Analysis on the Independent Criminalization of Self Money Laundering

Zhejiang Liqun Law Firm Zhang Luohan 15167676669

【Abstract】: Due to the constraints of traditional criminal law theory, the self money laundering behavior of upstream crimes has been absorbed by upstream crimes. The Criminal Law Amendment (11) includes "self money laundering" behavior in the category of money laundering crimes, which does not break through the theory of afterwards unpunishment or expected possibility. The behavior of money laundering is different from traditional stolen goods crimes. Self money laundering behavior has the necessity of independent evaluation, the possibility of punishment, and the legitimacy of its inclusion in the crime. After being convicted, including the perpetrator of the upstream crime as the subject of the crime actually clarifies the criminal subject of money laundering at the legislative level. As is well known, the biggest beneficiary of money laundering crimes is often the upstream criminal. This modification not only fundamentally combats money laundering crimes, but also increases the punishment for upstream crimes.

【Keywords】 Self money laundering, money laundering crimes, financial crimes, protection of legal interests

introduction

The first time China implemented specialized criminal regulations on money laundering was in the 1990 Decision on Drug Control, which only criminalized money laundering related to drug crimes. When the Criminal Law was revised in 1997, the crime of money laundering was formally incorporated into the Criminal Code. At the same time, the upstream crime of this crime was expanded from drug crime to criminal organization crime and smuggling crime. In 2001, the Third Amendment to the Criminal Law included the crime of terrorist activities as a predicate crime of this crime. In 2006, the Criminal Law Amendment (VI) included corruption and bribery crimes, crimes of disrupting financial management order, and financial fraud crimes as upstream crimes. The 2020 Criminal Law Amendment (XI) did not continue to expand the scope of the upstream crimes of this crime, but instead included the act of self money laundering in the scope of regulation of money laundering crimes.

Influenced and constrained by the traditional concept of stolen goods crimes, the theory of afterwards unpunishment, and the theory of expected possibility, self money laundering has long been treated as a follow-up to upstream crimes in judicial practice and not as an independent criminal act for restrictive punishment. Therefore, the inclusion of self money laundering as a crime of money laundering in this amendment has sparked widespread discussion, and many legal professionals may believe that this amendment is more to meet the needs of international anti money laundering governance and the legal needs of domestic anti money laundering work. However, incorporating self money laundering into the crime of money laundering is based on the theoretical foundation of China's criminal law and has its legislative legitimacy. However, under this provision, more complete supporting judicial interpretations, documents, etc. are needed to guide and coordinate judicial practice and judgment.

1、 The conceptual transformation from stolen goods crimes to financial crimes

（1） The punishment model for money laundering needs to be transformed and upgraded.

From the perspective of the governance model for money laundering crimes, it is necessary to criminalize self money laundering behavior. Although the Criminal Law designed the crime of money laundering as a crime of disrupting the order of the socialist market economy in Chapter 3 of the Criminal Law, Section 4 of the Crime of Disrupting the Order of Financial Management, whether it is the criminal regulation only targeting drug related money laundering from the beginning, or the content modified and added in several amendments to the Criminal Law, especially from the practical perspective of "heavy upstream crimes and light money laundering crimes", It can be seen that China's regulation of money laundering has always been within the theoretical and framework of traditional stolen goods crimes. However, in the current situation of rapid economic and social development, using the traditional governance model of stolen goods crimes to punish money laundering is no longer in line with the current development status at home and abroad. Especially in recent years, with the rapid development of the internet economy, new methods such as electronic money laundering and online money laundering have become increasingly common, which has made it more difficult to investigate upstream crimes. The harm caused to the market and financial order is no longer comparable to earlier years. Therefore, whether it is for the rectification of the evaluation opinions of the International Financial Task Force (FATF) or to better combat upstream and money laundering crimes, the regulation of money laundering crimes should not only be optimized by expanding the scope of upstream crimes of money laundering crimes.

（2） The essence of money laundering is to enable the legal circulation of "black money" and is not limited to the subject of the act.

From the essence of money laundering crimes, self money laundering behavior is only different from other money laundering behaviors in terms of the subject of the perpetrator. Compared with traditional stolen goods crimes such as concealing and concealing criminal gains, money laundering crimes legalize the illegal gains of upstream crime centers through a series of complex bleaching methods. It is not a simple and passive act of harboring, transferring, or possessing, nor simply staying at the "physical level", but actively undergoing a qualitative "chemical transformation" of illegal gains. Money launderers (including upstream criminals) clean up "black money", changing the nature of the money, allowing it to circulate legally in the financial market and continue to provide continuous financial support for crime. It is no longer possible to comprehensively evaluate money laundering crimes solely through traditional stolen goods crimes.

