analyse

Covering up and concealing crimes are downstream crimes, which must be based on the establishment of upstream crimes such as theft, robbery, fraud and robbery. Whoever knowingly conceals, transfers, purchases, sells on his behalf or conceals by other means shall be convicted and punished for the crime of concealing. Whoever conspires with criminals such as theft, robbery, fraud and robbery in advance and conceals the proceeds of crime and its proceeds shall be punished as an accomplice in crimes such as theft, robbery, fraud and robbery.

Latest regulations

Minutes of the meeting of the Third Criminal Trial Court of the Supreme People's Court, the Fourth Procuratorate Office of the Supreme People's Procuratorate and the Criminal Investigation Bureau of the Ministry of Public Security on the application of law in the "card-cutting" action (excerpt on March 22, 2022).

Five, on the correct distinction between the crime of helping information network criminal activities, covering up and concealing the crime, the crime of criminal gains and the crime of fraud. In handling cases involving "two certificates" crimes, there is a problem of accurately defining the boundaries of the above three crimes. The nature of the act should be determined according to the subjective understanding of the actor and the specific criminal act committed. Take the credit card as an example: (1) Anyone who knows that it is a telecommunication network fraud, participates in a fraud gang or forms a relatively stable cooperative relationship with a fraud gang, and provides credit cards or transfers cash to others for a long time can be punished as fraud. (2) After the actor rents or sells the credit card to others, he transfers money, cashes out, withdraws cash, etc. On behalf of them, knowing that it is the proceeds of crime and its proceeds, or providing verification services such as face brushing to cooperate with others in transferring money, cashing out and withdrawing cash, they can cover up and conceal the proceeds of crime and its proceeds. (3) Knowing that others use the information network to commit crimes, only renting or selling credit cards to others, and not committing other acts, will contribute to the punishment of information network crimes.

In judicial practice, we should analyze specific cases, combine subjective and objective evidence, attach importance to the excuse of the actor and ensure accurate characterization.

Case analysis: After the lawyer of this case took over, he first raised the issue of case characterization. The sentencing of the crime of fraud in this case is obviously heavier than the crime of sheltering, which should be determined from the legal analysis or objective evidence of the case. After the lawyer put forward the defense opinion, he changed the charge and safeguarded the legitimate rights and interests of the defendant.

At the same time, there are some unclear facts and insufficient evidence in this case, which can not reach the standard of criminal finalization, and timely put forward opinions to the case-handling department. The defendant recognized the criminal facts finally accused in the indictment and agreed to plead guilty and admit punishment. Lawyers actively contact the victims and make compensation. After many consultations, he reached a compensation agreement. Although partial compensation was made, the victim's understanding was obtained. In downstream crimes such as concealing the proceeds of crime, it is rare to compensate the victims and get forgiveness. Finally, it also achieved a good effect of lighter punishment.

People's Court of Beilin District, Xi, Shaanxi Province

criminal judgement

(No.20** Shaanxi * * *.

Public prosecution agency Xi 'an Beilin District People's Procuratorate.

Defendant Tang X, male, was born in * * city, * * province, Han nationality, unemployed, and lives in * * village, * * town, * * city, * * province. Because of this case, he was detained in criminal detention on * * day, 20**, and was detained in criminal detention on suspicion of committing fraud on * * day, the same year, and was arrested in accordance with the law on * * day, 20**. He is currently being held in beilin district Detention Center in Xi City.

Defender Du X, lawyer of Shaanxi XX.

Xi. The People's Procuratorate of beilin district initiated a public prosecution in the case of "Defendant Tang X committed the crime of concealing and concealing what he was guilty of" and in the case of "Defendant Tang X committed the crime of concealing and concealing what he was guilty of". (20**)**, filed a public prosecution in our hospital on * * * of 20**. Our hospital applied the lenient system of pleading guilty and admitting punishment, formed a collegial panel according to law, and heard the case in public. Prosecutor XX appointed by beilin district People's Procuratorate appeared in court to support the public prosecution, and defendant Tang XX and his defender Du XX appeared in court to participate in the proceedings. In order to obtain relevant evidence, the public prosecution agency suggested postponing the trial of the case. The trial is now over.

