Determination Of Subjective Constitutive Elements Of Money Laundering Crime After Deleting "Knowing"

Financial security is an important component of the overall national security concept.Money laundering crimes seriously endanger the national financial management order and financial security.Using criminal law to effectively combat them is an indispensable and important way to regulate such acts.Since the 1997 Criminal Law stipulated the crime of money laundering,due to the difficulty in proving the subjective constituent elements of the crime of money laundering and the lack of regulation of money laundering for oneself,the actual application rate of this crime is relatively low,which has seriously affected the criminal law’s efforts to combat money laundering crimes.According to the actual development needs of China’s financial market and the requirements of international anti money laundering organizations,the Amendment(XI)to Criminal Law has deleted the"knowing" element of the crime of money laundering,removing obstacles to the criminalization of money laundering for oneself.The mainstream view in academic circles holds that the main purpose of this amendment is to include money laundering for oneself in the scope of regulation of the crime of money laundering.However,in fact,the deletion of the "knowing" element is not only a tool for money laundering for oneself,but also involves changes in the subjective constituent elements of this crime,which has important independent significance.Adhering to the basic position of criminal jurisprudence,the interpretation of criminal law provisions should adhere to the boundaries of textual interpretation.Following the past thinking of determining subjective constituent elements and reducing the difficulty of proving "knowing" elements by "possibly knowing" and"ought to know" cannot fundamentally solve the problem,but rather has the suspicion of exceeding the provisions of the criminal law,which is difficult to meet the practical needs of the application of this crime.In order to reexamine the understanding and determination of the subjective constituent elements of the crime of money laundering after deleting"knowing",the text of this article is divided into three parts for research.The first part:Sorting out the modification process of the subjective constituent elements of the crime of money laundering and explaining its theoretical background related to criminal law.Since the crime of money laundering was explicitly defined as a crime in 1997,it has undergone many amendments,but only the Amendment(XI)to Criminal Law involves changes in the subjective components of this crime.Undoubtedly,the biggest purpose of this revision is to clear the textual obstacles to the criminalization of money laundering for oneself.In addition to disrupting the order of judicial organs in handling cases like traditional stolen goods crimes,money laundering for oneself also involves infringement of the legal interests of national financial management order and national financial security,which has gone beyond the scope of legal interests infringement of traditional stolen goods crimes,and is punishable and punishable,so it is not an afterthought act that cannot be punished;At the same time,after committing upstream crimes,the perpetrator still actively continues to carry out the act of laundering "black money",further disrupting the national financial order,reflecting the perpetrator’s further intention of violating the legal order.It is impossible to determine that his behavior is due to "helplessness",so the act of money laundering for oneself also meets the expected possibility.However,the criminalization of self money laundering is by no means the only effect produced by the modification of the crime of money laundering.What is more important is the change in the subjective constituent elements of this crime after the deletion of"knowing"."Consciousness" occupies an important position in China’s criminal law theory,and its types are relatively complex.The "knowing" of the general provisions and the"knowing" of the specific provisions are related to the subjective form of the crime;The written "knowing" and the unwritten "knowing" are the textual expressions of the general rule "knowing" and the sub rule "knowing" in legislation,and also involve the relationship between the "knowing" element and the subjective form of guilt of this crime.In addition,after deleting the written "knowing",it is also necessary to clarify whether it becomes unwritten "knowing" or completely disappears;The "knowing" of illegality and the"knowing" of responsibility involve the systematic status of intention,which is related to the impact of different cognitive elements of this crime on the establishment of the crime;The proper "knowing" and the possible "knowing" are related to the issue of judicial proof of the elements of "knowing" in the past.After the modification of this crime,it still has reference significance for the proof standards of relevant cognitive elements.The second part:Based on the new criminal law provisions,reinterpret the subjective constituent elements of the crime of money laundering.The change in the understanding content of this crime does not mean that this crime has abandoned the requirements for the subjective understanding of the perpetrator,so the modified money laundering crime remains an intentional crime."To cover up or conceal the source and nature of..."is not a requirement of purpose,but merely a description of the nature of the money laundering act itself.Therefore,this crime can be constituted by indirect intent.There is no difference in subjective understanding between money laundering for oneself and money laundering for other.The difference lies only in the difficulty of judicial proof,and there is no need to apply different proof standards.The subjective understanding of the two should be unified.In the past,there were irreconcilable logical contradictions between the identification path established through "possibly knowing" and "should know" and the new provisions,which could no longer meet practical needs."Possibly knowing" has a semantic contradiction,which actually confuses the issue of judicial proof with the issue of subjective understanding at the legislative level;"Should know clearly" may obscure the subjective form of the crime and create the suspicion of punishing negligent offenders.After deleting "knowing",the establishment of the crime of money laundering no longer requires the perpetrator to have a type understanding of the seven specific upstream crimes,but only requires the perpetrator to recognize that the property handled belongs to the proceeds and proceeds of crime.This only changes the content of the subjective understanding of this crime,without abandoning the subjective understanding itself,and has nothing to do with the elements of will.Therefore,canceling the understanding of the seven specific types of upstream crimes will not lead to"objective imputation.".The viewpoint of this article reduces the complexity and difficulty of proving the subjective constituent elements of the crime of money laundering,and conforms to the revision trend of this crime.The third part:The establishment of a new identification path for the subjective understanding of money laundering crime after deleting "knowing".After deleting"knowing",the cognitive element of the perpetrator is the focus of determining the subjective constituent elements of this crime.The cognitive elements of this crime include three aspects:first,the perpetrator recognizes that the property he handles belongs to the proceeds and gains of a criminal crime;Secondly,the perpetrator recognizes that the action he has taken has the effect of actually concealing and concealing its source and nature;Thirdly,have an understanding of the normative significance of the nature of behavior.According to the above three aspects of understanding,the subjective understanding of the perpetrator of this crime can be divided into six situations.In order to avoid the improper expansion of the application of this crime after deleting "knowing",it is advisable to establish the proof standard of "truly knowing".Only when all three of them are met can the subjective constitutive requirements of this crime be met.At the same time,learn from other similar "knowing" crimes and use judicial presumption to reduce the difficulty of proving this crime in the actual application process.It is advisable to establish a judicial presumption model that combines subjective and objective factors based on the subjective knowledge background and objective behavior of the perpetrator,in order to resolve the problem of excessive difficulty in proving the subjective constitutive requirements of this crime in the past.