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I. Case of Li X obstructing credit card management, covering up, or concealing criminal proceeds -- In cases of using one's own or others' bank cards to cover up or conceal criminal proceeds, necessary split evaluations should be conducted to achieve proportionality of criminal responsibility and punishment
Warehousing number: 2023-03-1-115-001
The gist of the adjudication: 1. Clearly knowing that it is the criminal proceeds of telecommunications network fraud and the proceeds thereof, using their own or others' bank cards to transfer, cash out, or withdraw cash, in order to cover up or conceal criminal proceeds. 2. Where it is clearly known that it is criminal proceeds or the proceeds thereof, and it is covered up or concealed, constituting the crime of covering up or concealing criminal proceeds, and concurrently concurrently constituting other crimes, follow the provisions for the heavier punishment at trial and sentencing.
Related Indexes: Articles 177-1 and 312 of the Criminal Law of the People's Republic of China
Articles 3 and 7 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 or the Proceeds of Criminal Proceeds".
Article 2 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 Handling Criminal Cases of Obstructing Credit Card Management".
First instance: Xuzhou District People's Court of Yibin City, Sichuan Province (2021) Chuan 1521 Xingchu No. 475 Criminal Judgment (March 17, 2022)
Second instance: Yibin Intermediate People's Court of Sichuan Province (2022) Chuan 15 Xingzhong No. 190 Criminal Judgment (July 7, 2022)
II. Case of Wang Mouwan, Wang Moujia, and Wang Moubing Covering Up and Concealing Criminal Proceeds -- Determination of the "number of aggravating circumstances" in the crime of covering up or concealing criminal proceeds
Selection Number: 2023-04-1-300-002
Gist of the Adjudication: The crime of covering up or concealing criminal proceeds is a downstream crime, and the "number of times" in the serious circumstances should be comprehensively determined in combination with subjective intent, the composition of the crime, the object of the crime, and other aspects, and be treated as a discretionary aggravating circumstance.
First, based on the fact that the object of cover-up or concealment is the proceeds of crime, the "number of times" should be premised on the fact that the corresponding predicate act reaches the level of crime. From the perspective of the criminal law system, the "number of times" as a condition for criminalization and the "number of times" as an aggravating circumstance have completely different criteria for determination. The judicial interpretation stipulates that the circumstances shall be found to be serious more than 10 times, and the "times" where the circumstances are aggravated should be strictly determined and interpreted in a restrictive manner. Because the object of the cover-up or concealment is the proceeds of crime, the determination of "secondary" in serious circumstances should be based on the premise that the corresponding predicate conduct meets the standards of crime.
Second, where multiple acts of concealment or concealment are carried out consecutively based on the same subjective intention, it should be found to be "once". The designation of "number of times" shall comprehensively consider factors such as the occurrence of the perpetrator's criminal intent and the time and place of the criminal conduct, and shall be objectively analyzed and determined. Where the defendant commits a crime based on the same criminal intent, it is in principle to be found to be "once". If stolen goods are collected from multiple persons present at the same time at the same place, or if stolen goods are received in the same place several times in succession based on the same criminal intent, such as the same place where multiple persons passing through the same place are received stolen goods in succession, it shall generally be found to be a "one" crime rather than multiple crimes.
Third, where concealment or concealment is carried out on the basis of the same predicate criminal object, it should be found to be "once". The predicate criminal perpetrator has the initiative or arbitrariness to dispose of the assets involved in the case, and may sell the same item at one time or in dozens of installments. However, no matter how many times the predicate criminal perpetrator has disposed of it, there is only one criminal object for covering up or concealing it, and the multiple acts of receiving stolen goods are essentially multiple times that cannot be committed, and it is not appropriate to unilaterally determine multiple times.
Fourth, where the circumstances of the predicate crime are used to cover up or conceal the crime, it should be found to be "once". The criminalization of the predicate offence as a circumstance means that the predicate offence has been evaluated as a whole. In this case, the predicate crime is equivalent to a whole and can be assessed as within the scope of the above-mentioned "first" or "third" regulations, and no matter how many times the stolen goods are collected, it should also be determined to be "once" when assessing whether it is a serious circumstance.
Related Index: Article 312 of the Criminal Law of the People's Republic of China
First instance: Criminal Judgment of Yangzhong Municipal People's Court of Jiangsu Province (2022) Su 1182 Xingchu No. 83 (August 4, 2022)
III. Case of a certain acquisition station of a renewable resources development limited liability company in Mudanjiang and Zhu Mouliang covering up and concealing criminal proceeds -- the identification and handling of the crime of covering up or concealing criminal proceeds committed by a unit
Admission number: 2023-05-1-300-007
The gist of the adjudication: Where the name of a unit is misappropriated to carry out acts of covering up or concealing criminal proceeds or the proceeds of criminal gains, and the unlawful gains are privately divided by the perpetrator, it is still a crime committed by natural persons in nature, and the provisions on crimes committed by natural persons shall be applied for conviction and punishment. An important boundary between crimes committed by units and crimes committed by natural persons is whether the proceeds of crime belong to the unit or to the natural persons involved in the crime. Where criminal proceeds are obtained by a unit and included in the unit's financial system and distribution system, it may be found to belong to the unit, and where other conditions are met, it may be found to be a crime committed by the unit. Where criminal proceeds are distributed solely by the participating actors, including decision-making personnel, it cannot be found to belong to the unit, and therefore cannot be found to be a unit crime, and can only be convicted and punished in accordance with the provisions on crimes committed by natural persons.