It was found through trial that:

In * * month of 20**, the defendant Tang X contacted the man with the online name "How to get to * * Road" through QQ chat software (with unknown identity information), and the defendant Tang X transferred the stolen money for the man by withdrawing money from the bank card, knowing that it was the proceeds of crime. The man paid the defendant Tang X according to the number of withdrawals and mailed 20 accounts named Tian X to the defendant Tang X by express delivery. After the defendant Tang X got in touch with Guo XX (sentenced), he instructed Guo XX to use his ID card to apply for a * * bank card and handed it to the defendant Tang X. The defendant Tang X informed the man of the information of the * * bank card, and then the defendants Tang X and Guo X began to withdraw money from banks in * * * * provinces and other places, and transferred the stolen money into the bank card provided by the man. The specific criminal facts are as follows:

At about * * on June 20, 65438, the victim Jiang was defrauded of RMB 30,000 by Telecom, and the RMB 30,000 was transferred to the bank card of China Construction Bank with the account name of Guo XX and the tail number of ** 15 and the tail number of **26. After receiving the instruction from the man named "How to get to * * *", the defendant Tang X instructed Guo X to take out all the stolen 29,900 yuan with the above two bank cards at the * * branch of * * Provincial Construction Bank and the * * Provincial Rural Commercial Bank around * * in * * and transfer it to the man through ATM.

At about * * on * * on February 20 * *, the victim Tian X was defrauded of RMB * * * by telecom, and transferred RMB * * * * to the Bank of Communications card with the account number * * * and the suffix of **52 *. At about * * on * * on * *, the defendant Tang X received an instruction from a man named "How to get to * * *", and in the Bank of Communications on People's Road of * * Province, the account number was credited to the Bank of Communications twice through the ATM machine.

During the trial of this case, the family of the defendant Tang X reached an understanding on his behalf and returned the stolen money of RMB * * * to the victim Jiang Moumou and RMB * * * to the victim Tian X.

Defendant Tang X and his defenders had no objection to the above facts during the trial, which were confirmed by evidence such as case registration form and report materials, arrest process, witness testimony, victim's statement transcript, video surveillance and mobile phone screenshot, identification transcript and identification photos, bank transaction details, defendant's confession transcript and household registration certificate, and defendant Zhao X voluntarily pleaded guilty and signed a statement, which was enough to finalize the case.

The court believes that the defendant Tang X moved knowing that it was the proceeds of crime, and his behavior has constituted a cover-up and concealment of the crime. Xi beilin district People's Procuratorate accused the defendant Tang X of intentional injury. The defendant Tang X can voluntarily plead guilty and admit punishment, and his family can compensate the victim for some economic losses and get an understanding, and can be given a lighter punishment according to law. Defender of the defendant Tang X argued that he pleaded guilty and pleaded guilty, and had already returned part of the stolen money to get an understanding. The relevant defense opinions on giving him a lighter punishment were found to be true after investigation and adopted according to law. According to the provisions of the first paragraph of Article 312, the third paragraph of Article 67, the first paragraph of Article 53 and Article 64 of the Criminal Law of People's Republic of China (PRC) and Article 15 of the Criminal Procedure Law of People's Republic of China (PRC), the verdict is as follows:

1. Defendant Tang X was sentenced to one year and two months' imprisonment (the term shall be counted from the date of execution of the judgment) for concealing and concealing the crime. If a person is detained before the execution of the judgment, one day of detention shall be reduced to one day of imprisonment. That is, from * * to * * on * * 20**), and a fine of * * * * * yuan (limited to three months after the judgment takes effect).

