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The Crime of Concealing or Disguising Any Assets Derived from or Obtained, Directly or Indirectly, Through the Commission of an Offence and Its Protection of Legal Advantage as Well as Its Application

Author: LuoGuangLin
Tutor: HuDongFei
School: Southwestern University of Finance and Economics
Course: Criminal Law
Keywords: Stolen goods Cover Hide Money Laundering Protection of legal interests The role of the National Criminal Justice
CLC: D924.3
Type: Master's thesis
Year: 2010
Downloads: 110
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Abstract

312 of the Criminal Code of the Chinese mainland conceal, to hide the proceeds of crime, the crime of the proceeds of crime is a traditional \. However, as a multiple of the crime, in theory, the reason for the punishment of the crime of the Law on the Protection of interests a clear understanding, leading to the conviction and sentencing of the difficult cases in the judicial practice divergence. This paper the by the extraterritorial stolen goods in cases under their respective legislation to protect the legal interests of the doctrine, and the typical jurisprudence Comment beneficial to clarify disguise or conceal the proceeds of crime, the legislative purpose of the criminal proceeds of crime in mainland China legislation of Context and reasonable interpretation of its constituent elements. This introduction, body and conclusion, the text is divided into three chapters. The introduction of this paper mainly account the purpose and significance of the thesis writing, and a summary of the basic ideas and the logical structure of the research methods, as well as the article. Body starting from the introduction of the doctrine of protection of legal interests of stolen goods at home and abroad, under the respective legislation of the stolen goods to protect the legal interests of the Doctrine typical jurisprudence do a more detailed description. Followed II, a critical analysis of Chinese and foreign stolen goods to protect the legal interests doctrine proposed to cover up and conceal the proceeds of crime, the offense of the proceeds of crime, protection of legal interests for the national criminal justice role, also explained the reason establish legal interests. Finally, the application of this crime difficult issues paper to protect the legal interests for the center, application system to explain and purpose explain the method of co-ordination of this crime the same property crime protection of legal interests as well as civil law related system of relations, and on this basis propose their own to solve ideas also do a more detailed exposition of how this crime evolved into the the ordinary money laundering crimes and the crime of money-laundering. Epilogue summary of the full text. Body first introduced the extra-territorial stolen goods to protect the legal interests of the various theories. The these doctrines substance mainly maintained in the old illegal state that hinder the confrontation between the Restitution of rights. Japan and China Taiwan stolen goods is a property crime, Tong said that the mining impede restitution says this to say that the stolen goods belonging to property crimes, stolen goods predicate offenses is limited to property crimes, stolen property must be limited to the matter of property obtained by crime , and victim restitution. Old illegal state maintain that through Germany, Germany will Concealment sins placed in a chapter in the cover-up and concealment of the crime, this theory focused on protecting the the social legal interests and national legal interests, protect the social order, says advocate of any crime property of the state to maintain, conceal, conceal such acts constitute the stolen goods. The articles stolen goods sins of protecting the legal interests of other doctrines more detailed introduction to these doctrines, including: (afterwards Help guilty to say), dangerous to say after the fact to say (the guilty encourage says) interests to participate in said (benefit say), indirect made, The criminal concealment said, the reply holds prejudice, multi-attribute (compromise said). Subsequently, scholars from mainland China to cover up, to hide the proceeds of crime, protect the legal interests of the proceeds of crime Crime viewpoints. Tong said that the object of this crime against the the national judiciary normal activities. The reason is: this crime is placed on the provisions of criminal law, a crime of obstruction of justice, that focus first is to maintain the normal activities of the judiciary, calls or investigation and handling stolen goods and the income, reimbursement of stolen goods is one of the country's criminal justice of important content. Some scholars illegal status based on taking into account the integrated pursuit of the right to say. In addition, commentators have suggested that the sin of sins quality composite nature, that is, to maintain the illegal status of the (old) basis, with the nature of the pursuit of rights violations at the same time, the nature of the participation interests and afterwards accomplice nature. First, a critical analysis of domestic and foreign doctrine in the context of their respective legislative cases. After the fact to say that in after the fact to the theory of modern criminal law discarded. The crime concealment theory is a \Interests to participate and indirectly acquire a focus on the profit motive of the perpetrator and ignore the criminal law to punish legal interest infringement not obtain benefits, and can not account for the legislative and judicial penalties on the unpaid closing acts stolen. Risk that can not explain why penalize receiving stolen property free of charge. Comprehensive say that mixed various theories to a reasonable description of the legislative purpose of the stolen goods, and this say operable, pieced together each with the shortcomings of the theory, and will not make these theoretical shortcomings disappear, but with all theory the risk of defects. The legislation in Japan and Taiwan of China, the stolen goods belonging to a property crime, can not explain the stolen goods indirectly acquire that predicate offenses is limited to property crimes; Replies hold prejudice that have different identification standards of the stolen goods, can not be justified. Impede restitution that the stolen goods and the predicate offense is limited