The crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds
【Criminal Law Provisions】
Article 312: [Crime of Covering Up or Concealing Criminal Proceeds or Proceeds of Criminal Proceeds] Whoever clearly knows that they are criminal proceeds or the proceeds thereof are concealed, transferred, purchased, sold on behalf of others, or otherwise concealed or concealed, shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or controlled release, and/or a fine; where the circumstances are serious, a sentence of between three and seven years imprisonment and a concurrent fine is to be given.
Where a unit commits the crime in the preceding paragraph, the unit is to be fined, and the directly responsible managers and other directly responsible personnel are to be punished in accordance with the provisions of the preceding paragraph.
【Legislative History】
This article is a provision made by the 1997 Criminal Code by incorporating and amending the 1979 Criminal Code. Article 172 of the 1979 Criminal Law stipulates: "Whoever conceals or sells stolen goods knowing that they are the proceeds of crime shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or controlled release, and may be fined concurrently or severally." "The Penal Code of 1997 expands the manner of conduct and fine-tunes the statutory penalties.
Article 19 of the Criminal Law Amendment (VI), which came into effect on June 29, 2006, amended this article for the first time, adjusting the object of the crime from "stolen goods" to "criminal proceeds and the proceeds thereof", and adjusting the mode of conduct to include "covering up or concealing by other means"; At the same time, the statutory sentence has been adjusted, and the statutory maximum sentence has been adjusted from three years to seven years. After the amendment, the crime was adjusted from "the crime of harboring, transferring, acquiring or selling stolen goods" to "covering up or concealing criminal proceeds or the proceeds of criminal proceeds".
Article 10 of the Criminal Law Amendment (VII), which came into force on February 28, 2009, amends this article for the second time, adding the second paragraph to the provisions on crimes committed by units.
【Relevant Provisions】
Law of the People's Republic of China on Public Security Administration Penalties (as of October 26, 2012 after amendment, excerpt)
Article 59: Those who commit any of the following acts are to be fined between 500 and 1,000 RMB, and where the circumstances are serious, they are to be detained for between 5 and 10 days and fined between 500 and 1,000 RMB:
(1) Pawnbroking workers who accept pawned items without inspecting relevant certificates, failing to perform registration formalities, or clearly knowing that they are criminal suspects or stolen goods, and failing to report them to the public security organs;
(2) Violating state regulations by purchasing waste special equipment such as railways, oil fields, power supply, telecommunications, mines, water conservancy, surveying and urban public facilities;
(3) Purchasing stolen goods or items suspected of being stolen by the public security organs;
(4) Purchasing other items prohibited by the State.
Article 60: Those who commit any of the following acts are to be detained for between 5 and 10 days and fined between 200 and 500 RMB:
(1) Concealing, transferring, selling, or destroying property that has been seized, sealed, or frozen by administrative law enforcement organs in accordance with law;
(2) Fabricating, concealing, or destroying evidence, or providing false testimony or falsely reporting the circumstances of a case, influencing the administrative law enforcement organs' lawful handling of cases;
(3) Knowingly harboring, transferring, or selling stolen goods on their behalf;
(4) Convicts who have been lawfully subject to controlled release, deprivation of political rights, or who are on probation or temporarily serving their sentence outside of prison, or who have been lawfully subjected to criminal compulsory measures, have conduct that violates laws, administrative regulations, or the supervision and management provisions of the relevant departments of the State Council.
[Legislative Interpretation]
"Interpretation of Articles 341 and 312 of the Criminal Law of the People's Republic of China" by the Standing Committee of the National People's Congress (effective as of April 24, 2014)
The Standing Committee of the National People's Congress has discussed the meaning of the illegal acquisition of rare and endangered wildlife under key national protection and the products thereof as provided for in paragraph 1 of Criminal Law article 341, and the issue of how to apply the relevant provisions of the Criminal Law to the acquisition of illegally hunted wildlife as provided for in paragraph 2 of Criminal Law article 341, and explains as follows:
Knowing or should know that they are rare or endangered wildlife under key state protection and the products thereof, and illegally purchasing them for food or other purposes, is an act of illegally purchasing rare or endangered wildlife under key national protection and the products thereof as provided for in paragraph 1 of Criminal Law article 341.
Knowing or should have known that it was illegally hunted wildlife as provided for in paragraph 2 of Criminal Law article 341, it is an act of purchasing wildlife knowing that it is the proceeds of crime as provided for in paragraph 1 of Criminal Law article 312.
The announcement is hereby made.
【Judicial Interpretation】
Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases of Theft of Oil and Gas and Destruction of Oil and Gas Equipment (Fa Shi [2007] No. 3, effective as of January 19, 2007, excerpt)
Article 5: Where oil and gas or oil and gas equipment is clearly known to be the proceeds of theft, but is concealed, transferred, purchased, processed, sold on behalf of others, or otherwise covered up or concealed, it is to be convicted and punished in accordance with the provisions of Criminal Law article 312.
Where the criminal conduct provided for in the preceding paragraph is carried out and there is prior conspiracy, it is to be convicted and punished as an accomplice to the crime of theft.
Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Related to Theft, Robbery, Fraud, and Snatching of Motor Vehicles (Fa Shi [2007] No. 11, effective as of May 11, 2007)
In order to lawfully punish criminal activities related to theft, robbery, fraud, or snatching of motor vehicles, on the basis of the provisions of the Criminal Law, the Criminal Procedure Law, and other relevant laws, the following interpretations are given on several issues concerning the specific application of law in handling such cases:
Article 1: Whoever clearly knows that a motor vehicle has been stolen, robbed, defrauded, or snatched commits any of the following acts, is to be convicted of the crime of covering up or concealing criminal proceeds or the proceeds thereof, and sentenced to up to three years imprisonment, short-term detention or controlled release, and/or a fine:
(1) Buying, selling, brokering, pawning, auctioning, mortgaging, or using them to settle debts;
(2) Dismantling, assembling or assembling;
(4) Changing the color of the vehicle or the shape of the vehicle;
(5) Providing or selling motor vehicle origin certificates, vehicle certificates, license plates, and other certificates and certificates related to motor vehicles;
(6) Providing or selling forged or altered certificates of origin of motor vehicles, vehicle certificates, number plates, and other certificates and vouchers related to motor vehicles.
Where the conduct provided for in the first paragraph involves the theft, robbery, fraud, or snatching of five or more motor vehicles, or the total value reaches 500,000 RMB or more, it is a "serious circumstance" as provided for in Criminal Law article 312, and a sentence of between three and seven years imprisonment and a concurrent fine is to be given.
Article 2: Whoever forges, alters, or buys or sells motor vehicle driving licenses or registration certificates, accumulating three or more copies, is convicted of the crime of forging, altering, or buying or selling documents of state organs in accordance with the provisions of the first paragraph of Criminal Law article 280, and is sentenced to up to three years imprisonment, short-term detention, controlled release, or deprivation of political rights.
Where the forgery, alteration, or purchase or sale of motor vehicle driving licenses or registration certificates cumulatively reaches five times or more of the quantity standards provided for in the first paragraph, it is a "serious circumstance" as provided for in the first paragraph of Criminal Law article 280, and a sentence of between three and ten years imprisonment is to be given.
Article 3: In any of the following circumstances, where a staff member of a state organ abuses his power, causing the registration formalities for stolen, robbed, fraudulent, or snatched motor vehicles, and the number of them reaches three or more, or the total value reaches 300,000 yuan or more, he is to be convicted of the crime of abuse of power and sentenced to up to three years imprisonment or short-term detention in accordance with the provisions of the first paragraph of Criminal Law article 397:
(1) Clearly knowing that it is a motor vehicle with incomplete registration formalities or non-compliance with regulations;
(2) Instructing others to go through registration formalities for a motor vehicle that they know is incomplete or does not comply with regulations;
(3) Violating regulations or instructing others to change or change vehicle files in violation of regulations;
(4) Other acts of abuse of authority.
Where the personnel of state organs neglect or do not conduct strict examinations, resulting in the registration of stolen, robbed, defrauded, or snatched motor vehicles, and the number of them reaches five or more, or the total value reaches 500,000 yuan or more, they are to be convicted of the crime of dereliction of duty and sentenced to up to three years imprisonment or short-term detention in accordance with the provisions of the first paragraph of Criminal Law article 397.
