自洗钱入罪后洗钱罪共同犯罪的认定——以犯罪参与体系为切入

Identification of Joint Crime of Money Laundering after Criminalization of Self-Money Laundering

自洗钱入罪后,自洗钱者和他洗钱者都是洗钱罪的行为主体。无论是区别认定自洗钱者和他洗钱者,还是一体认定,适用单一正犯体系都面临困境;适用二元分离体系虽然在区别认定上也有不足,但在一体认定上却为洗钱罪共同犯罪的认定提供了解释方向。二元分离体系以正犯与共犯的区分为核心,在二者区分已从形式化走向实质化的趋势下,防止实质化导致二者界限的模糊尤为关键。鉴于我国共同犯罪规定的实质化倾向,构成要件的实行情况与构成要件的实现作用有必要分离。其中,前者决定了正犯与共犯的形式区分,后者决定了主犯与从犯的实质划分。以此为认定立场,“协助”“明知”的删除,影响了洗钱罪正犯与共犯范围的同时,依不法、罪责的轻重去判断洗钱参与行为指向金融管理秩序受侵害的因果流程时也影响了主犯与从犯的划分。

Since self-money laundering was criminalized,both self-money launderers and other-money launderers are the subject of money laundering crime.Whether it is the differential identification of self-money launderers and other-money launderers,or the integrated identification,the application of the single perpetrator system is facing difficulties.Although the application of the separational system of perpetrator and accomplice is also insufficient in the differential identification,it provides an explanatory direction for the identification of the joint crime in the integrated identification.The separational system takes the distinction between perpetrator and accomplice as the core.Under the trend that the distinction between them has changed from formalization to substantiation,it is particularly key to prevent substantiation from blurring the boundary between them.In view of the substantive tendency of the provisions of joint crime in China,it is necessary to separate the implementation and realization of constitutive requirements.Among them,the former determines the formal distinction between perpetrator and accomplice,and the latter determines the substantive division between principal and accessorial criminal.Taking this as the identification position,the deletion of assistance and knowing not only affects the scope of perpetrator and accomplice,but also affects the division of principal and accessorial criminal when judging that the money laundering participation behavior points to the causal process of infringement of financial management order according to the severity of illegality and liability.