| Don’t understand the foreign law, will not know and enlighten features and characters ofnation law. The United States is one of the first countries that criminalize money laundering,there are more rich experience for reference. Although the two countries belong to differentlegal systems, each have a unique social governance structure and legal order, but theinternational nature of the crime of laundering, provides the comparison of money launderingin China and the United States.Chapter I. Understanding is the premise of all, so it is necessary to introduce theevolution and characteristics of money laundering legislation of US and china for the nextstudy. After more than40years of development and improvement,the United States haveformed by "bank secrecy laws" and "money laundering control act" as the core content of thetwo big money laundering legislation system, the former focuses on the criminal regulation ofviolating specific anti-money laundering obligations and the latter focus on criminal sanctionsagainst money laundering behavior itself. On anti-money laundering legal systemconstruction, the United States also had taken detours, early pay attention to the improvementof the domestic law, but the idea does not consistent with the transnational nature of moneylaundering. From1999, U.S. formally proposed an international strategy to combatmoney-laundering offenses, implement U.S. anti-money laundering regime in theinternational arena, in the evolution of money laundering legislation formed a developmentpath from inside to outside. The paying equal attention to prevention and combat moneylaundering legislation evolution are closely linked with the concept of crime in the UnitedStates that only qualitative not quantitative of crime. The superpower in the world providesexternal guarantee for its strong expansion path of law from inside to outside, the especiallydeveloped of financial services industry also makes it become a major disaster area of moneylaundering crime. The demand of fighting crime make the United States also have to takeproactive expansion path to money laundering legislation.In the historical evolution of the anti-money laundering criminal legislation, twocountries are expanding predicate offences and the subject of crime, but as a result of thedifference of economic, culture and legal tradition, in the process of the evolution of moneylaundering legislation show more different. On the way of our country development of historical evolution of the money laundering legislation present a certain passivity. Themoney laundering legislation system of our country has formed a single type of legislationsystem, which conforms to the humility and the complementary of criminal law. But thisdoes not mean that China’s criminal law should be fully heading for the hills on a particularsubject failing to perform the obligation of anti-money laundering behavior. If the particularsubject knowing that someone are implementing of money laundering, don’t performanti-money laundering obligations, causing serious consequences of money laundering, thecriminal law should be involved.America’s money laundering is a system concept, according to difference of combatingand preventing classify the specific charges in different chapters respectively. Different fromUS, article191, article312and article349of criminal law be classified as broad moneylaundering, but in the same time,legislator name191as money laundering crime, the resultingchaos on charges of money laundering, money laundering crime classification chaos, thechaos of concept of money laundering between criminal law and administrative law.Confusion is rooted in the misunderstanding of interests that money laundering acts violate,and in legislative technology, we provided money laundering in special criminal law initial,the formation of money laundering crimes and traditional stolen goods parallel system, and inthe subsequent legislative changes which want to maintain the differences between article191and article312and at the same time want to make up for the loopholes in legislation ofmoney laundering; Also with the false distinguish in academic study of article191and article312.Chapter II.This chapter discussion the interest of money laundering infringement.Understanding of the nature of money laundering can only be derived from the insight ofinterests that be infringed, only then can find the reasonable source for money launderingcriminal legislation. The interest that money laundering infringed is the country’s financialmanagement order or the normal judicial activities has been discussed for a long time in ourcountry. American scholars also believe that money laundering infringes the financialmanagement order and jurisdiction of the country, but the meaning of the same conclusion isnot necessarily the same. The points that American money laundering violations of thefinancial management order is based on the premise of the provisions of the criminalsanctions for violating anti-money laundering obligations. Unlike America, violation ofmoney laundering obligations is not into the scope of criminal legal norm, thus the conclusion can’t indiscriminate applicable to our country money laundering violations conclusion ofinterests.Does money laundering violate the financial management order is actually under the risksociety whether money laundering infringe a country’s financial security. From a macro pointof view of society as a whole money laundering has certain negative influence on a country’sfinancial security, our scholars equate the whole social consequences of money laundering asthe individual social consequences criminal legal evaluation of course of conclusion and thencome to the conclusion that money laundering violations of the financial management order.From the point of view of microcosmic individual money laundering due to its