Related indexes: Articles 30, 31, 52, 53, 312 of the Criminal Law of the People's Republic of China
First instance: Dong'an District People's Court of Mudanjiang City, Heilongjiang Province (2012) Dong Xing Chu Zi No. 127 Criminal Judgment (August 7, 2012)
IV. Case of Ma's Cover-up and Concealment of Criminal Proceeds -- Falsely reporting the amount of funds in the account involved in the case to the case-handling organ is "harboring"
Selection Number: 2023-05-1-300-013
The gist of the adjudication: 1. Clearly knowing that the public security organs are pursuing the predicate crimes, but still intentionally providing the public security organs with a false amount of funds in the predicate offender's relevant bank accounts, it should be found to be an act of "harboring" in the crime of covering up or concealing criminal proceeds.
2. The crime of covering up or concealing criminal proceeds should be balanced with the sentencing of the predicate crime. The crime of covering up or concealing criminal proceeds is an after-the-fact aiding offender, and its social harmfulness has a certain degree of ancillary nature to the predicate crime, and sentencing should be emphasized to be balanced with the predicate crime, comprehensively considering the circumstances and consequences of covering up or concealing criminal proceeds and their proceeds, and the degree of obstruction of judicial order, and so forth, and prudently sentencing.
Related index: Article 312, paragraph 1, of the Criminal Law of the People's Republic of China
First instance: Criminal Judgment of Donghu District People's Court of Nanchang City, Jiangxi Province (2020) Gan 0102 Xingchu No. 1405 (May 11, 2021)
Second instance: Jiangxi Province Nanchang Intermediate People's Court (2021) Gan 01 Xingzhong No. 365 Criminal Judgment (July 28, 2021)
V. Case of Jia X et al. Covering Up and Concealing Criminal Proceeds -- The relationship between the crime of covering up or concealing criminal proceeds and the crime of harboring, transferring, or concealing drugs or drug proceeds
Selection Number: 2023-05-1-300-009
The gist of the adjudication: The crime of covering up or concealing criminal proceeds and the crime of harboring, transferring, or concealing drugs or drug proceeds are quite different in terms of the content of knowledge, the object of the crime, and the object of the crime violated, and there is a relationship between general provisions and special provisions. Article 349 of the Criminal Law: The target of the crime of harboring, transferring, or concealing drugs or drug proceeds "drug proceeds" should be limited to "the criminal proceeds of criminals who smuggle, sell, transport, or manufacture drugs", that is, the criminal proceeds involved in Criminal Law article 347, and not cover all drug crimes involved in Section 7 of the Crimes of Obstructing Social Management Order in Chapter 6 of the Criminal Law. The crime of covering up or concealing criminal proceeds only requires that the perpetrator clearly know that they are criminal proceeds, while the crime of harboring, transferring, or concealing drugs or drug proceeds requires that the perpetrator clearly know that the items being harbored, transferred, or concealed are drugs or drug proceeds for the crime of smuggling, selling, transporting, or manufacturing drugs. Where the perpetrator clearly knows that it is the proceeds of the crime of illegally buying and selling narcotic substances committed by the upstream offender, but still helps them cover up or conceal them by means of transportation, the general provisions shall be applied to constitute the crime of covering up or concealing criminal proceeds.
Related indexes: Articles 312, 349 and 347 of the Criminal Law of the People's Republic of China
First instance: Criminal Judgment of Dafeng District People's Court of Yancheng City, Jiangsu Province (2014) Daxing Chu Zi No. 0052 (August 12, 2014)
VI. Case of Ao X and Four Others Covering Up and Concealing Criminal Proceeds -- The Relationship Between the Determination of the Predicate Crime and the Determination of the Crime of Covering Up or Concealing Criminal Proceeds
Choice number: 2023-05-1-300-006
Gist of the Adjudication: The crime of covering up or concealing criminal proceeds is provided in the section on "Crimes of Obstruction of Justice", and the legal interests infringed are mainly the normal prosecution of criminal acts by the judicial organs, that is, due to the existence of cover-up and concealment, the judicial organs are unable to properly prosecute the predicate crimes, so from the perspective of the legislative intent to punish the crime, it is not required that the predicate crimes have undergone judicial trial. As long as the facts of the predicate crime are established, it can be determined that the act of covering up or concealing constitutes a crime.
