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Author: Liu Yang
2025Year8moon25On the day, the Supreme People’s Court held a press conference to release“Two highs”“Interpretation on Several Issues Concerning the Application of Laws in Handling Criminal Cases of Coverage, Concealing Criminal Incomes and Criminal Incomes” and typical cases of crimes of covering up, concealing Criminal Incomes and Criminal Incomes and Criminal Incomes in accordance with the law, and answering reporters’ questions.
As a lawyer, I am more concerned about what favorable provisions of the new judicial interpretation of concealing crimes have for defense work, which can provide better defense effects to the parties.Therefore, the interpretation of this article mainly develops from a defense perspective.
First of all, there is an interesting phenomenon. The previous judicial interpretation of concealing crimes is consideredA judicial interpretation of “short-lived”The implementation time of the previous judicial interpretation is2021Year4moon25Day, only to this revisionFour yearsTime, and early2023Year3moontwenty fourJudicial Committee of the Supreme People’s Court of Japan1881The meeting was reviewed and approved, that is, onlyTwo yearsAfterwards, the practice of the law was put on the agenda.
And instead ofThe previous judicial interpretation of money laundering crime of “the same clan and the same origin” is still2009It was released in 2019.
This frequency of practice is not common among other crimes.For example, the judicial interpretation of insider trading crime, or2012It was released in 2019, and has beenThirteenIt’s been a year, during2022The prosecution standards were revised in 2018, but new judicial interpretations have not been issued so far.
This fully demonstrates that the number of cases involved in concealment crimes is relatively large in practice, and the means and types of crimes change rapidly. The original judicial interpretations are inconsistent in specific practice, resulting in imbalance in sentencing. New judicial interpretations are urgently needed to introduce new judicial interpretations to guide judicial practice.
The content of the first article is not important for defense. It seems that the first article of each judicial interpretation is of little significance to defense. The content of the previous judicial interpretation is rather long-lasting, and the new judicial interpretation has been summarized. As long as it can cover up or conceal it, it will not work, no matter what kind of behavior you are doing, no matter whether the funds are cross-border or not.(about“Other methods” are stipulated in Article 10 of the previous judicial interpretation)
The second one is super important.aboutHow to judge “knowingly” is not clearly stipulated in the previous judicial interpretation, but in other relevant laws and judicial interpretations, there are rules about “presumingly knowingly”, and “knowingly” also includes “should know”. Therefore, in practice, it is presumed that you know that you are abused, as long as you do this, you are knowingly. If you admit it, I will give you a ruthless judgment. If you don’t admit it, then you are presumed that you know and the focus of the judgment.(This is not what I’m talking nonsense)
The original text of this phenomenon at the press conference is:“In view of the inaccurate grasp of this subjective requirement and the existence of high recognition in practice, the Interpretation revised and improved the rules of knowing review and judgment, and emphasized strict identification in accordance with the law and use presumption with caution.” Translate the keyword, that is,Inaccurately grasp, high recognition, and carelessly use it.
Looking at the numbers, it was also announced at this press conference.2020Year to2024In 2018, the procuratorate prosecuted the offence of concealing and concealing criminal proceeds.23.02Ten thousand cases, the People’s Court concluded the first instance case22.09Ten thousand pieces.
According to Article 2 of the new judicial interpretation, (1) Consider the information you contacted and received, and handled the crimes of others and their income. Do you know that others are committing crimes? Have you heard of it?See?Thinking of it?Has the income status of others become abnormally high?So in the defense, the most important thing for us is to solve the problem of “why there is no”.(2) You should consider the types and amounts of the proceeds of the crime and their income. For example, if someone suddenly asks you to help you sell five electric bicycles, normal people can think it is abnormal in terms of quantity, which is a bit strange.(3) Consider the transfer and conversion methods of the proceeds of crime and their income, the abnormalities of transaction behaviors, and the capital account. Typically, someone gives you money to buy gold, or asks you to buy virtual coins, and some even asks you to put money or gold in a designated location. You have never met the person you traded with, and then the two parties contacted through encrypted communication tools, or the bank card was frozen after you traded with him, and it was abnormal, and you continued to trade with him.(4)wantCombining the perpetrator’s professional experience and relationship with upstream criminals, career experience actually covers a wide range of areas, such as your academic qualifications, what you have studied in college, or even have you studied law courses, what is your job, which field, and if it is in the financial field, then it is obviously invalid to argue that you do not understand the upstream financial crime methods and abnormal capital situations.In the defense of hiding, you are not afraid of having anything to do with the upstream criminals, but you are afraid of having nothing to do with the upstream criminals. For example, the upstream criminals are close relatives, which is definitely beneficial for defense. The judicial interpretation also has separate provisions for crimes. However, if you didn’t know each other and had nothing to do with each other, suddenly someone gives you a sum of money, gives you a big gold brick, and brings you money, this principle doesn’t make sense.
In practice, aboutThe most effective defense of “knowingly” is to prove that “unknowingly”. A large number of parties are suspected of concealing the crime of concealing the crime. It is a typical case that the parties want to have a loan. Others say that they need to make a payment due to credit reporting issues. Some parties send three sets, and some parties are deceived to a hotel to give the card to others. For such cases, it is necessary to focus on analyzing the “deception” behavior of upstream criminals can prevent the determination of “knowingly”.
The third article is quite general, but actually contains a very, very important information.That is the conviction of concealing the hidden sin, no longer only the amount.Although the previous judicial interpretation did not clearly stipulate the amount of crime, in practice, each local area has its own standards for crimes, which is to see if the amount is enough. Of course, the previous judicial interpretation also stipulates four situations. Simply put, it is that those who have been subjected to administrative penalties and have done so, involve specific facilities, equipment and funds, and cause upstream crimes that cannot be investigated and dealt with, causing losses, and obstructing upstream crimes.
