First, the concept and its composition

The crime of money laundering refers to the act of providing a fund account, helping to convert property into cash or financial bills, helping to transfer funds through transfer settlement, helping to remit funds abroad, and concealing the nature and source of illegal income and its income in other ways, knowing that it is the illegal income of drug crimes, organized crimes of underworld nature and smuggling crimes.

(A) the object elements

The object of this crime is the national financial management system and the normal activities of the judicial organs. The act of concealing and concealing the illegal income of crime and its nature and source, also known as money laundering, refers to that criminals turn illegal income into "black money" through financial activities in order to cover up their illegal acts and achieve the purpose of making it public. In other words, criminals legalize the illegal money obtained by crime through another criminal act. According to the World Bank 1994 report, the black money of international criminal groups reached an astonishing $750 billion, while China's GDP in the same year was only about $500 billion. Most of these black money will be "washed away" by criminals and openly enter normal economic life. For example, in 1993, Australia seized a very large money laundering case involving 5 1 10,000 US dollars. When the police solved the case, 4 1 10,000 dollars had been "washed away". Colombia, where drug trafficking is rampant, can increase its income by about $7 billion a year due to money laundering, and Venezuela can also reach $3 billion to $5 billion. At present, money laundering activities are frequent in France, Germany, the United States, Canada, Colombia, Venezuela, Hong Kong and Singapore.

In view of the increasing number of countries involved in money laundering crimes and the increasingly serious harm, in early 1995,1more than 200 representatives from police, customs, finance, industry and commerce, finance and other departments gathered in Nicosia, the capital of Cyprus, to hold a one-week seminar on stopping money laundering in the banking system. The meeting called on countries to strengthen measures to require banks to improve their ability to identify money laundering crimes in order to put an end to money laundering crimes in the international community. This kind of criminal behavior seriously interferes with the financial order and economic order, and then harms all aspects of social life. Because criminals may use our financial institutions to "launder money" in the future, we have to take preventive measures to combat this crime. There are various ways for perpetrators to conceal and conceal the illegal and criminal gains, their nature and sources, but they all hinder the judicial organs from recovering the illegal and criminal gains and the stolen money and goods obtained from the crimes, help criminals escape legal sanctions, and facilitate criminals to continue to carry out more serious criminal activities by using the material conditions created by their crimes. Therefore, this kind of crime has serious social harm and needs to be punished.

(b) objective factors

Objectively, this crime is manifested as money laundering in order to cover up and conceal its source and nature, knowing that it is the illegal income of drug crime, organized crime of underworld nature and smuggling crime and the income generated by it. Specifically, there are the following five forms:

1. Provide the fund account. This is the first link in the circulation of illegal funds in the financial sector. The holder of illegal funds should first open a bank account before remitting illegal funds abroad or issuing bills for use. This account often hides the true identity of the holder of illegal funds. The specific method is to help illegal fund holders by opening legal accounts or fake accounts in financial institutions. Through the above actions, the stolen money is separated from the holder in form, and it is difficult for the judicial organs to trace the whereabouts of the stolen money.

2. Assist in converting property into cash or financial instruments. In addition to cash and income, drug crimes, underworld organized crimes and smuggling crimes often get a lot of property that is inconvenient to carry and difficult to transfer, such as stocks, bonds, precious metals, celebrity calligraphy and painting, and even real estate such as cars and boats. As long as the actor knows that the property is the income of the above three crimes, whether through pledge, mortgage or sale, trading with the property holder and changing the property into cash or financial bills can constitute this crime.

3. Assist the transfer of funds through transfer settlement, that is, mix illegal funds with legal cash, and use bank checks or other means to make funds appear in legal form to start companies and enterprises, thus making illegal funds liquid and profitable.

4. Assist in remittance abroad. It is a common way for illegal fund holders to quickly transfer domestic illegal funds to some "secret banks" abroad. In China, domestic and foreign capital flows are under the supervision of the state, especially the transfer of funds abroad, which is beyond the reach of ordinary citizens or enterprises. Therefore, some special citizens and enterprises, who have the right to transfer funds abroad, can constitute this crime as long as they provide assistance for the transfer of stolen money and goods abroad.