Related indexes: Articles 312, 25, 26, 27, 6, 35, 64 of the Criminal Law of the People's Republic of China
First instance: Shanghai No. 1 Intermediate People's Court (2012) Hu Yi Zhong Xing Chu No. 173 Criminal Judgment (December 25, 2012)
Second instance: Shanghai Higher People's Court (2013) Hu Gao Xing Zhong Zi No. 7 Criminal Ruling (April 2, 2013)
VII. Case of Wan's Illegal Mining, Cover-up, and Concealment of Criminal Proceeds -- The Distinction Between the Crime of Covering Up or Concealing Criminal Proceeds and the Joint Crime of Predicate Crimes
Selection Number: 2023-11-1-349-001
The gist of the adjudication: Where the perpetrator conspires with the predicate offender before or during the commission of the predicate crime to cover up or conceal criminal proceeds or the proceeds thereof, an accomplice to the predicate crime is established;
Related indexes: Article 312, Paragraph 1, Article 343, Paragraph 1 of the Criminal Law of the People's Republic of China
Article 3, paragraph 1, item 1 and article 4 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 or the Proceeds of Criminal Proceeds".
Article 1, Article 2, Paragraph 1, Article 3, Paragraph 1, Article 12, Paragraph 1, and Article 13 of the 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
First instance: Criminal Judgment of Jiangling County People's Court of Hubei Province (2020) E 1024 Xingchu No. 100 (December 17, 2020)
Second instance: Criminal Ruling of Jingzhou Intermediate People's Court of Hubei Province (2021) E 10 Xingzhong No. 68 (February 24, 2021)
VIII. The case of Wu X et al. covering up and concealing criminal proceeds - how to characterize the act of dismantling and selling agricultural vehicles after knowing that they were stolen proceeds
Selection Number: 2023-05-1-300-011
The gist of the adjudication: The perpetrator's act of dismantling the agricultural vehicle was subjectively for the purpose of disassembling the stolen vehicle, so as to facilitate the sale of parts, objectively disrupting the judicial order, and hindering the judicial organs' recovery of the stolen goods of the upstream theft. Although dismantling is not a "other method" directly enumerated in the "Interpretation of the Supreme People's Court on Several Issues Concerning the Application of Law in the Trial of Criminal Cases Involving the Concealment or Concealment of Criminal Proceeds and the Proceeds of Criminal Proceeds", it is equivalent to the criminal law in terms of the nature of harboring, transferring, purchasing, and selling on behalf of others, that is, they are all for the purpose of disrupting the prosecution activities of the judicial organs and facilitating the transfer and sale of stolen goods by upstream criminals, and should be found to be "other methods" of covering up and concealing.
Although the act of dismantling agricultural vehicles objectively also caused the destruction of agricultural vehicles, the subjective purpose of dismantling the vehicles was not to lose or reduce the utility of property, but to facilitate the resale of stolen vehicles for profit. The perpetrator destroyed the property obtained from the crime of concealing or concealing the proceeds of crime with the intention of concealing or concealing the proceeds of crime, committing the crime of covering up or concealing the proceeds of crime and the crime of intentionally destroying property. If the perpetrator commits several crimes based on a criminal intent, and there is no overlap between the different legal provisions that provide for the crimes, it constitutes an imaginary joint offense. In accordance with the principle of punishment for imaginary joint offenders as a felony, the crime of covering up or concealing criminal proceeds and the crime of intentionally destroying property are compared with the statutory penalty setting, and the criminal responsibility for the crime of covering up or concealing criminal proceeds is heavier, so it should be convicted and punished as the crime of covering up or concealing criminal proceeds.
Related Index: Article 312 of the Criminal Law of the People's Republic of China
First instance: Hunan Xiangxiang Municipal People's Court (2012) Xiang Fa Xing Chu Zi No. 221 Criminal Judgment (October 14, 2012)
Second instance: Intermediate People's Court of Xiangtan City, Hunan Province (2012) Tan Zhong Xing Zhong Zi No. 294 Criminal Judgment (March 22, 2013)
IX. Case of Jiang's Covering Up and Concealing Criminal Proceeds - How to distinguish between the crime of covering up and concealing criminal proceeds and the crime of money laundering
Selection Number: 2023-05-1-300-004
The gist of the adjudication: Providing a place to hide cash and bank cards that are clearly known to be the criminal proceeds of bribery by others shall be found to be the crime of covering up or concealing criminal proceeds. The distinction between the crime of money laundering and the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds is not only based on the scope of the predicate crime, but shall also be comprehensively judged by taking into account factors such as the object of the crime, the mode of conduct, and the content of subjective knowledge. The perpetrator clearly knows that the cash and bank cards are the criminal proceeds of bribery by others and provides a place to hide them, and then gives them to others for transfer, all of which are transfers or harbors in the physical sense, and the foothold of the conduct lies in the cover-up or concealment of the physical object itself, rather than the nature and source of the criminal proceeds, and does not involve the "conversion" or "laundering" of the form of funds, and should be limited to the scope of the crime of covering up or concealing criminal proceeds, which is an ordinary crime of stolen goods, and constitutes the crime of covering up or concealing criminal proceeds in accordance with law.
