The full name of the crime is "disguise, concealment of proceeds of crime, proceeds of crime crime"; May 9, 2007, the Supreme People's Court, the Supreme People's Procuratorate issued the "on the handling of theft, robbery, fraud, snatch motor vehicle-related criminal cases specific application of the law on a number of issues of the Interpretation," Law Interpretation (2007) No. 11 further clarified the "disguise, concealment of proceeds of crime, proceeds of crime" this new crime. Later, the two high "on the implementation of the Chinese people's *** and the Criminal Law" to determine the crime of supplemental provisions (3), officially abolished the crime of harboring, transfer, acquisition, sale of stolen goods, changed to disguise, concealment of proceeds of crime, criminal proceeds of crime, the crime of proceeds of crime, the crime of November 6, 2007, the application of this crime from the beginning.
This offense is in Chapter 6, Section 2, Obstruction of Justice in the Criminal Code, and therefore, in terms of general object, the object of the crime is the normal activities of the judiciary. Proceeds of crime and proceeds of crime is an important material evidence of the case, can prove the facts of the case and the destination of stolen goods, and corroborate the criminal motives of criminals, etc., for ascertaining the facts of the case, proving the crime has an important role; according to China's "criminal law" article 64, the proceeds of crime and the proceeds of crime is the scope of the judiciary shall be recovered according to law, the perpetrator of the disguise, concealment of the proceeds of crime, the proceeds of crime. Objectively to the activities of the judicial organs to recover the proceeds of crime and proceeds of crime caused obstruction, therefore, the object of this crime is the activities of the judicial organs to properly identify the crime and recover the proceeds of crime and proceeds of crime.
The objective aspect of this crime includes the acts of "harboring, transferring, acquiring, selling on behalf of, or disguising or concealing by other means". Concealment means providing the criminal with a place to hide the proceeds of crime and its proceeds, with the subjective intent to conceal or keep them. Transfer means moving and transporting the proceeds of crime and their proceeds to and from the offender. Both concealment and transfer require that the degree of the crime is sufficient to affect the normal activities of the judicial authorities in identifying the crime and recovering the proceeds of crime and their proceeds, e.g., the act of transferring stolen goods in a room cannot constitute an objective act of this crime. Acquisition, mainly for the 1992 two high judicial interpretation of the "low purchase price, high price to sell" behavior, judicial practice is mainly for the acquisition of scrap in the name of large quantities of stolen goods, refers to the paid purchase, and then sold at a high price. Be careful to distinguish between "acquisition" and "buy" difference, buy refers to the purchase of stolen goods for their own use, its subjective is a kind of cheap psychology, rather than intentionally impede the normal order of justice acquisition of stolen goods, for the purchase of a specific small amount of stolen goods for their own use, it is not appropriate to recognize as a Crime, but for the purchase of other people's criminal proceeds of motor vehicles and other property, should be recognized as the crime of acquisition of stolen goods. Selling on behalf of a criminal refers to the act of being entrusted by a criminal to help him sell the proceeds of crime and its proceeds. As for the "other methods" of this crime, it shall be judged according to the subjective intention and whether the behavior is sufficient to affect the judicial order, and the core criterion lies in the two effects of disguise and concealment. Concealment is achieved by changing the external shape of an object to differentiate it from the original stolen goods and avoiding judicial recovery; concealment is achieved by hiding, misrepresenting, etc., without changing the external shape of the case, so that the proceeds of crime and the proceeds of crime and in an unknown location, to avoid being recovered by the judicial authorities. As long as these two types of methods are used to the extent of obstructing judicial activities, it is an objective act of this crime.
I. Relevant legal provisions
1, "Chinese people's **** and the Criminal Law" (1997)
Article 312 Knowing that the proceeds of crime and the stolen goods to be harbored, transferred, purchased, or sold on behalf of, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention, or control, and or a single fine.
2. Amendment (VI) to the Criminal Law (June 29, 2006)
Article 19 Whoever harbors, transfers, acquires, sells on behalf of, or otherwise disguises or conceals, knowing that it is the proceeds of crime and the proceeds thereof, shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or control, and in addition or in addition to a single fine; where the circumstances are aggravated, he or she shall be sentenced to fixed-term imprisonment of not less than three years but not more than seven years, and in addition to a fine. fixed-term imprisonment and a fine.
If a unit commits the crime in the preceding paragraph, the unit shall be sentenced to a fine, and its directly responsible supervisors and other directly responsible persons shall be punished in accordance with the provisions of the preceding paragraph.