5. Concealing or concealing the illegal proceeds of crime, their nature and sources by other means. This mainly refers to: hiding the proceeds of crime in cars or other means of transportation, taking them out of the country, then converting them into foreign currency or buying property, or depositing them in foreign banks in the name of foreign relatives, and then returning to their own countries; Open bars, restaurants, hotels, supermarkets, nightclubs, dance halls and other service industries and industries that use a lot of cash every day, and mix illegal income with legal income; Buy real estate in cash and then sell it; Buy some inferior products or even waste materials at a "high price" and send the money to associates in different places or abroad to transfer the stolen money and legalize it.

There are two points worth noting here. First, this crime is behavior crime. As long as the perpetrator commits one of the above five acts, whether the criminal purpose is achieved or not, it is accomplished. Second, money laundering must be carried out after drug crimes and organized crimes of underworld nature are committed, and smuggling crimes can only be carried out, and there is no collusion with the holders of stolen money (that is, criminals of the above three crimes) in advance. If you collude with the illicit money holder in advance to help money laundering after he commits a crime, you should be punished as the same crime. For example, those who collude in advance and help smugglers to launder money afterwards should be identified as * * * smuggling criminals.

(3) Main elements

The subject of this crime is the general subject, that is, a natural person who has reached the age of criminal responsibility and has the ability of criminal responsibility can constitute it. According to the second paragraph of this article, a unit can also be the subject of this crime. If criminals who commit drug crimes, organized crimes of underworld nature and smuggling crimes conceal their illegal gains and the nature and source of their gains, according to the theory of absorbing criminals in criminal law, they should pay more attention to behavior than to behavior. As far as a felony is concerned, they should be convicted and sentenced according to the crime they committed, and should not be punished for several crimes.

(4) Subjective factors

The subjective aspect of this crime is intentional. That is, the perpetrator knows that it is the illegal income of drug crimes, organized crimes of underworld nature and smuggling crimes and the income generated by it, but conceals and conceals the illegal nature and source of the property. If the perpetrator really doesn't know the illegal income of the crime and its income, but mistakenly thinks it is the property of legal origin, it doesn't constitute a crime.

Second, identify

(1) The boundary between this crime and the crime of harboring, transferring, purchasing and selling stolen goods.

The crimes of harboring, transferring, purchasing and selling stolen goods as stipulated in Article 3 12 of this Law and the crime of money laundering as stipulated in this Article belong to the category of recidivism, that is, the perpetrator has given some help to criminals while knowing that this is their illegal income. So there is a great connection between the two. However, from the specific elements of the crime, the two also have the following differences:

1, the object of infringement is different. The former infringes on a double object, the main object of which is the financial management order, so the crime is classified as "the crime of destroying the socialist market economic order", while the latter infringes on a single object, that is, the social management order.

2. The object of behavior is different. The former refers to the illegal gains from drug crimes, organized crimes of underworld nature and smuggling crimes, while the latter refers to all the stolen goods obtained from crimes.

3. There are different behaviors. The former refers to concealing and disguising the nature and source of illegal income and its income through some intermediary agency, while the latter includes four acts: harboring, transferring, purchasing or selling stolen goods.

(two) the boundary between this crime and the crime of harboring, transferring or concealing drugs and stolen goods.

The crime of harboring, transferring or concealing drugs and stolen goods stipulated in Article 349 of this Law is also different from the crime of money laundering stipulated in this article in the following aspects:

1, the object of infringement is different. The former infringes on a dual object, mainly the financial management order, while the latter infringes on a single object, namely the social management order.

2. The objects of behavior are different. The former refers to the illegal gains and profits generated by drug crimes, organized crimes of underworld nature and smuggling crimes, while the latter refers to drugs and drugs in the crimes of smuggling, selling, transporting and manufacturing drugs.

3. There are different behaviors. The former means that the perpetrator conceals and disguises the source and nature of the illegal income and the income generated through the intermediary agencies, which belongs to the narrow sense of "money laundering", while the latter means that the perpetrator conceals, transfers or conceals drugs or property obtained from smuggling, trafficking, transporting and manufacturing drugs, which belongs to the broad sense of "money laundering".

Third, punishment.

1. If a natural person commits the crime of money laundering, the illegal income and income of drug crime, organized crime of underworld nature and smuggling crime shall be confiscated, and he shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, and shall also or only be fined not less than 5% but not more than 20% of the money laundered; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and shall also be fined not less than five percent but not more than twenty percent of the money laundering amount.

2. If a unit commits this crime, it shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention.