自洗钱入罪后的争议问题

Controversial Issues after the Incrimination of the Money Laundering Committed by Upstream Criminals Themselves

自洗钱入罪后产生了两个重要争论问题:一是如何确定我国刑法第312条赃物犯罪的成立范围,二是如何认定和处理自洗钱的罪数。《刑法修正案(十一)》对洗钱罪的修改,并不意味着间接修改了赃物犯罪的构成要件(尤其是行为主体);由于赃物犯罪属于妨害司法罪,行为人为逃避刑罚处罚所实施的妨害司法的行为不具有期待可能性,故上游犯罪的本犯对洗钱罪7类上游犯罪之外的其他犯罪所得及其收益实施“自掩饰、自隐瞒”行为的,既不成立洗钱罪,也不成立赃物犯罪。自洗钱构成犯罪,并不意味着对自洗钱犯罪与上游犯罪必须实行数罪并罚;在我国刑法规定的法定刑较重的立法例之下,对自洗钱与其上游犯罪的数罪处理应当符合罪刑相适应原则与罪数原理;自洗钱与上游犯罪属于想象竞合、牵连犯时,虽然应认定为数罪,但不应实行数罪并罚。

Two important controversial issues have arisen since the incrimination of money laundering committed by upstream criminals themselves:one is how to determine the scope of the crime concerning booty under Article 312 of the Criminal Law;the other is how to judge self-money laundering committed by upstream criminals themselves.The amendments concerning money laundering made under Amendments XI to the Criminal Law of PRC do not mean that the constitutive elements of the crime concerning booty(especially the subject of the act)have been indirectly modified.Since the crime concerning booty belongs to the act of obstruction of the justice,it will not tally with the theory of anticipated probability,if it is committed out of an intent to escape punishment.Therefore,the principals’act of"covering up or concealing by themselves"the proceeds from a crime other than the seven kinds of upstream crimes including money laundering will neither constitute the crime of money laundering,nor the crime of booty.Even though the act of laundering money committed by upstream criminals themselves constitutes a crime,it does not mean that such an act shall be punished concurrently with its upstream crimes.In consideration of the heavy penalties imposed by the Criminal Law of PRC and the principle of proportionality between crime and punishment,such an act only constitutes the imaginative joiner of offenses or the implicated offenses with its upstream crimes,and should be considered as a separate crime,but should not be punished concurrently.