Related index: Article 312 and Article 67, Paragraph 3 of the Criminal Law of the People's Republic of China
First instance: Shandong Lijin County People's Court (2013) Li Xing Chu Zi No. 91 Criminal Judgment (August 19, 2013)
10. Case of Zhu X and Liu X covering up and concealing criminal proceeds -- barging and transporting sea sand of criminal proceeds constitutes the crime of covering up or concealing criminal proceeds
Selection number: 2023-05-1-300-002
The gist of the adjudication: 1. The premise of determining the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds 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. Due to the complexity and concealment of the environment, the act of barging and transporting illegal sea sand is cross-regional and involves multi-departmental coordination, and the clues are mostly in the transportation link, making it difficult to verify the specific source of sea sand and the specific upstream offenders. The case-handling organs shall focus on the elements of the crime of illegal mining, comprehensively collect information such as the identification of the mineral quality of the sea sand involved in the case, whether the sea sand mining rights have been registered in the sea area involved in the case, and so forth, and combine the confessions of the relevant defendants to prove that the sea sand involved in the case is the criminal proceeds of the illegal mining criminal act, and it is not necessary to have a grasp of the specific perpetrators and the details of the facts.
2. Determination of subjective knowledge. To find that the perpetrator has committed the crime of covering up or concealing criminal proceeds, he must subjectively clearly know that the sea sand he illegally transferred or transported was the sea sand illegally excavated by the upstream crime. On June 8, 2023, the Supreme People's Court, the Supreme People's Procuratorate, and the China Coast Guard jointly issued the Minutes of the Symposium on Cracking Down on Sea-related Sand-related Crimes in Accordance with Law, Article 3 of which clearly stipulates that the perpetrator is subjectively aware of ten types of behaviors, such as deliberately turning off the ship identification system or having multiple sets of ship identification systems on the ship. On the basis of collecting evidence of abnormal behaviors such as the abnormal closure of AIS and "VHF" contact sand suction vessels by fixed suspect vessels, and in conjunction with the "Letter on the Issuance of Mining Licenses in Relevant Sea Areas of Taiwan's Shoals" issued by the General Office of the Ministry of Natural Resources, the coast guard and procuratorial organs ascertained that there were no registered sea sand mining rights in the barge waters involved in the case during the time involved, and comprehensively presumed that the defendant had subjective knowledge that the sea sand that was transferred and transported was illegally excavated sea sand, which met the subjective elements of the crime of covering up and concealing criminal proceeds.
Related index: Article 312, paragraph 1, of the Criminal Law of the People's Republic of China
Article 8 of the "Interpretation on Several Issues Concerning the Application of Law in the Trial of Criminal Cases of Covering Up or Concealing Criminal Proceeds or the Proceeds of Criminal Proceeds".
Article 3 of the Minutes of the Symposium on Cracking Down on Sea-Sand-related Crimes in Accordance with Law
First instance: Xiangshan County People's Court of Zhejiang Province (2022) Zhe 0225 Xingchu No. 35 (August 23, 2022)
11. Case of Yuan XX covering up or concealing criminal proceeds -- Where the predicate crime is verified to be true but criminal responsibility is not pursued in accordance with law, it does not impact the establishment of the crime of covering up or concealing criminal proceeds
Selection Number: 2023-06-1-300-001
The gist of the adjudication: 1. 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. "The facts of the predicate crime are established" here refers not only to the fact that the facts of the predicate crime are proved by sufficient evidence, but also to the fact that the facts of the predicate crime have reached the level of a crime. If the predicate act exists but does not constitute a crime in accordance with law, then the cover-up or concealment does not constitute a crime.
2. 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 is still convicted and punished as the crime of covering up or concealing criminal proceeds or the proceeds of criminal gains.
Related index: Article 312, paragraph 1, of the Criminal Law of the People's Republic of China
First instance: Hebei Province Dacheng County People's Court (2013) Da Shao Xing Chu Zi No. 11 Criminal Judgment (June 11, 2014)
XII. Case of Zhang XX Covering Up or Concealing Criminal Proceeds -- Conditions for waiver of criminal punishment apply to the crime of covering up or concealing criminal proceeds
Selection Number: 2023-05-1-300-010
The gist of the adjudication: 1. The crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds must be premised on "knowingly" that they are criminal proceeds or the proceeds of criminal proceeds. The basic meaning of "knowing" here includes "knowing and ought to have known". "Knowing" refers to the direct determination that the perpetrator clearly knows that the object of cover-up or concealment is the proceeds of crime and the proceeds thereof. Generally speaking, it refers to a situation in which the defendant clearly admits to knowing at the time of his confession. "Should have known" refers to the "knowing" found by the judicial organs based on the defendant's confession and the course of his or her conduct based on the defendant's confession and the course of his conduct that was manifested outside the defendant, but did not admit that he was "knowingly" of the criminal proceeds and the proceeds thereof. In the case of "should have known", the judicial organs may make a comprehensive judgment and argument on whether the perpetrator knew it based on an analysis of the specific circumstances of the facts of the case, and from the conduct that the perpetrator has already carried out and the relevant circumstances. As long as there is sufficient circumstantial evidence to prove that he knew, or that he could not have been unaware, otherwise he would not have carried out a specific objective act, he can still be found to have "knowingly".
2. For the crime of covering up or concealing criminal gains, if the perpetrator does not constitute "serious circumstances", admits guilt, repents, and returns stolen goods or restitution, and there are legally-prescribed circumstances for lenient punishment, criminal punishment may be waived.
