Criminal Trial Reference No. 1219
Du Guojun and Du Xijun illegally fished aquatic products, and Liu Xunshan and Yan Rongfu covered up and concealed criminal proceeds
-- How to understand the number of crimes in which the crime of covering up or concealing criminal proceeds or the proceeds of crime is "serious"?
1. Basic facts of the case
Defendant Du Guojun, male, was born on December 16, 1971. He was arrested on December 10, 2014 on suspicion of illegal fishing of aquatic products. Defendant Du Xijun, male, was born on February 17, 1976. He was arrested on December 10, 2014 on suspicion of illegal fishing of aquatic products.
Defendant Zhang Yuzhou, male, was born on March 17, 1973. On February 18, 2008, he was sentenced to nine months' imprisonment and a fine of 1,000 yuan for theft, and on 8 March 2011, he was sentenced to one year's imprisonment and fined 3,000 yuan for theft, and was released on October 27, 2011. He was arrested on December 10, 2014 on suspicion of illegal fishing of aquatic products.
Defendant Li Faqiang, male, was born on July 19, 1971. On December 10, 2014, he was arrested on suspicion of illegal fishing of aquatic products. Defendant Sheng Zhuchang, male, was born on July 7, 1967. He was arrested on December 10, 2014 on suspicion of illegal fishing of aquatic products.
Defendant Lu Jiwei, male, was born on September 9, 1972. In 2006, he was sentenced to six years in prison and fined 10,000 yuan for theft, and was released on April 19, 2010. He was arrested on December 10, 2014 on suspicion of illegal fishing of aquatic products.
Defendant Ma Yuhua, male, was born on January 9, 1968. On November 3, 2014, he was released on bail pending trial on suspicion of illegal fishing of aquatic products.
Defendant Liu Xunshan, male, was born on June 29, 1962. He was arrested on December 10, 2014 on suspicion of illegal fishing of aquatic products.
Defendant Yan Rongfu, male, was born on July 16, 1977. On November 3, 2014, he was released on bail pending trial on suspicion of illegal fishing of aquatic products.
The People's Procuratorate of Binhu District, Wuxi City, Jiangsu Province, filed a public prosecution with the Binhu District People's Court on the grounds that defendants Du Guojun, Du Xijun, Zhang Yuzhou, Li Faqiang, Sheng Zhuchang, Lu Jiwei, and Ma Yuhua were guilty of illegally fishing aquatic products, and that defendants Liu Xunshan and Yan Rongfu were guilty of covering up and concealing criminal proceeds.
Defendants Du Guojun, Du Xijun, Zhang Yuzhou, Li Faqiang, Sheng Zhuchang, Lu Jiwei, Ma Yuhua, Liu Xunshan, and Yan Rongfu unanimously expressed their defense opinions, all of which believed that their weak sense of the rule of law led to the crime, and that they had a good attitude in admitting guilt after being brought into the case, and requested that they be given a lighter punishment.
Defendant Du Guojun's defender submitted: Du Guojun is a first-time offender, has a good attitude in admitting guilt, has a low level of education, and has poor family conditions, and the community has provided an explanation of the situation, and recommends that he be given a lighter punishment. Defendant Du Xijun's defender submitted: Du Xijun truthfully confessed after being brought into the case and had a good attitude in admitting guilt; the information reported by the neighborhood community showed that Du Xijun's family was in difficulty, and it was recommended that Du Xijun be given a lighter punishment. Defendant Liu Xunshan's defender submitted: Liu Xunshan was a first-time offender, pleaded guilty in court, made less profit, and did little harm to society, and requested a lighter punishment The Binhu District People's Court ascertained after trial:
From June to November 2, 2014, defendant Du Guojun successively organized defendants Zhang Yuzhou, Li Faqiang, and Sheng Zhuchang to drive fishing boats to the waters of Gonghu Lake in Taihu Lake to illegally fish more than 60 times by electrofishing without obtaining a fishing license in accordance with law, and caught a total of more than 1,500 kilograms of green shrimp in Taihu Lake. After Du Guojun purchased the above-mentioned Taihu green shrimp, he handed it over to the defendant Liu Xunshan, the actual operator of booth 16~17 of Beiqiao Aquatic Products Market, Binhu District, Wuxi City, for more than 60 times. Liu Xunshan earned a total of more than 90,000 yuan from sales, from which he earned more than 3,000 yuan (2 yuan per kilogram).
