What crimes might the Cryptocurrency run into money laundering constitute? (two)

In the previous sharing sessions, Sister Sa’s team introduced to readers the use of virtual currency to run money laundering constitutes a crime of helping information cybercriminals. I believe that everyone has already had the risk of this new money laundering method and its possible violation of criminal law. A certain understanding. This issue will continue to use this new method of money laundering, in the form of typical case analysis, combined with the amendments to the crime of money laundering in the latest “Amendment to the Criminal Law of the People’s Republic of China (11)” promulgated in December 20, for everyone to analyze how the court is Determine that the defendant’s behavior constitutes a crime of money laundering? And the difference between the crime of money laundering and the crime of concealing and concealing the proceeds of crime .

Case: First-instance Criminal Judgment for the Crime of Money Laundering by Chen and Zheng (2020) Zhejiang 0382 Xing Chu No. 897

1. Summary of the case:

Since 2016, Huang 1 (who has been sentenced for the crime of fundraising fraud) has been put on the blacklist of restricted consumption because of multiple effective civil judgments that have not been executed. From 2017 to 2018, Huang 1 used the fake virtual currency “Xing Mo Chain” to engage in illegal fund-raising criminal activities. During this period, he successively transferred a total of more than 6 million yuan (the following currencies are in RMB) after several turnovers. Go to the ICBC account under the name of the defendant Chen. In August 2018, Huang 1 transferred 3 million yuan of it to the defendant Zheng’s personal bank account, and used the 3 million yuan to purchase life insurance for Zheng from China Life Insurance Company. The insured was Zheng and the insured was Huang 1; The remaining more than 3 million yuan is deposited into Chen’s bank wealth management account. On September 10, 2018, Huang 1 was detained by the Yueqing Public Security Bureau on suspicion of illegally absorbing public deposits. Of the above-mentioned funds totaling more than 6 million yuan, 900,000 yuan is the illegal proceeds of Huang’s 1 fund-raising fraud crime.

On September 13, 2018, the defendant Chen Moumou knew that Huang 1 was suspected of being arrested by the public security organs, and he knew that Huang 1 was an untrustworthy person, he still went to ICBC to report the loss and replace his card, and then the above-mentioned more than 300 The 10,000 yuan funds are transferred in multiple cash withdrawals or transfers to other people’s accounts. On September 21, 2018, the defendant Zheng knew that Huang 1 was arrested by the public security organs for suspected crimes, and he knew that Huang 1 was a dishonest person, he still redeemed the above insurance fund of 3 million yuan, deducting the handling fee. The redemption amount was RMB 2,764,500, and on September 24, 2018, the above-mentioned funds were transferred to other people’s accounts in multiple transactions for the purchase of virtual currency.

2. The court held that:

The defendants Chen and Zheng knew that they were the proceeds of financial fraud crimes and the proceeds they generated. In order to conceal or conceal their source and nature, they assisted the transfer of funds through transfers or other settlement methods, and their actions constituted a crime of money laundering. The facts of the crime charged by the public prosecution agency are clear and the evidence is sufficient, and the crime is convicted.

3. Case analysis:

Focus 1: After the Criminal Law is amended, does the defendant still need to “knowingly” that the money involved is the seven predicate crimes of money laundering?

Legal basis: Article 191 of the Criminal Law of the People’s Republic of China: To cover up and conceal drug crimes, organized crimes of the underworld nature, terrorist crimes, smuggling crimes, corruption and bribery crimes, crimes that disrupt financial management order, and financial fraud crimes If one of the following acts is committed, the proceeds of the above-mentioned crimes and the proceeds generated by them shall be confiscated, and shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention, concurrently or solely with a fine; if the circumstances are serious , Sentenced to fixed-term imprisonment of not less than five years but not more than ten years, and fined.

It should be noted here that in the “Amendment to the Criminal Law of the People’s Republic of China (11)” released in December 2020, the “knowingly” element of the crime of money laundering has been deleted , which means (1) Self-laundering behavior constitutes Money laundering (2) The conviction standard for money laundering has been lowered. Although the “Criminal Law” no longer requires the determination of the defendant to constitute a money laundering crime to be “knowingly” the subjective element, it does not mean that the crime of money laundering can lack “subjective intention.”

The concept of intentional crime in the General Principles of China’s Criminal Law stipulates the element of “knowingly”. Article 14 of the “Criminal Law” stipulates that “knowing that one’s own actions will result in harm to society, and hoping or allowing such results to occur, and thus constitute a crime, is an intentional crime.” It can be determined from this that intentional crime requires both knowledge Factors, that is, knowing that one’s own behavior will cause harm to society, but also require will factors, that is, hope or allow the occurrence of crime results, the combination of cognitive factors and will factors is an intentional crime. Therefore, even if the “Criminal Law” removes the “knowingly” element from the crime of money laundering, the court will still consider whether the defendant has the “subjective intention” of money laundering in the process of determining whether the defendant constitutes the crime of money laundering .

In this case, there is no direct evidence to prove the fact that the four defendants “knowingly” about the money laundering part of the indictment charge, but the following series of evidence can prove that the two defendants had the “subjective intention” of money laundering and handled themselves The money is “generalized” cognition as proceeds of crime :

(1) From 2017 to 2018, Huang 1 used the copycat virtual currency “Xinghan Chain” to engage in illegal fund-raising criminal activities. During this period, a total of more than 6 million yuan (the following currencies are all in RMB) were transferred for many times during this period. Later, it was transferred to the ICBC account under the name of the defendant Chen XX.

