Viewpoints... The combing and common problems of the crime of concealing and concealing the proceeds of crime and the proceeds of crime.

The crime of concealing or concealing the proceeds of crime and the proceeds of crime is a crime in the crime of obstructing the order of social management in Chapter 6 of the Criminal Law.by harboring, transferring, acquiring, selling on behalf of, or by other means to cover up or conceal,The offender shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and shall also, or shall only, be fined; if the circumstances are serious, the offender shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and shall also be fined. If a unit commits the crime of arrears, it shall be fined, and its directly responsible supervisors and other directly responsible persons shall be punished in accordance with the provisions of the preceding paragraph.

The crime of concealing and concealing the proceeds of crime and the proceeds of crime, commonly known as "concealment crime", is a downstream crime of theft, job embezzlement, fraud, robbery, robbery and other crimes. It is also a high incidence under the current situation of comprehensively cracking down on cyber crime and telecommunications fraud. Crime.

The "harboring" in this crime is a broad sense, which refers to the use of various methods to hide the proceeds of crime and its proceeds, not to be discovered by others or preserved for criminals, so that the judicial organs cannot obtain it, illegal possession, use, etc. also belong to "harboring".

"Transfer",Refers to the transfer of the proceeds of crime and its proceeds to other places, so that the investigation organs can not find."Acquisitions",Refers to the purchase of the proceeds of crime and its proceeds for the purpose of selling."Sales on behalf",Refers to the act of selling the proceeds of crime and its proceeds on behalf of criminals."Other ways to cover up, conceal",It refers to the concealment and concealment of the proceeds of crime and its proceeds by various methods other than harboring, transferring, acquiring and selling on behalf of others, such as introducing the sale, receiving, holding, using, processing, providing capital accounts, assisting in the conversion of property into cash, financial instruments and securities, and assisting in the transfer and remittance of funds abroad.

The "proceeds of crime" in this provision are the stolen money and stolen goods obtained directly through the upstream crime, while the "proceeds of crime" are the fruits, rents and other property obtained by the upstream perpetrator after processing the proceeds of crime. Therefore, the crime is a selective crime. According to the difference of the perpetrator's concealment and concealment of the criminal object, the crime is also different. If the perpetrator conceals or conceals the criminal proceeds, it constitutes the crime of concealing or concealing the criminal proceeds; if the perpetrator conceals, The object of concealment is the proceeds of crime, which constitutes the crime of concealing or concealing the proceeds of crime. It should be noted that there is only a choice between the objects of the crime, and there is no choice between concealment and concealment.

According to the composition of the crime of concealment,Subjectively, the perpetrator must know that the property he conceals or conceals is the proceeds of the crime of another person and the proceeds generated by it in order to constitute this crime.In practice, it is judged whether the perpetrator subjectively knows,Generally, it is a combination of their cognitive ability, exposure to the scene of other people's criminal proceeds and their proceeds, the type, amount, conversion, transfer method, and my confession.Take the common concealment crime of using bank cards to transfer the proceeds of upstream crimes in recent years as an example. For example, the WeChat chat records between the perpetrator and others include "running points", "freezing" and "money laundering" or code words, and even communicate and teach why the investigation account is frozen. Another example is frequent entry and exit of large funds, frequent inter-provincial transfers, abnormal profits, etc. Generally speaking, if the actor and his behavior are obviously abnormal and cannot make a reasonable explanation, they will generally be regarded as having a knowingly guilty intention in the subjective view. In addition,In practice, "knowing" includes "knowing" and "should know".In most cases in practice, the perpetrator often holds a negative attitude towards subjective knowledge. Therefore, it is necessary to prove that the perpetrator knows or cannot not know through the evidence in the case to presume that he "should know or not know".

There are two sentencing files for the crime of concealment, and the relevant judicial interpretation of the threshold for the crime is relatively vague. According to Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases Concerning the Concealment and Concealment of Criminal Proceeds and Proceeds of Crime (2021 Amendment), those who knowingly conceal, transfer, purchase, sell on their behalf or conceal or conceal by other means in any of the following circumstances shall be in accordance with the provisions of the first paragraph of Article 312 of the Criminal Law, conviction and punishment for the crime of concealing or concealing the proceeds of crime and the proceeds of crime: (1) having been subject to administrative punishment for the act of concealing or concealing the proceeds of crime and the proceeds generated within one year, and having committed the act of concealing or concealing the proceeds of crime and the proceeds generated; the (II) concealed or concealed proceeds of crime are power equipment, transportation facilities, radio and television facilities, public telecommunications facilities, military facilities, or disaster relief, emergency rescue, flood prevention, special care, poverty alleviation, immigration, and relief funds and materials; (III) concealment or concealment makes the upstream crime impossible Timely investigation and punishment, and cause irreparable losses to public and private property; (IV) other acts of concealing or concealing criminal proceeds and the proceeds generated, obstructing the judicial organs to pursue the predicate crime. To put it simply, the people's court will comprehensively consider the nature of the upstream crime, the circumstances, consequences and social harm of the criminal proceeds and other factors in the trial of criminal cases of concealing or concealing the proceeds of crime and the proceeds of crime, and the degree of social harm.

