洗钱罪的保护法益

On Legal Interests Protected by the Crime of Money Laundering

在掩饰、隐瞒犯罪所得、犯罪所得收益罪与洗钱罪并存的立法例之下,如何解释洗钱罪的构成要件,以及如何处理洗钱罪与相关犯罪的关系,取决于如何确定洗钱罪的保护法益。主张洗钱罪的保护法益是金融管理秩序与司法机关的正常活动的观点,以及主张洗钱罪的保护法益仅为司法机关的正常活动或者仅为金融管理秩序的观点,都存在难以克服的缺陷。应当认为,洗钱罪的保护法益是金融管理秩序与上游犯罪的保护法益(双重法益而非选择性法益);作为洗钱罪保护法益的金融管理秩序包括两个层面:阻挡层的保护法益是金融系统不能使犯罪所得及其收益合法化的管理秩序,背后层的保护法益是国民对金融系统的信赖及国家金融安全;将上游犯罪的保护法益作为洗钱罪的次要保护法益,既表明设立洗钱罪同时为了预防特定上游犯罪,也能说明自洗钱构成犯罪。

Within the legislation framework that the crime of covering up or concealing proceeds of a crime or proceeds from a crime and the crime of money laundering are both regulated in the Criminal Law,how to interpret the constitutive elements of the crime of money laundering and how to deal with the relationship between the crime of money laundering and other related crimes depend on how to determine the legally protected interests of the crime of money laundering.For those opinions that hold the legally protected interests of the crime of money laundering are either both the financial management order and the normal activities of judicial organs,or only the normal activities of judicial organs,or only the financial management order,they all have defects that are hard to be corrected.The legally protected interests of the crime of money laundering should be considered as both the financial management order and the protected interests of its upstream crimes,which are two-layered legally protected interests rather than a selective legally protected interests.As the legally protected interests of the crime of money laundering,the financial management order includes two levels:the barrier level is to make sure that proceeds of a crime or proceeds from a crime cannot be legitimized within the financial management order;and the back-up level is to guarantee the public’s trust in the financial system and the security of the national finance.Taking the protected interests of its upstream crimes as the legally protected interests secondary to the financial management order not only indicates that the establishment of the crime of money laundering is to prevent specific upstream crimes,but also indicates that money laundering committed by upstream criminals themselves can also constitute the crime of money laundering.