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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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

Legal Interpretation (2015) No. 11

Supreme People's Court

(Passed by the 1651th meeting of the Judicial Committee of the Supreme People's Court on May 11, 2015)

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 hiding or concealing criminal proceeds or the profits derived therefrom is of a value greater than 3,000 to 10,000 yuan;

(2) 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 hiding or concealing criminal proceeds or the gains derived therefrom;

(3) The criminal proceeds shielded 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.

(四)掩饰、隐瞒行为致使上游犯罪无法及时查处,并造成公私财物损失无法挽回的;

(五)实施其他掩饰、隐瞒犯罪所得及其产生的收益行为,妨害司法机关对上游犯罪进行追究的。

The higher people's court of each province, autonomous region and municipality can, according to the state of economic and social development of its jurisdiction, and taking into account the status of social security, determine the specific value standard to be applied locally within the value range stipulated by paragraph 1, item 1 of this article, and file with the Supreme People's Court for record.

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 hiding 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.

行为人为自用而掩饰、隐瞒犯罪所得,财物价值刚达到本解释第一条第一款第(一)项规定的标准,认罪、悔罪并退赃、退赔的,一般可不认为是犯罪;依法追究刑事责任的,应当酌情从宽。

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: 掩饰、隐瞒犯罪所得及其产生的收益的数额,应当以实施掩饰、隐瞒行为时为准。收购或者代为销售财物的价格高于其实际价值的,以收购或者代为销售的价格计算。

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: The affirmation of the crime of shielding or concealing criminal proceeds or the gains derived therefrom shall have the establishment of the facts of upstream crimes as a premise. Where the upstream crime(s) have not been adjudicated according to law, but are verified to be true, the affirmation of the crime of shielding or concealing criminal proceeds or the gains derived therefrom shall not be affected.

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: 通过犯罪直接得到的赃款、赃物,应当认定为刑法第三百一十二条规定的“犯罪所得”。上游犯罪的行为人对犯罪所得进行处理后得到的孳息、租金等,应当认定为刑法第三百一十二条规定的“犯罪所得产生的收益”。

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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2 Comments

  1. The texts at the beginning “(2015年5月11日最高人民法院审判委员会第1651次会议通过)” are too broken up to translate.

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