From June to November 2, 2014, defendant Du Xijun successively organized defendants Lu Jiwei and Ma Yuhua to drive fishing boats to the waters of Gonghu Lake in Taihu Lake to illegally fish more than 40 times by means of electrofishing without obtaining a fishing license in accordance with the law, and caught a total of more than 550 kilograms of green shrimp in Taihu Lake. After Du Xijun purchased the above-mentioned Taihu green shrimp, he handed them over to the defendant Yan Rongfu, the operator of booth No. 14 of the Beiqiao Aquatic Products Market, Binhu District, Wuxi City, for more than 20 times. Yan Rongfu received a total of more than 40,000 yuan from sales and earned more than 800 yuan in handling fees.
During the trial, defendants Du Guojun and Du Xijun each took the initiative to refund 10,000 yuan, defendants Lu Jiwei and Ma Yuhua each took the initiative to refund 5,000 yuan, and defendant Yan Rongfu took the initiative to refund 3,000 yuan to make up for the ecological damage in the waters of Taihu Lake.
The Binhu District People's Court held that the defendants Du Guojun, Du Xijun, Zhang Yuzhou, Li Faqiang, Sheng Zhuchang, Lu Jiwei, and Ma Yuhua violated the laws and regulations on the protection of aquatic resources by repeatedly ganging up to use prohibited tools to catch aquatic products during the fishing ban period, and the circumstances were serious, and their actions constituted the crime of illegal fishing of aquatic products. Defendants Liu Xunshan and Yan Rongfu clearly knew that the Taihu green shrimp that defendants Du Guojun and Du Xijun requested to sell on their behalf were the proceeds of illegal fishing, but still sold them on their behalf, and their conduct constituted the crime of covering up and concealing criminal proceeds. All defendants voluntarily pleaded guilty at trial and showed good remorse, and may be given lighter punishments as appropriate. Defendants Zhang Yuzhou and Li Faqiang have voluntarily surrendered after committing the crime, and may be given a lighter punishment. Defendants Du Xijun, Lu Jiwei, and Ma Yuhua truthfully confessed their crimes after they were brought into the case, and may be given a lighter punishment. Defendants Zhang Yuzhou and Lu Jiwei are recidivists and should be given a heavier punishment in accordance with law. In accordance with the provisions of article 340, article 32, paragraph 1, article 25, article 26, paragraphs 1, 26, 26, article 27, article 64, article 65, paragraph 1, article 67, paragraph 1 and 3, article 72, paragraph 1, and article 73 of the Criminal Law of the People's Republic of China, the judgment is as follows:
1. Defendant Du Guojun committed the crime of illegal fishing of aquatic products and was sentenced to one year imprisonment.
2. Defendant Du Xijun committed the crime of illegal fishing of aquatic products and was sentenced to 10 months imprisonment.
3. Defendant Zhang Yuzhou committed the crime of illegal fishing of aquatic products and was sentenced to nine months imprisonment.
4. Defendant Li Faqiang committed the crime of illegal fishing of aquatic products and was sentenced to eight months imprisonment.
5. Defendant Sheng Zhuchang committed the crime of illegal fishing of aquatic products and was sentenced to eight months imprisonment.
6. Defendant Lu Jiwei committed the crime of illegal fishing of aquatic products and was sentenced to five months' detention with a six-month suspended sentence.
7. Defendant Ma Yuhua committed the crime of illegal fishing of aquatic products and was sentenced to five months' detention with a six-month suspended sentence.
8. Defendant Liu Xunshan committed the crime of covering up and concealing criminal proceeds, and was sentenced to nine months imprisonment and a fine of 2,000 yuan.
