洗錢罪中的沒收制度研究
發(fā)布時(shí)間：2019-01-24 19:08
【摘要】：刑事犯罪領(lǐng)域中的沒收是指將財(cái)產(chǎn)的一部分或者全部甚至是其展現(xiàn)出的各種形態(tài)均予強(qiáng)制無償?shù)厥諝w國(guó)有的措施。根據(jù)我國(guó)刑法典,刑事犯罪領(lǐng)域的沒收分為特別沒收和一般沒收,其中一般沒收也稱沒收財(cái)產(chǎn)刑,是指將犯罪人合法擁有的的本人的財(cái)物的一部分或者全部收歸國(guó)家所有,其沒收的對(duì)象是犯罪人合法擁有的財(cái)產(chǎn)；但如果涉及到犯罪所得,違禁品、犯罪工具以及供犯罪所用的本人財(cái)物時(shí),為了能夠斬?cái)喾缸锏馁Y金鏈條,貫徹不能從違法、犯罪中獲得收益的原則,以達(dá)到懲罰與預(yù)防犯罪的效果,國(guó)家就必須啟動(dòng)對(duì)這些涉案財(cái)物及其可能變化的各種形態(tài)的追繳,這就是特別沒收。刑事特別沒收制度規(guī)定在我國(guó)刑法第六十四條,由于我國(guó)刑法典中對(duì)特別沒收僅有這一個(gè)條文,且條文表述相當(dāng)籠統(tǒng),在實(shí)踐中往往遇到許多無法解決的難題：刑事特別沒收的性質(zhì)是什么,預(yù)防還是懲罰?沒收范圍有多廣,是實(shí)在、有形的財(cái)產(chǎn)本身還是包含了財(cái)產(chǎn)轉(zhuǎn)換的各種形態(tài)?財(cái)產(chǎn)是否僅僅指動(dòng)產(chǎn)和不動(dòng)產(chǎn)等有形資產(chǎn),無形資產(chǎn)利益又是否是本條沒收的對(duì)象?如果在沒收過程中涉及到第三人的利益如何保護(hù),是否所有的第三人的財(cái)產(chǎn)均應(yīng)當(dāng)返還?第三人是否有過錯(cuò)對(duì)沒收是否有影響?如果上述應(yīng)被沒收的財(cái)產(chǎn)被第三人善意購(gòu)買,第三人是否能善意地取得對(duì)該財(cái)產(chǎn)的所有權(quán)?目前我國(guó)無論是刑法典還是物權(quán)法典對(duì)贓物的善意取得制度均沒有一個(gè)定論。而且該條條文也缺乏關(guān)于國(guó)際合作共同打擊刑事犯罪收益的規(guī)定,如何在我國(guó)建立起沒收的國(guó)際合作機(jī)制也是我們亟待解決的問題。根據(jù)國(guó)際刑警組織的定義,洗錢是指旨在隱匿或者掩蓋非法收益的來源以使其合法來源的任何行為或者行為企圖,其上游犯罪的范圍擴(kuò)大到所有犯罪行為①,相比之下,我國(guó)洗錢犯罪的范圍則小得多,僅僅局限于法定的7類犯罪行為,從實(shí)際上看,國(guó)際上的洗錢罪的洗錢罪涵蓋了所有的犯罪行為等于我國(guó)的洗錢加上掩飾、隱瞞犯罪所得、犯罪所得收益罪。另一方面,國(guó)際反洗錢組織及國(guó)際公約對(duì)反洗錢的刑事沒收包括在沒收對(duì)象、善意第三人權(quán)利的保護(hù)、如何實(shí)現(xiàn)在未定罪之下進(jìn)行沒收、國(guó)際形式?jīng)]收合作機(jī)制等均作了前面詳細(xì)的規(guī)定,這些先進(jìn)的規(guī)定不僅對(duì)我國(guó)打擊反洗錢犯罪有所借鑒,還可以進(jìn)一步擴(kuò)大適用于洗錢犯罪之外的其他掩飾、隱瞞犯罪所得、犯罪所得收益的行為,因此,合理吸收、借鑒國(guó)際上的先進(jìn)制度,不僅是我國(guó)履行國(guó)際公約的義務(wù),同時(shí)也能更好地服務(wù)我國(guó)打擊刑事犯罪的需要。本文試圖對(duì)國(guó)際上反洗錢的先進(jìn)制度及經(jīng)驗(yàn)作粗淺的探討,以期對(duì)我國(guó)刑事沒收有所裨益。
[Abstract]:Confiscation in the field of criminal crime refers to the measures of compulsory and unpaid nationalization of some or all of the property or even the various forms it shows. According to the Criminal Code of China, confiscation in the field of criminal offences is divided into special confiscation and general confiscation, in which the general confiscation also refers to the confiscation of property, which refers to the transfer of part or all of the property lawfully owned by the offender to the state. The object of confiscation is the property legally owned by the offender; However, when it comes to proceeds of crime, contraband goods, criminal instrumentalities and personal property used for the purpose of committing a crime, in order to be able to cut off the chain of funds of the crime, the principle that no proceeds can be obtained from the violation of the law or the crime is carried out. In order to achieve the effect of punishment and crime prevention, the state must initiate the recovery of the property involved and its possible changes, which is called special confiscation. The criminal special confiscation system stipulates that it is stipulated in Article 64 of the Criminal Law of our country. Since there is only one article on special confiscation in the Criminal Code of our country, and the provisions are quite general. In practice, there are often many insurmountable problems: what is the nature of special criminal confiscation, prevention or punishment? How wide is the confiscation, in fact, the tangible property itself, or does it include various forms of property conversion? Does property refer only to tangible assets, such as movable property and immovable property, and is the interest of intangible assets the object of confiscation by this article? If the interests of third parties are protected in the course of confiscation, should all third party property be returned? Is the third party at fault having an impact on confiscation? If the above-mentioned property liable to forfeiture is purchased by a third person in good faith, can the third person acquire ownership of the property in good faith? At present, there is no conclusion about the bona fide acquisition of stolen goods in both the Criminal Code and the Real right Law Code in our country. The article also lacks the provisions on international cooperation to combat the proceeds of criminal crime, how to establish a confiscation of international cooperation mechanism in China is also a problem to be solved. According to the definition