This crime is in the second section of Chapter VI of the Specific Provisions of Criminal Law. Therefore, from the general object, the criminal object is the normal activities of the judicial organs. Some people think that the specific object of this crime is "the normal activities of judicial organs to recover property", while others think that it is "the activities of judicial organs to identify and prove crimes". I don't think both of them can cover all the specific objects of this crime. On the one hand, the proceeds of crime and the proceeds of crime are important material evidence of the case, which can prove the facts of the case and the whereabouts of stolen goods, confirm the criminal's criminal motives, and play an important role in finding out the facts of the case and proving the crime; On the other hand, according to Article 64 of China's Criminal Law, criminal proceeds and criminal proceeds are the scope that judicial organs should recover according to law. The actor's behavior of concealing and concealing the proceeds of crime objectively hinders the activities of judicial organs to recover the proceeds of crime and income. Therefore, the object of this crime should be the normal activities of judicial organs to identify crimes and recover the proceeds and benefits of crimes.
Objective elements
According to Article 312 of the Criminal Law, the objective aspects of this crime include "harboring, transferring, purchasing, selling on behalf of others or covering up or concealing by other means". The crime of harboring refers to providing criminals with a place to hide the proceeds of crime and its proceeds, which is subjectively intentional in hiding and keeping. Transfer refers to moving and transporting criminals' criminal gains and their income. Both concealment and transfer require that the degree of crime is enough to affect the normal activities of judicial organs in identifying crimes and recovering the proceeds of crimes and their benefits. For example, the act of transferring stolen goods in a room cannot constitute an objective act of this crime. Acquisition is mainly aimed at the behavior of "buying at a low price and selling at a high price" in the relevant judicial interpretation of 1992. In judicial practice, it is mainly aimed at buying a large number of stolen goods in the name of buying waste products, which refers to the situation of paid purchase and then selling at a high price. Pay attention to the difference between "buy" and "buy". Buying refers to buying stolen goods for personal use, which is subjectively a psychology of coveting cheap goods, rather than deliberately obstructing the normal judicial order. Selling on behalf of others refers to the act of helping criminals sell their criminal gains and gains. The bottom clause of this crime "by other means" should be judged according to whether its subjective intention and behavior are enough to affect the judicial order, and its core criteria are covering up and concealing two effects. Cover-up is to distinguish the object from the original stolen goods by changing its external form, so as to avoid judicial recovery; Concealment means hiding and lying, without changing the external form, so that the proceeds of crime and interests can be combined in unknown places to avoid being recovered by judicial organs. As long as these two methods are adopted to the extent of obstructing judicial activities, it is the objective behavior of this crime.
main body
The subject of this crime is the general subject, that is, a natural person who has reached the age of 16 and has criminal responsibility. Theoretically, however, the subject of this crime does not include the perpetrator of the upstream crime, that is, the perpetrator who produced the criminal proceeds, but other people who helped the criminals to cover up and conceal the criminal proceeds and the criminal proceeds. If the perpetrator of the upstream crime conceals or disguises the proceeds of the crime, it belongs to the act of dealing with stolen goods after the crime, which is called follow-up behavior in criminal law theory and is absorbed by the previous upstream crime without being punished. Legal person can be the subject of this crime.
subjective factor
Requirements must be a kind of knowing. There are two aspects to understanding this crime. One is what you know. It should be the proceeds of crime knowing that the article may be the proceeds of crime. As long as the actor knows that the article may be the proceeds of crime, he should assume that he knows it subjectively, without requiring the actor to know what the article is, how it was obtained, what it is and what its value is. The second is the degree of knowledge. The actor must know that it is the criminal proceeds of others or criminal proceeds, not the general illegal income. Therefore, if the actor only knows that the goods are the illegal gains of others, then the violation is no longer the judicial order but the administrative order, and naturally it should not constitute this crime.
The understanding of "knowing" in covering up and concealing the crime and whether the criminal suspect "knows" is the premise to distinguish crime from non-crime. Whether "knowing" is the subjective mentality of the actor, the most powerful and direct evidence to prove "knowing" is the confession of the criminal suspect. However, the confession of criminal suspects is in an unstable state, and its probative force changes with the change of confession content. Influenced by the thinking of seeking advantages and avoiding disadvantages, criminal suspects often refuse to admit that they are "aware" of the criminal proceeds and the income they generate by hiding, transferring, buying, selling on their behalf or otherwise concealing or concealing. Some even made a "knowing" confession at the investigation stage, but with the passage of time, criminal suspects often overturn the original "knowing" confession to avoid punishment when they know that their confession will directly affect whether their behavior constitutes a crime and whether the judicial organs convict and sentence their behavior. Especially in the case of one-on-one transaction, the criminal suspect will deny it and try his best to deny that he knows, which brings great difficulty to identify the crime. Therefore, the correct definition of whether a criminal suspect "knows" has become the key to crack down on the crime of concealing and concealing the proceeds of crime and the proceeds of crime. In judicial practice, when a criminal suspect refuses to make a confession of "knowing" and there is no other evidence to prove his "knowing", the case-handling personnel assume whether he "knows". Because this presumption is a kind of inner conviction formed by the case handlers according to the facts and evidence of the case, it should be strictly grasped in judicial practice, and the extension should not be too large. First, there is evidence to prove that the suspect "knows" the case without presumption. Presumption must be carried out on the premise that there is no other evidence to prove the subjective mentality of the criminal suspect. If only the suspect himself denies it, but there is other evidence to prove his knowledge, it is unnecessary to adopt the presumption method. For example, the seller (not less than two people) has told the suspect the source of the stolen goods, or there is evidence that the suspect witnessed the process of stealing or robbing the stolen goods. Second, in the case that the suspect denies knowing, but the seller of the upstream crime (only 1) claims to have informed the illegal source of the stolen goods, that is, there is one-to-one evidence to prove knowing, which should be supported by other objective facts.
In judicial practice, if both the buyer and the seller are tacitly aware of the transaction, and the suspect denies it, and there is no confession that the seller told the receiver the source of the stolen goods, it can be inferred whether the suspect is "informed" from the following aspects.
1. If the criminal object is a motor vehicle, the judicial interpretation of legal presumption of knowledge is directly based on the Provisions on Investigating and Handling Cases of Theft and Robbery of Motor Vehicles according to Law.
2. If the criminal object is ordinary property other than motor vehicles, the criminal suspect's "knowing" degree of the illegal source of stolen goods is judged by the method of fact presumption: First, by looking at the time and place of stolen goods trading, such as night purchase and roadside purchase, the knowing degree is greater than that of daytime purchase and market purchase; The second is to look at the variety and quality of stolen goods. If the stolen goods are new products that have just been put on the market, there is a great possibility of illegal sources, because the legal owners will not sell them easily unless they rob or steal the stolen goods; The third is to see if the transaction price is significantly lower than the market value. According to experience, the illicit money obtained by ordinary sellers is only about one-third of the appraisal value of stolen goods; The fourth is to see if there are proper transaction procedures and whether the seller is eager to get rid of it; The fifth is to see the matching degree of stolen goods with the identity and physical appearance of the seller and the seller's understanding of stolen goods, and so on. Then the basic facts that can prove "knowing" and the basic facts that can refute "knowing" are listed separately for analysis and comparison, and then the facts and reasons of which side are more fully credible are judged by combining human experience and the general laws of logic, and finally the conclusion whether the criminal suspect knows is deduced.