9. Defendant Yan Rongfu committed the crime of covering up and concealing criminal proceeds, and was sentenced to six months imprisonment, suspended for one year, and fined 2,000 yuan.
After the verdict was announced, the Binhu District People's Procuratorate raised a prosecutorial counter-appeal on the following grounds: (1) In accordance with the provisions of Article 3, Paragraph 1, Item 2 of the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Covering Up or Concealing Criminal Proceeds and the Proceeds of Criminal Proceeds" (hereinafter referred to as the "Interpretation"), the defendants Liu Xunshan and Yan Rongfu in the original trial committed the crime of covering up and concealing criminal proceeds, and the circumstances were serious, and they should be sentenced within the range of not less than three years but not more than seven years in accordance with law. Yan Rongfu's sentencing within the range of less than three years imprisonment was an error in the application of law and an improper sentence. (2) The original judgment found that the defendant Lu Jiwei was a recidivist, but was not sentenced to fixed-term imprisonment or higher, and a suspended sentence was applied, resulting in an error in the application of law and sentencing.
After trial, the Wuxi Intermediate People's Court held that the crime of illegal fishing of aquatic products and the crime of covering up and concealing criminal proceeds are upstream and downstream crimes, and generally speaking, the punishment for downstream crimes cannot be higher than that for upstream crimes. According to the sentencing of defendants Du Guojun, Du Xijun and others for the crime of illegal fishing of aquatic products, the circumstances of the crime of covering up and concealing criminal proceeds by defendants Liu Xunshan and Yan Rongfu in the original trial were serious, and the sentence would obviously violate the principle of proportionality of criminal responsibility and punishment. Based on the facts and circumstances of the crime committed by defendant Lu Jiwei in the original trial, the original judgment did not impose an improper punishment on him. The trial procedures of the original judgment were lawful, the facts ascertained were clear, the evidence was credible and sufficient, and the punishment for the facts and circumstances of the crimes of the defendants Du Guojun, Du Xijun, Zhang Yuzhou, Li Faqiang, Sheng Zhuchang, Lu Jiwei, Ma Yuhua, Liu Xunshan, and Yan Rongfu was appropriate in accordance with the provisions of Article 225, Paragraph 1, Item 1 of the Criminal Procedure Law of the People's Republic of China.
Second, the main issues
1. How to understand and grasp the "number of elements" of the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds with "serious circumstances"?
2. Where the perpetrator of the predicate crime carries out acts of covering up or concealing criminal proceeds such as purchasing or selling criminal proceeds, can it be convicted and punished as the crime of covering up or concealing criminal proceeds?
III. Grounds for the Trial
(1) Defendants Liu Xunshan and Yan Rongfu's act of selling illegally fished aquatic products on their behalf does not constitute the "serious circumstances" of the crime of covering up or concealing criminal proceeds
In this case, defendant Liu Xunshan sold 1,500 kilograms of Taihu green shrimp illegally caught by Du Guojun and others on behalf of defendant Du Guojun on more than 60 occasions, with a sales proceed of more than 90,000 yuan, from which Liu Xunshan earned a handling fee of 3,000 yuan; defendant Yan Rongfu sold 450 kilograms of Taihu green shrimp illegally caught by Du Xijun and others on behalf of defendant Du Xijun on more than 20 occasions, with a sales proceed of more than 40,000 yuan, from which Liu Xunshan earned a handling fee of more than 800 yuan. There is no objection to Liu Xunshan and Yan Rongfu's conduct constituting the crime of covering up and concealing criminal proceeds. However, there are two different opinions on whether the conduct of the two persons constitutes the "serious circumstances" of the crime of covering up and concealing criminal proceeds:
The first opinion holds that the defendants Liu Xunshan and Yan Rongfu sold illegally caught Taihu green shrimp on their behalf more than 60 times and more than 20 times respectively, and that according to Article 3, Paragraph 1, Item 2 of the "Interpretation", the situation of "covering up or concealing criminal proceeds and the proceeds thereof more than 10 times" is a "serious circumstance" of covering up or concealing criminal proceeds, and shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and a fine in accordance with law.
