| In the context of the rapid development of the world economy at this stage,money laundering crimes are emerging in an endless stream,which has had a tremendous impact on the financial order of our country and is extremely harmful to society.In June 2007,China became a full member of the Financial Action Task Force(FATF),the most authoritative intergovernmental international organization in the global fight against money laundering and terrorist financing.In two FATF evaluations of China’s "criminalization of money laundering",both believed that China’s content was generally compliant,but also raised views on the form of "failure to criminalize self money laundering" in China.FATF believes that the failure to effectively regulate self money laundering is due to the neglect of the specificity of money laundering crimes,which will seriously weaken the effectiveness of China’s anti money laundering judicial activities.Based on the above new situation of anti money laundering activities at home and abroad,especially in order to implement the requirements of the top-level design for improving the legal system of anti money laundering in criminal legislation,and fulfill the rectification opinions proposed by China after mutual evaluation of FATF,with the coming out of the Criminal Law Amendment(11),self money laundering has finally been included in the regulatory scope of money laundering crimes,providing scientific guidance and theoretical support for effectively combating money laundering crimes.After collecting data on money laundering cases,this article summarizes and sorts out some controversial issues in the judicial practice of money laundering since its incorporation into the crime,gradually sorts out and analyzes the controversial views,and finally puts forward views and suggestions on this issue,hoping to be helpful to the controversial issues arising from the judicial application of money laundering crimes.Since the criminalization of money laundering,there have been disputes over the scope of the punishment of ex post facto actions committed by upstream offenders.The crime of money laundering requires that the perpetrator objectively commits money laundering activities such as transfer and conversion,while naturally possessing,using,and disposing of himself or others after committing a crime should not be considered as money laundering.So how to grasp whether the ex post facto behavior of the upstream crime belongs to the transfer and transformation regulated by the crime of money laundering,or is it a natural extension of the upstream crime? Is the act of concealing or concealing the proceeds of a crime committed by the original perpetrator of a predicate offence punishable,and is there any possibility that it may be an afterthought act that is not punishable?There are different viewpoints in the academic world.Some scholars believe that since the criminalization of money laundering,the "unpunishable ex post facto behavior" in criminal law theory has been exceptionally included in the scope of the regulation of money laundering crime,so ex post facto behavior is punishable.Some scholars classify self money laundering into transfer type self money laundering and transfer type self money laundering according to the types of behaviors specified in the law.Only transfer type self money laundering that violates the financial management order can be penalized.This article believes that all acts of concealment and concealment should not be regarded as punishable ex post facto acts because of the criminalization of self money laundering,nor should there be a mechanized classification of the crime of money laundering,as the transfer type of self money laundering may also disrupt the financial order.Instead,a comprehensive analysis should be conducted based on whether or not it infringes new legal interests,step by step,and first of all,the ex post facto acts should meet the constitutive requirements of the crime of money laundering,Secondly,ex post facto violations of new legal interests or deepening of the original damage without the possibility of expectation,only such ex post facto acts can be punishable.After the deletion of the "knowing" element in the "Criminal Law Amendment(11)",there are also different understandings of the deletion of the "knowing" element in the academic community.Scholars represented by Professor Liu Yanhong believe that "knowing" in the specific provisions is the overriding element of subjective intent,and deleting "knowing" will not have any impact on the subjective aspects of the crime of money laundering.Subjective intent is still the basic constitutive requirement of the crime of money laundering,and subjective negligence cannot become the subjective aspect of the crime of money laundering.Derived from this,this view holds that neither self money laundering nor other money laundering can add new elements beyond the intentional element,and no additional proof is required to "knowingly know the illegal gains and benefits generated by the upstream crime." As long as it is "to cover up or conceal the illegal gains and benefits," it can constitute a money laundering crime.Scholars represented by Professor Chen Xingliang believe that the "knowing" of the specific provisions is higher than the "knowing" of the general provisions.The "knowingness" of the specific provision only includes certainty recognition,requiring the perpetrator to be certain that the object of money laundering is upstream criminal proceeds and their proceeds."Knowledge" in the general rule includes certainty and possibility.After deleting the "knowledge" in the specific rule,including both "certainty and possibility" requires the actor to have the subjective possibility of recognizing that the target of money laundering is the proceeds of upstream crime and its proceeds.After deleting "knowingly",there is more room for criminal presumption,which can more accurately and effectively combat crime.In the issue of the concurrent application of self money laundering and upstream crimes,as an ex post facto act of upstream crimes,money laundering has an independent legal interest infringement,which is different from the legal interest content infringed by upstream crimes,and does not have the same purpose as the normative protection of upstream crimes.Therefore,it cannot be fully evaluated by upstream crimes and meets the conditions for joint punishment for multiple crimes.Therefore,in the competition between self money laundering type money laundering crime and upstream crime,it is necessary to take the combined punishment of several crimes as the basis and analyze specific issues to implement the principles of comprehensive evaluation and prohibition of repeated evaluation.Since money laundering has been regulated as a crime of money laundering,it is also possible for the crime of money laundering to compete with the crime of concealing or concealing criminal proceeds or proceeds of crime,as well as the crime of harbouring,transferring,or concealing illicit drugs and drugs.In practice,judicial authorities are also prone to confusion.Therefore,it is necessary to accurately grasp the differences and relationships between the above three laws.How to correctly define the relationship between this crime and that crime directly affects the application of the crime of money laundering. |
