[Introduction].
Selling cakes can also involve money laundering? - These two can't seem to be beaten, how can they still be related? Recently, we have found that there have been some money laundering in many places under the guise of "selling cakes"**: some criminal gangs often transfer illegal funds to merchants in the name of giving gifts, requiring merchants to hide cash in gifts, and the stolen money flows into the merchants' bank accounts, and the merchants' clean cash falls into the hands of criminals. In the following, Liu Lei's lawyer team will reveal the specific criminal methods and analyze the legal risks involved.
After our analysis and summary of practical cases, the methods of criminals can be roughly divided into the following specific steps to buy "money to spend" cakes to launder money:
Step 1: The criminals find a cake shop on the Internet, add the WeChat of the customer service in the store, and tell the customer service that they ask for a customized cake and give it to others;
Step 2: Unlike previous customers, when this criminal orders a cake, he discusses with the store owner to make a private order, what does this mean? It is to send money to the bank account of the owner of the cake shop, and ask him to help withdraw 20,000 or 30,000 yuan in cash and put it in the cake, falsely claiming that it is a gift or creating some romance. The cake shop owner thinks that this demand is normal, and even the criminals who order the cake give the shop owner an extra 100 yuan to call it "hard money", so why not do it?
Step 3: The criminal who ordered the cake asked the store owner to add a WeChat, make a cake, and send it to this new WeChat contact along with the cash in the cake;
Step 4: The cake shop owner adds this new WeChat, that is, the person who collects the cake. However, at this time, the person who collects the cake will generally lie that the signal at home is not good, and ask you to send the cake to a very special and hidden place, that is, a place without a camera, and then quietly take the cake away. After you take it, you find that you can't contact them anymore, whether it's the person who ordered the cake or the person who picked up the cake.
Then, a terrible thing happened: the cake shop owner's WeChat or Alipay bank card was frozen, and even all the bank cards in the boss's name were frozen. At this time, the boss panicked and went to the bank to find out what the situation was, but was told that because he received stolen money in the bank card, he was suspected of money laundering, and the public security organ in a county thousands of kilometers away froze the account; So, you contact the local public security, and the public security tells you that you are suspected of money laundering, and you must go to them to explain the situation within a few days. At this time, you are completely confused, don't you just sell a cake? How did it become money laundering? If I go to a place thousands of kilometers away, who will reimburse the air ticket and what about the lost work expenses? The most important thing is that the bank card has been frozen, and my normal life and business activities have been greatly affected.
(1) Does the merchant's behavior involve "money laundering"?
There are many people who don't understand: why is it related to money laundering when it is normal to make cakes to meet customer requirements? Can you still commit a crime by selling a cake? In response to this question, Mr. Liu believes that selling cakes is indeed a normal business behavior, but if it involves helping others to cash out, it is necessary to determine whether the merchant is "knowing" that criminals use cakes to launder money.
Does this kind of behavior of the merchant constitute the crime of aiding and concealing trust? Liu Lu will first talk about my opinion: theoretically, these two crimes are difficult to rely on, but the focus is on the specific behavior mode of the business, whether it can confirm the "knowing" of the business! Article 1 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases such as Money Laundering" makes it clear that the "knowing" of the crime of concealment shall be determined in light of subjective and objective factors such as the defendant's cognitive ability, the circumstances of contact with the criminal proceeds and the proceeds of others, the type and amount of the criminal proceeds and their proceeds, the conversion and transfer methods of the criminal proceeds and their proceeds, and the defendant's confession. There are also six specific situations in which "knowing" is presumed. There are six "knowing" situations:
First, knowing that others are engaged in criminal activities and assisting in the conversion or transfer of property; second, assisting in the conversion or transfer of property through illegal means without a legitimate reason; Third, without justifiable reasons, the acquisition of property is significantly lower than the market; Fourth, assisting in the conversion or transfer of property without justifiable reasons, and charging a "handling fee" that is significantly higher than the market; Fifth, assisting others to scatter huge amounts of cash in multiple bank accounts or frequently transfer between different bank accounts without justifiable reasons; Sixth, assisting close relatives or other close relatives to convert or transfer property that is clearly inconsistent with their occupation or property status.
So, back to this case: if you sell cakes to collect large transfers, and the merchant puts in the corresponding cash, as long as the merchant's behavior does not involve the above six situations, there is basically no problem, but let me make a simple analogy: you sell "sky-high cakes" and charge a high service fee in addition to the cost of selling the cake, then you yourself say that you don't know about helping to launder money? It is also difficult to convince the case-handling unit.
As for the "knowing" of the crime of aiding and abetting, although the requirement is lower than that of concealment, at least you must have a general and intentional knowledge that your act is aiding a criminal activity, that is, you have knowledge of the criminal act committed by the person being helped. If you just think that you are selling cakes, and the facts can clearly prove that you don't know the criminals at all, they are just ordinary customers who come to your door, and you don't charge them extra fees other than the cakes, then it is difficult to constitute the crime of aiding and abetting.