The second opinion holds that the defendants Liu Xunshan and Yan Rongfu's act of selling illegally caught Taihu shrimp on their behalf should not be found to be a situation where the circumstances of covering up or concealing criminal proceeds are "serious". The main reason is that the crime of illegal fishing of aquatic products in this case is a predicate crime, and the maximum sentence is three years imprisonment, and Du Guojun and Du Xijun, who have obtained the greatest criminal benefits, can only be sentenced within the range of less than three years imprisonment. However, the social harmfulness of the crime of covering up or concealing criminal proceeds is generally less than that of the predicate crime, and if the criminal acts of Liu Xunshan and Yan Rongfu are judged to be "serious circumstances", then the person must be sentenced within the range of fixed-term imprisonment of not less than three years but not more than seven years, and this will result in the actual punishment for the downstream crime being significantly higher than the punishment for the upstream crime, thus imbalanced sentencing and violating the principle of proportionality of criminal responsibility and punishment.
We agree with the second opinion, holding that the defendants Liu Xunshan and Yan Rongfu's act of selling illegally caught Taihu Lake green shrimp on behalf of them should not be found to be a situation where the circumstances of covering up or concealing criminal proceeds are "serious", and the main reasons are as follows: The crime of covering up and concealing criminal proceeds and the proceeds of criminal proceeds is amended on the basis of the crime of selling stolen goods as stipulated in the 1997 Criminal Law, and Article 312 of the 1997 Criminal Law stipulates that anyone who knowingly harbors, transfers, acquires, or sells stolen goods on behalf of him or her shall be sentenced to fixed-term imprisonment of not more than three years. short-term detention or controlled release, and/or a fine. Amendment (6) to the Criminal Law amends the first paragraph of this crime and adds a statutory penalty range, that is, "if the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined", aiming to severely crack down on such crimes. However, due to the lack of clear standards to follow in judicial practice, on the one hand, the courts easily dare not determine that the "circumstances are serious", which is not conducive to cracking down on certain serious crimes; on the other hand, it also leads to inconsistent sentencing standards, and the verdict results of cases with the same amount of circumstances vary greatly in different regions. To this end, Article 3 of the Interpretation provides a practical interpretation of the circumstances of "serious circumstances" in terms of the proceeds of crime, the total value and type of proceeds of crime, the number of crimes, the nature of the predicate crimes, and the degree of obstruction to the judicial organs' investigation of the crimes. Item (2) of the first paragraph provides that where criminal proceeds and the proceeds thereof are covered up or concealed 10 times or more, it shall be found to be a "serious circumstance" of the crime of covering up or concealing criminal proceeds and proceeds. However, the circumstances of Liu Xunshan and Yan Rongfu in this case are not "serious circumstances", and the specific reasons are as follows:
1. Correctly understand the provisions of Article 3, Paragraph 1, Item 2 of the Interpretation on "covering up or concealing criminal proceeds and the proceeds thereof more than 10 times".
