Foreword
introduction
The place of this crime in the system of criminal law texts: it belongs to Chapter VI"Crime of obstructing the order of social management".Section 2 "Crimes of Obstruction of Justice".
1. Legal Basis and Criminal Liability
· Article 312 of the Criminal Law
Whoever clearly knows that the proceeds of crime or the proceeds thereof are concealed, transferred, purchased, sold on behalf of others, or otherwise concealed or concealed, is to be sentenced to up to three years imprisonment, short-term detention or controlled release, and/or a fine;where the circumstances are serious, a sentence of between three and seven years imprisonment and a concurrent fine is to be given.
Where a unit commits the crime in the preceding paragraph, the unit is to be fined, and the directly responsible managers and other directly responsible personnel are to be punished in accordance with the provisions of the preceding paragraph.
2. Composition of the crime
Objectively carried out acts of covering up or concealing criminal proceeds or the proceeds of criminal proceeds;
subjectively "knowing" that the property is the proceeds of predicate crime;
The new judicial interpretation abolishes the amount requirement of "3,000-10,000 yuan", and instead comprehensively considers the circumstances, consequences, and degree of harm to society for conviction and punishment
The number of times of cover-up and concealment, and the number of times in one year meets the criterion of guilt;
The property covered up or concealed is special, and the predicate criminal proceeds are electric power equipment, transportation facilities, radio and television facilities, public telecommunications facilities, military facilities, or funds and materials for disaster relief, emergency rescue, flood control, preferential care, poverty alleviation, immigration, and relief;
The consequences of obstructing the administration of justice are produced, causing "the predicate crimes cannot be promptly investigated and handled, and causing irreparable losses to public or private property", or causing the consequences of "obstructing the judicial organs from pursuing the predicate crimes".
3. Determination of knowingly
The principles of the legality of crimes and the need for criminal evidence to be beyond reasonable doubt all reflect the modesty of the criminal law and prohibit the presumption of guilt, but according to the needs of legislation and in conjunction with relevant judicial interpretationsThe criminal law allows for reasonable presumptions as to whether the proceeds of crime or the proceeds of crime are "knowingly".
In judicial practice, most of the types of evidence that prove the "knowing" of this crime are verbal evidence:
Including witness testimony and the defendant's confession, because the above-mentioned evidence is circumstantial evidence and circumstantial evidence, the probative force is not high.
At the same time, it is necessary to combine abnormal factors such as the channel of transferring property, ** fees, frequent transfers between multiple banks, and the transfer of property that is obviously inconsistent with occupation or property status, to presume whether it is a subjective "knowing" attitude towards criminal proceeds.
4. The difference between this crime and the crime of aiding and abetting
· Similarities:
Both of them are related crimes derived from the predicate crimes, and they have a certain role in helping the predicate crimes, and there is no prior conspiracy, and both are generalized and aware of the predicate crimes.
· Differences:
The content of the acts is different, the crime of aiding and believing is mainly to provide assistance to others in using information networks to commit crimes, while the conduct of this crime is often manifested in the transfer of stolen goods and the sale of stolen goods;
The criminal law criminalizes the act of aiding and abetting and separately provides for the crime of aiding and trusting, while this crime is an act of selling stolen goods after there is no collusion with the upstream and the predicate crime is concluded.
5. The difference between this crime and the crime of money laundering
The crime of money laundering falls within the scope of undermining the order of financial management in Section 4 of Chapter 3 of the Crime of Undermining the Order of the Socialist Market Economy.
The crime of money laundering often converts the property obtained by crime into currency, and transfers the currency to the account through **, payment and settlement, cross-border and other means.
At the same time, the predicate crimes of money laundering must be drug crimes, organized crimes, terrorist activities, smuggling, bribery, undermining the order of financial management, and financial fraud.
The transfer of funds to the above-mentioned criminal proceeds and the proceeds thereof through the above-mentioned methods constitutes money laundering, otherwise it may constitute the crime of covering up or concealing criminal proceeds.
VI. Provisions on sentencing for this crime
· Statutory sentence
A sentence of up to three years imprisonment, short-term detention or controlled release is to be given, and/or a fine;where the circumstances are serious, a sentence of between three and seven years imprisonment and a concurrent fine is to be given.
· Determination of serious circumstances
1) Covering up or concealing criminal proceeds and the total value of the proceeds thereof reaching 100,000 RMB or more;
2) Covering up or concealing criminal proceeds and the proceeds thereof 10 or more, or 3 or more times with a total value of 50,000 RMB or more;
3) The criminal proceeds covered up or concealed are electric power equipment, transportation facilities, radio and television facilities, public telecommunications facilities, military facilities, or funds and materials for disaster relief, emergency rescue, flood control, preferential care, poverty alleviation, immigration, or relief, with a total value of 50,000 yuan or more;
4) Cover-up or concealment that makes it impossible to promptly investigate and handle the predicate crime, and causes irreparable major losses of public or private property or other serious consequences;
5) Carrying out other acts of covering up or concealing criminal proceeds and the proceeds thereof, seriously obstructing the judicial organs' pursuit of the predicate crime.
Where judicial interpretations already have provisions on the determination of "serious circumstances" for the concealment or concealment of criminal proceeds involving motor vehicles, computer information system data, or control over computer information systems, and the proceeds thereof, such cases are to be heard in accordance with those provisions.
Brief introduction of Varg lawyer team -
The criminal team of Varge Law Firm has handled a number of criminal cases such as helping letters, covering up and concealing criminal proceeds, money laundering, etc., and has a lot of practical experience.
Ren Siyuan
Head of the Criminal Business Department II of Hunger Law Firm.
Lead lawyer at Wager Law Firm.
Northwest University of Political Science and Law has a master's degree in law, holds a legal professional qualification A certificate, a second-level construction engineer certificate, and has rich experience in criminal defense, administrative litigation, and construction projects.
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Author |Ren Siyuan
* |Photo.com.