(2) Does the behavior of the "rider" involve "money laundering"?
In this case, the person in charge of collecting the cake is like the "rider" in Dada's errands, it seems that he has only completed an act of helping to collect the cake and handing over the cash to the designated person, but in fact, his legal risk is not lower than that of the merchant.
In the current practical cases, we have found that many "riders" who collect cash cakes actually know that they want to collect and transfer "cash" instead of "cakes", because they will deliberately let the merchant move to a more hidden or non-probe place when collecting the cake, and then collect it, then these "riders" are likely to meet the standard of "knowingly" in money laundering crimes. Although these "riders" think they are smart, they ignore that there are multiple technical investigation methods such as "Tianyan", IP positioning, and networking systems in our territory, and they think that by using the owner of the cake shop, they can help overseas fraudsters complete the operation of "laundering" fraudulent funds and collect commissions from them, but they do not know that sooner or later they will be investigated by the public security organs.
In fact, the people who are engaged in this kind of business are basically the same group of people who did the running points before, and they may not know: once they are caught, the amount exceeds 100,000, and they are suspected of covering up and concealing the crime, and the sentence is 3 to 7 years in prison, which is much more serious than the nature of running points and OTC money laundering. Because they, as the ones who receive the cake and the cash, there is little room for a "knowing" defense.
Case-handling organs, as needed to investigate criminal offenses, may appropriately freeze or seal accounts into which stolen money has directly flowed within a reasonable period of time; However, if a "one-size-fits-all" approach is adopted to freeze the first-class cards that are not directly inflowed into the funds involved in the case, or even the accounts normally and legally used by merchants, it will obviously violate the relevant laws and regulations on the protection of citizens' private property. According to article 13 of our Constitution: "The lawful private property of citizens shall not be violated. The State protects citizens' private property rights in accordance with the provisions of law. The income earned by a merchant through business activities is a legitimate private property and should be protected by law. In addition, we believe that if it can be shown that the merchant is not involved in the crime, and there is no sufficient evidence to show that the merchant is suspected of illegal acts, then the freezing measures taken by the investigating authorities lack a legal basis. The merchant has borne the losses caused by the illegal freezing of the case-handling organ, and such a sacrifice that exceeds the general obligation of tolerance will unduly restrict the legitimate property rights and interests of the merchant as a citizen.
We believe that for merchants: as long as their **cake** and chat records with customers, there are data available for query; The order information involved in the transaction can be corresponded to the bank flow information; The price of the cake is consistent with the market price, then he can appeal to the case-handling authority to unfreeze the account.
Through Mr. Liu's analysis above, I believe everyone has understood this new method of laundering money by selling cakes. With regard to the different subjects involved in this type of crime, I would like to make the following points:
First, I would like to say to the police who have frozen the card: Although, it is reasonable to follow the bank statements to track down the fraudsters, and to freeze the downstream accounts; However, if the downstream cake shop owner provides chat records to restore the scene of ordering the cake at that time, and you have no evidence to prove that the cake shop owner knows that there is a problem with the money in the cake, then unfreeze the bank card in time; Because, if there is a real and reasonable reason behind the receipt of stolen money, and the person who receives the stolen money does not know about it, then the person who receives the stolen money can apply "bona fide acquisition".
In order to crack down on violations and crimes, the public security organs should take corresponding actions to reduce the property losses of the victims and maintain the dignity of the law, which is the power conferred on the public security organs by law and should be vigorously supported. However, when it comes to the handling of the rights and interests of relevant stakeholders, more attention should be paid to upholding the balance between fairness and efficiency.
1. The principle of unifying the protection of the lawful rights and interests of parties with the adaptation of the needs of judicial case handling. Therefore, in the face of the new type of illegal and criminal activities involved in the "money to spend" cake, the public security organs should, on the basis of ascertaining the facts, promptly eliminate the suspicion of criminal risk from the merchant and unfreeze the bank account.
Second, I want to say to the "rider" who collects the cake: you are really too bold and at the same time too stupid; You are in China, doing this kind of thing, there are so many "Sky Eye" cameras in our territory, such a powerful IP positioning, a perfect networking system, and other technical investigation methods, it is a matter of time before you are caught. You think that you use the owner of the cake shop to help the fraudsters from abroad complete the RMB cash that the fraudulent funds are turned into paper money, and collect commissions from them, and you have learned a trick of "moving the world" to the cake shop, but you don't know that you are deceiving yourself.
Third, I would like to say to merchants: all friends who open cake shops and flower shops, including all friends who have large amounts of money and frequent cash transactions, should learn from this case! Be sure to raise your awareness of prevention, remember not to disclose your personal bank card information at will, help others cash out, and avoid becoming someone else's "money laundering tool"! Once suspected of the crime of aiding and concealing, the account will be frozen at the least, and the account will be imprisoned at the worst. At the same time, this case also reminds us that in the age of online information, we should always be vigilant. Otherwise, even if it is just a normal business practice of selling cakes, you will fall into the "sweet trap" if you are not careful!