我国洗钱罪名体系的适用困局与法益认定

The Money Laundering Crime System in China-Application Dilemma and Legal Interests Identification

基于打击洗钱活动的国际化要求,我国刑法洗钱罪名体系的构建形成以洗钱罪为核心,以掩饰、隐瞒犯罪所得、犯罪所得收益罪和窝藏、转移、隐瞒毒品、毒赃罪为补充的格局。从规制洗钱犯罪的功能、罪名适用规则等不同维度分析,洗钱罪名体系内部存在不同面貌的规制特征。在司法适用中,洗钱罪与赃物犯罪存在行为方式认定混乱、法益识别功能丧失、以上游犯罪类型区分的逻辑错误等问题,导致洗钱罪名体系内部理论逻辑难以自洽。国际公约与外国刑法对洗钱罪的规制内涵与我国广义洗钱范畴一致,但法益保护目标与我国洗钱罪规制金融监管秩序与司法机关正常活动的复合法益认定则存在差异。金融管控的秩序法益观在维护国家经济安全层面具有不可或缺的功能,刑法规制洗钱活动维护货币流通安全属于典型情形。洗钱罪金融秩序法益认定应当落脚为特定上游犯罪所得资金转化为合法资金的金融监管失控结果。同时拓宽对国家经济运行产生侵害的上游犯罪类型,以更符合我国刑法洗钱罪立法体例与对金融监管秩序的保护要求。

Based on the international requirements for strengthening the fight against money laundering,China has constructed a money laundering crime system in criminal law,with the crime of money laundering in Article 191 as the core and the crime of disguising and concealing proceeds of crime and income derived from proceeds of crime in Article 312 and the crime of hiding,transferring or concealing proceeds from drug crime in Article 349 as the supplements.An analysis from different dimensions,such as the scope of regulatory objects,the nature of infringement upon legal interests,the function of the fight against the money laundering crime,and the applicable rules of charges,reveals different characteristics of the regulation in the system of money laundering crime.In judicial application,there are some problems with the relationship between the crime of money laundering and booty crime,such as chaotic identification of behavior mode,loss of recognition function of legal interests,and logic error in distinguishing the scope of upstream crimes,which lead to difficulties in self-consistency of theoretical logic within the money laundering crime system and disputes in judicial application.A review of the provisions of foreign criminal laws and international conventions on the legal interests of money laundering crime shows that the crime of money laundering in foreign countries covers China's regulation of booty crime in terms of regulatory connotation,but is significantly different from the financial regulation order of money laundering crime and the recognition of composite legal interests in the normal activities of judicial organs in China.The legal interest view of financial control order plays an indispensable role in maintaining national economic security.It is a powerful supplement and response to the legal interest view against the background of prevalence of the idea of free economy.In view of the disconnection between financial means and the identification of money laundering methods,the identification of the financial order legal interests of the crime of money laundering should be based on the result of financial regulation failure,namely the transformation of the funds obtained from specific upstream crimes into lawful funds,so as to be more in line with the legislative style of the crime of money laundering in the Chinese criminal law and better meet the requirements for the protection of financial regulation order in China.Because the scope of upstream crimes has become the applicable judicial standard for distinguishing the crime of money laundering and booty crime and the scale of the proceeds of upstream crimes and the probability and closeness of the commission of money laundering activities have a direct impact on the security of currency circulation and financial regulation,it is necessary for China to appropriately expand the scope of upstream crimes of money laundering to cover the illegal income generated by telecom fraud,Internet gambling,pyramid selling scam and tax crime,so as to coordinate with the international trend of strengthening the fight against money laundering crime.