Research On The Legislative Defects Of The Crime Of Money Laundering And Its Countermeasures

In the criminal legislation of China,there are two concepts of the crime of money laundering in the narrow sense and the broad sense.The former only refers to the article 191 that is crime of money laundering in our criminal law.The latter refers to the article 191,the article 312 that is disguising and concealing the illegal gain or income of the crime,and the article 349 that is harboring,concealing,or disguising drugs or booty drugs.After legislative revision beginning in 1990,there are still three defects in the legislation of money laundering crime.The first defect is that the upstream crime scope of money laundering crime is limited.The upstream crime of money laundering is limited to the seven types of crime,such as drug crime.Nevertheless,the money laundering of other serious crimes cannot be convicted and sentenced with the crime of money laundering,which violates the principle of blame of suitable punishment.The second aspect is that the constitution of money laundering is lagging behind.First of all,the subject of the crime is narrow,which not only violates the principle of blame of suitable punishment,but also causes the legal loopholes in the crime of money laundering.Secondly,the behavior of money laundering is limited,which is neither consistent with the provisions of relevant international conventions nor meeting the practical needs of combating money laundering crime.Finally,the subjective standard of money laundering is too high,which leads to the difficulty of criminating money laundering.The third aspect is the confusion of the legislation system of money laundering.First,the logic of the crime is confusing.Under the concept of the crime of money laundering in broad sense,the 312nd article is more qualified as"money laundering crime"than the 191st article.Secondly,the penalty system of the crime of money laundering is confused.The 312nd and 349th articles of criminal law in the application of the penalty is not balanced,and the 191th article,the 312nd article and the 349^th article in the penalty structure is not consistent.The next,the application of the crime is confusing.The three articles are different in the scope of the upstream crime,the object of the crime,the subject of the crime,the way of behavior and so on,which leads to the complex application of the three crimes in the judicial practice.Finally,the classification of the crime is confusing.The three provisions related to money laundering are stipulated in different chapters of the criminal law,which makes the classification of money laundering crime very confusing.In order to restrain money laundering crime more effectively,it is necessary to put forward suggestions for perfecting the legislation of money laundering crime from the limitation of legislation of money laundering crime.The first aspect is to expand the scope of the upstream crime of money laundering.From the perspective of generalized money laundering crime,"limited expansion theory"is more compatible with our current legislation system against money laundering crime.The second aspect is to improve the constitution of money laundering crime.First of all,we should expand the scope of the crime subject of money laundering,and use the compromise theory to define the offense as the subject of money laundering crime.Second,the way to extend the behavior of money laundering crime.The behavior of"acquisition","possession"and"use"should be included in the crime of money laundering.Finally,we should reduce the identification standard of the subjective aspect of money laundering crime.applying intent and gross negligence to different identity of the subject and canceling the stipulation of"purpose elements"of money laundering can realize it.The third aspect is to coordinate the legislative system of money laundering crime.First of all,we should analyze the logical relationship of accusation and explain it from the point of"stolen property crime"to rationalize logical relationship of accusation.Secondly,we should expand the scope of the upstream crime of the 191^st article,cancel its"purpose elements",and increase the penalty to 349th clauses at least,to ensure the consistency of penalty structure and the balance of penalty application to improve the system of punishment.Thirdly,making the 349^th crime consistent with the 312nd crime in addition to the object of the act can reduce the complexity of the application of the crime.Finally,the classification of crime is coordinated.Considering the legislative tradition and the cost of legislation,it is more appropriate to keep the classification of the 349^thh crime.However,the classification of the 191^st crime is no longer consistent with the logic of crime classification.From the perspective of legislative technology and academic level,we should classify it as"crime of obstruction of justice".