Study On The Problems Of The Crime Of Covering Up And Concealing Criminal Proceeds Or The Gains Of Criminal Proceeds

The Crime of Covering up and Concealing Criminal Proceeds or the Gains of Criminal Proceeds is a traditional crime.The legislation of this crime has changed frequently.After many amendments and supplements,the Criminal Law Amendment(vi)and the Criminal Law Amendment(vii)have made great amendments to it on the basis of 97 Criminal Law,which makes the provisions of this crime tend to be completed.Good,but legislation is always lagging behind social development,there are still shortcomings.Therefore,this article mainly combines laws and regulations,judicial interpretation and academic theory to discuss the difficult problems faced by this crime in judicial practice.The paper consists of three modules: introduction,body and conclusion.The body is divided into three parts.In the first part,the author discusses the "crime" and the object of crime of "the proceeds of crime and the proceeds it generates".As a derivative crime,The Crime of Covering up and Concealing Criminal Proceeds or the Gains of Criminal Proceeds is inextricably linked with the upstream crime.To accurately identify this crime,we must accurately identify the connotation of the "crime" of the upstream crime.As for the scope of "crime",the theoretical circles basically agree that "crime" in this crime refers to all predicate crimes,including both the proceeds of property crime and other crimes.The author also holds the view that "crime" refers not only to property crime,but also to all crimes other than those specified in the criminal law.Firstly,the criminal law does not include the types and ways of "crime" in this crime.Restriction,secondly,because the legal interests infringed by this crime are the normal activities of judicial organs,so whether it conceals or conceals the proceeds of property crime or other criminal proceeds,it will hinder the normal activities of judicial organs in combating crime.Whether the "crime" here should be interpreted extensively or not,affirms that the "crime" should be interpreted extensively.The "crime" here includes both criminal acts and general illegal acts.The negative theory holds that the "crime" should not be interpreted extensively,and the crime can only be convicted on the premise that the predicate crime constitutes a crime.The author holds a positive view that this crime only requires the perpetrator to know that he is concealing or concealing illegal gains or stolen goods,and does not require the perpetrator to know that the behavior of the upstream offender has reached the level of crime and criminal illegality.As the scope of the upstream crime of this crime is not limited,any proceeds of crime may become the object of this crime,but in judicial practice,there are still disputes about whether certain objects can be the object of this crime.This paper mainly discusses five categories: contraband,real estate,processed goods and sale,exchange,stolen goods,fruits and profits obtained by bona fides third party.The object can be the object of the crime.The second part discusses the identification of "knowing"."Knowing" is one of the key issues of this crime.Only if the suspect of this crime is correctly identified as "knowing" about the nature of stolen goods,can he accurately convict and punish and combat crime.However,because "knowing" belongs to the ideological category of human beings and is inherent and unknown,it often appears in the process of handling cases by judicial organs in order to escape.In legal sanctions,the offender and the upstream suspect collude with each other or tacitly,one party will deny their subjective "knowing" and the other will conceal the nature of stolen goods,so the identification of knowing is also a difficult point in judicial practice.According to the relevant laws and regulations,judicial interpretation and a judicial case,the author analyzed the content,degree and time of "knowing" and discussed the author's understanding of the three aspects of "knowing" and how to correctly identify and presume "knowing".There are two main viewpoints on the content of "knowing" in this crime: one requires the actor to know that the object of the crime is stolen goods,and that his behavior is harmful to society;the other only requires the actor to know that the object of his action is stolen goods of the proceeds of crime.Obviously,the former viewpoint requires more knowledge than the latter,and is more in line with the original legislation of this crime.There are also two understandings about the degree of knowing,one is that knowing clearly means knowing clearly,the other is that knowing clearly includes knowing clearly and knowing ought to know(possibly knowing).At present,the latter has been generally recognized.The time of knowing clearly mainly involves the influence of knowing the object of stolen goods on conviction beforehand,in the event and afterwards.Then this paper focuses on the identification of "knowing",as well as the situation of presumption of legal provisions and from which aspects to presume the fact of knowing.The third part mainly discusses whether the establishment of the crime depends on the establishment of the predicate crime,and the relationship between the crime and Crime of Money Laundering,and the Crime of Harbouring and Sheltering.Firstly,the relationship between the crime and the upstream crime is analyzed,that is,whether the determination of the crime is based on the establishment of the upstream crime,whether the upstream crime is not tried,whether the upstream criminal suspect is at large and the upstream criminal subject is not qualified will affect the determination of the crime.After demonstration,it is concluded that the determination of the crime only requires the existence of the upstream crime in fact,not the upstream crime.The establishment of travelling crime,that is,the upstream offender is at large,the subject is not qualified and the upstream crime has not been judged,does not affect the determination of this crime.After that,the relationship between these crimes is analyzed from the differences between the Crime of Money Laundering,and the Crime of Harbouring and Sheltering.These three crimes are closely related,but there are still obvious differences: the scope of the upstream crimes of the Crime of Money Laundering is only seven categories: Drug Crimes,Financial Fraud Crimes and Smuggling Crimes,and so on.The source and nature of the proceeds of crime and its proceeds must be covered up and concealed,and the ways of behavior are mostly related to money laundering.The most important feature of the Crime of Harbouring and Sheltering is that the object of crime is human,while the subject of the crime does not include units,and there are also some differences between the way of behavior and the crime.These obvious differences are enough to distinguish simple cases,but for complex cases,it is necessary to conduct in-depth study.It is of great significance to study The Crime of Covering up and Concealing Criminal Proceeds or the Gains of Criminal Proceeds thoroughly and meticulously.On the basis of absorbing and drawing lessons from other people's research results,dialectical analysis of laws,regulations and judicial interpretation,this paper discusses the difficult problems in relevant judicial practice and puts forward its own opinions around the above three aspects of the crime.