Study On Judicial Application Of Self-laundering Crime

The use of the word "assistance" in article 191 of the original Criminal Law means that the crime of money-laundering can only be constituted by other offenders and not by themselves,which hinders the possibility of constituting a crime of self-laundering,and the fact that self-laundering is covered by the theory of unpunishable ex post facto acts leads to the inability to effectively evaluate and punish self-laundering,seriously impeding judicial fairness and efficiency,and undermining the order of financial management.In order to strengthen the prevention and punishment of financial crimes,the Criminal Law Amendment(11)amends Article 191,deletes the three words "assistance" in the crime,and includes the predicate perpetrators in the scope of money laundering crimes,breaking the dilemma that this crime can only be constituted by other offenders in the past,which is a major progress in anti-money laundering at the level of criminal legislation.The formal inclusion of selfmoney laundering into the scope of the crime of money laundering,changing the theoretical restrictions of traditional stolen property crimes,will increase the number of identification of money laundering crimes in judicial application,although this amendment is conducive to solving the increasingly rampant problem of money laundering,but there are also shortcomings: although it corrects the theoretical deficiencies of money laundering crimes,in judicial practice,the expansion of the scope of money laundering crimes will also bring new and difficult problems in judicial practice.In view of this,this article discusses controversial and difficult issues in the judicial practice of self-money laundering,in order to help the legal application of money laundering crimes in the new situation.The full text is divided into four chapters,arranged as follows:Chapter 1,first,reviews the application of money laundering crimes in China’s judicial practice over the years,and secondly,summarizes and sorts out the judicial application issues arising from the criminalization of money laundering,including the issue of crime determination after deleting the "knowing" element,the problem of self-money laundering crime competition,and the issue of the balance of sentencing for self-money laundering crimes.Chapter II examines the subjective aspects of the crime of money-laundering after the deletion of the "knowing" element.On the one hand,the deletion of the "knowing" element will inevitably lead to a reduction in the punishment standard for money-laundering crimes and an expansion of the scope of punishment;on the other hand,the deletion of "knowingly" does not change the requirement that the subjective aspect of the crime is still intentional,and the person who committed the money laundering still needs to determine subjective intention,and at the same time,in order to prevent the unlimited expansion of the scope of punishment,it is necessary to give play to the criminal role of the "knowing" element and exclude indirect intention.Chapter III discusses the judicial application of the crime of self-money laundering,summarizing the issue of competing application between the crime of self-money laundering and articles 312 and 349 of the Criminal Law,as well as the competing relationship between the crime of self-money laundering and the predicate crime.After determining the relationship between the number of crimes of self-money laundering and other money laundering acts,the model of joint punishment of several crimes is adopted for further research and judgment of self-money laundering acts that have both predicate crimes.Chapter IV examines the issue of balanced sentencing in self-money laundering crimes,and as the downstream rank and helping behavior of predicate crimes,self-money laundering crimes should be lighter than predicate crimes in sentencing,explore ways to solve the problem of balance,point out the way out for accurate conviction and sentencing of self-money laundering acts,and strive to achieve proportionality of criminal responsibility and punishment.