Where employees of state organs carry out the conduct provided for in the preceding two paragraphs, causing the registration formalities for stolen, robbing, fraudulent, or snatched motor vehicles to reach five times or more of the number and amount standards provided for in the preceding two paragraphs, or where they clearly know that they are stolen, robbed, defrauded, or snatched motor vehicles and go through the registration formalities, it is "especially serious circumstances" as provided for in the first paragraph of Criminal Law article 397, and a sentence of between three and seven years imprisonment is to be given.
Where employees of state organs twist the law for personal gain and carry out the conduct described above, and a crime is constituted, it is to be convicted and punished in accordance with the provisions of paragraph 2 of Criminal Law article 397.
Article 4: Where the conduct provided for in paragraphs 1, 2, or 3 of this interpretation is carried out, and prior conspires with criminals who steal, rob, defraud, or snatch motor vehicles, it is to be punished as an accomplice to the crimes of theft, robbery, fraud, or robbery.
Article 5: Where theft, robbery, fraud, or snatching, as well as the concealment or concealment of criminal proceeds or the proceeds of criminal proceeds, are carried out across regions involving the same motor vehicle, the relevant public security organs may file and investigate them together in accordance with the law and relevant provisions, and where it is necessary to submit a request for approval of arrest, transfer for review for prosecution, or initiation of a public prosecution, the people's procuratorate or people's court at the same level for the location of the public security organ shall accept it.
Article 6: Where the perpetrator carries out the conduct provided for in paragraph 3 of article 1 or article 3 of this interpretation, and the motor vehicle involved has any of the following circumstances, it shall be found that the actor subjectively "knows" as used in the preceding provisions:
(1) There is no lawful and valid proof of origin;
Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Money Laundering and Other Criminal Cases (Fa Shi [2009] No. 15, effective as of November 11, 2009)
In order to lawfully punish criminal activities such as money laundering, covering up or concealing criminal proceeds or the proceeds of criminal proceeds, and financing terrorist activities, on the basis of the relevant provisions of the Criminal Law, the following interpretations are made on several issues concerning the specific application of law in the trial of such criminal cases:
Article 1: "Knowingly" as provided for in Criminal Law articles 191 and 312 shall be determined in consideration of subjective and objective factors such as the defendant's cognitive ability, access to others' criminal proceeds and their gains, the type and amount of criminal proceeds and their proceeds, the conversion and transfer methods of criminal proceeds and their proceeds, and the defendant's confession.
In any of the following circumstances, it may be found that the defendant clearly knew that it was criminal proceeds and the proceeds thereof, except where there is evidence showing that they did not know:
(1) Knowing that others are engaged in criminal activities, or assisting in the conversion or transfer of property;
(2) Assisting in the conversion or transfer of property through illegal means without a legitimate reason;
(3) Purchasing property at a price that is clearly lower than the market without a legitimate reason;
(4) Assisting in the conversion or transfer of property without a legitimate reason, and charging "handling fees" that are clearly higher than the market;
(5) Assisting others in storing large amounts of cash in multiple bank accounts or frequently transferring them between different bank accounts without a legitimate reason;
(6) Assisting close relatives or other persons with close relationships in converting or transferring property that is clearly inconsistent with their occupation or property status;
(7) Other circumstances where it may be found that the perpetrator clearly knew.
Where the defendant mistakenly believes that the criminal proceeds and the proceeds thereof of a predicate crime as provided for in Criminal Law article 191 are other criminal proceeds and the proceeds thereof within the scope of the predicate crime provided for in Criminal Law article 191, it does not impact the determination of "knowingly" as provided for in Criminal Law article 191.
Article 2: In any of the following circumstances, it may be found to be "using other methods to cover up or conceal the source and nature of criminal proceeds and their proceeds" as provided for in item (5) of paragraph 1 of Criminal Law article 191:
(1) Assisting in the transfer or conversion of criminal proceeds and their proceeds through methods such as pawning, leasing, buying, selling, or investing;
(2) Assisting in the transfer or conversion of criminal proceeds and the proceeds thereof by mixing them with the operating income of cash-intensive venues such as shopping malls, restaurants, and entertainment venues;
(3) Assisting in the conversion of criminal proceeds and their proceeds into "lawful" property through methods such as fictitious transactions, fictitious claims and debts, false guarantees, or false reporting of income;
(4) Assisting in the conversion of criminal proceeds and their proceeds through methods such as buying and selling lottery tickets or lottery tickets;
(5) Assisting in converting criminal proceeds and their proceeds into gambling proceeds through gambling;
(6) Assisting in carrying, transporting, or mailing criminal proceeds and their proceeds into or out of the country;
(7) Assisting in the transfer or conversion of criminal proceeds and their proceeds through methods other than those provided for above.
Article 3: Where it is clearly known that it is criminal proceeds and the proceeds thereof are covered up or concealed, constituting a crime provided for in Criminal Law article 312, and at the same time constituting a crime provided for in Criminal Law articles 191 or 349, it is to be convicted and punished in accordance with the provisions for the heavier punishment.
Article 4: Crimes provided for in Criminal Law articles 191, 312, and 349 shall be a prerequisite for the establishment of the facts of the predicate crime. Where the predicate crimes have not yet been adjudicated in accordance with law, but are verified to be true, it does not impact the trial of the crimes provided for in Criminal Law articles 191, 312, or 349.
The facts of the predicate crime can be confirmed, and where criminal responsibility is not pursued in accordance with law due to reasons such as the death of the perpetrator, it does not impact the determination of the crimes provided for in Criminal Law articles 191, 312, and 349.
Where the facts of the predicate crime can be confirmed, and conviction and punishment for other crimes in accordance with law, it does not impact the determination of the crimes provided for in Criminal Law articles 191, 312, or 349.
"Predicate crimes" as used in this article refers to all kinds of criminal conduct that gives rise to criminal proceeds and the proceeds thereof as provided for in articles 191, 312, and 349 of the Criminal Law.
Article 5: "Financing" as provided for in Criminal Law article 120-1 refers to acts of raising or providing funds, materials, or venues or other material conveniences for terrorist organizations or individuals carrying out terrorist activities.
"Individuals who carry out terrorist activities" as provided for in Article 120-1 of the Criminal Law includes individuals who premeditate, prepare to commit, or actually carry out terrorist activities.
"Interpretation of the Supreme People's Court and Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases Endangering the Security of Computer Information Systems" (Fa Shi [2011] No. 19, effective as of September 1, 2011, excerpt)
Article 7: Where one clearly knows that data was obtained through the crime of illegally obtaining computer information system data, or illegally controlling control of control of a computer information system obtained by the crime of computer information systems, but transfers, purchases, sells on behalf of others, or otherwise conceals or conceals unlawful gains of 5,000 RMB or more, it shall be convicted and punished as the crime of covering up or concealing criminal gains in accordance with the provisions of paragraph 1 of Criminal Law article 312.
Where the conduct provided for in the preceding paragraph is carried out, and unlawful gains of 50,000 RMB or more are carried out, it shall be found to be "serious circumstances" as provided for in the first paragraph of Criminal Law article 312.
Where units carry out the conduct provided for in paragraph 1, the standards for conviction and sentencing are to be implemented in accordance with the provisions of paragraphs 1 and 2.
"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 Proceeds of Criminal Proceeds" [Fa Shi [2015] No. 11, amended in accordance with the "Decision of the Supreme People's Court on Amending the Interpretation of Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Covering Up or Concealing Criminal Proceeds and Proceeds of Criminal Proceeds" (Fa Shi [2021] No. 8), which will come into force on April 15, 2021 after the amendment]
In order to lawfully punish criminal activities of covering up or concealing criminal proceeds or the proceeds of criminal gains, on the basis of the relevant provisions of the Criminal Law, and in consideration of the actual conditions of the people's courts' criminal trial work, the following interpretations are given on several issues concerning the specific application of law in the trial of such cases:
Article 1: In any of the following circumstances, where criminal proceeds or the proceeds thereof are clearly concealed, transferred, acquired, sold on behalf of others, or otherwise covered up or concealed, they shall be convicted and punished as the crime of covering up or concealing criminal proceeds or the proceeds thereof in accordance with the provisions of paragraph 1 of Criminal Law article 312:
(1) Having previously received an administrative punishment for covering up or concealing criminal proceeds and the proceeds thereof within one year, and again carrying out acts of covering up or concealing criminal proceeds and the proceeds thereof;
(2) The criminal proceeds covered up or concealed are electric power equipment, transportation facilities, radio and television facilities, public telecommunications facilities, military facilities, or funds or materials for disaster relief, emergency rescue, flood control, preferential care, poverty alleviation, immigration, or relief;
(3) Acts of covering up or concealing make it impossible to promptly investigate and handle the predicate crime, and cause irreparable losses to public or private property;
(4) Carrying out other acts of covering up or concealing criminal proceeds and the proceeds thereof, obstructing the judicial organs' pursuit of the predicate crimes.