The seven types of upstream crimes of money laundering all have a certain degree of secrecy and are often subject to severe penalties. Therefore, in order to ensure that upstream crimes can be carried out more safely and for the safety of the perpetrator themselves, if the perpetrator has the conditions to self clean, they will definitely give priority to self washing rather than fake hands. Both self money laundering and other money laundering methods have surpassed the traditional methods of committing stolen goods crimes, and it is easier to use various financial and market means to evade investigation. More importantly, it is necessary to conduct legitimate secondary and multiple fund transfers. At the same time, with the development and comprehensive application of internet technology, financial security and the stability of the financial market are related to all aspects of society. The focus of the concept of money laundering crime must be shifted from stolen goods crime to financial crime in order to adapt to the situation. This modification to include self money laundering behavior in the scope of this crime is actually a more comprehensive understanding of the harm of this crime to the financial market and financial management order, Pay more attention to the punishment of social dangers in this regard.

2、 Legitimacy of criminalization of self money laundering

（1） The protection of legal interests in money laundering is independent and includes the protection of legal interests in upstream crimes

From the perspective of protecting legal interests in the crime of money laundering, the legal interests infringed by self money laundering are also independent of upstream crimes and not dependent on upstream crimes.

1. Financial management order. The seven types of crimes in the upstream of money laundering crime have their own protective legal interests (for example, the protective legal interests of drug crimes refer to the country's management order of drugs and public health; the protective legal interests of smuggling crimes refer to the country's import and export management order). Based on the behavior and target of money laundering crime, money laundering crime also has its own protective legal interests, and the main protective legal interests of money laundering crime are the normal financial management order of the country. (Even if the upstream crime is a financial crime, then the money laundering crime at this time also infringes on the financial management order, but these are different specific legal interests and do not have the same identity.) The most intuitive is that the criminal law stipulates the money laundering crime in the "Crime of Disrupting Financial Management Order" section of Chapter 3 (as is well known, the criminal law section uses legal interests to systematically arrange the crime), At the same time, the essence of money laundering behavior and the harmful consequences it causes can fully demonstrate that the main harm of money laundering behavior is the disruption of financial management order, and the protection of legal interests in this crime is the financial management order. In addition, the criminal manifestations of money laundering listed in the legal provisions, such as "providing a financial account; converting property into cash, financial instruments, or securities; transferring funds through transfer or other payment and settlement methods; cross-border transfer of funds" (the basic clause in the fifth item is inevitably interpreted as financial means), are also legalized through financial institutions and the use of the financial system, thereby endangering financial order.

2. The protection of legal interests in upstream crimes. The protection legal benefits of money laundering crimes also include the protection legal benefits of upstream crimes. For upstream crimes, money laundering actually provides a source of funding for their continued and sustained implementation (upstream crimes obtain "black money", obtain legal appearance through cleaning and circulation, "white money" flows into the market to increase capital, and legal appearance black capital continues to invest in upstream crimes, forming a black "sustainable circular development"), which is a preparatory behavior for upstream crimes, Most money laundering activities occur during the unfinished stages of upstream crimes (ongoing, organized upstream crimes), or repeatedly occur in multiple upstream crimes of the same subject.

The criminal organization has the economic characteristics expressly stipulated in the Criminal Law, "it obtains economic benefits through illegal and criminal activities or other means in an organized way, and has certain economic strength to support the activities of the organization"; Terrorist activities also have a clearly defined economic characteristic of providing information, funds, materials, labor services, technology, venues, and other support, assistance, and convenience for terrorist organizations, terrorist personnel, terrorist activities, or terrorist training. The common characteristic of these two types of upstream crimes is to invest the proceeds of previous criminal activities into future recidivism, In order to obtain greater profits or create more serious criminal activities, and cause continuous escalation of harm to normal economic activities. So the proceeds of previous criminal activities need to be laundered to obtain larger funds that are sufficient to support future crimes, and the proceeds of previous criminal activities need to be "bleached". This also fully demonstrates that money laundering behavior belongs to preparatory behavior for these two types of upstream crimes, which means that money laundering behavior is not only a preparatory behavior for upstream crimes to deal with "black money", but also a preparatory behavior for upstream crimes to continue their criminal activities. Regulating money laundering behavior also to some extent prevents the recurrence of upstream crimes.