impact on thecountry’s financial security is uncertain and mild and therefore not worth criminal lawregulation. The foundation of money laundering criminal legislation is still lies in thejurisdiction interests that money laundering infringes.Chapter III. The compare of money laundering objective aspect between china and U.S.In the objective aspect,The United States lawmaker does not keep the rules of the enumeratedtype, in terms of the behavior itself, law regulations only a kind of behavior, namely, tradingbehavior. Law by subjective elements to reflect the feature and as the only standard todistinguish the behavior nature. The legislative model can adapt to the development of moneylaundering way.The study of our country money laundering behavior patterns should be focused on theconcept of big money laundering, in addition to the provisions of article191of the act, butshould also focus on the provisions of article312, can fully reflect the behavior of ourcountry’s money laundering regulations. Specific money laundering provisions in article191of the criminal law in China on the classification can be divided into two categories,conversion and transfer.“By any other way” means other transfer and conversion method.Article312belongs to the type of hiding.“By any other way”should be understoodconcealing method other than harbor, on behalf of sales. On the behavior of money, inaddition to conversion, transfer, conceal, disguise laundering, three convention make get andpossession as the ways of money laundering. Article312of the harbor behavior can cover forget behavior, harbor itself need to get. But the possession and use of behavior cannot becovered by harbouring. Possession is upper concept of harboring, harbor only is a kind ofexpression form of possession. Compared with the United States, although the regulation ofour country in the money laundering crime objective behavior on the list and summarize ways, but as a result of on the regulation of behavior is too detailed, too many restrictive factors,lead to money laundering crime in our country on the way is only limited to transfer,transformation, hide, disguise,the four kinds of behavior. It is necessary to draw lessons fromthe United States by subjective factors indicate the type of objective behavior, make objectivebehavior more flexibility and wide adaptability.Predicate offenses of the money laundering includes both class and specific crimes, thelegislative way makes the Predicate offenses relatively clear. In our criminal law system hasestablished the concept of money laundering, Predicate offenses of money laundering, in fact,already contains all crime. On the crime circle formed two Predicate offenses crime ring, butas a result of Predicate offenses of article191exist certain fuzziness, make it difficult todistinguish Predicate offenses crime ring.Questions about the nature of the object of money laundering has caused a historicdebate in the United States, the nine Supreme Court judges respectively from profit, total andpluralist perspective gives a different answer. Because it is not realistic that distinct betweenprofit and receipt; Asked actor subjectively knowingly transaction object from profitinconsistent with law; Profits calculated influence of harmfulness judgment of moneylaundering; Profit socialism does not conform to the legislative purpose of money launderingcontrol act; Profit viewpoint causes specific Predicate offenses crimes such as against terroristfinancing cannot be convicted. Profit viewpoint eventually eliminated by history. Article191of the criminal law in our country on the behavior object and the seizure of the objects of thecrime of laundering is used the concept of the “proceeds of crime”, in the fine measurementon the base of using the concept of “money laundering amount”. But the “proceeds of crime”and “money laundering amount” at present no relevant legislation and judicial interpretationon the specification, to explore the connotation can only through its upper concept “the illegalincome”. According to article64of criminal law “the illegal income”is different from"contraband, and possessions of for the crime" the provisions of the legislation can beconcluded that the doctrine of illegal income is profit point of view. This also appeared in thejudicial interpretation that illegal income by the total mainly to profit socialist transformation.Due to money laundering violations of law is the national judicial power, and thus the amountof money laundering should not deduct legal costs, because according to the provisions ofarticle64of the criminal law in our country, not only all the property of the illegal incomeshould be confiscate, contraband and possessions of for the crime should also be confiscated, money laundering not only influence the confiscation of illegal income, but alsohinders the forfeiture of property used in the crime, and therefore should be taken of the totalview of defining the concept of income and the amount of money laundering crime.Chapter IV.This chapter compares the money laundering crime subject. That the objectof money laundering includes the object of predicate offenses is inheritance of the stolengoods traditional in United States. Whether Predicate offenses can become the subject ofmoney laundering subject on the theory in our country has formed sure, negative andcompromise views. This article support negative, but don’t agree with the way negativearguments and the basic point of view. On the one hand, Negative views start from the text toexplain that the provisions of article191have made it clear that predicate offenses is out ofmoney laundering subject, on the one hand, and not to be sent later to prove the rationality ofthe legislation of article191of the behavior theory. Not punish afterwards behavior theory isapplicable criminal law theory, with the theory of