For the second sentencing file of this crime, the judicial interpretation is more clear. The concealment or concealment of the proceeds of crime and the proceeds generated by them shall be deemed as "serious circumstances" as stipulated in the first paragraph of Article 312 of the Criminal Law: (1) the concealment or concealment of the proceeds of crime and the total value of the proceeds generated reaches more than 100,000 yuan; (II) the concealment or concealment of the proceeds of crime and the proceeds generated by them more than 10 times, or more than three times and the total value reaches more than 50,000 yuan; the proceeds of crime (III) concealed or concealed are power equipment, transportation facilities, radio and television facilities, public telecommunications facilities, military facilities, or disaster relief, emergency rescue, flood control, special care, poverty alleviation, immigration, and relief funds, with a total value of more than 50,000 yuan; (IV) concealment or concealment makes it impossible to investigate and deal with upstream crimes in a timely manner, and causes heavy losses of public and private property that cannot be recovered or other serious consequences; (V) commit other acts of concealing or concealing the proceeds of crime and the proceeds generated therefrom, seriously hindering the judicial organs from investigating the predicate crimes.

Of course, if other judicial interpretations have clear provisions on conviction and sentencing for the crime of concealing or concealing the proceeds of other crimes and their proceeds, they shall be dealt with in accordance with such provisions.

The act of concealing or concealing the proceeds of the crime and the proceeds generated by the first sentencing file, pleading guilty, repenting and returning the stolen goods or compensation, and having one of the following circumstances, may be deemed as minor in the circumstances of the crime and exempted from criminal punishment: (1) those with statutory lenient punishment; those who (II) conceal or conceal the proceeds of the crime and the proceeds generated for close relatives, and are first or occasional offenders; (III) have other minor circumstances.

The amount of the proceeds of the crime and the proceeds generated by the concealment or concealment shall be subject to the act of concealment or concealment.If the price of the property acquired or sold on behalf of the property is higher than its actual value, the price of the acquisition or sale on behalf of the property shall be calculated. If the purchase price or sale price is lower than the actual value of the stolen goods, the amount of cover-up or concealment is generally calculated according to the actual value of the stolen goods. AndFor the actual value of the stolen goods is not clear, in practice is generally by the price certification center to assess the value of the stolen goods.If the act of concealing or concealing the proceeds of crime and the proceeds generated by it has been repeatedly carried out, and without administrative punishment, the amount of the proceeds of crime and the proceeds of crime shall be prosecuted in accordance with the law.It should be calculated cumulatively.

The second sentencing file for the crime of concealment has the stipulation of "more than ten times" and "more than three times", so is it considered to use personal bank card to transfer the upstream criminal proceeds more than ten times to cover up or conceal more than 10 times? The number of concealment and concealment should be determined according to the specific circumstances of the case. Generally speaking,Identified as a cover-up, concealment, must be an independent act, including independent subjective intent, independent cover-up, concealment, and independent results of the act.If it is based on the same intention, at the same time, at the same place, at the same time or continuously for multiple predicate crimes to conceal or conceal the proceeds of crime and its proceeds, it should generally be regarded as an act of concealment or concealment. For example, if the perpetrator knows that the multiple funds received in the bank card are the proceeds of fraud by others, and continuously transfers and diverts the funds in the card in the same place to avoid tracing, it should be regarded as an act of concealing or concealing the proceeds of crime.

In addition, if the perpetrator is the same upstream perpetrator and the proceeds of the same crime and its proceeds are repeatedly harbored, transferred, purchased, sold on behalf of, or covered up or concealed by other means,Based on the identity of the object of the crime, it should generally be recognized as an act of concealing or concealing the proceeds of the crime and its proceeds.For example, if the stolen goods are collected from multiple people present at the same place at the same time; or if the stolen goods are collected multiple times in the same place based on the same crime, if the stolen goods are collected from multiple people passing through the place in the same place, it should generally be considered "one time" Instead of multiple crimes.

If the perpetrator has a common intention to contact with criminals such as theft, robbery, fraud, and robbery in advance, and then conceals or conceals the proceeds of the crime and the proceeds generated, it is an accomplice in the crime of theft, robbery, fraud, and robbery, and no longer constitutes the crime of concealment alone.

If the perpetrator commits theft, robbery, fraud, snatching and other acts of theft, robbery, fraud and snatching of the proceeds of another person's crime, which constitutes a crime, he may be convicted and punished for theft, robbery, fraud and snatching respectively.

If the perpetrator constitutes the crime of concealment and other crimes at the same time, he is an imaginary concurrence offender and shall be convicted and punished in accordance with the heavier punishment.

In practice, to identify the crime of concealment, the premise is to establish the fact of upstream crime. The predicate crime has not been adjudicated in accordance with the law, but if it is verified, it shall not affect the determination of the crime of concealment. The facts of the upstream crime have been verified to be true, but if the perpetrator has not reached the age of criminal responsibility and other reasons, the criminal responsibility shall not be investigated according to law, which shall not affect the determination of the crime of concealment.