People's courts hearing criminal cases of covering up or concealing criminal proceeds or proceeds thereof shall comprehensively consider the nature of the predicate crime, the circumstances and consequences of covering up or concealing criminal proceeds and their proceeds, and the degree of harm to society, and convict and punish them in accordance with law.
Where judicial interpretations already have provisions on the concealment or concealment of criminal proceeds involving computer information system data or control over computer information systems, and the proceeds thereof, constitute a crime, such cases are to be tried in accordance with those provisions.
In accordance with the Standing Committee of the National People's Congress's "Interpretation of Articles 341 and 312 of the Criminal Law of the People's Republic of China", where the number of wild animals purchased reaches 50 or more, knowing that they are illegally hunted, it is to be convicted and punished as the crime of covering up or concealing criminal gains.
Article 2: In any of the following circumstances, where the conduct of covering up or concealing criminal proceeds and the proceeds thereof meets the requirements of article 1 of this interpretation, admits guilt, repents, and returns the stolen goods or restitution, and has any of the following circumstances, it may be found that the circumstances of the crime are minor and criminal punishment is waived:
(1) There are legally-prescribed circumstances for lenient punishment;
(2) Covering up or concealing criminal proceeds and the proceeds thereof for close relatives, and being a first-time offender or occasional offender;
(3) There are other circumstances where the circumstances are minor.
Article 3: In any of the following circumstances, the concealment or concealment of criminal proceeds and the proceeds thereof shall be found to be 'serious circumstances' as provided for in the first paragraph of Criminal Law article 312:
(1) Covering up or concealing criminal proceeds and the total value of the proceeds thereof reaching 100,000 RMB or more;
(2) Covering up or concealing criminal proceeds and the proceeds thereof 10 or more times, or 3 or more times with a total value of 50,000 RMB or more;
(3) The criminal proceeds covered up or concealed are electric power equipment, transportation facilities, radio and television facilities, public telecommunications facilities, military facilities, or funds or materials for disaster relief, emergency rescue, flood control, preferential care, poverty alleviation, immigration, or relief, with a total value of 50,000 yuan or more;
(4) Cover-up or concealment makes it impossible to promptly investigate and handle the predicate crime, and causes irreparable major losses to public or private property or other serious consequences;
(5) Carrying out other acts of covering up or concealing criminal proceeds and the proceeds thereof, seriously obstructing the judicial organs' pursuit of the predicate crimes.
Where judicial interpretations already have provisions on the determination of "serious circumstances" for the concealment or concealment of criminal proceeds involving motor vehicles, computer information system data, or control over computer information systems, and the proceeds thereof, such cases are to be heard in accordance with those provisions.
Article 4: The amount of concealment or concealment of criminal proceeds and the proceeds thereof shall be based on the time the cover-up or concealment was carried out. Where the price of property acquired or sold on behalf of others is higher than its actual value, it is calculated on the basis of the price of the acquisition or sale on behalf of others.
Where acts of covering up or concealing criminal proceeds and the proceeds thereof are carried out multiple times, and they shall be prosecuted in accordance with law without administrative punishment, the amount of the criminal proceeds or the proceeds thereof shall be cumulatively calculated.
Article 5: Where a person conspires with a criminal such as for theft, robbery, fraud, or robbery in advance to cover up or conceal criminal proceeds or the proceeds thereof, it is to be punished as an accomplice to a crime such as theft, robbery, fraud, or robbery.
Article 6: Where acts such as theft, robbery, fraud, or snatching are carried out against criminal proceeds and the proceeds thereof, and a crime is constituted, they are to be convicted and punished as theft, robbery, fraud, robbery, and so forth.
Article 7: Where it is clearly known that it is criminal proceeds or the proceeds thereof, and they are covered up or concealed, constituting a crime as provided for in Criminal Law article 312, and concurrently concurrently constituting other crimes, follow the provisions for the heavier punishment at trial and sentencing.
Article 8: The premise for determining the crime of covering up or concealing criminal proceeds or the proceeds thereof is that the facts of the predicate crime are established. Where a judgment has not been made in accordance with law for the predicate crime, but it is verified to be true, it does not impact the determination of the crime of covering up or concealing criminal proceeds or the proceeds thereof.
Where the facts of the predicate crime are verified to be true, but criminal responsibility is not pursued in accordance with law because the perpetrator has not reached the age of criminal responsibility, it does not impact the determination of the crime of covering up or concealing criminal proceeds or the proceeds thereof.
Article 9: Where the name of a unit is misappropriated to carry out acts of covering up or concealing criminal proceeds and the proceeds thereof, and the unlawful gains are privately divided by the perpetrator, it is to be convicted and punished in accordance with the provisions of the Criminal Law and judicial interpretations on crimes committed by natural persons.
Article 10: Stolen money or property directly obtained through a crime shall be found to be "criminal gains" as provided for in Criminal Law article 312. The proceeds, rents, and so forth obtained by the perpetrators of the predicate crime after disposing of the criminal proceeds shall be found to be "proceeds from criminal proceeds" as provided for in Criminal Law article 312.
Employing methods other than harboring, transferring, purchasing, or selling on behalf of others, such as brokering the sale, receiving, holding, using, processing, providing a fund account, assisting in the conversion of property into cash, financial instruments, or negotiable securities, or assisting in the transfer or remittance of funds overseas, shall be found to be "other methods" as provided for in Criminal Law article 312.
Article 11: The crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds is a selective crime, and the trial of such cases shall determine the applicable charges on the basis of the specific criminal conduct and the target to which it is directed.
Interpretation of the Supreme People's Court and Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Obstruction of the Management of Cultural Relics (Fa Shi [2015] No. 23, effective as of January 1, 2016, excerpt)
Article 9: Where a person clearly knows that cultural relics of grade 3 or higher have been obtained through crimes such as theft of cultural relics, theft and excavation of ancient cultural sites, ancient tombs, etc., but harbors, transfers, purchases, processes, sells them on behalf of others, or otherwise conceals or conceals them, criminal responsibility is to be pursued for the crime of covering up or concealing criminal proceeds in accordance with the provisions of Criminal Law article 312.
Where the conduct provided for in the preceding paragraph is carried out with prior conspiracy, it is to be punished as a joint crime.
Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Illegal Mining and Destructive Mining (Fa Shi [2016] No. 25, effective as of December 1, 2016, excerpted)
Article 7: Where mineral products and the proceeds thereof are clearly known to be criminal proceeds, but are concealed, transferred, purchased, sold on behalf of others, or otherwise covered up or concealed, it is to be convicted and punished as the crime of covering up or concealing criminal proceeds or the proceeds thereof in accordance with Criminal Law article 312.
Where the criminal conduct provided for in the preceding paragraph is carried out, and there is prior conspiracy, it is to be punished as a joint crime.
"Interpretation of the Supreme People's Court and Supreme People's Procuratorate on Several Issues Concerning the Application of Law in Handling Criminal Cases of Destruction of Wildlife Resources" (Fa Shi [2022] No. 12, effective as of April 9, 2022, excerpted)
Article 9: Where aquatic products that are clearly known to be the proceeds of illegal fishing or the prey of illegal hunting are purchased, sold, or otherwise covered up or concealed, and the provisions of Criminal Law article 312 are met, it is to be convicted and punished as the crime of covering up or concealing criminal gains.
【Normative Documents】
Provisions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the State Administration for Industry and Commerce on Investigating and Dealing with Cases of Theft and Robbery of Motor Vehicles in Accordance with Law (Gongtong Zi [1998] No. 31)
These Provisions are formulated on the basis of the Criminal Law of the People's Republic of China (hereinafter referred to as the "Criminal Law"), the Criminal Procedure Law of the People's Republic of China (hereinafter referred to as the "Criminal Procedure Law") and other relevant laws and regulations, so as to severely crack down on the criminal activities of theft and robbery of motor vehicles in accordance with law, to block the channels for criminals who steal and rob motor vehicles to sell stolen goods, and to protect the state, collective property, and citizens' lawful property.