The new judicial interpretation deleted all these contents, emphasizing the comprehensive consideration of the nature of upstream crimes and social harms, the circumstances, consequences of concealing and concealing the proceeds of crimes and their benefits, and the extent to which the judicial order is obstructed.Although there seems to be no amount of convicted, it is not easy to say whether the number of convicted regions will still be implemented in certain standards, and the amount of convicted is still the only amount. However, the author also observed that after the new judicial interpretation was issued, some suspects in some cases were indeed released and the case was revoked.
Article 4 talks about the situation where there is no prosecution or exemption from criminal punishment.“Cooperating with judicial organs to investigate upstream crimes has a great effect.” Defense lawyers have a lot of room for play to this point. Some criminal suspects are confused after being taken compulsory measures and cannot promptly and effectively reflect the relevant clues of cracking upstream crimes. Lawyers need to sort out and submit them to judicial organs through meetings and reviewing documents. This will also be an important defense method for concealing hidden crimes and not prosecuting them.
Finally, it’s the fifth point. This is the soul of the new judicial interpretation, or“Correcting errors” must be corrected.Article 5 stipulates what is “serious circumstances”, that is, what is the sentence of more than three years. Judging from the amount of the crime, if the upstream isCrimes with relatively high conviction and sentencing amount, that is, it is to hide five million or cause losses of two million. If upstreamyesCrimes with relatively low conviction and sentencing amount, that is, the amount hidden is 500,000 or the loss is 250,000.
It has created a precedent for the compilation of laws and regulations in our country.firstRegulations determine whether the crime is serious, and whether the upstream crime is“Crimes with relatively high standards for conviction and sentencing.”Like it.In a word, the author believes that in future legal and judicial interpretations, similar writing methods will often appear.,In response to the basic characteristics of the formulation of new judicial interpretations mentioned by the press conference: pay attention to the combination of international rules with China’s reality, and adhere to the combination of seeking truth from facts and keeping pace with the times.
Why do I say the previous judicial interpretation“Have to change”?Regarding the content of this article, the previous judicial interpretation stipulates that “the total value of the criminal proceeds and the income generated by it reaches more than 100,000 yuan” and “the total value of the criminal proceeds and the income generated by it exceeds ten times, or more than three times and the total value of the criminal proceeds and the income generated by it reaches more than 50,000 yuan.”Note that it is about the amount of hidden content, not the amount of profit.
The new judicial interpretation is in the amount,Five to fifty times!
The previous judicial interpretation allows all legal practitioners to“Crash” not only does lawyers collapse, but judicial personnel also find it difficult to apply.
Let me give you an example, the upstream crime stole15If you can only sentence it to less than three years, if you cover it up, you will sentence it to more than three years. In other words, if the previous judicial interpretation is strictly applied, the sentence for the downstream cover is heavier than the upstream crime, and it may be much heavier.
This is why the new judicial interpretation emphasizes particularly in the article “Shareful words”:
Recognition“Serious circumstances”, attention should be paid to maintaining sentencing balance with upstream crimes.
In the process of applying the previous judicial interpretation, different regions have inconsistent practices, resulting in the imbalance of different sentencing and sentencing in the same case. In some regions, they mechanically apply judicial interpretations. Regardless of whether they are balanced, some regions will consider the case in a comprehensive manner. For example, identifying the upstream and downstream as a joint crime, and identifying the accomplice in the downstream, which can ensure that the downstream crimes and punishments are in line with the lighter than the upstream sentences.
Recently I saw many articles writing new judicial interpretations“It is related to virtual currency”, but the entire judicial interpretation does not mention virtual currency at all. The author believes that Article 6 has a relatively large relationship with virtual currency.Article 6 stipulates that the amount determination shall be based on the concealment or concealment of the acts.If the price of the property acquired or sold on behalf of others is higher than its actual value, the price of the property acquired or sold on behalf of others shall be calculated.Since the value of virtual digital currency fluctuates greatly, this is particularly critical in cases involving the concealment of virtual currency.Describe a scenario: For example, when you collect Bitcoin, it is worth 100,000 US dollars, and when you sell it, it is 120,000 US dollars, then the amount of crime is 120,000 US dollars.However, if you collect Bitcoin from the upstream and get $120,000, and when you want to sell it, Bitcoin falls and it will be worth $100,000, then sorry, your crime is still $120,000.
No one can benefit from illegality, but he can suffer from illegality.
Articles 7 to 11th have nothing to analyze, it is the literal meaning, and everyone can understand it.
On the day of the press conference, the official website of the Supreme People’s Procuratorate published an article on the interpretation, titled “Precise Strike”.+Internationally in line with the new regulations of the “two highs” are bounded for concealing, concealing criminal proceeds and criminal proceeds. It mentions that the new regulations point to concealing and concealing new situations and new problems in concealing and concealing criminal proceeds, and promote the improvement of the system of regulations on money laundering crimes, breaking the “amount only theory”, avoiding mechanical justice, and “serious circumstances” stipulate the use of “amount amount”+The dual-limited model of plot “indeed, the new judicial interpretation is obviously more practical and operational, and at the same time it is consistent with the judicial interpretation of money laundering crimes in relevant provisions to avoid situations where special laws are too special.
To be honest, the new judicial interpretation does not stipulate a fine as the judicial interpretation of money laundering, which is a bit regrettable.
(The author is a senior partner of Beijing Deheng Law Firm and deputy secretary-general of the National Criminal Commission)
