| Since the crime of money laundering was stipulated in the ’ Criminal Law ’ in 1997,there have been problems in the judicial practice of this crime,such as low application rate and insignificant combat effect.One of the most important reasons is that money laundering has not been included in the regulation of money laundering.The ’ Criminal Law Amendment(XI)’ has made self-money laundering a crime by modifying the legal expression of the original money laundering crime,forming a governance model in which self-money laundering and other money laundering coexist.This is not only a response to the international governance situation of money laundering crime,but also helps to improve China ’s anti-money laundering criminal legislation and safeguard national financial security.After the self-laundering behavior is included in the regulation of money laundering crime,a series of applicable problems arising from it need to be clarified.The change of the subject of the crime of money laundering will inevitably lead to the problem of distinguishing and applying the relevant crimes.Before the crime of self-money laundering was convicted,there was a dispute over the relationship between the crime of money laundering and the crime of concealing and concealing the proceeds of crime and the proceeds of crime.After the crime was convicted,the two crimes were each other ’s special laws in terms of the subject of behavior and the scope of upstream crimes,and there was no overlap of articles of laws.In addition,in the case of the ’ Criminal Law ’ 312 without modification,the money laundering behavior committed by the principal offender other than the seven types of upstream crimes of the crime of money laundering should not be evaluated by this crime,that is,the spirit of self-money laundering is not necessarily applicable to the ’Criminal Law ’ 312.The proceeds of crime in the crime of smuggling should be regarded as the unlawful benefits obtained by the perpetrator through smuggling.The smuggler’s direct sale of smuggled crime is not a cover-up or concealment of the proceeds of crime nor is it self-laundering;in the distinction with smuggling accomplices,we should not only consider whether there is conspiracy,but also consider the time and content of conspiracy.The relationship between self-money laundering and upstream crime is multiple crimes.In principle,the conviction and punishment of upstream crime alone cannot evaluate the infringement of financial legal interests caused by money laundering,and the simple combined punishment of multiple crimes ignores the coincidence of self-money laundering and upstream crime.Therefore,self-money laundering is divided into money laundering committed through the financial sector and not through the financial sector.The legal interests infringed by the former cannot be evaluated for the inclusion of upstream crimes,and should be punished for several crimes;the latter does not cause new infringement of legal interests,which conforms to the constitutive elements of the act of impunity afterwards,On the basis of affirming that it constitutes the crime of money laundering,it is only punished by the upstream crime.In terms of penalty application,the sentencing of self-laundering as a downstream crime should not be higher than that of upstream crime.Therefore,in the determination of ’ serious circumstances ’,different identification standards should be adopted according to different upstream crimes to avoid sentencing inversion;compared with other criminals,since the money laundering actor actively conceals and conceals the proceeds of crime after the completion of the upstream crime,it is a recidivism,has a greater personal danger and cannot be mitigated by the theory of expected possibility.Therefore,the final penalty after the adjustment of the preventive penalty should be slightly heavier than other criminals. |