1. Judicial organs shall assist in investigating and handling cases of theft or robbery of motor vehicles in accordance with law. Where violence or threats are used to obstruct judicial personnel from handling cases in accordance with law, punishment is to be given in accordance with the provisions of paragraph 1 of article 277 of the Criminal Law.
2. Clearly knowing that a motor vehicle has been stolen or robbed and harbors, transferred, acquired, or sold on behalf of others, is to be punished in accordance with the provisions of article 312 of the Criminal Law.
Where a motor vehicle is clearly dismantled, modified, assembled, pawned, or resold knowing that it is the result of theft or robbery, it is to be viewed as harboring, transferring, purchasing, or selling on behalf of others, and is to be punished in accordance with article 312 of the Criminal Law.
3. Where the managers or other directly responsible personnel of state-designated vehicle trading markets, motor vehicle business enterprises (including pawnbroking and auction houses), or enterprises engaged in the repair or sale of motor vehicle parts, clearly know that they are stolen or robbed, and harbor, transfer, disassemble, assemble, purchase, or sell on their behalf, they shall be punished in accordance with the provisions of article 312 of the Criminal Law. Where a unit organizes and implements the above-mentioned acts, the administrative organ for industry and commerce shall impose a punishment.
4. Where the perpetrators in articles 2 and 3 of these Provisions conspire with criminals who steal or rob motor vehicles in advance, they are to be punished as accomplices to the crime of theft or robbery.
5. Motor vehicle transactions must be carried out in the trading market designated by the state or legal business enterprises, and the transaction vouchers shall be verified and sealed by the administrative organs for industry and commerce and then go through the registration or transfer procedures, and the private trading of motor vehicles is an illegal act and shall be dealt with by the administrative organs for industry and commerce in accordance with the law.
Knowingly buying a stolen car is convicted and punished for the crime of acquiring stolen goods. Where the unit's managers or other directly responsible personnel clearly know that it was purchased by stolen vehicles, they are to be convicted and punished as the crime of purchasing stolen goods.
Those who clearly know that they are stolen cars and introduce them for sale are to be punished as accomplices to the crime of purchasing or selling stolen goods.
6. Anyone who illegally sells invoices related to motor vehicles, or forges or manufactures or sells invoices related to motor vehicles that are forged or manufactured without authorization, shall be punished in accordance with the provisions of Article 209 of the Criminal Law.
7. Anyone who forges, alters, or buys or sells motor vehicle license plates or relevant supporting documents for the entry, transfer, or verification of motor vehicles shall be punished in accordance with the provisions of paragraph 1 of article 280 of the Criminal Law.
8. Where public security or industrial and commercial administrative personnel take advantage of their positions to solicit or illegally accept other people's property, and it constitutes a crime to enter the house, transfer ownership, or verify the stolen car, they are to be punished in accordance with the provisions of articles 385 and 386 of the Criminal Law.
9. Where public security, industrial and commercial administrative personnel, or functionaries of other state organs abuse their powers, derelict their duties, or twist the law for personal gain, causing stolen vehicles to enter the household, transfer ownership, or verify them, they shall be given administrative sanctions; those who cause major losses to public property or the interests of the state and the people shall be punished in accordance with the provisions of Article 397 of the Criminal Law.
10. Where public security personnel illegally provide motor vehicle license plates for stolen or robbed motor vehicles, or facilitate their acquisition of motor vehicle license plates, and help criminals evade punishment, they are to be punished in accordance with article 417 of the Criminal Law.
11. Motor vehicles stolen or robbed by criminals and the proceeds from their sale shall be recovered in accordance with the provisions of article 64 of the Criminal Law.
12. Where a vehicle is purchased knowing that it is stolen car, the vehicle shall be recovered free of charge; if a vehicle is purchased in violation of state regulations, and it is verified that it is a stolen car, the public security organ may recover and seize it in accordance with the provisions of Articles 110 and 114 of the Criminal Procedure Law. If the car is purchased without knowing that it is a stolen car, it will be returned to the buyer after the case is closed.
13. Whoever, after purchasing a stolen car, uses illegally provided procedures for entering or transferring ownership of a stolen car, or uses forged or altered procedures for entering or transferring ownership of a stolen car, shall have his license plate revoked and the vehicle shall be recovered free of charge;
14. Stolen or robbed motor vehicles that have been directly recovered from criminals may be returned to their owners in accordance with law after they have been inspected and verified to be true, and lists, photographs, and other evidence may be attached to the case when the case is transferred. Before returning the stolen goods to the owner, they shall be managed in accordance with the regulations on the management of stolen goods, and no unit or individual shall misappropriate, damage or dispose of them on their own.
15. In cases of theft or robbery of motor vehicles, the public security organs at the place where the case occurred are to file and investigate, and the public security organs at the place where the stolen vehicles flow shall cooperate. Cases of cross-regional theft or robbery of motor vehicles are to be filed and investigated by the public security organ that initially accepted the case;
16. All local public security organs shall transfer stolen or robbed motor vehicles recovered by the public security organs in each region to the units under their jurisdiction for handling in accordance with law, and must not detain or demand fees for any reason. If the delay is not made, the unit leader shall be given an administrative sanction.
17. "Knowingly" as used in these Provisions refers to knowing or should have known. In any of the following circumstances, it may be deemed that they should have known, except where there is evidence showing that they were deceived:
(1) Purchased at illegal motor vehicle trading venues and sales units;
(2) The formalities for motor vehicle documents are incomplete or clearly violated;
(3) There are traces of alteration of the engine number or frame number of the motor vehicle, and there is no legal proof;
(4) Purchasing a motor vehicle at a price significantly lower than the market price.
18. These Provisions shall be implemented as of the date of promulgation. The investigation and handling of cases of embezzlement, snatching, or fraud of motor vehicles shall be handled with reference to the principles of these Provisions. These Provisions apply to cases that have not been completed after the promulgation of these Provisions.
Note: The application of this normative document needs to be properly grasped in conjunction with the provisions of Article 312 of the Criminal Law and relevant judicial interpretations as amended thereafter. —Note to the commentary
Minutes of the Symposium on the Application of Law in the Handling of Criminal Cases of Counterfeit and Shoddy Tobacco Products by the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the State Tobacco Monopoly Administration (Commodity Inspection Commission [2003] No. 4, excerpt)
VII. Issues concerning the conviction and punishment of harboring and transferring illegally manufactured and sold tobacco products
Where tobacco products are clearly concealed or transferred knowing that they are illegally manufactured or sold, they are to be convicted and punished as the crime of harboring or transferring stolen goods in accordance with the provisions of Criminal Law article 312.
"Opinions of the Supreme People's Court, Supreme People's Procuratorate, and Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Telecommunications Network Fraud" (Fa Fa [2016] No. 32, excerpt)
III. Comprehensively punish related crimes
(5) Where it is clearly known that they are the proceeds of telecommunications network fraud and the proceeds thereof, and transfer, cash out, or withdraw cash in any of the following ways, criminal responsibility is to be pursued for the crime of covering up or concealing criminal proceeds or the proceeds thereof in accordance with the provisions of paragraph 1 of Criminal Law article 312. Except where there is evidence that there is evidence of true ignorance:
1. Assisting in the conversion or transfer of property through the use of illegal means such as cashing out by swiping cards at point-of-sale terminals (POS machines);
2. Helping others to store huge amounts of cash in multiple bank accounts, or frequently transferring between different bank accounts;
3. Repeatedly using or using multiple credit cards or fund payment and settlement accounts that are not the person's identification, or repeatedly using abnormal methods such as covering cameras or camouflage, to help others transfer, cash out, or withdraw cash;
4. Helping others transfer, cash out, or withdraw cash after providing others with credit cards or fund payment settlement accounts that are not their own identification;
5. Cashing out at a price that is obviously different from the market through mobile phone recharge, trading game point cards, etc.
Where the conduct described above is carried out and there is prior conspiracy, it is to be punished as a joint crime.