3, the supreme people's court, the supreme people's procuratorate "on the handling of criminal cases related to theft, robbery, fraud, snatching motor vehicles on the specific application of the law on a number of issues of the interpretation" law interpretation (2007) No. 11 (came into force on May 11, 2007)
Article 1 Knowing that the motor vehicle is stolen, robbed, defrauded, snatched, and commit one of the following acts in accordance with the Article 312 of the Criminal Law, shall be convicted of the crime of disguising or concealing the proceeds or gains of crime, and shall be sentenced to fixed-term imprisonment of not more than three years, criminal detention or control, and shall be punished by a fine or a single fine:
(1) Buying, selling, introducing to buy, selling, pawning, auctioning, mortgaging, or offsetting against a debt;
(2) Dismantling, assembling or assembling;
(3) Modifying the engine number or vehicle identification code; or number, vehicle identification code;
(d) change the body color or shape of the vehicle;
(e) provide or sell the motor vehicle origin certificate, vehicle certificate, number plate, and other certificates and vouchers relating to motor vehicles;
(f) provide or sell forged or altered motor vehicle origin certificates, vehicle certificate, number plate, and other certificates and vouchers relating to motor vehicles. Other certificates and vouchers.
If the acts stipulated in the first paragraph are committed in connection with the theft, robbery, fraud or snatching of more than five motor vehicles or the total value of more than 500,000 yuan, the act falls into the category of "aggravated circumstances" as stipulated in Article 312 of the Criminal Law, and shall be sentenced to fixed-term imprisonment of not less than three and not more than seven years, and shall also be punished by a fine.
4, the supreme people's court, the supreme people's procuratorate "on the implementation of the criminal law of the Chinese people's *** and the state of criminal law to determine the supplemental provisions (3)" (November 6, 2007)
(IX) "disguise, concealment of proceeds of crime, proceeds of crime crime crime"
The Criminal Law Amendment (VI) Article 19 of the Criminal Law amends Article 312 of the Criminal Law to read: "Anyone who knowingly harbors, transfers, acquires, sells on behalf of, or otherwise disguises or conceals the proceeds of crime and the proceeds thereof shall be sentenced to ......." Regarding this crime, there is a view that it can be retained as a customary crime. On this crime, there is a view that it is possible to retain the crimes that have been customary in the past, i.e., the crime of harboring stolen goods, the crime of selling stolen goods, etc., and to add another "crime of disguising or concealing the proceeds of crime and its proceeds by other means". It is considered that, according to the amendment of the Criminal Law, the criminal acts and objects of this crime have been expanded, and the original crime should be amended accordingly, and that "harboring stolen goods" and "selling stolen goods" are both means of "disguising and concealing", so it is stipulated that "concealment of proceeds of crime and its proceeds by other means" should be added.
The crime of concealing the proceeds of crime
The object of this crime is to violate the normal order of the judicial authorities in the recovery of stolen goods, and is categorized in the crime of obstruction of social order. "Obstruction of justice" under the crime of "obstruction of justice", therefore, there is no clear amount of crime, "two high" and no relevant judicial interpretation, resulting in the identification of the crime in judicial practice, there are differences. Because there is no limit on the amount of the crime, in judicial practice, the previous crime constitutes a crime, and the subsequent crime is recognized as a crime. Moreover, the lack of a specific amount has resulted in increased arbitrariness in conviction and sentencing. The crime of disguising, concealing the proceeds of crime and proceeds of crime, as a crime, should be determined by the circumstances to determine the size of the crime, and the amount is an important criterion for determining the severity of the circumstances. In practice, often compared to the amount of the previous crime conviction and sentencing, but the degree of comparison is not the same, resulting in if two people disguise, concealment of the proceeds of crime, the degree of social harm is comparable to the results of sentencing may not be the same, contrary to the principle of appropriateness of crime and punishment.
Three, disguise, concealment of proceeds of crime, proceeds of crime sentencing standards
(a) the supreme court disguise, concealment of the proceeds of crime, proceeds of crime sentencing guidelines
1, constitute the disguise, concealment of the proceeds of crime, proceeds of crime crime, can be based on the following different circumstances in the appropriate range The starting point for sentencing can be determined within the corresponding range according to the following different circumstances:
(1) If the circumstances of the crime are general, the starting point for sentencing can be determined within the range of three months' detention to six months' imprisonment.
(2) If the circumstances of the crime are serious, the starting point for sentencing can be determined within the range of three to four years' imprisonment.
2. On the basis of the starting point for sentencing, the amount of penalty may be increased and the base sentence determined on the basis of the amount of the crime and other facts of the crime that affect the composition of the crime.
Section 24: Crime of Harboring, Transferring, Acquiring and Selling Stolen Goods
Article 143: Sentencing Grid for Fixed-term Prison Sentence, Detention, Control, and Single Fines
If a person harbors, transfers, acquires or sells stolen goods of an amount of more than 5,000 yuan and less than 10,000 yuan, or if he repeatedly harbors, transfers, acquires or sells stolen goods of an accumulated amount of more than 3,000 yuan and less than 6,000 yuan. The base sentence shall be a fine.
