第四方支付洗钱的定罪困境与逻辑重构

The Conviction Dilemma and Logical Reconstruction of the Fourth Party Payment Money Laundering

  • 摘要:
    目的/意义第四方支付洗钱行为在司法实践中存在类案不同判等问题,需要对其定罪逻辑进行重新梳理。
    设计/方法通过对44起第四方支付洗钱行为的案例进行分析,可以发现实践中缺乏推定行为人与上游犯罪存在意思联络的标准,帮助信息网络犯罪活动罪扩张适用,以及想象竞合等罪数形态被忽略,上述因素导致第四方支付洗钱行为的罪名认定参差不齐。
    结论/发现第四方支付洗钱犯罪的刑法规制,应当分流程分阶段判断。首先从实质上分析行为人与第四方支付平台的关系,区分平台参与者与管理者;其次再判断平台管理者与上游犯罪的关系,对不构成共同正犯或狭义共犯的管理者再以掩饰、隐瞒犯罪所得、犯罪所得收益罪与帮助信息网络犯罪活动罪两罪名分别讨论,最后判断平台建立过程中是否构成其他罪名,讨论数罪并罚等罪数问题。

     

    Abstract: Purpose/Significance There are many problems in the judicial practice of the fourth party payment money laundering, such as different judgment in similar cases, which need to be sorted out the conviction logic. Design/Methodology Based on the analysis of 44 cases of money laundering by the fourth party payment, it can be found that in practice, there is a lack of standard to infer the meaning of connection between the actor and the upstream crime, the crime of aiding information network criminal activities is extended, and the number of crimes such as imaginative competition and cooperation are ignored. The above factors lead to the uneven determination of the charges of the fourth party payment money laundering. Conclusions/Findings The criminal law regulation of the fourth party payment money laundering crime should be judged by stages. Firstly, the relationship between the actor and the fourth party payment platform is analyzed in essence, and the participants of the platform and the managers are distinguished. Secondly, the relationship between the platform manager and the upstream crime is judged, and the managers who do not constitute a joint crime or narrow accomplice are discussed respectively for the crime of concealing the benefit of crime and the crime of aiding information network criminal activities. Finally, whether other crimes constituted in the process of establishing the platform are judged, and the number of crimes and combined punishment for several crimes are discused.

     

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