On The Component Of The Crime Of Concealing Or Disguising Criminal Gains And Relationship With The Upstream Crime

The crime of concealing or disguising criminal gains and its profitsis a charge which is be reestablished in "Criminal Law Amendment (six)",based on the modification of China’s Criminal Law section312. Althoughthis crime "knew perfectly well that is the criminal gains and its profitsand to be harboring, transfer, acquisition, generation for sale or hide, hideto other methods, three years in prison......" is relatively clear, but thereare differences in how to convict and sentence in violation of theprovisions of the act. Such as "content and degree of knowing" what isrequired,"crime" in the " criminal gains " is the meaning of the form ofcrime or the crime after the court ruling, how to hide behavior means inthe conditions of knowing, others a huge amount of crime, property crimedetermines whether a particularly harsh sentencing etc. Theseunderstanding differences embody a concentrated reflection of how todefine the component of this crime, how to handle the relation with theupstream crime. Thus this article is named as "on the component of thecrime of concealing or disguising criminal gains and relationship with theupstream crime". This article also believes that, due to the result of theupstream crime as behavior object, content of this crime, so we should define the component of the crime before making the relationshipbetween this crime and the upstream crime. In other words, defining theconstituent elements of this crime belongs to the treatment of therelationship between this crime and the upstream crime is the premisecondition, only the legal interest, the objective aspect, subjective aspectof the crime clearly defined can more smoothly discuss its relationshipwith the upstream crime.In the aspect of the component of the crime of concealing ordisguising criminal gains, this article mainly focuses on five aspects:legal interest infringement, object of concealing or disguising criminalgains, hide means,"that is the proceeds of crime" of "knowing", thesubject of crime. Among them, the legal interest of this crime should beplural: first is the judicial booty order; second is the chase and right of thecitizen or units of their damaged property; again is the normal tradingorder of the property in the market circulation; the last is the social orderwhich is formed by the judicial booty order, citizens property order,market order. In this understanding, the following factors related tosentencing evaluation, how to identify the correlation between this crimeand the upstream crime are based on this legal interest as the basis of theanalysis.The crime of concealing or disguising criminal gains has theinseparable relationship with the upstream crime. The practice hasreached a basic consensus, which the Criminal Law section312stipulatedthat the crime of concealing or disguising criminal gains is afrequently-occurring crime, is also a kind of derivative crime. But it isalso because of this derivation, there are three understanding of howcrime is associated with the upstream crime in practice. First of all,whether there is a limit to the upstream crime. Secondly, the upstreamcrime is a verdict crime or the meaning of the form of crime. Again, howto identify the correlation between serious circumstances and the upstream crime. This article analysis in the interpretation of CriminalLaw means that the upstream crime should not be limited to propertycrime, as long as the property and property interests of crime can becomethe upstream crime. Correlation of the upstream crime and the crimeestablished, the author in the present practice of consensus:"the upstreamcrime should be the meaning of the form of crime, basis of substantivesignificance rather than judgment on the crime", put forward that theupstream crime should be the meaning of the form of crime, but alsoshould be checked on the factual basis. In serious circumstances andrelational aspects of the upstream crime, the excessive dependence on thislink and ignoring the independent serious evaluation standard, or artificialpartition the link and ignoring the upstream crime are not advisable forthe serious influence. The key factor of the link between this crime andthe upstream crime is "knowing". Hide means not only for the Legalinterest infringement of the crime, and distinguish it from other crime hasimportant significance, but also for serious circumstances has animportant influence. For those long or repeated concealing or disguisingcriminal gains, means, method of complex to the investigation, trialactivities causing serious disorder should be identified as seriouscircumstances. In addition, this article also thinks that huge amount is theone serious embodiment.