Where the amount of harboring, transferring, acquiring or selling of stolen goods is more than 10,000 yuan but less than 15,000 yuan, or where the amount of harboring, transferring, acquiring or selling of stolen goods is more than 6,000 yuan but less than 10,000 yuan in aggregate, the base sentence is a sentence of control.
Where the amount of concealment, transfer, acquisition or sale of stolen goods is more than 15,000 yuan but less than 20,000 yuan, or where the amount of concealment, transfer, acquisition or sale of stolen goods is more than 10,000 yuan but less than 15,000 yuan in total, the base sentence shall be a custodial sentence.
Where the concealment, transfer, acquisition or sale of stolen goods is 20,000 yuan or where the concealment, transfer, acquisition or sale of stolen goods is repeated and the cumulative amount is 15,000 yuan, the base sentence is six months' imprisonment. For every additional 4,000 yuan, the term of imprisonment shall be increased by one month.
Article 144: Special Provisions on UpgradingThe sentence shall be upgraded to a custodial sentence if any of the following circumstances apply:
(1) harboring, transferring, acquiring, or selling the stolen goods for more than eight times or for more than five times with the cumulative amount of 10,000 yuan;
(2) failing to return the stolen goods in their entirety;
(3) failing to accept the punishment of property sentence on his own initiative.
(2) Jiangxi Provincial Higher People's Court on the masking, concealment of proceeds of crime, proceeds of crime sentencing guidelines
constituting the masking, concealment of the proceeds of crime, proceeds of crime crime crime, can be based on the following different circumstances in the corresponding range of the determination of the starting point of the sentencing:
(1) masking, concealment of the crime proceeds or proceeds of crime under ordinary circumstances, the starting point of sentencing may be determined within the range of three months' detention to six months' imprisonment.
(2) If the circumstances of the concealment or concealment of the proceeds of crime or the proceeds of crime are serious, the starting point for sentencing can be determined within the range of three to four years' imprisonment.
2. On the basis of the starting point of sentencing, the amount of penalty may be increased and the base sentence determined on the basis of the amount of the crime and other criminal facts affecting the composition of the crime.
(1) If the amount of the crime is less than one hundred thousand yuan, for every additional three thousand yuan, the sentence shall be increased by one month.
(2) If the amount of the crime is more than one hundred thousand yuan but less than two hundred thousand yuan, for each additional ten thousand yuan, the sentence is increased by one month.
(3) If the amount of the crime is more than two hundred thousand yuan (the value of the motor vehicle involved in theft, robbery, fraud, or robbery is five hundred thousand yuan or more), for each additional twenty thousand yuan (for each additional fifty thousand yuan involved in theft, robbery, fraud, or robbery of a motor vehicle), one month's imprisonment shall be added.
(4) For each additional offense, the sentence may be increased by one month to six months, but if the statutory sentence is less than three years, the cumulative increase shall not exceed one year; if the statutory sentence is three to seven years' imprisonment, the cumulative increase shall not exceed two years.
3. In the following cases, the base sentence may be increased by up to 3 0%:
(1) disguising or concealing criminally obtained disaster relief, rescue, flood control, preferential treatment, relief and medical care funds and their proceeds.
(2) The disguise or concealment of the proceeds of crime or the proceeds of crime as the main business or for the purpose of profit.
(3) Guangdong Provincial Higher People's Court's Guidelines on Sentencing for the Offense of Concealing or Concealing Proceeds of Crime or Proceeds of Crime
1. The starting point of sentencing for the offense of concealing or concealing the proceeds of crime or proceeds of crime can be determined within the corresponding range according to the following different circumstances:
(1) If the circumstances of the crime are general, the starting point of sentencing can be determined within the range of three-month custodial sentence to six-month fixed-term imprisonment range to determine the starting point of sentencing.
(2) If the circumstances of the crime are serious, the starting point for sentencing can be determined within the range of three to four years of imprisonment.
2. On the basis of the starting point of sentencing (2,000 yuan), the amount of penalty may be increased and the base sentence determined according to other criminal facts affecting the composition of the crime, such as the amount of the crime.
(1) For each additional offense, the sentence may be increased by three to six months.
(2) If the circumstances are ordinary, the sentence may be increased by one month to three months for each additional 50,000 yuan.
(3) If the circumstances are aggravated, depending on the amount of the increase, the amount of penalty may be increased accordingly to determine the base sentence.
3. The amount may be increased by up to 30% of the base sentence for the purpose of disguising or concealing the proceeds of crime or proceeds of crime for business or for profit.
