Perspective | Legal Analysis of Money Laundering and the Crimes of Concealing or Disguising Criminal Proceeds and Proceeds of Crime
Published:
2025-05-15
In the practice of criminal defense, money laundering and the crime of concealing or disguising criminal proceeds (hereinafter referred to as the concealment crime) have become two common crimes, but the two crimes are often confused due to the similarity of their behavioral manifestations. Therefore, clarifying the legal boundaries and accurately distinguishing the charges is crucial for accurately combating crime and maintaining judicial justice. This article will analyze the two crimes from the following aspects.
In criminal defense practice, money laundering and the crime of concealing or disguising criminal proceeds (hereinafter referred to as the concealment crime) have become two common crimes, but the two crimes are often confused due to the similarity of their behavioral manifestations. Therefore, clarifying the legal boundaries and accurately distinguishing the charges is crucial for accurately combating crime and upholding judicial justice. This article will analyze the two crimes from the following aspects.
I. Legislative Background and Legal Interests Protected by the Two Crimes
From the perspective of legislative purpose, the crime of money laundering is intended to combat cross-border crime and maintain financial security, fulfilling international anti-money laundering treaty obligations; the concealment crime is the result of legislative evolution, evolving from the crime of concealing, transferring, purchasing, or selling stolen goods.
From the perspective of protected legal interests, the crime of money laundering protects dual objects, namely the financial management order and the judicial order; the concealment crime protects a single object, namely the judicial prosecution right.
II. Legal Definition and Core Behavior
Article 191 of the Criminal Law defines money laundering as using financial means or other methods to "legalize" the proceeds and benefits of seven specific upstream crimes (drugs, organized crime, terrorism, smuggling, bribery and corruption, disruption of financial management order, and financial fraud) in order to conceal or disguise their source and nature. It focuses more on using complex methods, such as bank transfers, investment in legitimate projects, and cross-border fund transfers, to sever the connection between the proceeds and the criminal act, allowing illegal funds to be disguised as legitimate funds and integrated into the normal economic system.
Article 312 of the Criminal Law defines the concealment crime as knowingly concealing, transferring, purchasing, selling on behalf of others, or engaging in other acts of concealing or disguising criminal proceeds and benefits. Its core lies in the physical concealment or circulation of stolen goods, such as hiding stolen property at home or purchasing items of unknown origin at a low price for personal use, directly dealing with the stolen goods themselves.
III. Scope of Upstream Crimes
The upstream crimes of money laundering are strictly limited to seven serious crimes: drugs, organized crime, terrorism, smuggling, bribery and corruption, disruption of financial management order, and financial fraud. This is because these crimes often involve huge illegal profits, posing a serious threat to social order and financial stability, and money laundering further exacerbates their harm. For example, money laundering activities in drug crimes may provide continuous financial support for drug trafficking, exacerbating drug abuse.
The upstream crimes of the concealment crime are open-ended, covering all criminal proceeds and benefits. Regardless of whether the upstream crime is ordinary theft, robbery, or other crimes, as long as it is known to be criminal proceeds and concealment or disguise is carried out, it may constitute this crime.
IV. Comparative Analysis of Constitutive Elements
Subjective Intent: In money laundering, the perpetrator must have the subjective intent to "conceal or disguise the source and nature of the proceeds," aiming to make illegal funds formally legitimate and evade supervision and investigation; in the concealment crime, only knowing that it is stolen goods and intentionally concealing or circulating them is required, without requiring a change in the illegal nature of the goods, and it is more about simply handling the stolen goods.
Subject of the Act: The subject of money laundering includes both the perpetrator of the upstream crime (principal offender) and third parties other than the principal offender. After the "Eleventh Amendment to the Criminal Law," self-laundering has been included in the crime of money laundering; the principal offender who launders the proceeds of their upstream crime also constitutes money laundering; the subject of the concealment crime is limited to third parties other than the principal offender of the upstream crime. The act of the principal offender concealing or disguising their own criminal proceeds is generally considered a post-factum unpunishable act and is no longer separately defined as a concealment crime.
Mode of Action: Money laundering is centered on the "conversion of the nature of funds," such as cross-border transfers, financial account operations, fictitious investment transactions, and bill acceptance and discounting, often using financial channels such as banks, securities, and virtual currency trading platforms, or through fictitious transactions, fictitious investments, and other complex economic activities to achieve money laundering. For example, using shell companies for fictitious trade to mix illegal funds into normal transaction flows; the concealment crime is characterized by "transfer of physical state": such as concealment, transfer, purchase, and sale on behalf of others; the mode of action is relatively simple and direct, mainly manifested in directly transferring the location of stolen goods, helping criminals hide stolen goods, purchasing stolen goods at low prices, etc. For example, helping thieves transfer stolen goods to a remote warehouse for hiding.
Subjective Knowledge: Money laundering requires proof that the perpetrator knows that the funds originate from one of the seven specific crimes (refer to Supreme People's Court Guiding Case No. 136); the concealment crime only requires general knowledge that it is criminal proceeds, and the presumption rule of "should know" can be used.
Criminal Object: The criminal object of money laundering is "laundered" funds or property; the concealment crime is the original stolen goods.
V. Legal Consequences
Sentencing Range:
Money laundering: up to 5 years + fine; serious cases: 5-10 years + fine.
Concealment crime: up to 3 years + fine; serious cases: 3-7 years + fine.
Corporate Crime:
Money laundering: A unit can constitute the crime of money laundering. The unit will be fined, and the person directly responsible and other directly responsible personnel will be punished according to the provisions for natural person crimes.
Concealment crime: A unit cannot be the subject of this crime; only natural persons can constitute this crime.
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