criminal law applicable to prove therationality of the legislative problem is lack of reasoning logic. Premise that do not punishafterwards act theory applicable is the behavior itself has the conformity of the constitutiverequirements, but due to lack of illegality or duty so does not constitute a crime. There isqualitative difference between laundering own money and destroy the stolen goods, theformer has been excluded from its constitutive requirements of article191of the conformitystage, the other which still has the constitutive requirements of conformity. So the argumenton whether laundering own money laundering is crime is not the problem of judicialapplication, but the rationality of the legislation. Excluding the predict offence from moneylaundering related to treat the historical tradition of the stolen property crime in our countryand principles that never forcing the self-incrimination embodied in the criminal substantivelaw. History tradition that property crime in our country can only be composed of a thirdperson is difference from the Anglo-American law system. Never forcing theself-incrimination principle is not only the principle in criminal procedure law, but also theprinciple of criminal substantive law. There are reflected in criminal law, such as China’scriminal law article305, article306and article307of the rules is the application of thisprinciple in the substantive law. Never Forcing the Self-incrimination is human nature, wasapproved by the international convention on civil rights, as a right, the legitimate exerciseright can not be seen infringement of legal interests, and therefore there is no question ofcrime, it is primary cause that laundering own money is not crime. Chapter V. This chapter compares the money laundering subjective aspect. In theprovisions of the money laundering crime subjective aspect, fault will be left out in thesubject. Knowing that in American money laundering contains two situations, one is the actorknown or may know the nature of the transaction object. The second is that there are highpossibilities for knowing the nature of the objects, but person deliberately not to know, theso-called “willful blindness”,knowing that include “willful blindness”make it to furtherexpand the scope of "knowing", solve the problem that the person deliberately avoid possibleknowledge. Subjective in our country’s money laundering also requires the offender knowingthat the nature of the transaction object. This kind of "knowing" includes both certainty andpossibility know, does not contain similar to “willful blindness” in the criminal law in theUnited States.In terms of knowing about predict offence content, knowing about predict offencecontent is greater than the law circle of predict offence. Although the law has list the circleof predict offence, and law also provides that the person must know the object come fromillegal income, at the same time, the person only need to know the trading object in whole orin part from the state, federal, or a felony, as described in the other countries,does not requirethe person to identify whether the object of the transaction is derived from the special illegalincome. In Chinese criminal law, according to article191the knowing of the content ofpredict offence circle is equal to the law. Knowing that the content of predict offence is stillsome closure. The knowing of the nature in money laundering object belongs to the typicalstandardization, the value of the understanding of the facts. So if strictly limiting thesubjective knowledge content of money laundering in circle of predict offence of the knowing,and money laundering will become the only legal workers to implement the crime.In term of subjective, the United States by specifying intend and knowing formed fullscale criminal law. Compared with the United States, the intend provision of our countrycriminal law191limit the scope of money laundering. Whatever the purpose of moneylaundering, the behavior of disguise and hide set the barriers of investigation for criminalactivities. Under this circumstance that people believe that the money laundering must or mayoccur, hope or indulge money laundering happening is the basis of this behavior.Chapter VI. Compared the money laundering crime punishment. In U.S predict offencecircle is unity, predict offence circle does not have influence on the sentencing system. Due tofactors affecting sentences is relatively single, thus the sentencing amount of money laundering system are harmonious and unified. China’s criminal law article191, article312and article349is belong to the criminal legislation of the money laundering system, but hasthe very big difference in the penalty amount, showing a certain confusion. The confusion ismainly embodied in the special law and general law punishment, felony light punishment,misdemeanor heavy penalties. In article191and article349—the general law and speciallaw has appeared special legal sentence lighter than general law legal sentence. Although thesocial harmfulness of seven class specific predict offence as stipulated in article191in thewhole system of punishment is not the highest order, but the punishment for these seven typesof predict offence is the highest position in the whole system of money launderingpunishment system. Using various predict offence ring to determine the different ofpunishment amount of money laundering need predict offence punishment levelcorresponding the amount of punishment of money laundering.In the adjustment of benchmark punishment, the United States sentencing guidelines,give full consideration to the predict offence types, the using of capital, professional and so on,these factors to determine whether the circumstances are serious of China’s criminal lawarticle191and article312has reference significance. |
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