扩大洗钱犯罪的上游犯罪刍论

洗钱罪的上游犯罪,是指具有洗钱性质的基础犯罪。中国刑法关于洗钱罪的上游犯罪仅仅限制在毒品犯罪、黑社会性质的犯罪、走私犯罪和恐怖活动犯罪四类犯罪。因范围过窄,导致在其他犯罪中,即使存在着完全相同的洗钱行为,也不能以洗钱罪定罪量刑。因而很难达到"罪刑相适"的立法诉求和形势发展的实践要求。因此,必须适时扩大洗钱罪的上游犯罪的范围,将清洗一切严重犯罪所得及其收益的行为都认定为洗钱罪的上游犯罪,才能有效地打击洗钱行为。

Tentatively on the Legal Concept Extension of the Crimes Preliminary to Money Laundering

Preliminary money laundering crime refers to the fundamental crime as a preliminary to money laundering. In current Criminal Law of China, it could only be classified into one of the four crimes: drug trafficking, smuggling, terrorism and underworld activities. For this narrow classification, even if many crimes possess its qualities the same attribute, money laundering cannot be taken as an independent criterion for imposing penalty and has to be divided into other types of crimes, which makes it hardly achieve the legislative intention for "punishment should be commensurate with its crime" and cannot keep up with the actual situations. Therefore, only through expanding the scope of crimes preliminary to money laundering crimes and affirming as preliminary money laundering crime any activities for laundering such money that comes from serious crimes, can we struggle against money laundering activities.