(2) On September 13, 2018, the defendant Chen knew that Huang 1 was suspected of being arrested by the public security organs, and he knew that Huang 1 was a dishonest person, he still went to ICBC to report the loss and replace his card, and then he continued to change the card. The above-mentioned funds of more than 3 million yuan were transferred in several ways, such as cash withdrawals or transfers to other people’s accounts.

(3) On September 21, 2018, the defendant Zheng knew that Huang 1 was arrested by the public security organs for suspected crime, and he knew that Huang 1 was a dishonest person, he still redeemed the above insurance fund of 3 million yuan, deducting procedures After the fee, the redemption money was 2.764 million yuan, and on September 24, 2018, the above-mentioned funds were transferred to other people’s accounts in multiples for the purchase of virtual currency.

As a result, the court can determine that the two defendants “generally” knew that their debts were the proceeds of crime to a large extent, and the subsequent series of transfers and purchases of virtual currency could also prove that the two defendants had money laundering. Subjective and deliberate”.

Controversy focus 2: What kind of behavior constitutes the crime of money laundering? What is the difference between the crime of money laundering and the crime of concealing and concealing the proceeds of crime?

After “knowingly” is deleted in the “Amendment to the Criminal Law of the People’s Republic of China (11)”, whether it is self-laundering or other money laundering does not require “knowingly” requirements, the crime of money laundering can be determined only subjectively and intentionally, and knowing is no longer required It is the fact of seven predicate crimes and their illegal proceeds.

According to the principle of statutory crimes and punishments: where the law expressly stipulates that it is a criminal act, it shall be convicted and punished in accordance with the law; if the law does not provide for a criminal act, it shall not be convicted and punished . The court shall strictly follow the law in determining whether the defendant constitutes a crime of money laundering. Therefore , the key to the crime of money laundering lies in whether the money involved in the case operated by the defendant belongs to drug crimes, organized crimes of the underworld nature, terrorist activity crimes, smuggling crimes, corruption and bribery crimes, crimes that disrupt financial management order, and financial fraud crimes. Once there is evidence that the money involved in the case belongs to or part of the above-mentioned crimes, the defendant is at risk of being identified as a crime of money laundering.

4. The difference between the crime of money laundering and the crime of concealing the proceeds of crime and the crime of proceeds of crime

In the actual cases of using virtual currency to run money laundering, many are found by the court to constitute the crime of concealing the proceeds of crime, the crime of concealing the proceeds of crime (hereinafter referred to as the crime of concealing the proceeds of crime), or both the crime of money laundering and the crime of concealing the proceeds of crime. Cases of combined punishment. Why do seemingly the same behavior constitute two different crimes? In fact, as long as the difference between the two crimes is clarified, this problem can be easily solved.

Let’s first look at the legal basis for the crime of concealing the proceeds of crime: Article 312 of the Criminal Law of the People’s Republic of China: Knowing that it is the proceeds of crime and the proceeds generated by it, concealing, transferring, purchasing, selling on behalf of others, or concealing it by other means Those who conceal the concealment shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or surveillance, together with a fine or a fine; where the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and a fine.

The legal basis for the crime of money laundering has been discussed before, so I won’t repeat it here. In general, the crime of money laundering and the crime of concealing the proceeds of crime are in fact a general and special relationship. The protection of legal benefits and illegal connotations of the crime of money laundering are included in the crime of concealing and concealing the proceeds of crime. Therefore, the crime of concealing the proceeds of crime is general. Crime, and money laundering crime is a special crime.

From the perspective of the four elements, the first two crimes have different objects: money laundering crimes infringe on dual objects, the main object of which is the financial management order, so they are classified in the chapter of “crimes of disrupting the socialist market economy order”, and cover up The crime of concealing the proceeds of crime violates a single object, that is, the order of social management. Secondly, the objective aspects of behavior are different. Money laundering can only be constituted by the proceeds of crimes of seven specific crimes, including drug crimes, organized crimes of the underworld nature, and smuggling crimes, while the objective aspect of the crime of concealing the proceeds of crimes can be the proceeds of all crimes. swag.

In judicial practice, courts often use the nature of the defendant’s money involved to determine the specific crime. Please refer to Sister Sa’s public account “Looking at Money Laundering from the “Cracking Money” Case in Hong Kong”) In this case, the defendant constituted both the crime of money laundering and the crime of concealing the proceeds of the crime. Specific seven crimes), and the other part comes from telecommunications fraud.

Five, write at the end

As mentioned above, after the “knowingly” element is deleted, self-money laundering is convicted and the conviction standard for money laundering is lowered. In judicial practice, it is necessary to prevent the improper expansion of the scope of the crime of money laundering, and we should be cautious about the subjective determination and whether the money involved by the defendant belongs to the seven predicate crimes of the crime of money laundering. Some scholars believe that although “knowingly” has been deleted, it should not be abandoned, and that “knowingly” should be used as the condition for his money laundering behavior, and continue to use “knowingly” in determining that the money laundering crime is mainly his money laundering crime. The scope of punishment is limited The role of. But theory is only theory, and everything has yet to be confirmed by practice.

Posted by:CoinYuppie,Reprinted with attribution to:https://coinyuppie.com/what-crimes-might-the-cryptocurrency-run-into-money-laundering-constitute-two/
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