Where the criminal suspect in telecommunications network fraud has not yet been brought into the case or the case has not yet been adjudicated in accordance with law, but the available evidence is sufficient to prove that the criminal conduct truly exists, it does not impact the determination of the crime of covering up or concealing criminal proceeds or the proceeds of criminal gains.
Where the conduct described above is concurrently constituted as other crimes, follow the provisions for the heavier punishment at trial and sentencing. Except as otherwise provided by laws and judicial interpretations.
Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Criminal Cases of Theft of Oil and Gas and Destruction of Oil and Gas Equipment (Fa Fa [2018] No. 18)
5. Handling of acts of harboring, transferring, purchasing, processing, and selling stolen oil and gas on behalf of others
Where oil and gas are clearly concealed, transferred, purchased, processed, sold on behalf of others, or otherwise covered up or concealed, knowing that they are criminal proceeds, and the provisions of Criminal Law article 312 are met, criminal responsibility is to be pursued for the crime of covering up or concealing criminal proceeds.
The determination of "knowingly" shall be comprehensively considered in consideration of factors such as the actor's cognitive ability, remuneration received, means of transportation, transportation routes, purchase price, form of acquisition, processing methods, place of sale, and storage conditions.
Where the criminal conduct provided for in the first paragraph is carried out and there is prior conspiracy, it is to be punished as a joint crime of theft, destruction of flammable or explosive equipment, or other related crimes.
Minutes of the Symposium on Cracking Down on Smuggling of Refined Oil Products in Non-Customs Places by the Supreme People's Court, the Supreme People's Procuratorate and the General Administration of Customs (Excerpt from the Symposium on Cracking Down on Smuggling of Refined Oil Products in Non-Customs Places)
1. On conviction and punishment
Where the smuggling of refined oil constitutes a crime, it shall be convicted and punished as the crime of smuggling ordinary goods in accordance with the provisions of Article 153 of the Criminal Law.
Purchasers who do not constitute accomplices in smuggling directly purchase smuggled refined oil from smugglers, and the amount is relatively large, shall be punished as the crime of smuggling in accordance with the provisions of Article 155 (1) of the Criminal Law;
In handling a criminal case of smuggling refined oil products in a non-customs area, if it is found that the perpetrator has adulterated or adulterated the refined oil sold by him, passed off the fake oil as genuine, shoddy or substandard oil as qualified oil products, and constituted a crime, the act shall be convicted and punished as the crime of producing or selling fake and shoddy products in accordance with the provisions of Article 140 of the Criminal Law.
Where the perpetrator conspires with others in advance or clearly knows that others are engaged in criminal activities of smuggling refined oil, but sells or transfers refined oil products to them in the exclusive economic zone of the mainland or on the high seas, he shall be investigated for criminal responsibility as an accomplice to the crime of smuggling.
Anyone who clearly knows that others are engaged in criminal activities of smuggling refined oil products and provides them with funds, loans, account numbers, invoices, certificates, license documents, or other convenient conditions such as transportation and warehousing, shall be investigated for criminal responsibility as an accomplice to the crime of smuggling.
The principal financiers and organizers of the joint crime of smuggling refined oil or the criminal group shall be found to be the principal offender; hired liaison officers, captains, and other management personnel may be found to be accomplices, and if they play an important role in the crime of smuggling, they shall be found to be the principal offenders; and other participants, such as crew members, drivers, "black water pilots", and personnel who are watching the wind, shall not be judged on the basis of their occupation or status, but shall be based on their actual status, role, and amount of money involved in the smuggling activities. The number of participations, etc., determines whether criminal responsibility is pursued.
The people's procuratorates and people's courts shall strictly grasp the conditions for the application of non-prosecution and suspended sentences for criminal suspects and defendants who smuggle refined oil products in non-customs areas.
"Guiding Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Handling Criminal Cases Involving Manhole Covers" (Gao Jian Fa [2020] No. 3, excerpt)
7. Where it is known or should be known that it is the proceeds of theft and the proceeds thereof are concealed, transferred, acquired, sold on behalf of others, or otherwise covered up or concealed, it is to be convicted and punished as the crime of covering up or concealing criminal proceeds or the proceeds thereof in accordance with article 312 of the Criminal Law and the "Supreme People's Court's Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases Involving the Concealment or Concealment of Criminal Proceeds or the Proceeds of Criminal Gains".
"Opinions of the Supreme People's Court, Supreme People's Procuratorate, Ministry of Public Security, and Ministry of Justice on Lawfully Punishing Violations and Crimes that Obstruct the Prevention and Control of the Novel Coronavirus Pneumonia Epidemic" (Fa Fa [2020] No. 7, excerpt)
II. Accurately apply the law, and severely punish all types of violations and crimes that impede epidemic prevention and control in accordance with law
(9) Strictly punish crimes of destroying wildlife resources in accordance with law. Illegally hunting or killing rare or endangered wildlife under key national protection, or illegally purchasing, transporting, or selling rare or endangered wildlife under key national protection and the products thereof, is to be convicted and punished as the crime of illegally hunting or killing rare or endangered wildlife or illegally purchasing, transporting, or selling precious or endangered wildlife or products of rare or endangered wildlife in accordance with the provisions of paragraph 1 of Criminal Law article 341.
Where hunting regulations are violated by hunting in prohibited areas, during prohibited hunting periods, or by using prohibited tools or methods, destroying wildlife resources, and the circumstances are serious, it is to be convicted and punished as the crime of illegal hunting in accordance with the provisions of paragraph 2 of Criminal Law article 341.
Where state provisions are violated by illegally trading wildlife and the products thereof that are not under national key protection (including opening trading venues, conducting online sales, selling processed food, etc.), disrupting market order, and the circumstances are serious, it is to be convicted and punished as the crime of illegal business operations in accordance with the provisions of Criminal Law article 225(4).
Where one knows or should know that rare or endangered wildlife and the products thereof are under key national protection, and illegally purchases them for consumption or other purposes, and meets the requirements of paragraph 1 of Criminal Law article 341, it is to be convicted and punished as the crime of illegally purchasing rare or endangered wildlife or products of precious or endangered wildlife.
Where they know or should know that they are illegally hunted wildlife and purchase them in accordance with Criminal Law article 312, it is to be convicted and punished as the crime of covering up or concealing criminal gains.
Opinions of the Supreme People's Court, the Supreme People's Procuratorate and the Ministry of Public Security on Several Issues Concerning the Handling of Cross-border Gambling Crime Cases (Gongtong Zi [2020] No. 14)
IV. Determination of cross-border gambling-related crimes
(5) Where providing services such as funds, credit cards, or fund settlements for gambling crimes constitutes an accomplice to gambling crimes, and at the same time constitutes the crime of illegal business operations, the crime of obstructing credit card management, the crime of stealing, buying, or illegally providing credit card information, or the crime of covering up or concealing criminal proceeds or criminal proceeds, it is to be convicted and punished in accordance with the provisions for the heavier punishment.
Where providing technical support such as internet access, server hosting, network storage, or communication transmission for online gambling crimes, or providing assistance such as advertising and promotion, payment and settlement, constitutes an accomplice to gambling crimes, and concurrently constitutes the crime of illegally using information networks, aiding information network criminal activities, or other such crimes, it is to be convicted and punished in accordance with the provisions for the heavier punishment.
Where citizens' personal information is illegally obtained for the purpose of committing a gambling crime, or citizens' personal information is sold or provided to a person who commits a gambling crime, constituting an accomplice to a gambling crime, and concurrently concurrently constituting a crime of infringing on citizens' personal information, it is to be convicted and punished in accordance with the provisions for the heavier punishment.
"Opinions of the Supreme People's Court, the Supreme People's Procuratorate, the Ministry of Public Security, and the Ministry of Agriculture and Rural Affairs on Punishing Illegal Fishing and Other Violations and Crimes in the Yangtze River Basin in Accordance with Law" (Gongtong Zi [2020] No. 17, excerpt)
2. Accurately apply the law, and severely punish illegal fishing and other violations and crimes that endanger aquatic biological resources in accordance with law
(3) Severely punish the crime of illegal catch trade in accordance with law. Where aquatic products are purchased or sold with a value of 10,000 yuan or more, clearly knowing that they are the proceeds of illegal fishing in key waters of the Yangtze River Basin, they shall be convicted and punished as the crime of covering up or concealing criminal proceeds in accordance with the provisions of Criminal Law article 312.
