Why is it difficult for OTC merchants in the currency circle to constitute a crime of covering up and concealing criminal proceeds?
In the recent wave of frozen cards, Renrenbit made a statement yesterday, saying that Zhao Dong did not directly participate in the illegal trading business. Due to being at the forefront of freezing card supervision, an OTC team in Beijing (Zhao Dong once participated in the investment) is cooperating with the police to investigate and collect evidence due to suspected fraudulent fund transactions.
Today, there is an article in the currency circle from the media saying that Zhao Dong or the OTC team he invested in may be suspected of "covering up and concealing criminal proceeds".
Indeed, "the crime of covering up, concealing criminal proceeds, and proceeds from crime" can be described as the sword of Damocles in the OTC business of the currency circle. What is "the crime of covering up, concealing criminal proceeds, and proceeds from crime" and some of the main issues involved in this crime How is the law stipulated? What should be paid attention to in practice? See below for details.
The "crime of concealing and concealing criminal proceeds and proceeds from crime" is stipulated in Article 312 of my country's Criminal Law, which refers to concealing, transferring, purchasing, selling on behalf of, or concealing in other ways the crimes that are known to be criminal proceeds and the proceeds generated therefrom. , concealment, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance, and may also be fined; if the circumstances are serious, the sentence shall be fixed-term imprisonment of not less than three years but not more than seven years, and a fine shall also be imposed.
Units that commit crimes in the preceding paragraph shall be fined, and the directly responsible managers and other directly responsible personnel shall be punished in accordance with the provisions of the preceding paragraph.
In fact, the term "cover up and concealment" has appeared twice in my country's criminal law, and the other time is "money laundering" in Article 191 of the Criminal Law.
"Money laundering" is also the main reason for the recent wave of frozen cards in the currency circle.
(2) Assisting in the conversion of property into cash, financial instruments, and securities;
(1) Providing a fund account;
(2) Assisting in the conversion of property into cash, financial instruments, and securities;
(5) Using other methods to cover up or conceal criminal proceeds and the source and nature of the proceeds.
(4) Assisting in remittance of funds abroad;
(5) Using other methods to cover up or conceal criminal proceeds and the source and nature of the proceeds.
If a unit commits the crime mentioned in the preceding paragraph, it shall be fined, and the persons directly in charge and other persons directly responsible shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention; if the circumstances are serious, they shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years.
Combining the two crimes, it is not difficult to see that several behaviors of the crime of money laundering can be included in Article 312 of "covering up or concealing by other means". But there are also differences between the two. The object of the crime is the main criterion for judging the crime of money laundering and the crime of covering up, concealing criminal proceeds, and crime proceeds.
If the perpetrator conceals or conceals the source and nature of specific criminal proceeds, it constitutes the crime of money laundering; otherwise, it constitutes the crime of concealing or concealing criminal proceeds or proceeds from crime.
The former refers to drug crimes, gangland-like organized crimes, terrorist crimes, smuggling crimes, corruption and bribery crimes, crimes of disrupting financial management order, and financial fraud crimes. Otherwise, it is another crime.
It should be noted that both can be unit crimes, that is, companies can be the subject of crimes.
Therefore, if someone in this incident is suspected of covering up and concealing criminal proceeds, then the deposit and withdrawal in OTC is the criminal proceeds of crimes other than the seven types of crimes mentioned above for money laundering. For example, it is not the funds involved in the crime of fund-raising fraud and fraud.
So how should we understand the crime of "covering up, concealing criminal proceeds, crime proceeds"?
According to the interpretation of the Legislative Affairs Committee of the Standing Committee of the National People's Congress:
The legal provisions on the crime of concealing and concealing criminal proceeds and crime proceeds have undergone two amendments.
According to the first revision of the "Criminal Law Amendment (6) of the People's Republic of China" adopted at the 22nd meeting of the Standing Committee of the Tenth National People's Congress on June 29, 2006.
The original article is: "Whoever conceals, transfers, purchases, or sells stolen goods knowingly obtained from crimes shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or public surveillance, and shall also be fined."
According to the second revision of the "Criminal Law Amendment (VII) of the People's Republic of China" adopted at the seventh meeting of the Standing Committee of the Eleventh National People's Congress on February 28, 2009.
The Legislative Affairs Committee of the National People's Congress also pointed out in the interpretation of the law that stolen goods are often the ultimate goal and value pursued by criminals in criminal activities, and are also important physical evidence in criminal proceedings. Molecules obtain economic benefits, which is of great significance.
With the development of the economy and society, the scale of some profit-seeking crimes is also expanding. Some criminals have obtained huge amounts of property through criminal activities, and use the proceeds of crime to invest and operate, and generate new income. In order to further expand the scale of crime provided more favorable conditions.