Related Index: Article 312 of the Criminal Law of the People's Republic of China
First instance: Criminal Judgment of Wancheng District People's Court of Nanyang City, Henan Province (2010) Nanwan Xing Chu Zi No. 368 (November 25, 2010)
Second instance: Criminal Judgment of Nanyang Intermediate People's Court of Henan Province (2010) Nan Xing Er Zhong Zi No. 00205 (December 2, 2011)
XIII. Case of Zhu XX et al. Fraud, Covering Up, and Concealing Criminal Proceeds -- The Distinction Between the Crime of Money Laundering and the Crime of Covering Up or Concealing Criminal Proceeds
Selection Number: 2024-04-1-300-002
The gist of the adjudication: 1. Where the principle of priority of special provisions is followed, and the provisions of articles 191 and 312 of the Criminal Law are met at the same time, the special provisions of article 191 shall be applied first. The key to the distinction between the two crimes lies in the difference between the predicate crimes, and a person who clearly knows that they are the proceeds of the seven types of predicate crimes provided for in the crime of money laundering in article 191 of the Criminal Law and the proceeds thereof, and commits money laundering acts, thereby covering up or concealing the source and nature of the criminal proceeds and the proceeds thereof, shall be found to be the crime of money laundering.
2. "Knowingly" includes knowing and ought to know, and the determination of knowingly cannot be limited to the absolute standard of "knowing", and the standard of "ought to know" can also be applied through the rule of presumption. In this regard, a comprehensive review and judgment shall be made on the basis of the circumstances of the case. Article 1 of the Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Law in the Trial of Criminal Cases such as Money Laundering (Fa Shi [2009] No. 15) provides for the determination of "knowingly" by means of summary and enumeration. Among them, item 1 (knowing that others are engaged in criminal activities and assisting in the conversion or transfer of property) and item 5 (assisting others in scattering large amounts of cash in multiple bank accounts or frequently transferring between different bank accounts without justifiable reasons) are specific circumstances that can be determined to be the proceeds of predicate crimes.
Related indexes: Articles 25, 26, 27, 191, 266, 312 of the Criminal Law of the People's Republic of China
First instance: Zhaohua District People's Court of Guangyuan City, Sichuan Province (2018) Chuan 0811 Xingchu No. 45 Criminal Judgment (June 24, 2019)
Second instance: Sichuan Guangyuan Intermediate People's Court (2019) Chuan 08 Xingzhong No. 104 Criminal Ruling (December 26, 2019)
XIV. Case of Wen Mousheng covering up and concealing criminal proceeds - characterization of the conduct of recovering a large number of shopping cards and selling them for profit
Selection Number: 2023-05-1-300-005
The gist of the adjudication: 1. The crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds requires that the perpetrator subjectively know that they are criminal proceeds and the proceeds thereof, that is, they have a definite understanding of the nature of the stolen goods. The law has strict provisions on the presumption of "knowing" of the perpetrator in order to prevent objective imputation. According to the provisions of the Criminal Law and judicial interpretations on the determination of "knowingly", the perpetrator's state of knowledge can be comprehensively judged from the following aspects: (1) whether the conduct or transaction time is abnormal, (2) whether the conduct or transaction location is abnormal, (3) whether the transaction price of the property is abnormal, (4) whether the property has special signs, (5) the degree of knowledge of the perpetrator of the crime or the predicate crime, (6) whether the transaction method is abnormal, and (7) whether the perpetrator has obtained illegal benefits as a result.
2. The determination of item 4 of the crime of illegal business operations as provided for in Criminal Law article 225 of the Criminal Law as provided for in "other illegal business conduct that seriously disrupts market order" shall be defined from the following three aspects: (1) the conduct is a business conduct, (2) the conduct is a violation of state provisions, and (3) the conduct seriously disrupts the market order, and the circumstances are serious, and the harm to society has reached the level where criminal intervention is required.
Related Index: Article 296 of the Interpretation of the Supreme People's Court on the Application of the Criminal Procedure Law of the People's Republic of China
First instance: Chong'an District People's Court of Wuxi City, Jiangsu Province (later renamed as Liangxi District People's Court of Wuxi City) (2012) Chongxing Chu Zi No. 190 Criminal Ruling (October 24, 2013)
XV. Case of Shen XX et al. Covering Up and Concealing Criminal Proceeds and Aiding Information Network Criminal Activities -- Characterization of the use of online platforms to "run scores" for others
Selection Number: 2023-05-1-300-001
The gist of the referee:1. "Running points" refers to the act of using a bank account or a third-party payment platform account to collect money for others, and then transfer it to a designated account to earn commissions. As a new form of crime, it has the characteristics of dispersing funds and anonymous transactions, so it is used for the circulation of black and gray funds, and is closely related to criminal activities such as telecommunications fraud and online gambling, and may constitute the crime of illegal business operation, the crime of aiding information network criminal activities, the crime of money laundering, the crime of covering up and concealing criminal proceeds, and the crime of criminal proceeds, and may also constitute an accomplice to the crime of fraud, gambling, opening a casino and other predicate crimes. In practice, the facts of the crime should be comprehensively analyzed from the subjective and objective aspects, and the nature of the "running points" behavior should be accurately determined. Where the perpetrator clearly knows that others are suspected of committing a crime, and that the funds they handle should be the criminal proceeds of others and their proceeds, but still uses their own or the bank cards they have collected to "run points" for others, it constitutes the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds in accordance with law. Where the perpetrator clearly knows that others are suspected of using information networks to commit crimes, but only rents or sells bank cards to others for the purpose of 'running scores', it meets the standard of serious circumstances and constitutes the crime of aiding information network criminal activities.