In addition to the two types of crimes mentioned above, the same applies to the other five upstream crimes. Using the proceeds of one drug crime to continue the next drug crime; Using the proceeds of one smuggling crime to invest in the next smuggling crime; Bleach the corrupt funds this time to achieve the next corrupt behavior, and so on. The regulation of money laundering in these upstream crimes is also aimed at preventing their recurrence and continuous implementation.

In short, the crime of money laundering has a preparatory nature for its seven types of upstream crimes, and money laundering behavior is a preparatory behavior for the seven types of upstream crimes. In order to prevent these seven types of crimes (recidivism), it is designated as an upstream crime of money laundering crime. It can be fully understood that the protection of legal interests in the upstream crimes of money laundering naturally becomes the protection of legal interests in money laundering crimes.

The dual legal benefits of the crime of comprehensive money laundering (not selective legal benefits) not only violate the order of financial management, but also promote upstream crimes, breeding more and more serious upstream crimes committed by upstream criminals. Therefore, from the perspective of protecting legal interests, the subject of money laundering crime is not limited, and naturally includes the perpetrator of upstream crimes and other individuals.

（2） The harm caused by self money laundering behavior has independent evaluation and can be punished

1. The harmfulness of this criminal's self money laundering behavior.

From the perspective of protecting legal interests in the crime of money laundering, it can be fully demonstrated that the social danger caused by money laundering is also independent of upstream crimes. From the perspective of the preparatory nature of money laundering for upstream crimes, its social harm can even be said to exceed that of upstream crimes. The harm of self money laundering behavior of upstream crimes cannot be absorbed by upstream crimes, and will only be more serious than other money laundering behaviors.

The self money laundering behavior of the upstream criminal can be said to be the root cause of the money laundering chain. The money laundering activities in which the perpetrator personally participates provide a more hidden path and convenient means for the laundering of funds obtained from the crime, making the flow of funds more complex and promoting the breeding and re crime of upstream crimes to a greater extent. The serious harm of self money laundering that cannot be absorbed and evaluated by upstream crimes is completely necessary for separate criminal law regulation. Especially with the increasing development of today's economy, society, financial markets, and internet technology, simply pursuing strict punishment for upstream crimes is no longer sufficient to meet the overall criminal activities of these seven types of upstream crimes.

2. It does not belong to 'unpunishable behavior after the fact'.

The "unpunishable act afterwards" refers to the act of the perpetrator, after the completion of the criminal act, to ensure and utilize the illegal benefits of the previous act, and to maintain or utilize the illegal state caused by the main criminal act within the scope of the original legal interests, without infringing on the new legal interests. Simply put, the legal interests infringed upon by the subsequent act are the same as those of the previous act, which gives rise to "unpunishment". However, as mentioned earlier, the protection of legal interests in money laundering is independent of upstream crimes. Money laundering not only violates financial management order, but also promotes the breeding and recurrence of upstream crimes. In other words, money laundering (especially self money laundering) increases the number of upstream criminal acts, At this point, the legal interests of another upstream crime have been violated. The subject of its behavior is not limited to others, but naturally includes the original perpetrator of the upstream crime. (There is also no problem of the lack of expected possibility in this case, as neither the behavior of money laundering nor the occurrence of harmful consequences are inevitable choices and consequences for the development of upstream crimes. Self money laundering behavior is not a negative "physical behavior", but a positive "chemical reaction", not a continuation of the natural state under the expected possibility.)

epilogue

From the beginning of the crime, after several modifications to the scope of upstream crimes, it is not difficult to see that the legal regulation of money laundering is mainly based on the domestic and international economic and social development situation, as well as the response to the international counter-terrorism situation (the 9/11 incident) in 2001 and the domestic anti-corruption situation in 2006 (the domestic anti-corruption work entered the anti-corruption stage in 2005) The rapid development of the economy has further deepened and exposed the harmful effects of money laundering methods on society. The traditional governance model is clearly insufficient to meet the current international and domestic demand for combating crime. Therefore, expanding the subject of money laundering and incorporating self money laundering behavior into the crime of money laundering not only has the legitimacy of criminalization, but also has the practical need to effectively govern money laundering crimes and upstream crimes. This amendment also provides a legal basis for punishing self money laundering behavior. Upstream crime: The perpetrator of an upstream crime, while directing or participating in money laundering activities, not only infringes on the legal interests of the upstream crime, but also infringes on the legal interests of the money laundering crime. The social danger it causes not only lies in the consequences of upstream crimes, but also in the consequences of money laundering crimes. It is completely necessary, reasonable, and legal to impose a combined punishment of the upstream crime and the multiple crimes of money laundering on the self money laundering perpetrator (the upstream criminal).