2. Unrecovered illicit money shall continue to be recovered according to law.

If you refuse to accept this judgment, you can appeal to the Intermediate People's Court of Xi City, Shaanxi Province through our court or directly within ten days from the second day of receiving the judgment. If a written appeal is filed, one original and two copies of the appeal shall be submitted.

penal provision

Article 312 Whoever conceals or conceals the proceeds of crime, or knowingly conceals, transfers, purchases or sells them on behalf of others, or conceals or conceals them by other means, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or public surveillance and shall also, or shall only, be fined; If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years and shall also be fined.

If a unit commits the crime mentioned in the preceding paragraph, it 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.

Relevant provisions on public security punishment

People's Republic of China (PRC) Public Security Administration Punishment Law

Fifty-ninth one of the following acts, a fine of five hundred yuan and one thousand yuan; If the circumstances are serious, they shall be detained for more than five days and less than ten days, and shall be imposed a fine of more than five hundred yuan and less than one thousand yuan:

(a) the pawnshop fails to check the relevant documents, fails to perform the registration procedures, or fails to report to the public security organ knowing that it is a criminal suspect or stolen goods;

(two) in violation of state regulations, the acquisition of railways, oil fields, power supply, telecommunications, mines, water conservancy, surveying and urban public facilities and other waste special equipment;

(three) the acquisition of stolen goods or suspected stolen goods notified by the public security organs;

(4) purchasing other articles prohibited by the state.

Article 60 Whoever commits one of the following acts shall be detained for not less than five days but not more than ten days, and shall be fined not less than 200 yuan but not more than 500 yuan:

(1) Concealing, transferring, selling off or damaging the property sealed up, detained or frozen by the administrative law enforcement organs according to law;

(2) Forging, concealing or destroying evidence or providing false testimony or false information, which affects the administrative law enforcement organs in handling cases according to law;

(3) Concealing, transferring or selling on behalf of others knowing that it is stolen goods;

(4) A criminal who is under legal control, deprived of political rights, given a suspended sentence, or temporarily executed outside prison, or a person who is subject to criminal compulsory measures according to law, commits an act that violates laws, administrative regulations or the supervision and management regulations of the relevant departments of the State Council.

legal interpretation

Interpretation of the Supreme People's Court on Several Issues Concerning the Specific Application of Laws in the Trial of Criminal Cases such as Money Laundering (Fa Shi [2009]15, implemented on June, 2009 1 1).

In order to punish money laundering, concealment, concealment of criminal proceeds, financing of terrorist activities and other criminal activities according to law, according to the relevant provisions of the Criminal Law, some issues concerning the specific application of law in the trial of such criminal cases are explained as follows:

Article 1 The term "knowing" as stipulated in Articles 191 and 312 of the Criminal Law shall be determined by combining subjective and objective factors such as the defendant's cognitive ability, the connection with other people's criminal gains and interests, the types and amounts of criminal gains and interests, the transformation and transfer methods of criminal gains and interests, and the defendant's confession.

In any of the following circumstances, the defendant may be deemed to know that it is the proceeds of crime and its proceeds, unless there is evidence to prove that he did not know:

(a) Assisting in the conversion or transfer of property knowing that others are engaged in criminal activities;

(2) assisting in the conversion or transfer of property by illegal means without justifiable reasons;

(3) purchasing real estate at a price significantly lower than the market without justifiable reasons;

(four) to assist in the conversion or transfer of property without justifiable reasons, and to charge a "handling fee" that is obviously higher than the market;

(5) assisting others to deposit huge amounts of cash into multiple bank accounts or frequently transfer money between different bank accounts without justifiable reasons;

(6) assisting close relatives or other closely related people to change or transfer property that is obviously inconsistent with their occupation or property status;

(seven) other circumstances that can be identified as known to the actor.