Where the value of 20,000 yuan but not more than 200,000 yuan is illegally purchased, transported, or sold in the key waters of the Yangtze River basin, such as the Chinese sturgeon, Yangtze sturgeon, Yangtze finless porpoise, or precious or endangered wildlife under key protection by other countries and the products thereof, the value of which is between 20,000 and 200,000 yuan shall be illegally acquired, transported, or sold in accordance with the provisions of Article 341 of the Criminal Law. The crime of endangered wildlife products shall be sentenced to up to five years imprisonment or short-term detention and a concurrent fine; where the value is between 200,000 and 2,000,000 RMB, it shall be found to be "serious circumstances" and a sentence of between 5 and 10 years imprisonment and a concurrent fine;
"The Supreme People's Court and the Supreme People's Procuratorate's Sentencing Guiding Opinions on Common Crimes (Provisional)" (Fa Fa [2021] No. 21, excerpt)
IV. Sentencing for Common Crimes
(19) Covering up or concealing criminal proceeds or the proceeds thereof
1. Where the crime of covering up or concealing criminal proceeds or the proceeds thereof is established, the starting sentence is to be determined within the corresponding range on the basis of the following circumstances:
(1) Where the circumstances of the crime are ordinary, the starting sentence is to be determined within the range of up to one year imprisonment or short-term detention.
(2) Where the circumstances are serious, the starting sentence is to be determined within the range of 3-4 years imprisonment.
2. On the basis of the starting sentence, the sentence is to be increased on the basis of the amount of the crime and other facts of the crime that impact the establishment of the crime, and the base sentence is to be determined.
3. Where the crime of covering up or concealing criminal proceeds or the proceeds thereof is established, the amount of the fine is to be determined on the basis of the circumstances of the crime such as the amount of the criminal proceeds and the proceeds thereof, the target of the crime, and the harmful consequences, as well as comprehensive consideration of the defendant's ability to pay the fine.
4. Where the crime of covering up or concealing criminal proceeds or the proceeds thereof is established, the application of a suspended sentence is to be determined based on comprehensive consideration of the facts of the crime and sentencing circumstances such as the amount of the criminal proceeds and the proceeds thereof, the harmful consequences, and the degree of harm of the predicate crime, as well as factors such as the defendant's subjective malice, personal dangerousness, and admission of guilt and expressions of remorse.
"Opinions of the Supreme People's Court, Supreme People's Procuratorate, and Ministry of Public Security on Several Issues Concerning the Application of Law in Handling Criminal Cases such as Telecommunications Network Fraud (II)" (Fa Fa [2021] No. 22, excerpt)
11. Where one of the following methods is clearly known to be criminal proceeds of telecommunications network fraud and the proceeds thereof, transferring, cashing out, or withdrawing cash, and the provisions of paragraph 1 of Criminal Law article 312 are met, criminal responsibility is to be pursued for the crime of covering up or concealing criminal proceeds or the proceeds thereof. Except where there is evidence to prove that they did not know.
(1) Repeatedly using or using multiple collection codes, online payment interfaces, and so forth that are not the person's identification to help others transfer, cash out, or withdraw cash;
(2) Converting property or cashing out through e-commerce platform prepaid cards, virtual currency, mobile phone recharge cards, game point cards, game equipment, and so forth at prices that are clearly different from the market;
(3) Assisting in the conversion or transfer of property, and charging "handling fees" that are clearly higher than the market.
Where the conduct described above is carried out and there is prior conspiracy, it is to be punished as a joint crime; Except as otherwise provided by laws and judicial interpretations.
XII. Providing technical support, advertising and promotion, payment and settlement assistance, or harboring, transferring, purchasing, or selling on behalf of others, or using other methods to cover up or conceal the criminal proceeds of telecommunications network fraud and the proceeds thereof, and the criminal conduct of fraud may be confirmed, but the perpetrator of the fraud has not yet been brought into the case, the criminal responsibility of the criminal suspects or defendants described above who have already been brought into the case may be pursued in accordance with law.
Minutes of the Meeting of the Third Criminal Trial Division of the Supreme People's Court, the Fourth Procuratorate of the Supreme People's Procuratorate, and the Criminal Investigation Bureau of the Ministry of Public Security on Issues Concerning the Application of Law in the 'Card Breaking' Operation (March 22, 2022, excerpt)
V. On correctly distinguishing between the crimes of aiding information network criminal activities, covering up or concealing criminal proceeds, the crimes of proceeds of crime, and the crimes of fraud. In handling cases involving "two cards" crimes, there is a problem of accurately defining the boundaries between the aforementioned three crimes. The nature of the perpetrator's conduct shall be determined on the basis of the content of the perpetrator's subjective knowledge and the specific criminal conduct committed. Take credit cards as an example: (1) Clearly knowing that others are committing telecommunications network fraud, participating in a fraud gang or forming a relatively stable cooperative relationship with the fraud gang, and providing credit cards or transferring cash for others for a long period of time, may be punished for the crime of fraud. (2) Where after the perpetrator rents or sells a credit card to others, he or she transfers, cashes out, or withdraws cash on behalf of others, but clearly knows that it is criminal proceeds and the proceeds thereof, or provides verification services such as face scanning to cooperate with others in transferring, cashing out, or withdrawing cash, the crime of covering up or concealing criminal proceeds or the proceeds thereof may be punished. (3) Where they clearly know that others are using information networks to commit crimes, but only rent or sell credit cards to others, but do not carry out other conduct, and the circumstances reach the standard of seriousness, it may be helpful to punish the crime of information network criminal activities.
In judicial practice, the specific circumstances of the case shall be analyzed on a case-by-case basis, subjective and objective evidence shall be combined, and the perpetrator's justification shall be emphasized, to ensure accurate characterization.
[Reply and reply to the application of law]
Reply of the Research Office of the Supreme People's Court on the Application of the Relevant Provisions of the Interpretation of the Supreme People's Court and the Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in the Handling of Criminal Cases Related to Theft, Robbery, Fraud, and Snatching of Motor Vehicles (Fa Yan [2014] No. 98)
Yunnan Provincial High People's Court:
Your court's "Instructions on the Interpretation and Application of Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Related to Theft, Robbery, Fraud, and Snatching of Motor Vehicles < the Supreme People's Court and the Supreme People's Court of the People's Republic of China and the Supreme People's Court of the People's Republic of China > the Supreme People's Court and the Supreme People's Court of the People's Republic of China for Robbery, Robbery, Fraud, and Snatching of Motor Vehicles" (Yun Gao Fa [2013] No. 213) has been received. After study, the reply is as follows:
On the basis of the basic principles of criminal law that the punishment is commensurate with the crime, the "Supreme People's Court and Supreme People's Procuratorate Interpretation on Several Issues Concerning the Specific Application of Law in Handling Criminal Cases Related to Theft, Robbery, Fraud, and Snatching of Motor Vehicles" as provided for in the second paragraph of article 1 of the "Interpretation of the Supreme People's Court and Supreme People's Procuratorate on Several Issues Concerning the Specific Application of Law in Criminal Cases Related to Theft, Robbery, Fraud, and Snatching of Motor Vehicles" shall refer to the number of motor vehicles being five or more, and the total value is close to 500,000 yuan.