to property crimes, and the right to request the return of victims. Although restitution hinder the defects mentioned above, but comparatively speaking, the stolen goods in the legislation of individual legal interests, says the principal nature of the stolen goods, the practitioners also much more expensive than this theory as stolen goods convicted or not the criteria. Then the article discusses the point of this article: to disguise or conceal the proceeds of crime, protection of legal interests of the proceeds of crime is the role of the National Criminal Justice. The reason: the legislative system, this crime is a crime of obstruction of justice, that the main focus is to maintain the normal activities of the national judiciary. On the behavior of the object, the sin of predicate offenses is no limit, stolen goods can be of any crime, which is in line with the old illegal state maintain that focused on protecting social benefits of legal interests and national law, the protection of social and public order requirements, the offense for the object and criminal justice activities closely related. Behavior, the behavior of the implementation of this crime man enough to enable the judiciary to difficult to find the stolen goods or difficult to distinguish the stolen goods in nature, and obstruction of a normal criminal investigation, prosecution, trial and Booty-Recovery to play a positive role. The coordination of the ordinance, the offense of money-laundering, harboring, transfer of narcotic drugs, poison spoils sin, harboring, concealing the murder, helping to destroy or forge evidence and other crimes with this crime is closely related to the protection of legal interests of these offenses and their application The accurate understanding favor the interpretation and understanding of the benefits of the Crimes Act, do apply criminal law provisions coordination. Interpretation of the Law on the Protection of the interests of this crime, the paper may have been on the views expressed in this paper questioned the simple response. The third chapter of the thesis put forward to solve the problems in the application of this crime ideas. First of proceeds of crime and the revenue generated by the \The offense for the controversial points of the object that position: the contraband stolen goods, stolen goods can be applied in good faith, the stolen goods belonging to the social attributes of the property, stolen property, even if the loss of identity crime can be seen as at least revenue. Secondly, discusses the origin of the crime of belonging to a common money-laundering offenses and the distinction between the crime of money-laundering, that is, the acts constitute the crime of money-laundering must meet three conditions: either the perpetrator knowing the seven categories of crime proceeds of crime and gains ; laundering in order to cover up and conceal the proceeds of crime and its revenue sources and nature \Although seven categories of crime proceeds and income, but not conceal, to conceal its source and nature \punished. In short, the crime of money-laundering offenses Lapping of Legal Provisions relationship, that is, the sin is in fact ordinary laundering offenses, money laundering crime 191 of the Penal Code is particularly the crime of money laundering. Again, this crime-related property crime of the community papers in property crime, and this crime protection law beneficial for the center, combined with property crime of the behavior of objects this article stance: the perpetrator knows is stolen goods and the implementation of encroachment, theft, fraud, of extortion, robbery and other acts related to property crimes and the crime of Imaginative Joinder should choose a heavy punishment; perpetrator only during the period of custody of stolen goods the deliberate encroachment stolen goods, the crime of Embezzlement multiple crimes; knows to be picked up by others abandoned the stolen goods, the punishment of this crime. Article is beneficial to the Law on the Protection of the sin-centered principal offenses to define the way the range of problems: 'Whether paid or unpaid stolen goods to obtain custody of the stolen goods and stolen dispose of the good offices of such acts must be stolen goods are actually delivered to the behavior of human premise buy their own only in Agreement does not constitute the crime did not actually delivered; I do not know, possession of stolen goods and possession Later, knowing that the stolen goods but continue to occupy behavior still constitute the crime, unless the law may refuse to return or impossible to return; lost property is still sin. Finally, the article considers the crime of belonging to a single-selective counts, there is only the choice between the target of a crime, there is no choice relations between the cover up and conceal. In this paper, research methods, theoretical explorations and services practice has its characteristics and be innovative. : First, from the perspective of comparative law, not only more detailed description of the stolen goods at home and abroad to protect the legal interests of the doctrine, and focus on the combination of legal interests with the enactment of legislation and guilt; systematic interpretation, in his discussion of the views and reasons of this article when this crime and property crimes, money laundering class crime, civil law in good faith to obtain system coherence; argument in this article use the the real typical case and the official data view. Secondly, for the crime of paper on the basis of our continent through said the Law on the Protection of the sin beneficial for the state criminal justice role. To the Law on the Protection of the sin beneficial for the center, the problems in the judicial practice reasonable, to facilitate the operation of recognized standards, such as: the stolen goods found that the distinction between this crime and property crime, this crime and money laundering class crime, the distinction between the crime of obstruction of justice. Of course, limited by the author knowledge, energy, thinking, the article must exist some shortcomings, teachers and experts hesitate to correct me.

The Crime of Concealing or Disguising Any Assets Derived from or Obtained, Directly or Indirectly, Through the Commission of an Offence and Its Protection of Legal Advantage as Well as Its Application

Abstract

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