自洗钱行为入刑的法理反思与规则优化

Legal Reflection and Rule Optimization on the Criminalization of Self-Laundering

依据《刑法》第191条可将自洗钱行为予以类型化分类,即转移类自洗钱行为和转换类自洗钱行为。转移类自洗钱行为并未实质侵害洗钱罪的法益,被上游犯罪所吸收,属于事后不可罚。转换类自洗钱行为超出上游犯罪保护的法益,应当独立入罪。但在移动支付时代下,自洗钱行为存在入罪门槛较低、多数洗钱案件并无处罚必要性以及修法动机与国内犯罪现状脱节的适用困境。为促进自洗钱行为的规范适用,应当增加犯罪数额认定标准,提供自洗钱犯罪门槛;坚持法益侵害说,完善自洗钱保护的法益以及正确认识犯罪现状,规范自洗钱行为规定。

According to Article 191 of the Criminal Law, self-laundering can be classified as a type, that is, transfer self-laundering and conversion self-laundering. Transfer-type self-laundering acts do not materially infringe on the legal benefits of the crime of money laundering and are absorbed by upstream crimes and are not punishable afterwards. Conversion-type self-laundering acts that exceed the legal benefits of upstream crime protection shall be independently criminalized. However, in the era of mobile payment, self-laundering has a low threshold for criminalization, there is no need for punishment in most money laundering cases, and the motive for revision to apply to the law is out of touch with the current situation of domestic crimes. In order to promote the standard application of self-laundering, we should increase the standards for determining the amount of crimes and provide the threshold for self-laundering crimes;adhere to the theory of legal benefit infringement, improve the legal benefits of self-laundering protection, correctly understand the cur-rent situation of crimes, and standardize the provisions on self-laundering behavior.