal facts are established. If the predicate crime has not yet been judged according to law, but it is verified to be true, it will not affect the trial of the crime stipulated in Articles 191, 312, and 349 of the Criminal Law.
If the facts of the upstream crime can be confirmed and the criminal liability is not investigated in accordance with the law due to the death of the perpetrator, Articles 191, 312, and 349 of the Criminal Law will not be affected. Determination of prescribed crimes.
If the facts of the upstream crime can be confirmed and other crimes are convicted and punished in accordance with the law, it will not affect the determination of crimes stipulated in Articles 191, 312 and 349 of the Criminal Law. .
The predicate crimes referred to in this article refer to the various crimes that generate criminal proceeds and their benefits as stipulated in Articles 191, 312, and 349 of the Criminal Law. criminal behavior.
3. Article 48 of the "Provisions on the Standards for Filing Criminal Cases under the Jurisdiction of Public Security Organs (2)"
Knowingly that it is a drug crime, a crime organized by a mafia, a crime involving terrorist activities, If the income of smuggling crimes, corruption and bribery crimes, crimes of disrupting financial management order, crimes of financial fraud and the income generated in order to cover up or conceal their source and nature are suspected of any of the following circumstances, a case shall be filed for prosecution:
(1) Provide capital account;
(2) Assist in converting property into cash, financial instruments and securities;
(3) Assist through transfer or other settlement methods Transfer of funds;
(4) Assisting in the remittance of funds abroad;
(5) Concealing or disguising criminal proceeds and the source and nature of the proceeds by other means.
IV. Tips from Lawyer Ye
(1) Care should be taken to distinguish between the crime of concealing the proceeds of crime and the crime of concealing the proceeds of crime.
The crime of concealing and concealing criminal proceeds stipulated in Article 312 of the Criminal Law and the crime of money laundering stipulated in this article both belong to the category of recidivism, that is, the perpetrator knowingly knowing that the proceeds are illegal gains of criminals, commits crimes against criminals. Gave some help. So there is a big connection between the two. However, from the perspective of specific criminal elements, there are also the following differences between the two:
1. The objects of infringement are different. The former infringes on dual objects, the main object of which is the financial management order, so the crime is classified as a "crime of undermining the socialist market economic order", while the latter infringes on a single object, that is, the social management order.
2. The objects of behavior are different. The former refers to illegal gains from drug crimes, organized crime, and smuggling crimes, while the latter refers to all stolen goods obtained from crime.
3. There are different ways of behaving. The former refers to concealing and disguising illegal income and the nature and source of the income through some kind of intermediary agency, while the latter includes four behaviors: harboring, transferring, purchasing or selling stolen goods.
(2) Attention should be paid to the difference between this crime and the crime of harboring, transferring, or concealing drugs or stolen goods.
The crime of harboring, transferring, and concealing drugs and stolen goods stipulated in Article 349 of this Law is also different from the crime of money laundering stipulated in this article in the following aspects:
1. The objects of infringement are different. The former infringes on dual objects, mainly the financial management order, while the latter infringes on a single object, that is, the social management order.
2. The objects of behavior are different. The former refers to the illegal gains and profits generated from three types of crimes, including drug crimes, underworld organized crimes, and smuggling crimes. The latter refers to drugs and drugs in smuggling, selling, transporting, and manufacturing drug crimes.
3. There are different ways of behaving. The former refers to the actor concealing and disguising the source and nature of illegal gains and the income generated through intermediaries, which is "money laundering" in a narrow sense. The latter refers to the actor concealing, transferring or hiding the crime of smuggling, selling, transporting and manufacturing drugs. The drugs or property obtained fall into the broad sense of "money laundering."
4. Assist in converting or transferring property without legitimate reasons, and charge "handling fees" that are significantly higher than the market.
5. Assist others to deposit huge amounts of cash into multiple bank accounts or make frequent transfers between different bank accounts without legitimate reasons.
6. Assist close relatives or other closely related people to convert or transfer property that is obviously inconsistent with their occupation or property status.