Interpretation on Several Issues Regarding the Application of Law in Hearing Criminal Cases Involving Covering up or Concealing Criminal Proceeds or the Profits Thereof

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Promulgation Date: 2021-4-13
Title: The Supreme People's Court  Interpretation on Several Issues Regarding the Application of Law in Hearing Criminal Cases Involving Covering Up or Concealing Criminal Proceeds or the Profits Thereof
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Expiration date: 
Promulgating Entities:Supreme People's Court
Source of text: 人民法院报2021年4月14日第三版

The following interpretation is made on the basis of the relevant provisions of the Criminal Law combined with actual criminal trial work of the people's courts, so as to lawfully punish criminal activities of concealing or hiding criminal proceeds or the profits thereof.

Article 1: Whoever, while clearly knowing that the proceeds are obtained from commission of crimes or are gains derived therefrom, hides, transfers, purchases, helps to sell, or covers up and conceals by other means, and while at least one of the following circumstances occurs, shall be convicted of and punished for the crime of shielding or concealing criminal proceeds or the profits derived therefrom pursuant to Article 312, Paragraph 1 of the Criminal Law.

(1) Where having been subject to administrative penalty for hiding or concealing criminal proceeds or the profits derived therefrom within one year, one again commits acts of covering up or concealing criminal proceeds or the gains derived therefrom;

(2) The criminal proceeds covered up or concealed are electrical equipment, transport facilities, broadcasting facilities, or funds and materials involved in disaster relief, emergency relief, flood prevention, veteran benefits, poverty alleviation, immigration, or relief;

(3) The acts of covering up or concealing makes it impossible to promptly investigate the upstream crimes, and causes damages to public or private property or makes it unrecoverable;

(4) Other acts covering up or concealing criminal gains and the profits thereof, obstructing justice organs pursuit of the upstream crimes.

People's courts hearing criminal cases of covering up or concealing criminal gainst or the profits thereof shall comprehensively consider the nature of the upstream crime, and the circumstances and consequences of covering up or concealing the criminal gains, as well as the extent of social harm and so forth, and give punishment in accordance with law.

Where judicial interpretations already have provisions on acts of covering up or concealing criminal gains involved in computer information system data or the right to control computer information systems, apply those provisions in hearing that type of case.

Pursuant to the "Interpretation of the Standing Committee of the National People's Congress on Articles 341 and 312 of the Criminal Law of the People's Republic of China", the purchase of 50 or more animals clearly known to be illegally hunted, wild animals is to be convicted and punished as the crime of covering up or concealing criminal proceeds.

Article 2: There circumstances of the crime may be considered minor and criminal punishment waived where acts of covering up or concealing criminal proceeds and the profits thereof meet the requirements of Article 1 of this Interpretation, and guilt is admitted, remorse is shown, stolen goods are returned or compensation is made, and there are any of the following circumstances:

(1) where there are legally prescribed circumstances calling for leniency;

(2) Where criminal gains and the profits thereof were covered up or concealed for close relatives, and it is a first or casual offense;

(3) Other situations of lighter circumstances.

Article 3: In any of the following situations, covering up or concealing criminal gains and the profits thereof shall be found to have 'serious circumstances' as provided for in the first paragraph of Criminal Law article 362:

(1) Where covering up or concealing criminal proceeds or the profits thereof with a total value of 100,000 RMB or more;

(2) Where covering up or concealing criminal proceeds or the profits thereof 10 or more times, or 3 or more times where the total value was 50,000 RMB or more;

(3) The criminal proceeds covered up or concealed are electrical equipment, transport facilities, broadcasting facilities, or funds and materials involved in disaster relief, emergency relief, flood prevention, veteran benefit, poverty alleviation, immigration or relief with a total values of 50,000 RMB or more;

(4) The acts of covering up or concealing makes it impossible to promptly investigate and handle the upstream crimes, and causes major damages to public or private property, makes it unrecoverable, or causes other serious consequences;

(5) Other acts covering up or concealing criminal gains and the profits thereof, seriously obstructing justice organs' pursuit of the upstream crimes.

Where judicial interpretations already have provisions on identifying 'serious circumstances in acts of covering up or concealing criminal gains involving motor vehicles, computer information system data or the right to control computer information systems, apply those provisions in hearing that type of case.

Article 4: The value of criminal proceeds or the proceeds thereof that were covered up or conceals shall be set at the time of the acts of covering up or concealment. Where the value items were acquired for or sold for is higher than its actual value, the value is to be calculated based on the purchase or sale value.

Where covering up or concealing of criminal gains and the proceeds thereof is carried out several times without administrative punishment, and shall be pursued in accordance with law, the value of criminal gains and the proceeds thereof shall be calculated cumulatively.

Article 5: Where before covering up or concealing criminal gains and the proceeds thereof, there was a conspiracy with criminals who committed thefts, robberies, fraud, or snatching, they are to be handled as accomplices to the crimes of theft, robbery, fraud, or snatching.

Article 6: Where criminal gains and the proceeds thereof are stolen, taken, taken by fraud, or by robbery, and it constitutes a crime, the verdict and sentence shall be in accordance with the crimes of theft, robbery, fraud, or taking respectively.

Article 7: Where knowingly covering up or concealing criminal gains or the proceeds thereof constitutes the crimes provided for in article 312 of the Criminal Law and concurrently constitutes another crime, the verdict and punishment are to be in accordance with the more serious crimes.

Article 8: Establishing the upstream crime is a prerequisite to a finding of the covering up or concealment of criminal gains or the proceeds thereof. Where there has not been a ruling on the upstream crime in accordance with law, but it has been verified as true, it does not impact the finding of covering up or concealment of criminal gains or the proceeds thereof.

Where the upstream crimes are verified to be true, but the the perpetrator is not to be prosecuted for criminal liabilities due to reasons such as that s/he is under the age of criminal responsibility, the affirmation of the crime of shielding or concealing criminal proceeds or the gains derived therefrom shall not be affected.

Article 9: Where a unit's name was wrongfully used to carry out the covering up or concealing of criminal games and the proceeds thereof and divvying up the unlawful gains, the verdict and sentence are to be in accordance with the provisions of the Criminal Law and judicial interpretations on crimes by natural persons.

Article 10: Stolen goods and assets directly acquired through crimes shall be designated as "criminal gains" as provided for in article 312 of the Criminal Law. Proceeds, rent, and so forth received after processing by the perpetrator of the upstream crime shall be designated as "the proceeds of criminal gains" as provided for in Criminal Law article 312.

Using methods other than harboring, transferring, purchasing, or selling on behalf of others, such as being an intermediary in sales, receiving, possessing, processing, providing capital accouns, to assist in converting property one knows to be criminal gains or the proceeds thereof into cash, financial instruments, or negotiable securities, or assisting in transferring or wiring them abroad, shall be designated as "other methods" as provided for in Criminal Law article 312.

Article 11: Covering up or concealing criminal gains or the proceeds thereof is an elective charge and the charge applied shall be determined based on the specific criminal conduct and the subject as which it was aimed.

 

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