The crime of concealment and the crime of helping information (the crime of helping information network criminal activities) are both the help crimes of the predicate crimes with a high incidence in recent years. They have similarities in the objective behavior performance, and both require the perpetrator to subjectively have "knowingly" criminal intention in the composition of the crime. Therefore, in practice, whether an act constitutes the crime of concealment or the crime of helping information is controversial.The key point of the distinction is that the actor is subjectively "knowingly". The "knowing" of the crime of helping faith"The content is "others use the information network to commit crimes", and the awareness of the relationship between the money involved and the upstream crime is relatively low, which can be understoodGeneral knowledge; concealment of "knowing"The content is that the money in question is "the proceeds of the crime of another person" or "the proceeds of the crime of another person",The level of cognition is high, including clear knowledge or high degree of knowledge.In distinguishing between the crime of aiding faith and the crime of conceal concealment, we should adhere to the principle of subjective and objective consistency. If the perpetrator knows that others use the information network to commit crimes, but still helps by providing bank cards and other means, it constitutes the crime of helping letters. However, it is necessary to analyze and demonstrate that only because the bank card is provided and then helps to transfer money or brush face verification, that is, it will be upgraded to the crime of concealment. The act of transferring money does not in itself indicate that the perpetrator knew that the money in question was "the proceeds of crime committed by another person". It is necessary to analyze whether the objective behavior characterization of the case confirms that the perpetrator has a higher degree of "knowledge" to ensure that the punishment is the crime. Generally speaking, if you use multiple bank accounts to help others transfer, cash out and withdraw cash frequently, use virtual currency to transfer, cash out and withdraw cash, transfer, cash out and withdraw cash through illegal payment platforms and sub-platforms, and charge an additional abnormal "handling fee" for transfer, cash out and withdrawal can be deemed as "knowing" with concealment ".

(1) If the evidence in the case is not sufficient to prove that the perpetrator knows that the proceeds involved in the case are the proceeds of crime, it cannot be identified as a crime of concealment. Reference case: Lai Hongwei's case of concealing and concealing the proceeds of crime and the proceeds of crime, case number:(2016) Yue 06 Sentence Final No. 719; Xia Jiansheng and Yan Li's case of stealing, concealing and concealing the proceeds of crime and the proceeds of crime, judgment number:(2017) Yun 28 Xing Zai No. 1.

(2) The act of the perpetrator occurred before the other crime and is an upstream act. At this time, the crime has not yet occurred, there is no proceeds or proceeds of crime, it is impossible to cover up or conceal the proceeds of crime, then it does not meet the constituent elements of the crime of covering up or concealing the proceeds of crime. Reference case: case of He Ruilong and Lu Yangjun concealing and concealing the proceeds of crime and the proceeds of crime, case number:(2019) Yu 16 sentence number 697.

(3) If the perpetrator uses the proceeds of the crime to pay off the debt, and the creditor does not know about it, it does not constitute the crime of concealing the crime. Reference cases: Hui Xingwen's contract fraud, Liu Cunfu's cover-up and concealment of criminal proceeds, case number:(2009) Ning Xing Zhong Zi No. 67.

(4) To determine the crime of concealing the proceeds of crime and the proceeds of crime, the premise should be established by the facts of the upstream crime. If the upstream crime is not verified, the money involved in the case cannot be determined as the proceeds of crime, so the crime of concealing the proceeds of crime cannot be established. Reference case: the crime of concealing and concealing the proceeds of crime and the proceeds of crime in Yihai Reef, the judgment number:(2018) Hei 0103 No. 345 at the beginning of the sentence.

(5) If it is impossible to determine whether the proceeds involved in the case are legal income or illegal income, it cannot be considered as the crime of concealing the proceeds of the crime. Reference case: Wang Moujia's case of concealing and concealing the proceeds of crime and the proceeds of crime, judgment number:(2016) No. 4 at the beginning of the sentence of Gan 1126.

(6) The judicial interpretation does not include the act of "introducing the mortgage" of the stolen goods into the objective act of concealing or concealing the crime, and therefore does not constitute the crime. Reference case: Xiao Moumou and others covered up and concealed the proceeds of the crime, judgment number:(2015) Hubei Wuhan Zhong Xing Zhong Zi No. 00294.

(7) The perpetrator did not know that the other person had committed the crime until after the other person had committed the crime, nor did he participate in the crime, and he accepted the sharing of the stolen money knowing that it was the stolen money, which did not meet the objective constitutive requirements of concealing the crime. Reference case: the case of electric beads and others concealing the proceeds of the crime, judgment number:(2015) gan xing zai zong zi no 2.

As a downstream crime, the non-prosecution rate of concealment crime is relatively high in practice. Generally speaking, in the case of a criminal suspect with one or more circumstances of mitigating or lighter punishment, such as minor criminal circumstances, voluntary surrender, accomplice, confession, active return of stolen goods, obtaining understanding, truthful confession, etc., actively communicate with the undertaking prosecutor in the examination and prosecution process, and have a higher probability of striving for discretionary non-prosecution.