Note: "Close" should be more than 80% of the corresponding amount standard. —Note to the commentary
[Refinement of the Rules of Criminal Reference Cases]
"Ma Jun, Chen Xiaoling, et al., Theft and Concealment of Criminal Proceeds - Whether the Acts of Agreeing with the Seller in Advance and Contributing to the Purchase of Stolen Goods Without the Knowledge of the Perpetrator of Theft Constitute an Accomplice to Theft" (Case No. 483), "Xiong Haitao Theft Case - How to Characterize a Person Who Knows that a Person Under the Age of Criminal Responsibility is Stealing and Selling Other People's Property or His Own Family, but Still Comes to Help Transfer and Acquire It" (Case No. 1013), "Han Yaze's Case of Covering Up and Concealing Criminal Proceeds—— If the predicate crime has not yet been adjudicated in accordance with law, but it is verified to be true, does it affect the determination of the crime of covering up or concealing criminal proceeds (Case No. 1030), "Liu Xiaohui and Yu Lin Covering Up and Concealing Criminal Proceeds - The Impact of the Particularity of the Criminal Object on the Conviction and Sentencing of the Crime of Covering Up and Concealing Criminal Proceeds" (Case No. 1091), "Lei Mouren, Huang Mousheng, and Huang Mouping Destroying Transportation Facilities, Tian Mouxiang Covering Up and Concealing Criminal Proceeds, and the Proceeds of Criminal Proceeds - How to Deal with Covering Up and Concealing Criminal Proceeds as Transportation Facilities" (Case No. 1092), "Wen Fusheng's Case of Covering Up and Concealing Criminal Proceeds - Whether the Behavior of Collecting a Large Number of Shopping Cards and Selling Them for Profit Constitutes a Crime" (Case No. 1093), "Shen Peng and Zhu Xinbo Covering Up and Concealing Criminal Proceeds - Applicable Suspended Sentence for Covering Up and Concealing Criminal Proceeds If the Crime of Covering Up and Concealing Criminal Proceeds is Minor and Has Circumstances of Voluntary Surrender" (Case No. 1094), "Yuan Moumou's Credit Card Fraud, Zhang Moumou's Case of Covering Up and Concealing Criminal Proceeds - How to Sentense and Cover Up and Conceal Criminal Proceeds in the Circumstances of "Relatives and Concealment", Application of the Crime of Proceeds of Crime (Case No. 1095), Case of Zhang Xingquan Covering Up and Concealing Criminal Proceeds - How to Grasp the Conditions for Exemption from Criminal Punishment for the Crime of Covering Up and Concealing Criminal Proceeds (Case No. 1096), Case of Tang X Covering Up and Concealing Criminal Proceeds - Conviction and Punishment for Purchasing a Mobile Phone for Personal Use Knowing That It Was Stolen (Case No. 1097), Case of Tang Yuhua and Zhuang Ruijun Stealing Zhu Duanyin to Cover Up and Conceal Criminal Proceeds - Cover-up, Sentencing Balance between the Crime of Concealing Criminal Proceeds and the Predicate Crime (Case No. 1098), The Case of Li Lin Covering Up and Concealing Criminal Proceeds - Criteria for Determining the Seriousness of the Crime of Covering Up and Concealing Criminal Proceeds (Case No. 1099), The Case of Theft by Sun Shankai, Liu Jun and Zhu Kang - How to Characterize the Behavior of Promising to Purchase Designated Special Products in Advance and Purchasing Them at a Low Price After the Fact (Case No. 1100), Sun Hongliang's Case of Embezzlement in Duty - Conspiring with the Criminals of the Crime of Embezzlement in Advance to Help Cover Up, If the criminal proceeds are concealed, they shall be punished as accomplices to the crime of embezzlement in public office (Case No. 1101), "The Case of Chen, Ouyang, et al. Covering Up and Concealing Criminal Proceeds - How to Determine the Behavior of Purchasing and Selling Computer Information System Data Illegally Obtained by Others" (Case No. 1102), "The Case of Omtoshao et al. Covering Up and Concealing Criminal Proceeds - The Relationship between the Determination of the Predicate Crime and the Determination of the Crime of Covering Up and Concealing Criminal Proceeds" (Case No. 1104), "The Case of Tan Xisong Covering Up and Concealing Criminal Proceeds——" The facts of the predicate crime have been verified to be true" (Case No. 110), "Tang Mouzhong and Tang Moubo's Case of Covering Up and Concealing Criminal Proceeds - Whether the Upstream Criminal Perpetrator Is Fleeing Affects the Determination of the Crime of Covering Up and Concealing Criminal Proceeds and the Determination of the Amount of Covering Up and Concealing Criminal Proceeds" (Case No. 1106), "The Case of Yuan XX Covering Up and Concealing Criminal Proceeds - Where the Upstream Crime Is Verified to Be True but Criminal Responsibility Is Not Pursued in Accordance with Law, It Does Not Affect the Establishment of the Crime of Covering Up or Concealing Criminal Proceeds" (Case No. 1107), Guo Rui and Huang Lixin's Case of Theft, Cover-up, and Concealment of Criminal Proceeds - How to Characterize the Receipt of Stolen Goods in Advance with Theft Criminals (Case No. 1108), Mudanjiang Renewable Resources Development Co., Ltd. Case of the 17th Acquisition Station and Zhu Fuliang Covering Up and Concealing Criminal Proceeds - Identification and Handling of the Crime of Covering Up and Concealing Criminal Proceeds by Units (Case No. 1109), Chen Fei and Liu Bo's Case of Covering Up and Concealing Criminal Proceeds - Characterization of the Use of Stolen Vehicles Obtained by Crime after Modifying the Engine Number ( Case No. 1110), "Li Tao and Cao Moumou Covering Up and Concealing Criminal Proceeds - How to Determine "Other Methods" to Cover Up and Conceal Criminal Proceeds (Case No. 1111), "Zhang Han, Fang Jiance, Shenying Case of Covering Up and Concealing Criminal Proceeds - Can the Act of Helping to Replace the Stolen Electric Vehicle Lock Be Recognized as "Other Methods" in the Objective Elements of the Crime of Covering Up and Concealing Criminal Proceeds (Case No. 1112), "Wu et al. Case of Covering Up and Concealing Criminal Proceeds—— How to characterize the act of dismantling and selling agricultural vehicles knowing that they are stolen (Case No. 1113), "The Case of Hou Moumou Covering Up and Concealing Criminal Proceeds - How to Characterize the Behavior of Security Guards Appropriating the Stolen Proceeds of Theft Criminals Caught During Patrol as Their Own Behavior" (Case No. 1114), "The Case of Tan Mouqi and Tan Mou Covering Up and Concealing Criminal Proceeds - How to Distinguish the Crime of Covering Up and Concealing Criminal Proceeds, This Crime and the Other Crime" (Case No. 1115), "Du Guojun and Du Xijun Illegally Fishing Aquatic ProductsThe rules involved in the case of Liu Xunshan and Yan Rongfu covering up and concealing criminal proceeds - How to understand the number of crimes committed by the crime of covering up and concealing criminal proceeds and the proceeds of criminal proceeds with "serious circumstances" (Case No. 1219) are summarized as follows:
1. Rules on the scope of predicate offences. "Most of the predicate crimes of covering up or concealing criminal proceeds or the proceeds of criminal proceeds are theft, robbery, snatching, fraud, and other crimes of embezzlement of property, but they are not limited to crimes of embezzlement of property. "Those who cover up or conceal the criminal proceeds of sabotaging highway facilities and the proceeds thereof must be severely punished in accordance with the law. (Case No. 1092) "The special target of the transfer reflects the more serious social harm of the predicate crime, and the judicial authorities are more urgent in prosecuting the predicate crime, so the special target should have an impact on the conviction and sentencing." (Case No. 1091) "As a virtual carrier with the nature of property, computer information system data can be the object of illegal acquisition, and at the same time, it can also become the object of the crime of covering up or concealing criminal proceeds. (Case No. 1102) "Where the facts of the predicate crime are established, but criminal responsibility is not pursued because the subject is not qualified, the perpetrator of the concealment or concealment shall still be convicted and punished for the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds." (Case No. 1107) It should be noted that "where the predicate criminal perpetrator commits acts of covering up or concealing criminal proceeds such as purchasing or selling criminal proceeds, it cannot be convicted and punished as the crime of covering up or concealing criminal proceeds." (Case No. 1219)
2. Rules for determining that the predicate crime is verified to be true. "There is certain evidence to prove that the predicate crime actually occurred and that the crime was in fact established, so that it can be ascertained that the object of the cover-up or concealment is the proceeds of crime and its proceeds, and then the conduct of the crime can be evaluated. (Case No. 1104) However, "the crime of covering up or concealing criminal proceeds is an independent crime, and as long as the act meets the elements of the crime stipulated in the Criminal Law, it constitutes the crime of covering up or concealing criminal proceeds, and it is not necessary to rely on the predicate crime to be adjudicated." "Where the predicate crime has not been adjudicated in accordance with law, but it is verified to be true, it does not impact the determination of the downstream crime. (Case No. 1030) "'Proceeds of crime' refers to stolen money or goods obtained directly through the commission of a crime. "Because the owner of the goods produces and sells counterfeit ...... The criminal activities are still in progress, the crime has not yet reached a state of complete completion, and the criminal proceeds have not yet been formed", and the act of aiding in transportation cannot constitute the crime of covering up or concealing the criminal proceeds. (Case No. 1115) "The fact that the predicate criminal perpetrator is at large does not affect the determination of the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds." (Case No. 1106) "Although the suspect of the predicate crime has not been apprehended, let alone adjudicated in accordance with the law, the existing evidence is sufficient to determine the existence of the facts of the crime, and it can be determined that it belongs to the situation of 'the predicate crime has not been adjudicated in accordance with the law, but it has been verified to be true', so it does not affect the ...... Determination and sentencing of the crime of covering up or concealing criminal proceeds. (Case No. 1105)