2. Attention should be paid to the master-slave relationship when sentencing. "Running points" gangs generally involve a large number of people, and the specific role of each actor should be considered to determine the principal and accessory. Persons such as leaders, principal managers, and traders who can play a decisive role in the "running points" gang should be found to be the principal offender, and those who have not participated in the key links or core areas of the "running scores" and only played a secondary auxiliary role in renting venues, connecting with "canons", maintaining order, buying water and food, and so forth, should be found to be accomplices. As the operator of the "running score" and the manager of the "running score" gang, he should be responsible for all crimes in which he participated, organized, or directed.
Related Indexes: Article 287-2, Paragraph 1, Article 312, Paragraph 1 of the Criminal Law of the People's Republic of China
First instance: Shanghai Qingpu District People's Court (2022) Hu 0118 Xingchu No. 174 Criminal Judgment (July 7, 2022)
Second instance: Shanghai No. 2 Intermediate People's Court (2022) Hu 02 Xingzhong No. 607 Criminal Ruling (October 18, 2022)
XVI. Cases of theft by Tang XX and Zhuang XX, and case of Zhu XX covering up or concealing criminal proceeds -- the sentencing balance between the crime of covering up or concealing criminal proceeds and the predicate crime
Selection number: 2023-05-1-221-012
Gist of the Adjudication: On the issue of sentencing balance between the crime of covering up or concealing criminal proceeds and the predicate crime. The sentencing of this crime must not only comply with the provisions of Article 312 of the Criminal Law and relevant judicial interpretations, but should also be constrained by the sentencing circumstances of the predicate crime: first, this crime is dependent on the predicate crime, and without property illegally obtained from the predicate crime, there will be no downstream crime; As far as the property losses caused by the victim are concerned, the downstream perpetrators did not increase or expand such losses when they carried out the acts of covering up or concealing them, and the social harm of this crime is much smaller than that of prior participation in criminal conspiracy. Therefore, the sentencing of those who cover up or conceal criminal proceeds should be lighter than that of predicate offenders, and the level should be appropriately raised.
Related index: Article 264 and Article 312, Paragraph 1 of the Criminal Law of the People's Republic of China
First instance: Criminal Judgment of Qidong Municipal People's Court of Jiangsu Province (2010) Qi Xing Er Chu Zi No. 0152 (September 30, 2010)
Second instance: Nantong Intermediate People's Court of Jiangsu Province (2010) Tong Zhong Xing Er Zhong Zi No. 0106 Criminal Judgment (November 22, 2010)
XVII. Case of Chen X et al.'s Covering Up and Concealing Criminal Proceeds -- Determination of "Knowingly" Online Payment and Settlement-type Assistance
Entry number: 2023-05-1-300-012
The gist of the adjudication: 1. The issue of subjective "knowing" determination. "Knowingly" is the content of the actor's subjective intent. In cases of providing assistance, "knowingly" is the key to determining whether and what kind of crime the perpetrator has constituted, and is the focus of the use of evidence to prove it in the course of trial. However, "knowing" is a mental activity, and it is generally difficult for the outside world to directly recognize it unless it is said by oneself, so it is only based on the actor's confession and combined with the behavioral process that he or she manifests externally to determine whether or not he is "knowing". Factors such as the time, place, quantity, price, and variety of the perpetrator's cover-up or concealment behavior, the relationship between the perpetrator and the upstream criminal perpetrator, the degree of understanding, and whether the perpetrator evaded investigation, should be judged in conjunction with the general person's cognitive level and the perpetrator's cognitive ability. For example, when the perpetrator agrees with another person to deliver the item at a secret location, it indicates an intention to evade. In this case, the defendant Chen X and Chen X A knew each other, and was pulled into the chat group set up by Chen X A and the previous family to keep accounts and reconcile accounts, which is sufficient to show that he had some knowledge of the nature of Chen X A and the previous family's behavior, and after providing the bank card, he frequently transferred money from different accounts to a specific account at night or participated in the transfer by purchasing virtual currency and other means in accordance with the arrangements of Chen X A and others, and kept accounts and reconciled accounts through the chat group formed by Li X A and others. Based on this, it is sufficient to infer that Chen "knowingly" that the money he handled was the proceeds of crime.
