论我国洗钱罪的双重性

On the Duality of Money Laundering Crime in China

行为属性决定犯罪性质,犯罪性质决定法益指向。洗钱行为具有双重属性,一是从属于上游犯罪,二是因其资金活动的本质而具备天然、独立的金融属性。我国洗钱罪最初从传统赃物罪中脱离而生,受国际社会反洗钱立法的影响与推动,通过三次修正刑法,从上游犯罪逐渐转向本体犯罪,刑事立法之于洗钱罪的态度经历了“从属性--从属性与独立性相统一”的变化。相对应地,洗钱罪所保护的法益由司法管理秩序和金融管理秩序两部分构成。在当前金融领域持续变革的大背景下,洗钱的行为手段与模式复杂多变,洗钱罪的独立性愈发凸显,其法益保护目的也逐渐向金融一侧倾斜,未来这一嬗变将持续反作用于刑事立法与刑事司法,并为我国洗钱罪划定新的规制边界。

The nature of an act determines that of the corresponding crime and the latter determines the direction of its legal interests.The act of money laundering has dual properties since its birth, it not only subordinates to predicate crimes, but has natural and independent financial nature because of its essence of being a kind of money activity.Originally born out of the traditional booty crime, influenced and promoted by the international anti-money-laundering legislation, after three amendments to the Criminal Law, the crime of money laundering in China has gradually shifted from predicate crimes to the ontological crime, and the attitude of criminal legislation towards money-laundering crime has undergone a change from “subordination to the unity of subordination and independency”.Correspondingly, the legal interest of money-laundering crime is composed of two parts: the judicial management order and the financial management order.Moreover, under the background of the current continuous financial changes, the means and modes of money laundering are complex and changeable, the independency of money laundering crime is becoming increasingly prominent, and the purpose of its legal interest protection has gradually been tilted to the financial side.In the future, this change will continue to affect criminal legislation and justice, and delineate a new regulatory boundary for the money-laundering crime in China.