The "Interpretation" regards "covering up or concealing criminal proceeds and the proceeds thereof more than 10 times" as one of the circumstances for determining "serious circumstances", considering that the perpetrator has covered up or concealed a large number of times, the harm to society is great, and the perpetrator is a "professional recipient of stolen goods", so it should be severely cracked down. However, when applying this circumstance, special attention should be paid to the determination of "number of times". There are two main types of provisions in the Criminal Law involving "times": the first category is to make the number of times a statutory aggravating circumstance, such as "multiple robberies" as provided for in article 263 of the Criminal Law, "multiple gatherings of crowds to fight" as provided for in article 292, and "multiple picking quarrels and provoking trouble" as provided for in article 293. In this category of provisions, each robbery, gathering a crowd to fight, or picking quarrels and provoking troubles constitutes an independent crime. For example, Article 3 of the Opinions of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Robbery and Snatching (Fa Fa [20058]) stipulates that "the determination of 'multiple times' shall be based on the premise that every robbery committed by the perpetrator has constituted a crime, and comprehensively consider factors such as the occurrence of criminal intent and the time and place of the criminal act, and objectively analyze and determine it." Where the perpetrator commits a crime based on a single criminal intent, such as committing robbery against multiple persons present at the same time at the same place, or where the perpetrator commits the crime of robbery in succession at the same place based on the same criminal intent, such as robbing multiple persons passing through the same place in succession, or in the case of a single crime, several households in a residential building are robbed in succession, it shall generally be found to be a single crime. "The second category is to make the multiple violations as the threshold for constituting a crime, such as 'multiple thefts' as provided for in article 264 of the Criminal Law, 'multiple robberies' as provided for in article 267, 'multiple extortions' as provided for in article 274, 'multiple disruptions to the work order of state organs' as provided for in paragraph 3 of article 290, and 'organizing or financing illegal gatherings of others multiple times' as provided for in paragraph 4 of the Criminal Law In such provisions, each act of the perpetrator may not meet the minimum standard of the crime in terms of amount (or harmfulness of the act), and even the amount of the crime added up to the crime does not meet the minimum standard of the crime, but because the number of times has reached "multiple times", it meets the objective elements of the crime. The number of times in the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds involved in the Interpretation does not belong to the first circumstance mentioned above, and does not require that every act of covering up or concealing constitutes a crime independently, that is, unlike the determination of "multiple robberies", which requires that each robbery independently constitute a crime;
When applying the "more than 10 times" circumstance in the Interpretation, the following points should be grasped: (1) Each act of covering up or concealing must be an independent act, that is, it must have an independent subjective intent, an independent act of covering up or concealing, and an independent result of the act, but if it is based on the same intention, at the same time, in the same place, at the same time or consecutively, it should generally be found to be an act of covering up or concealing multiple predicate crimes. Where the criminal proceeds and the proceeds thereof of the same predicate offender are concealed, transferred, acquired, sold on behalf of others, or otherwise concealed for the purpose of the same predicate offender of the same criminal fact, it shall also be found to be a single act of covering up or concealing the criminal proceeds and the proceeds thereof due to the identity of the object of the crime. (2) Every act of covering up or concealing does not constitute a crime. (3) Even if it is determined that it is an act of covering up or concealing criminal proceeds and the proceeds thereof, it is still necessary to pay attention to the provisions of paragraph 2 of Article 4 of the Interpretation, as well as the provisions on the statute of limitations for public security punishment and criminal prosecution. Where a single act of covering up or concealing does not constitute a crime and exceeds the statute of limitations for public security punishments, the number of times is not to be accumulated; (4) Each cover-up or concealment should be proved by corresponding evidence, rather than vaguely determining the number of times. Especially at the critical juncture of 9 or 10 times, it is required that each cover-up or concealment act be clear and the evidence is sufficient. (5) Every act of covering up or concealing the new game must be premised on constituting a crime. The reason is that Article 8 of the Interpretation clearly stipulates that the determination of the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds shall be premised on the establishment of the facts of the predicate crime. If the predicate crime is not established and the judicial organ cannot prosecute it, then there is no premise that the act of covering up or concealing obstructs judicial activities and needs to be negatively evaluated in the criminal law, so it cannot be found to be a crime. Of course, the fact that a crime is not constituted does not mean that the act of receiving stolen goods does not have to be punished, and the public security organs can completely punish the act of accepting stolen goods in accordance with the relevant provisions of the Law on Public Security Administration Punishments.
