自洗钱入罪后洗钱罪法律适用的比较研究

Comparative Study on the Law Application of Money Laundering Crime since Money Laundering Was Committed

《刑法修正案(十一)》规定自洗钱入罪以来我国洗钱犯罪案件的数量已经出现较为明显的增长趋势、反洗钱工作取得巨大成果。但洗钱罪总体打击效果不明显,未改变洗钱罪入罪门槛高、取证难、判决难的困境。洗钱罪判决难的原因主要包括:一是洗钱罪名体系混乱导致法律适用罪名失衡;二是自洗钱入罪后,洗钱罪与上游犯罪传统共犯认定标准“是否存在通谋”陷入困境;三是当洗钱罪与帮信罪、非法经营罪出现竞合的时候,存在帮信罪的扩大适用、非法经营罪的错位规制。对此,应当从以下三个方面着手解决洗钱罪的司法难题。一是构建立体化的洗钱罪名体系;二是重构自洗钱与上游犯罪共犯的认定标准;三是对帮信罪、非法经营罪进行立法限缩与解释调整。

Since “Amendment to Criminal Law (11)” stipulates that the money laundering entered the crime, the number of money laundering crimes in our country has shown a more obvious growth trend, the anti-money laundering work has made great achievements. However, the overall effect of money laundering crime is not obvious, which does not change the plight of money laundering crime with high threshold, difficulty in obtaining evidence, and difficult judgment. Such judicial problems mainly include the following three reasons: First, the chaotic system of money laundering charges leads to the imbalance of applicable charges of law;Second, since the crime of money laundering was committed, the traditional criterion of “whether there is collusion” between the crime of money laundering and the predicate crime has fallen into a dilemma;Third, when the crime of money laundering and the crime of helping trust and illegal business are conjoined, there are the expanded application of the crime of helping trust and the dislocation regulation of the crime of illegal business. In this regard, the judicial problems of money laundering crime should be solved from the following three aspects. One is to construct a three-dimensional system of money laundering charges;The second is to reconstruct the identification standards of self-money laundering and co-conspirators of upstream crimes;The third is to help the crime of letter and illegal business to carry on the legislative limitation and interpretation adjustment.