反洗钱视域下洗钱入罪之功能解析

Function Analysis of Money Laundering Criminalization from the Perspective of Anti-money Laundering

在反洗钱浪潮的推动下,洗钱入罪被视为应对洗钱严重危害的当然之举。然而,基于论述立场之偏向,传统的洗钱入罪因由难以揭示洗钱入罪之重要价值与深远意义。事实上,相较于直接侵害对象(银行等金融机构)对洗钱危害的弱感知力,公权力机关对洗钱入罪之推行欲望则更为强烈;对比各国对洗钱严重危害的意识自觉,应对赃款跨境流转问题的现实所需对洗钱入罪全球化之推动则更为根本。着眼于赃款追缴,洗钱入罪为公权力突破银行保密义务壁垒提供了契机,为拓展追赃责任主体给予了正当化依据,亦为跨境追赃协作开展确立了必要法律依托。洗钱入罪的如是功能,乃是对当今反洗钱体系作用根本的有效呼应。而其更深层次的价值还在于,依托“资本追踪”以实现犯罪打击的协同治理策略正在世界范围内逐渐成形。

Driven by the wave of anti-money laundering, the criminalization of money laundering is regarded as a natural way to deal with the serious harm of money laundering.However, based on the bias of the discussion position, the traditional reasons for the criminalization of money laundering are difficult to reveal the important value and far-reaching significance of the criminalization of money laundering.In fact, compared with the weak perception of the direct target(banks and other financial institutions) to the harm of money laundering, the public authorities have a stronger desire to promote money laundering as a crime;Compared with countries’ awareness of the serious harm of money laundering, the reality of dealing with the cross-border circulation of illicit money is more fundamental to promote the globalization of money laundering.Focusing on the recovery of stolen money, the criminalization of money laundering provides an opportunity for the public power to break through the barrier of bank confidentiality obligations, provides a legitimate basis for expanding the subject of responsibility for recovery of stolen money, and establishes the necessary legal basis for cross-border cooperation in recovery of stolen money.The function of money laundering as a crime is an effective echo and important realization of the current anti money laundering system.And its deeper value lies in that the coordinated governance strategy relying on “capital tracking” to achieve crime strike is gradually taking shape around the world.