Criminal Law Analysis Of Self-money Laundering

With the acceleration of the process of global integration,money laundering has increasingly highlighted its characteristics of multiple,concealed,complex and professional,and the large amount,high amount and great harm involved need to pay more attention to the fight and control of anti-money laundering.The criminal Law Amendment(11)includes the original crime of upstream crime into the scope of money laundering crime,which not only expands the subject of money laundering crime,but also brings a series of problems of understanding and application.Therefore,this paper is divided into three parts:The first part mainly analyzes the justification basis and necessity of the crime of self-money laundering.Before this revision,there has been a great controversy about whether self-money laundering should be criminalized.The negation theory is mainly against the crime of self-money laundering based on the reasons of unpunished afterthe-fact behavior and lack of possibility of expectation.From the point of theoretical basis,on the one hand,later not punish behavior of core characteristics for behavior before and after the infringement behavior is the same law benefit,after the behavior does not expand the scope of the former behavior infringes upon the legal interests "the self-money laundering" behavior is different from "the self-fence" behavior,infringement of new law benefit,cannot be considered not punish afterwards behavior;On the other hand,self-money laundering,which makes profits or further feeds upstream crimes by means of "legalized" crime proceeds,is not a "last resort" behavior for personal survival and cannot be broadly applied to exempt from liability for lack of expected possibility,which does not conform to the functional positioning of expected possibility theory.From the point of view of legal basis,there is a precedent for the crime of self-money laundering.In the legislation of various countries,upstream criminals are generally included in the crime of money laundering,but self-money laundering is not excluded from the crime of money laundering.FATF,as the most influential anti-money laundering organization in the international anti-money laundering work,suggested that self-money laundering should be criminalized in its third round evaluation report on China.From the practical basis,the crime of selfmoney laundering is an inevitable trend to solve the difficulties in judicial practice,and there are a few cases of judgment from the essence of "self-money laundering".The second part mainly discusses the applicable standards of self-money laundering and the application of other "self-concealment and concealment acts".First of all,not all the actions of the upstream criminal perpetrators to conceal the proceeds of crime constitute the crime of money laundering.Only the "bleaching" nature of the cover-up and concealment that legalizes the proceeds of crime and its benefits can be identified as self-money laundering constitute the crime of money laundering.The selffence without violating the new legal interests should not be identified as the crime of self-money laundering.Secondly,after the definition of the crime boundary of selfmoney laundering,there is still controversy over whether the cover-up behavior of the upstream crime other than self-money laundering has the property of money laundering and needs to be regulated by the crime of money laundering or related charges.It is necessary to clarify the relationship between the crime of money laundering and related charges,that is,since the crime of money laundering is entered into,the crime of money laundering and the crime of concealing and concealing the proceeds of crime are no longer simple legal concurring relationship,but a cross relationship.The nature of the crime of money laundering is completely different from the crime of harboring,transferring and concealing drugs and stolen goods.For the "legalization" behavior of the original upstream crime other than the six upstream crimes,although it has the property of money laundering,from the perspective of norms and legislative intention,it does not apply to the provisions of self-money laundering.For the physical transfer behavior within the six upstream crimes,it does not have the nature of "legalization" and is not self-laundering behavior,but belongs to the ordinary selling of stolen goods,which is not punishable after the event.Besides the six kinds of upstream crimes,the physical transfer behavior of the original crime after the crime should also be an unpunished behavior after the crime.Finally,if the cover-up behavior of the original upstream crime can constitute self-money laundering,it should be punished together with several crimes rather than with one severe punishment.As for the person assisting in the implementation of money laundering,he can still be regulated by the provisions of money laundering crime.At the same time,attention should be paid to whether the assisting person constitutes an accomplice in the upstream crime,not whether there is collusion in advance,but a specific judgment should be made according to the principle of subjective and objective consistency.The third part mainly discusses the relationship between various upstream crimes and self-money laundering.After the crime of self-money laundering,it is necessary to analyze the problems of self-money laundering after all kinds of upstream crimes.Firstly,the specific scope of various upstream crimes is analyzed and defined,but some special crimes cannot be established as self-money laundering in essence,such as the crime of illegal supply of narcotic drugs,psychotropic substances,and the crime of huge amount of property with unknown source.Part of the special behavior can not be generalized,should be specific case specific analysis.In particular,whether the act of trafficking in smuggled goods by the smuggler conforms to the second paragraph of money laundering crime "the act of converting property into cash,financial bills and negotiable securities" should be discussed according to different properties of smuggled goods.The criminal income of smuggling controlled goods should be the smuggled goods themselves,while smuggling tax-related goods should be the tax evaded as the criminal income,not the goods themselves,nor the profit or income from selling goods.Therefore,the smuggling behavior of selling tax-related goods should not be identified as the crime of money laundering;It is also necessary to distinguish the nature of trafficking behavior for the smuggler’s trafficking of controlled smuggling goods.Only when the smuggler conceals and conceals the nature and source of controlled smuggling goods,the crime of money laundering is constituted.