Specifically, in this case, the defendants Liu Xunshan and Yan Rongfu's acts on the surface amounted to more than 60 and 20 times respectively, but none of them could be found to be "more than 10 times" to cover up or conceal criminal gains. Liu Xunshan sold the criminal proceeds of illegal fishing by Du Guojun and others, and Yan Rongfu sold the criminal proceeds of illegal fishing by Du Xijun and others. Although Du Guojun and Du Xijun asked Liu Xunshan and Yan Rongfu to sell illegally fished aquatic products on their behalf on more than 60 and 20 occasions respectively, the crime of illegal fishing of aquatic products constituted by them was the result of a comprehensive evaluation. According to Article 340 of the Criminal Law, illegal fishing of aquatic products constitutes a crime only if the circumstances are serious. Referring to Article 4 of the Provisions of the Supreme People's Court on Several Issues Concerning the Trial of Cases Involving Cases Occurring in Waters under the Jurisdiction of the Mainland (II) (hereinafter referred to as the "Provisions"), the "circumstances" of the crime of illegal fishing of aquatic products are "serious" Including the following seven situations: (1) illegal fishing of aquatic products of more than 10,000 yuan or worth of more than 100,000 yuan; (2) illegal fishing of aquatic animal seedlings with important economic value of more than 2,000 kilograms of eggs or broodstock or worth more than 20,000 yuan; (3) fishing of more than 2,000 kilograms of aquatic products or more than 20,000 yuan in aquatic germplasm resources protection areas; (4) fishing with prohibited tools or methods in the prohibited fishing area; (5) fishing with prohibited tools or methods during the fishing ban period; (6) using prohibited fishing gear on the high seas to engage in fishing operations, causing serious impact; (7) other serious circumstances。 At the time of the trial of this case, the "Provisions" had not yet been promulgated, and the main reason why Du Guojun, Du Xijun and others were found to have illegally fished aquatic products was "serious circumstances", and thus constituted the crime of illegal fishing of aquatic products, was that they illegally fished aquatic products a particularly large number of times, adopted prohibited fishing methods, and some of the fishing behaviors occurred during the fishing ban period. Therefore, the determination that it constitutes illegal fishing of aquatic products "serious circumstances" is the result of a comprehensive evaluation based on the facts of the crime, rather than every illegal fishing of aquatic products constitutes a crime. The so-called more than 60 times and more than 40 times of illegal fishing of aquatic products are the main basis for comprehensive evaluation. If it is taken apart, it is possible that every fishing activity does not meet the standard of criminal prosecution. Correspondingly, if the above-mentioned aquatic products are covered up and concealed, if they are separated and counted in a single time, they will fall into the embarrassing situation that because each upstream act does not constitute a crime, the object of each cover-up and concealment act is not the criminal proceeds, so that the crime of covering up and concealing criminal proceeds cannot be convicted and punished. Therefore, Liu Xunshan and Yan Rongfu's cover-up and concealment acts were all aimed at the criminal proceeds that had been comprehensively evaluated as the facts of the crime, the subject of the crime was the same person (the same joint criminal subject), and the facts of the crime were the same comprehensive criminal facts. In this case, Liu Xunshan and Yan Rongfu sold the same comprehensive criminal proceeds on behalf of the same predicate offender on multiple occasions out of the same subjective intent, and because of the indivisibility of the object of their crimes, it can be found to be an act of covering up and concealing criminal proceeds, and each act of selling on behalf of them for the same comprehensive criminal facts cannot be mechanically found to be an act of covering up or concealing criminal proceeds separately. In this way, Liu Xunshan and Yan Rongfu's acts of covering up and concealing criminal proceeds cannot be found to be a statutory aggravating circumstance of "serious circumstances".
2. Sentencing for crimes of covering up or concealing criminal proceeds or the proceeds of criminal proceeds shall generally be lighter than for predicate crimes
The crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds is an ex post facto aider to the predicate crime, and after the Criminal Law Amendment (6) adds a statutory penalty range, the maximum sentence is only seven years imprisonment, which has the characteristics of "minor crimes and light punishments" on the whole. The sentencing of this crime must not only comply with the provisions of Article 312 of the Criminal Law and relevant judicial interpretations, but must also be affected by the sentencing of the predicate crime. This is because, on the one hand, the crime of wood is dependent on the predicate crime, and without the property obtained from the predicate crime, there can be no downstream crime to speak of; on the other hand, the focus of the punishment of this crime is to obstruct the judicial order. As far as the property damage caused to the victim is concerned, the downstream criminal perpetrator did not increase or expand such loss when he carried out the act of covering up and concealing it.