2. "Knowingly" is an important factor in distinguishing between the crime of aiding information network criminal activities and the crime of covering up or concealing criminal proceeds. The "knowing" content of the crime of aiding information network criminal activities is "others using information networks to commit crimes", and the degree of awareness of the relationship between the money involved and the predicate crime is relatively low, and can be understood as general general knowledge; When distinguishing between the crime of aiding information network criminal activities and the crime of covering up or concealing criminal proceeds, the principle of consistency of subjectivity and objectivity should be adhered to. Where the perpetrator clearly knows that others are using information networks to commit crimes, but still provides assistance by means such as providing bank cards, it constitutes the crime of aiding information network criminal activities, but it cannot be ignored without analysis and argumentation, and just because they provide bank cards and then help transfer money or verify their faces, it is to be upgraded to the crime of covering up or concealing criminal proceeds. The act of transferring money alone cannot show that the perpetrator knew that the money involved was "the proceeds of crime of others". It is necessary to specifically analyze whether the objective behavioral characterization of the case proves that the perpetrator has a higher degree of "knowledge" to ensure that the punishment is commensurate with his crime. Generally speaking, for those who repeatedly or use multiple bank accounts to help others frequently transfer, cash out, or withdraw cash, use virtual currency to transfer, cash out, or withdraw cash, or transfer, cash out, or withdraw cash through illegal payment platforms or running platforms, and charge additional abnormal "handling fees" for transfers, cash-outs, or withdrawals, it may be found that they have "knowingly" to cover up or conceal criminal proceeds.
Related Index: Article 312 of the Criminal Law of the People's Republic of China
First instance: Criminal Judgment of Qinyang Municipal People's Court of Henan Province (2021) Yu 0882 Xingchu No. 322 (December 25, 2021)
Second instance: Criminal Ruling of Jiaozuo Intermediate People's Court of Henan Province (2022) Yu 08 Xingzhong No. 50 (March 10, 2022)
XVIII. Case of Chen X and Ouyang X Covering Up or Concealing Criminal Proceeds -- The upstream crime was verified to be true after investigation, and although it has not yet been adjudicated in accordance with law, it does not affect the handling of the downstream crime
Admission number: 2023-05-1-300-003
The gist of the adjudication: The determination of the crime of covering up or concealing criminal proceeds or the proceeds of criminal proceeds shall be a prerequisite for the determination that the facts of the predicate crime are established. Where the predicate crime has not yet been adjudicated in accordance with law, but it is verified to be true, it does not impact the trial of the downstream crime.
Related Index: Article 312 of the Criminal Law of the People's Republic of China
First instance: Criminal Judgment of Liandu District People's Court of Lishui City, Zhejiang Province (2013) Lilian Xing Chu Zi No. 522 (October 10, 2013)
Second instance: Zhejiang Lishui Intermediate People's Court (2013) Zhe Li Xing Zhong Zi No. 153 Criminal Ruling (November 14, 2013)
19. Case of fraud, cover-up, or concealment of criminal proceeds by Chen X A and Chen X B -- Clearly knowing that drugs purchased by others through medical insurance fraud were purchased from other intermediaries, without prior conspiracy, constitutes the crime of covering up or concealing criminal proceeds
Selection number: 2023-05-1-300-008
The gist of the adjudication: 1. The key point in defining the criminal behavior of middlemen who resell drugs that defraud medical insurance is whether there is prior conspiracy. That is, to examine whether the intermediary has instructed, instigated and instructed the upstream insurance fraudsters. Where intermediaries instigate, instigate, or incite others to use medical insurance to defraud the purchase of more or falsely prescribe drugs, and objectively have a role in promoting the upstream insurance fraud's conduct of insurance fraud, they shall be found to be accomplices to the crime of upstream fraud;
2. Regarding the determination and application of "instigating, instigating, or instigating". The determination of "instigating, instigating, and instructing" should adhere to the principle of subjective and objective unity, comprehensively evaluate the role of intermediaries in the process of drug reflux, and identify those who have reached a tacit understanding of "receiving drugs when they have medicines" in the process of long-term cooperation, although there is no clear "instigation, instigation, and instruction". "Instigating, instigating, and instigating" is one of the important behavioral manifestations of determining whether there is prior conspiracy between the middlemen who resell medical insurance fraud drugs and the upstream insurance fraudsters, and the principle of unity of subjectivity and objectivity should be adhered to in the specific determination. In practice, more drug procurement intermediaries often deny in their confessions that they directly instructed, instigated, or instructed upstream insurance fraudsters to go to hospitals with medical insurance cards to prescribe more drugs falsely, in order to avoid the important and trivial. In this case, it is necessary to comprehensively evaluate the subjective and objective behaviors. For example, for those who have been at the door of hospitals and community health service centers for a long time, and purchased drugs by placing drug collection signs, although the upstream insurance fraudsters were not clearly informed that they would go to the hospital with their medical insurance cards to prescribe more or falsely prescribe drugs, they listed the types and unit prices of the purchased drugs by showing the drug purchase list, and took the initiative to ask the other party to sell the drugs they prescribed, and formed a tacit understanding of long-term cooperation in the transaction process, which objectively also achieved the effect of prompting the upstream insurance fraudsters to use the medical insurance card to prescribe more and falsely prescribe drugs to the hospital. Comprehensively considering the choice of the location of the purchased drugs, the specific types of drugs purchased, the degree of tacit understanding reached in the process of long-term cooperation, and the actual role of promoting the return of drugs, it can be presumed that there is subjective intent to instigate, instigate, and incite others.