When the Criminal Law was amended in 1997, in order to meet the needs of the situation and further crack down on money laundering crimes, the crime of money laundering was specifically stipulated. Considering that the predicate crimes of money laundering crimes are limited to a limited number of crimes, and the acts of concealing or concealing and disguising the illegal proceeds of other crimes and their proceeds, as well as such acts of units, also need to be cracked down in accordance with the law. Therefore, the Amendment to the Criminal Law (6)" and "Criminal Law Amendment (7)" amended and supplemented Article 312 of the 1997 Criminal Law, mainly in four places:
One is to expand the object of crime stipulated in this article from "stolen goods obtained from crime" to all "proceeds from crime and the proceeds generated therefrom".
The second is to expand the criminal acts stipulated in the original provisions of the Criminal Law from "harboring, transferring, purchasing or selling on behalf of" to all "covering up and concealing".
The third is to increase the penalty for this crime, adding a level of punishment, that is, "if the circumstances are serious, the sentence will be fixed-term imprisonment of not less than three years but not more than seven years, and a fine."
The fourth is to increase the provisions of unit crimes.
The above amendments have supplemented and tightened the legal network for cracking down on the crimes of concealing and concealing criminal proceeds and their proceeds. For concealing and concealing the proceeds and proceeds of seven serious crimes such as drug crimes, the crime of money laundering is used to attack; for concealing and concealing other crimes The behavior of income and proceeds shall be investigated for criminal responsibility as the crime stipulated in this article.
The first paragraph is about the crime of concealing and concealing the proceeds of crime and the proceeds generated by it and its provisions on punishment. To constitute a crime under this paragraph, the following conditions must be met:
1. The perpetrator committed the crime intentionally. That is to say, if knowingly concealing or concealing the proceeds of crime and the proceeds generated therefrom, the scope and meaning of the "proceeds of crime and the proceeds generated therefrom" stipulated in this article are the same as those stipulated in Article 191 of this Law. 2. The perpetrator has carried out acts of harboring, transferring, purchasing, selling on behalf of others, or using other methods to cover up and conceal criminal proceeds and their proceeds. Therefore, because this article is an intentional crime, it must be based on knowing that it is the proceeds of crime. In fact, usually many OTCs are unaware when they are involved in this aspect, and they need to cooperate with the police investigation.
But as we all know, strictly speaking, OTC business is also illegal, which has been clearly stated in the September 4th Regulations.Chain Method Research｜The 1994 Announcement Has Been MisunderstoodTherefore, for "companies" that do OTC, they are very afraid of encountering such money. This is also the most important risk control item that needs to be considered when doing OTC business.
How are "harboring", "transferring", "acquisition", "selling on behalf of others" and "covering up and concealing by other means" legally qualified?
According to the interpretation of the National People's Congress Legal Work Committee, the term "harboring" here is in a broad sense, referring to the use of various methods to hide criminal proceeds and their proceeds, preventing others from discovering them or keeping them for criminals so that the judiciary cannot obtain them and Illegal possession, use, etc.
"Transfer" refers to the transfer of criminal proceeds and their proceeds to other places so that the investigative organs cannot find them.
"Acquisition" refers to the acquisition of criminal proceeds and their proceeds for the purpose of selling.
"Selling on behalf of" refers to the act of selling criminal proceeds and their proceeds on behalf of criminals.
"Other means of concealment and concealment" refers to the use of various methods other than concealment, transfer, acquisition, and sales to conceal and conceal criminal proceeds and their proceeds, such as bank transfers, investment operations, and remittances abroad.
The second paragraph of this article is about unit crimes.
This paragraph stipulates that if a unit commits the crime in the preceding paragraph, the unit shall be fined, and the directly responsible person in charge and other directly responsible personnel shall be punished in accordance with the provisions of the preceding paragraph.
In practice, you need to pay attention to the following four points:
1. Criminal gangs and groups who are responsible for covering up and concealing criminal proceeds and their proceeds in a crime shall be punished as accomplices of the crime.
2. If the perpetrator of the crime himself conceals or conceals the proceeds of crime and its proceeds, he shall be punished only according to the crime he committed, instead of being punished for several crimes as stipulated in this article.
3. Where the perpetrator and the criminals conspire in advance and cover up or conceal the proceeds of crime afterwards, criminal responsibility shall be investigated as an accomplice to the crime.
4. The determination of the crime of covering up and concealing criminal proceeds and proceeds from crime shall be based on the establishment of the facts of the predicate crime. The predicate crime has not yet been judged in accordance with the law, but if it is verified to be true, it will not affect the determination of the crime of covering up, concealing criminal proceeds, or crime proceeds. The facts of the predicate crime have been verified to be true, but if the perpetrator has not reached the age of criminal responsibility and other reasons, criminal responsibility is not pursued according to law, which does not affect the determination of the crime of covering up, concealing criminal proceeds, or crime proceeds.
That is to say, only if the upstream crime is verified to be true and indeed constitutes a crime, the downstream will constitute a crime.