(4) Guangzhou Intermediate People's Court on the crime of disguise, concealment of the proceeds of crime, proceeds of crime sentencing guidelines
Disguise, concealment of the proceeds of crime, proceeds of crime criminal cases of social harm is generally reflected in the disguise, concealment of the proceeds of crime, proceeds of crime amount, sentencing can be based on the disguise, concealment of the proceeds of crime, proceeds of crime amount of the size within the corresponding statutory range. Size in the corresponding statutory range to determine the base sentence; due to other criminal circumstances affecting the sentencing, according to the seriousness of the relevant criminal circumstances in the corresponding statutory range to determine the starting point for sentencing and the base sentence.
1, less than three years of imprisonment, detention, control, single fine sentencing grid
(1) disguise, concealment of the proceeds of crime, the proceeds of crime in the amount of more than 2,000 yuan to less than 10,000 yuan, the base sentence for detention, control, or a single fine;
(2) disguise, concealment of the proceeds of crime, the proceeds of crime in the amount of 10,000 yuan, the base sentence of six months' imprisonment;
For every additional disguise, concealment of proceeds of crime, proceeds of crime amounting to 100,000 yuan, the base sentence shall be increased by six months;
For every additional disguise, concealment of proceeds of crime, proceeds of crime 1 time, the base sentence shall be increased by six months.
2, three years or less than seven years of imprisonment sentencing grid
disguise, conceal the proceeds of crime, the amount of proceeds of crime 500,000 yuan, or disguise, conceal the proceeds of crime, the proceeds of crime for five times, the base sentence is three years of imprisonment;
each increase in the amount of concealment of the proceeds of crime, the amount of proceeds of crime, the amount of 100,000 yuan of the base sentence increased by six months;
each increase in the amount of concealment of the proceeds of crime, the amount of proceeds of crime increased by six months. p>
For every increase in the amount of concealment, concealment of proceeds of crime, proceeds of crime, the base sentence shall be increased by six months.
3. If one of the following circumstances exists, the base sentence may be increased by 10%:
(1) disguising or concealing the proceeds of crime or proceeds of crime as the main business or for profit;
(2) disguising or concealing disaster relief, rescue, flood control, preferential treatment, relief and medical care;
(3) disguising or concealing the proceeds of crime or proceeds of crime 3 times in a year. proceeds three times.
Four, Ji'an grassroots court in 2014 effective judgment on the crime sentencing statistics
1, Ji Zhou District Court three pieces, for (2014) Ji criminal initial word No. 14, Li Mou acquisition of stolen goods of 1940 yuan, sentenced to five months of detention, a fine of 2,000 yuan; (2014) Ji Criminal Initial Word No. 57, Yang Mou acquisition of stolen goods of 67,900 yuan, sentenced to five months of detention, a fine of 2,000 yuan; (2014) Ji Criminal Initial Word No. 57, Yang Mou acquisition of stolen goods of 67,900 yuan, a fine of 2,000 yuan; (2014) Ji Criminal Initial Word No. 57. Yang acquiring stolen goods 67,900 yuan, sentenced to one year and six months imprisonment, two years probation, a fine of 30,000 yuan; (2013) ji criminal initial word No. 234, Wan received stolen goods 11530 yuan, sentenced to ten months imprisonment, a fine of 15,000 yuan
2, jishui county court two, for (2014) ji criminal initial word No. 8, Zhang acquiring stolen scrap iron 7,820 yuan, a single fine of 5,000 yuan; (2014) ji criminal initial word No. 80, the acquisition of stolen cars (tricycles) valued at 8,448 yuan, introduced others to buy two tricycles, a single penalty of 10,000 yuan;
3, xiajiang county court a, (2014) xia criminal initial word No. 9, He Mou transfer of stolen goods price of 4,004 yuan, was sentenced to five months of detention, a fine of 1,000 yuan;
4, Suichuan County Court, (2014) Suichuan criminal initial word No. 11, Xiong Mou purchase stolen car price of 2807 yuan, sentenced to three months of detention, a fine of 3,000 yuan;
5, Anfu County Court, two, (2014) An criminal initial word No. 7, Ye Mou three acquisition of stolen goods valued at 3,900 yuan, sentenced to one year and six months of control, a fine of 6,000 yuan; (2014) An criminal initial word No. 86. Collect Zhoumou acquisition of stolen car price of 4,000 yuan, sentenced to six months detention, a fine of 4,000 yuan.
From the above analysis of the effective judgment, and suspected of lesser penalties, the criminal mostly did not hire a lawyer as a defender, in terms of the case, jiangxi xiangyun law firm, liu wei lawyers believe that some of the verdict or a great space for defense, one is the case of acquisition of stolen goods and buying stolen goods, although the difference in the word, it may be the difference between a crime and a misdemeanor; the definition of the motor vehicle, the issue of the definition. Whether the electric car is a motor vehicle; therefore, the crime of motor vehicles class stolen goods have special provisions; three is the defense of sentencing, the verdict of the penalty has a large floating space, there is a difference in sentencing standards.