Compared with the case of prior participation in criminal conspiracy and subsequent sale of stolen goods, the social harm of this crime is of course much smaller. Therefore, when grasping the sentencing of this crime and the predicate crime, it should be grasped as a whole.
Specifically, in cases where the crime of covering up or concealing criminal proceeds, the proceeds of criminal proceeds, and the predicate crime are directed at the same target, the sentencing of the perpetrator of the concealment or concealment of the criminal proceeds and the proceeds thereof must be lighter than that of the predicate offender, and the level must be appropriately raised. In this case, Du Guojun and Du Xijun, the principal offenders of the upstream crimes, were sentenced to one year imprisonment and 10 months' imprisonment respectively, so Liu Xunshan, who committed the downstream crimes, was sentenced to nine months' imprisonment and fined 2,000 yuan, and Yan Rongfu's sentence was six months' imprisonment, suspended for one year, and fined 2,000 yuan. Of course, in practice, there are also situations where the actual punishment of the downstream criminal perpetrator is higher than that of the upstream criminal actor, such as the upstream criminal perpetrator has circumstances such as voluntary surrender or meritorious service, or the downstream criminal perpetrator has circumstances such as recidivism. It should be noted that in the case of a predicate crime where the maximum penalty is only three years imprisonment, the perpetrator of the downstream crime (covering up or concealing criminal proceeds or the proceeds of criminal proceeds) may still constitute "serious circumstances." For example, if the upstream crime is a crime of illegal fishing of aquatic products, and the downstream criminal perpetrator carries out cover-up or concealment acts such as selling on behalf of different criminal entities, and the amount does meet the standard of "serious circumstances" or the standard of "more than 10 times", it may be found to be a cover-up or concealment of "serious circumstances". This is because, in such a case, the object of the crime committed by the perpetrator of the concealment or concealment and the predicate perpetrator of the crime is not directed at the same object. In the absence of a joint crime between several upstream criminal perpetrators, the criminal act of illegal fishing of aquatic products is carried out separately, but the same person is entrusted to carry out the act of covering up and concealing the sale of aquatic products on behalf of the same person, at this time, the perpetrator of the concealment and concealment has actually become a "professional seller of stolen goods", and the "professional seller of stolen goods" has a stimulating and encouraging effect on the further expansion of the criminal intent of the upstream crime, and the social harm is more harmful than the criminal proceeds of a simple criminal fact. Where the concealment is larger, or even much larger, and the object of the crime is the proceeds of several criminal facts that have been comprehensively evaluated, the number of times they have covered up or concealed shall be calculated on the basis of the amount of the crime constituted.
(2) Where the perpetrator of the predicate crime has covered up or concealed the purchase or sale of robes from criminal proceeds, it cannot be convicted and punished as the crime of covering up or concealing criminal proceeds
Defendant Du Guojun successively ganged up with defendants Zhang Yuzhou, Li Faqiang, and Sheng Zhuchang, and defendant Du Xijun successively ganged up with defendants Lu Jiwei and Ma Yuhua, violating laws and regulations on the protection of aquatic resources, and repeatedly using prohibited tools and methods to catch aquatic products during the fishing ban period, the circumstances were serious, and their acts constituted the crime of illegal fishing of aquatic products. There is no disagreement with this. However, after Du Guojun and Du Xijun respectively illegally fished aquatic products, they purchased the aquatic products illegally fished by their accomplices, and handed over the above-mentioned aquatic products to the defendants Liu Xunshan and Yan Rongfu respectively for sale on their behalf, whether they were convicted and punished as the crime of covering up and concealing criminal proceeds?
We believe that he cannot be convicted and punished for the crime of covering up or concealing the proceeds of crime. The main reasons are:
1. Criminals who cover up or conceal their criminal proceeds are not punishable under criminal law because they do not have the possibility of expectation.