If the defendant mistook the proceeds and benefits of a certain upstream crime as stipulated in Article 19 1 of the Criminal Law for those of other crimes within the scope of the upstream crime as stipulated in Article 19 1 of the Criminal Law, it will not affect the "specified in Article 19 1 of the Criminal Law"

Article 2 Under any of the following circumstances, it can be regarded as "concealing or otherwise concealing the source and nature of criminal proceeds and their proceeds" as stipulated in Item (5) of Paragraph 1 of Article 191 of the Criminal Law:

(1) assisting in the transfer or conversion of criminal proceeds and their proceeds by means of pawning, leasing, buying and selling, investing, etc. ;

(two) the proceeds of crime and their benefits are mixed into the operating income of cash-intensive places such as shopping malls, restaurants and entertainment places to assist in the transfer and transformation;

(3) assisting in transforming the proceeds of crime and its proceeds into "legal" property by means of fictitious transactions, fictitious creditor's rights and debts, false guarantees, false income, etc.

(4) helping to transform the proceeds of crime and its proceeds by buying and selling lottery tickets and lotteries;

(5) helping to convert the proceeds of crime and its proceeds into gambling proceeds through gambling;

(6) Assisting in carrying, transporting or mailing the proceeds of crime and their proceeds into or out of the country;

(7) assisting in the transfer or conversion of criminal proceeds and their proceeds by means other than the above provisions.

Article 3 Whoever knowingly conceals or disguises the proceeds of crime, which constitutes a crime stipulated in Article 312 of the Criminal Law and a crime stipulated in Articles 191 and 349 of the Criminal Law, shall be convicted and punished in accordance with the provisions of heavier punishment.

Article 4 Crimes stipulated in Articles 191, 312 and 349 of the Criminal Law shall be recognized on the premise that the facts of the upstream crime are established. If the upstream crime has not been judged according to law, but it is verified, it will not affect the trial of the crimes stipulated in Articles 191, 312 and 349 of the Criminal Law.

If the facts of the upstream crime can be confirmed, and the criminal responsibility is not investigated according to law because of the death of the perpetrator, it will not affect the determination of the crimes stipulated in Articles 191, 312 and 349 of the Criminal Law.

If the facts of the upstream crime can be confirmed, and other crimes are convicted and punished according to law, it will not affect the determination of the crimes stipulated in Articles 191, 312 and 349 of the Criminal Law.

The term "upstream crime" as mentioned in this article refers to all kinds of criminal acts that produce criminal gains and their interests as stipulated in Articles 191, 312 and 349 of the Criminal Law.

Article 5 The term "funding" as mentioned in Article 121 of the Criminal Law refers to the act of raising funds, providing materials or providing places and other material facilities for terrorist organizations or individuals who commit terrorist activities.

The "individuals who commit terrorist activities" stipulated in Article 120- 1 of the Criminal Law includes individuals who plan, prepare and actually commit terrorist activities.

Guiding Opinions of the Supreme People's Court and the Supreme People's Procuratorate on Sentencing for Joint Crimes (for Trial Implementation) (Fa Fa Fa Fa [2021] No.21,excerpt)

Fourth, the sentencing of joint crime.

(nineteen) the crime of concealing or concealing the proceeds of crime and the proceeds from crime.

1. If it constitutes a crime of concealing or concealing, the starting point of sentencing shall be determined within the corresponding range according to the following circumstances:

(1) If the circumstances of the crime are general, the starting point of sentencing shall be determined within the range of fixed-term imprisonment and criminal detention of not more than one year.

(2) If the circumstances are serious, the starting point of sentencing shall be determined within the range of fixed-term imprisonment of not less than three years but not more than four years.

2. On the basis of the starting point of sentencing, according to the amount of crime and other criminal facts that affect the composition of crime, increase the amount of punishment and determine the benchmark punishment.

3. If it constitutes a cover-up or concealment of the crime, the amount of the fine shall be determined by comprehensive consideration according to the circumstances of the crime, such as the cover-up, concealment of the crime income and its amount, the object of the crime and the harmful consequences, and the defendant's ability to pay the fine.

4. If it constitutes a cover-up or concealment of the crime, it shall comprehensively consider the facts of the crime, the amount of the crime, the harmful consequences, the degree of harm of the upstream crime, and the defendant's subjective malignancy, personal danger, confession and repentance, and decide to apply probation.