Judicial Determination Of The Crime Of Covering Or Concealing The Proceeds Of Crime Or Its Proceeds

The crime of covering or concealing criminal gains and criminal benefits is generally called booty crimes in criminal law theory.The Criminal Law Amendment(6)amends Article 312 of the Criminal Law of China and re-establishes the crime.In addition to this crime,the criminal law has many legislative provisions on stolen crimes,such as Article 171 of the Criminal Law,the sale,purchase and transportation of forged currency crimes,Article 191 Money Laundering,and Articles 348 and 349 on covering and concealing drugs.For special booty crimes,the penalty shall be determined in the conviction and sentencing according to the corresponding crimes stipulated by law,and no longer recognized as common booty crimes.This article mainly studies the crime of general booty crimes,that is,The crime of covering or concealing criminal gains and criminal benefits as stipulated in Article312 of the Criminal Law.As a kind of booty crimes,Because of its social harmfulness,the crime of covering or concealing criminal gains and criminal benefits not only hinders the activities of the judicial organs to trace cases,but also promotes upstream crimes.It has always been the target of criminal law.However,there are many differences in theory and practice on how to conviction and sentence for criminal acts that violate this clause.For example,what’s the exact meaning of crime incomein the crime object of " criminal gains and criminal benefits" of this crime? Is "crime" a crime in the formal sense or a crime sentenced by the court? What are the requirements and content of "knowing" in "knowing that it is criminal gains andcriminal benefits" ? whether "knowing" include "should be known" ? How to determine the "serious circumstances" of this crime ? Whether the serious circumastance of upstream crimes such as a particularly large amount,bad nature,etc.would affect the sentencing of this crime.And so on.This article mainly includes three chapters.The first part mainly analyzes the criminal object of this crime and its upstream crime.First,in the criminal object of this crime,the meaning and identification of "crime","criminal gains and criminal benefits" are mainly analyzed,and the relationship between this crime and its upstream crime is also discussed.Among them,this article considers that “crime” refers only to crimes at the objective level;Contraband can also be the criminal object of this crime;Rights protected by this crime law are diverse.Second,while discussing the object of the crime,since this crime is a derivative crime,there is a great controversy in the practice of the relationship between this crime and the upstream crime.The author believes that the upstream crime of this crime can be a crime in the formal sense,that is,it is not required to be judged by the court in the procedural;the upstream crime of this crime is not limited to property crime.The second part of this paper analyzes the "knowing" of this crime."Knowing" is widely used in China’s criminal law.It is a legal term indicating the constituent elements.In judicial interpretation,"knowing" is interpreted as "knowing or should know",but it is uncertain whether "should know" contains negligent crimes.This chapter puts forward my own views on "knowing" in this crime.This article considers that "knowing" includes "knowing and should know";The "knowing" stipulated in the Criminal Law’s sub-rules is not only an attentional requirement,but also an indispensable element of the criminal constitution;If the offender of this crime denies "knowing",the judiciary can use the presumptive method to identify "knowing".The third part analyzes the identification of the sentencing circumstances of this crime.In the judicial interpretation,there are still omissions in the sentencing circumstances of this crime,such as how to stipulate the standard of conviction for this crime,how to apply the serious circumstances,and how to deal with specialdiscretionary plots in practice.This paper argues that it is more reasonable to introduce the amount as the basic conviction and sentencing standard.It can provide the basic basis for the discretion of the judiciary staff,which will make the conviction and sentencing of this crime more objective.And solving the conviction and sentencing problem of the vast majority of acceptance behaviors in practice will be possible;In addition to the amount of standards stipulated by judicial interpretation,in order to aggravate the circumstances of this crime,the behavior object,method,means,frequency,amount,rights protected by the law,identity of the perpetrator should also be comprehensively considered.