According to the general theory, expecting the possibility means that, depending on the specific circumstances, it is possible to expect the perpetrator not to commit the illegal act and to carry out other lawful acts. Looking forward to possibilities. The theory holds that if the perpetrator cannot be expected to commit other lawful acts, he cannot be legally condemned, and therefore there is no criminal liability. There is still a lot of controversy in the academic circles about the expectation of possibility, but the lack of expectation of possibility should be the consensus of the criminal law theory community as a reason for the obstruction of responsibility. In this case, the defendant Du Guojun organized Zhang Yuzhou and others, and Du Xijun organized Lu Jiwei and others to illegally fish for aquatic products, with the purpose of obtaining illegal benefits. Therefore, after committing the crime of illegal fishing of aquatic products, it is necessary to dispose of the criminal proceeds, such as selling and giving away. These acts, by their nature, belong to the ex-post acts of co-punishment, also known as non-punishable ex post facto acts (i.e., ex post facto acts that cannot be independently convicted). The essence of the ex post facto act of joint punishment is a crime of absorption (i.e., a crime in which several different acts, one act absorbs other acts, and only one crime of absorption is established), that is, in the case of a state crime, the act of taking advantage of the results of that criminal act is punishable if viewed in isolation, it meets the criminal composition of other crimes, but because it is comprehensively evaluated as a state crime, it is not necessary to separately identify it as another crime. This criminal jurisprudence applies both to the handling of the proceeds of crime by a single offender and to the disposal of the proceeds of joint crime by joint offenders. This is because the provisions of the Criminal Law on joint crimes are actually based on treating the joint offenders as a whole as a whole as a crime as a single person, and on the basis of the content of the joint criminal intent, it is regarded as the same as the criminal intent of a single person. On this basis, the degree and scope of responsibility of each participant are different according to the different effects of the acts of each participant on the result of the infringement (danger) of legal interests, so the treatment is different. Therefore, the acts of joint offenders covering up or concealing criminal proceeds from each other should be regarded as covering up or concealing their own criminal proceeds, and therefore no separate conviction and punishment should be made.
2. The subject of the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds should be a person other than the original offender, and if the person who covers up or conceals it is the original offender, it does not have the qualifications to be the subject of the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds.
The crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds is a accession offense, not a principal offense. A person who conspires with the offender in advance or adds a person to the matter rather than joins after the fact becomes a co-offender. Joint offenders are to be convicted and punished on the basis of their relationship in the course of committing the crime, subjectively having common criminal intent and objectively having common criminal conduct, on the basis of the joint criminal conduct they carried out and their role in the joint crime, but cannot be convicted and punished as the crime of covering up or concealing criminal proceeds or the proceeds of criminal gains. This is because the acts of covering up or concealing carried out by the joint offender are part of the joint criminal act, and there is an intentional communication between the joint offenders, whereas there is no intentional communication between the perpetrator of the cover-up or concealment that is added afterwards and the principal offender of the joint offender.
3. From the internal logic analysis of the provisions of the Criminal Law, the co-offenders are not the subject of the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds. When the first paragraph of Article 312 of the Criminal Law describes the crime of covering up or concealing criminal proceeds or the proceeds thereof, it stipulates the subjective element of "knowing that they are criminal proceeds and the proceeds thereof...". This shows that knowledge can only be said to a person other than the perpetrator, and that the use of the word "knowingly" is meaningless for the perpetrator, since he himself is the perpetrator of the crime and of course knows. In addition, judging from the objective elements of "harboring, transferring, purchasing, selling on behalf of others, or otherwise covering up or concealing them", the subject of the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds also refers to the offender other than the offender.
To sum up, it is appropriate for the court of second instance to uphold the conviction and sentencing of the court of first instance for the defendants Du Guojun, Zhang Yuzhou, Li Faqiang, Sheng Zhuchang, Du Xijun, Lu Jiwei, and Ma Yuhua for the crime of illegal fishing of aquatic products, and for the defendants Liu Xunshan and Yan Rongfu for the crime of covering up and concealing criminal proceeds.
Written by: Lu Jianhong, Fourth Criminal Division of the Supreme People's Court
Written by: Zhou Ke, Intermediate People's Court of Wuxi City, Jiangsu Province
Editor: Zhou Feng, Fourth Criminal Division of the Supreme People's Court