Research on Disguise or Conceal the Proceeds of Crime and Gains
|School||Jiangxi University of Finance|
|Keywords||Proceeds of crime proceeds of crirne and gains scienter Crime of Loot|
China’s Criminal Law Section312provides that disguise or conceal the proceeds of crime and gains:That means scienter the property is proceeds of crime and gains, The perpetrator still to be harboring, transfer, acquisition, helps to sell or other methods to conceal, from3years imprisonment, criminal detention or public surveillance, and with fined, or only be fined; If the circumstances are serious, at3years and not more than seven years in prison with fined. If a unit commits the crime mentioned in the preceding paragraph, shall be fined, and its directly responsible person in charge and other responsible persons be punished in accordance with the provisions of the preceding paragraph.During several dozens years, because of the understanding about the crime of loot deepended and adapt to the changing social situation, our country through the criminal law bill for amendment and the related judicial interpretation about stolen goods try to complement the crime changes. Counts of the offense, constitute the elements have different degrees of change, At the beginning, it’s called concealment crime, and disposal of stolen goods crime, and then changed to the crime of harboring, transfer, acquisition, sale of stolen goods, the end it went by the name of disguise or conceal the proceeds of crime. The crime object’s connotation range extension, the manifestation of harm behavior have increases, furthermore introduces the unit in the subject of crime, and to increase the penalty punishment. Contrast to China and the United States, Germany, Japan and other foreign crime of loot-related legislation, different countries in the identified booty in law has different meaning. Such as criminal behavior object, the objective aspect of crime, form of expression and the perpetrator of the subjective aspects about crime of loot are different. This ultimately is because all countries with the different understanding about the nature of the crime of loot.Disguise or conceal the proceeds of crime, Criminal Law Section312provides that the crime object are "proceeds of crime and gains". Which provides that "crime" is not standardized, rigorous concept of crime, should be carried out in a broad sense."Proceeds of crime" is the property of others by virtue of the criminal means and conduct direct access to the proceeds of crime is the arising from the additional value gain. In short,"the proceeds of crime and and gains " objective of economic value; its objective existence of morphological change, as long as it does not affect the basic substance and violation of legal interest "stolen property" attribute can keep the items on the nature of the identity can be identified as "proceeds of crime and gains". Proceeds of crime, things change altered processing or transaction price will not change their stolen property, identity, in principle, stolen goods do not apply to bona fide acquisition. From the performance point of view, the real property, contraband, or property interests belong to the "proceeds of crime and gains".The provisions of "scienter", contains particular crime fact,against the facts and harm results and so on; harboring, transfer, acquisition, helps to sell or other methods to conceal,"scienter" requirements may different."Scienter" doesn’t require the subjectively determined by the perpetrator intentionally, only need the possibility of cognitive understanding, that’s a clear understanding or presumption.Harboring means provide with premises or conditions to conceal, custody, possession the proceeds of crime,; transfer means remove the proceeds of crime and transporting to change their storage areas, and this transfer achieved hamper the judicial organs’litigation process; acquisition is the perpetrator was scienter it’s proceeds of crime and gains still to pay the right price for resale to others or their own use; helps to sell means knowing that the proceeds of crime and gains, still behalf of others to sale."Other methods to conceal" can result in stolen goods, the nature, source, etc. is difficult to identify and impede the criminal prosecution of the judiciary acts.The article also focuses on some controversial issues related to the crime of loot. Firstly, analysis of the nature about the crime of loot, the nature of this crime is complex, our understanding about the nature of the crime of loot should be based on the illegal status sustain theory, while drawing on the crime conceal theory and pursuit of the right theory. Based on the analysis to comprehension three controversial issues. In my opinion disguise or conceal the proceeds of crime and gains does not constitute a crime as a precondition in this guilty; should be set up for the crime independent degree of punishment;furthermore it’s necessary often habitual offender with the special provisions in Criminal Code. This is consistent with the essential attribute of the crime of loot,and accord with independence and dependence of this crime,it’s propitious to protect the legal interests and judicial practice.