Related indexes: Articles 266 and 312 of the Criminal Law of the People's Republic of China
First instance: Shanghai Jinshan District People's Court (2023) Hu 0116 Xing Chu No. 80 Criminal Judgment (April 12, 2023)
20. Liu Mouyan et al. Case of Fraud, Illegal Business, Cover-up, and Concealment of Criminal Proceeds -- Establishing a company, setting up a false trading platform to conduct virtual transactions, creating the illusion of profit, tricking the victim into depositing money and repeatedly operating on the platform, causing the victim to deposit at a loss, and achieving the purpose of defrauding customers of money, constituting fraud and other crimes
Choice Number: 2023-05-1-222-004
The gist of the adjudication: 1. For the purpose of illegally occupying the property of others, the defendant concealed the truth by setting up a false trading platform to trick customers into depositing funds to participate in platform transactions, and the deposit was controlled after entering the platform, and the customer had no possibility of making a profit, and the relevant defendants essentially took possession of the customer's property in the form of making the customer lose money, and its conduct should be determined to constitute the crime of fraud in accordance with law.
2. The key to distinguishing between "VAM" conduct and fraud is to see whether the perpetrator has committed acts of defrauding others of property for the purpose of illegal possession, using fictitious facts and concealing the truth. The platform involved in the case carried out virtual transactions, did not connect to the real trading market, and the customer's deposit did not enter the account allowed by the state to trade, but entered the account controlled by the defendant through illegally obtained channels. The defendant concealed the truth and used the lecturer team and agent team to publish false profit screenshots in WeChat groups, QQ groups and live broadcast rooms, fabricate the facts of making money, and pretend to be customers to create a money-making atmosphere. After depositing funds, customers are charged commissions, overnight fees, and losses due to multiple transactions under the guidance of the instructor. Criminal responsibility should be pursued for the crime of fraud. Persons who are not directly involved in the crime of fraud, but who provide channels for the circulation of funds involved in the case and assist in the transfer, or who provide bank accounts and carry out acts of harboring or transferring, shall be pursued for criminal responsibility for the crime of illegal business operation and the crime of covering up or concealing criminal proceeds.
Related indexes: Articles 225, 266 and 312 of the Criminal Law of the People's Republic of China
First instance: Criminal Judgment of Shenzhen Intermediate People's Court of Guangdong Province (2019) Yue 03 Xing Chu No. 488 (June 30, 2021)
Second instance: Guangdong Provincial High People's Court (2021) Xing Zhong Zi No. 1235 Criminal Ruling (March 2, 2022)
21. The case of theft, cover-up, and concealment of criminal proceeds by Huang and Guo -- how to characterize the act of collecting stolen goods in advance in collusion with the theft criminals
Selection Number: 2023-05-1-221-018
Gist of the Adjudication: Acts of collecting stolen goods in advance in concert with the criminals of theft shall be punished as accomplices to the crime of theft.
1. A common criminal intent has been subjectively formed.
In this case, after the defendant Guo purchased one box of Wuliangye and other brands of real liquor jointly stolen by the co-defendants Chen Mouqing and Guo Mouwei and five boxes of Wuliangye liquor stolen by Chen Mouqing alone, he agreed with Chen Mouqing and Guo Mouwei that Guo would provide the corresponding type and quantity of fake liquor at the time of the transaction in exchange for the purchase of the real liquor stolen by Chen Mouqing from the warehouse, so as to prevent the victim unit from discovering that the quantity of Wuliangye liquor in the warehouse had decreased, so as to be able to repeatedly carry out theft. Huang Mouxin conspired with Chen Mouqing and Guo Mouwei before the first acquisition of the rice wine stolen by Chen Mouqing and Guo Mouwei, and agreed to acquire Chen Mouqing and Guo Mouwei after they stole the rice wine. Guo and Huang had subjectively known that Chen Mouqing and Guo Mouwei were about to commit the crime of theft and the method of theft, but not only did they not reject it, but instead actively pursued the theft by agreeing to exchange fake liquor for Wuliangye and other brand liquor and agreeing to purchase rice liquor before the theft, both of which formed a joint criminal intent of theft between Chen Mouqing and Guo Mouwei, and should be punished as accomplices to the crime of theft.
2. Objectively has played a role in helping the theft.
In this case, defendants Guo and Huang agreed with Chen Mouqing and Guo Mouwei in advance to purchase the stolen goods obtained by the two, and although they did not directly help Chen Mouqing and Guo Mouwei to commit the theft, they enhanced Chen Mouqing and Guo Mouwei's sense of psychological security at the time of theft. Defendant Guo's act of providing counterfeit liquor corresponding to the type and quantity at the time of the transaction in exchange for the purchase of the real liquor stolen from the warehouse by Chen Mouqing and Guo Mouwei made Chen Mouqing and Guo Mouwei believe that their criminal acts could not be discovered through this method at the time of theft, and played a role in mentally helping and promoting Chen Mouqing and Guo Mouwei's theft, and should be considered accomplices to the crime of theft.
Related Index: Articles 264 and 67, Paragraph 3 of the Criminal Law of the People's Republic of China
First instance: Shanghai Yangpu District People's Court (2013) Yang Xing Chu Zi No. 778 Criminal Judgment (August 21, 2014)
Second instance: Shanghai No. 2 Intermediate People's Court (2014) Hu Er Zhong Xing Zhong Zi No. 1124 Criminal Ruling (November 12, 2014)
Transferred from the official account of the Criminal Law Library