4. Rules for determining the subject and objective conduct of the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds. "The act of modifying a stolen car that it is clearly known to be the proceeds of crime and introducing it for sale shall be found to be an act of covering up or concealing the proceeds of crime. (Case No. 1110) From the perspective of objective conduct, "'selling on behalf of others' is different from 'acquisition' in that it sells the proceeds of crime on behalf of criminals, and in the intermediate process, no ownership of the proceeds of crime is obtained with its own funds. (Case No. 1102) In the context of "other means", "it should refer to methods similar to the four modes of conduct of harboring, transferring, acquiring and selling on behalf of others...... From the perspective of causality, there is a causal relationship between the act of covering up or concealing in 'other ways' and the difficulty of prosecuting the predicate criminal acts of others by the judicial organs, and this effect of being difficult to prosecute is the result of the perpetrator's pursuit or indulgence. "Knowing that the processed crude oil is the proceeds of illegal acquisition, but still selling it for a profit by refining crude oil into local diesel" can be found to be "other methods". (Case No. 1111) "The act of helping to replace a stolen electric vehicle lock is ...... 'other method'. (Case No. 1112) "The act of dismantling an agricultural vehicle and the act of brokering a sale are all ...... 'other methods'. (Case No. 1113) In addition, "if a unit clearly knows that it is the proceeds of crime and purchases them at the price of scrap, it constitutes the crime of covering up or concealing the proceeds of crime." (Case No. 1109)
5. Rules for determining accomplices in prior conspiracy. "The basis for establishing an accomplice to theft by conspiring with the perpetrator of theft in advance and selling the stolen goods afterwards is that, on the one hand, the perpetrator of the sale of stolen goods and the perpetrator subjectively formed the intention of committing a joint crime; On the other hand, the act of selling stolen goods has played a role in encouraging and supporting the implementation of the criminal intent and the commission of the crime, so it meets the constitutive elements of a joint crime and is an aider in a joint crime, and should be punished as an accomplice. (Case No. 483) "To determine an accomplice in a prior conspiracy, two elements must be met at the same time: first, the accessory must have communicated with him before the crime has been completed; The second is that the accessory must have committed the act of constituting the elements of the crime of stolen goods after the fact. Where the perpetrator only knew that a person might want to steal, but did not form a contact with him in advance, and later conspired with him to sell the stolen goods, or even though he had prior intention to contact the thief, but did not carry out acts such as selling the stolen goods afterwards, it cannot constitute an accomplice to theft. (Case No. 140) "Where a person clearly knows that the property is the proceeds of the crime of the predicate offender, promises to purchase it in advance, and then purchases the stolen goods at the scene of the predicate crime, it may be found to be a conspiracy to commit a crime with the predicate offender." "In the present case, the recipient ...... Clearly knowing that the items they intend to acquire should be obtained through illegal means, but still specifying the corresponding model and promising to purchase them at a low price, it should be found to be an act of prior conspiracy to steal. (Case No. 1100) "Minors...... Sell them appliances that are in use at prices significantly below the market price...... It shall be known that minors are stealing or selling the property of other people's homes or their own, and they still carry out acts of helping to dismantle, transfer, and purchase them, shall constitute the crime of theft. (Case No. 1013) "Conspiracy in advance, acquisition...... the act of stealing liquor and rice wine from the warehouse", constituting an accomplice to the crime of theft. (Case No. 1108) "conspiring with a criminal in advance to help cover up or conceal the proceeds of the crime" constitutes an accomplice to the crime of embezzlement. (Case No. 1101)
6. Rules for conviction and sentencing for crimes of covering up or concealing criminal proceeds or the proceeds thereof. "The grasp of the 'serious circumstances' of the crime of covering up or concealing criminal proceeds should be determined on the basis of comprehensive consideration of multiple factors of the circumstances of the crime and sentencing circumstances, combined with the specific provisions of the relevant judicial interpretations. (Case No. 1099) According to the provisions of the judicial interpretation, it is "serious circumstances" to cover up or conceal criminal proceeds and the proceeds thereof more than 10 times. "It is necessary to grasp the following points: (1) Every act of covering up or concealing must be an independent act...... (2) Every act of covering up or concealing does not constitute a crime. (3)...... Where a single cover-up or concealment does not constitute a crime, and the statute of limitations for public security punishment and criminal prosecution is exceeded, the number of times is not to be accumulated; Where a single act of covering up or concealing constitutes a crime, but the statute of limitations for criminal prosecution has expired, the number of times is no longer to be accumulated. (4) Each cover-up or concealment should be proved by corresponding evidence, rather than vaguely determining the number of times...... (5) Every predicate crime that is covered up or concealed must be premised on the establishment of a crime. (Case No. 1219) "A balance should be struck between sentencing and predicate offences. Specifically, in cases where the crime of covering up or concealing criminal proceeds, or the crime of proceeds of criminal proceeds, and the predicate crime point to the same amount of property, the sentencing of the perpetrator of the concealment or concealment of criminal proceeds must be lighter than that of the predicate offender, and the level must be appropriately raised. (Case No. 1098) "The act of covering up or concealing criminal proceeds is less harmful than the predicate crime, and the sentence cannot be higher than that of the predicate crime." ”“...... Have a voluntary surrender plot...... Truthful confession after being brought into the case, subjective malice is relatively small; On the basis of the defendant's confession, the public security organs may apply a suspended sentence because the stolen vehicle is recovered and returned to the victim, and the social relations damaged by the crime are restored, and the application of a suspended sentence will no longer endanger society. (Case No. 1094) "Purchasing a stolen mobile phone for personal use", "being a voluntary surrender, actively returning the stolen goods after the incident, and purchasing the stolen mobile phone for his own use, not a professional recipient of stolen goods, and the subjective malice is relatively small, and he may be exempted from criminal punishment." (Case No. 1097) "The value of the stolen car covered up or concealed is more than 190,000 yuan, but he has voluntarily surrendered, and he has returned the stolen car involved in the case, actively paid the fine, and purchased the stolen car for his own use, the subjective malice is not great, and the circumstances of the crime are minor, so the criminal punishment can be exempted from criminal punishment if comprehensively considered." (Case No. 1096) "A person who 'conceals his relatives from each other' and is a first-time offender or an occasional offender, and who pleads guilty, repents, and returns the stolen goods or restitution, may be exempted from criminal punishment." (Case No. 1095) In addition, "the amount of the proceeds of crime shall be determined at the time of the cover-up or concealment. (Case No. 1106)
7. Rules for the selection of charges for the crime of covering up or concealing criminal proceeds or the proceeds of criminal gains. "This crime is a unitary selective crime, that is, there is only a selective relationship between the targets of the crime, and there is no selective relationship between cover-up and concealment...... Cover-up and concealment in judicial practice are very complex and difficult to define, and if all cover-up and concealment behaviors are distinguished in the trial, it is more likely to cause disagreements and is not easy to operate. "Depending on the circumstances of the case, choose to apply the crimes of covering up or concealing criminal proceeds, covering up or concealing the proceeds of criminal proceeds, or covering up or concealing criminal proceeds or the proceeds of criminal proceeds. (Case No. 1095)
In addition, in view of the fact that Decision No. 8 of Legal Interpretation [2021] abolished the amount standard for the crime of covering up and concealing criminal proceeds and the proceeds of crime, and replaced it with a comprehensive consideration of the criminalization model, the rules involved in the case of Zhong Chao et al. Theft, Gao Wei's Case of Covering Up and Concealing Criminal Proceeds - How to Apply the Criterion for the Criminalization of the Crime of Covering Up and Concealing Criminal Proceeds (Case No. 1090) have not been refined.
Reprinted from: West Window French Jun Legal Aid Gander public account, only for learning and discussion, such as invasion and deletion, thank you.