of Interpol, money laundering means any act or attempt to conceal or conceal the source of illicit proceeds in order to enable them to have a legal origin, the predicate offences of which are extended to all offences, 1 by contrast, The scope of the crime of money laundering in our country is much smaller, and it is limited to the seven kinds of criminal acts. In fact, the crime of money laundering in the international community covers all criminal acts equal to the laundering of money and the concealment of the proceeds of crime in our country. Crime of proceeds of crime On the other hand, the criminal confiscation of anti-money-laundering by international anti-money-laundering organizations and international conventions includes the object of confiscation, the protection of the rights of bona fide third parties, and how to achieve confiscation without conviction, The international forms of confiscation cooperation mechanism and so on have all made the preceding detailed stipulation, these advanced provisions not only have the reference to our country to combat the crime of anti-money laundering, but also can further expand the other cover-up which can be applied to the crime of money laundering and conceal the proceeds of the crime. Therefore, it is not only our country to fulfill the obligation of international convention, but also to serve the need of our country to crack down on criminal crime, to absorb the proceeds of crime reasonably and draw lessons from the advanced international system. This paper attempts to make a brief discussion on the international advanced system and experience of anti-money laundering in order to benefit our country's criminal confiscation.
【學(xué)位授予單位】：江西財(cái)經(jīng)大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2016
【分類號(hào)】：D924.3;D997.9
[Abstract]:Confiscation in the field of criminal crime refers to the measures of compulsory and unpaid nationalization of some or all of the property or even the various forms it shows. According to the Criminal Code of China, confiscation in the field of criminal offences is divided into special confiscation and general confiscation, in which the general confiscation also refers to the confiscation of property, which refers to the transfer of part or all of the property lawfully owned by the offender to the state. The object of confiscation is the property legally owned by the offender; However, when it comes to proceeds of crime, contraband goods, criminal instrumentalities and personal property used for the purpose of committing a crime, in order to be able to cut off the chain of funds of the crime, the principle that no proceeds can be obtained from the violation of the law or the crime is carried out. In order to achieve the effect of punishment and crime prevention, the state must initiate the recovery of the property involved and its possible changes, which is called special confiscation. The criminal special confiscation system stipulates that it is stipulated in Article 64 of the Criminal Law of our country. Since there is only one article on special confiscation in the Criminal Code of our country, and the provisions are quite general. In practice, there are often many insurmountable problems: what is the nature of special criminal confiscation, prevention or punishment? How wide is the confiscation, in fact, the tangible property itself, or does it include various forms of property conversion? Does property refer only to tangible assets, such as movable property and immovable property, and is the interest of intangible assets the object of confiscation by this article? If the interests of third parties are protected in the course of confiscation, should all third party property be returned? Is the third party at fault having an impact on confiscation? If the above-mentioned property liable to forfeiture is purchased by a third person in good faith, can the third person acquire ownership of the property in good faith? At present, there is no conclusion about the bona fide acquisition of stolen goods in both the Criminal Code and the Real right Law Code in our country. The article also lacks the provisions on international cooperation to combat the proceeds of criminal crime, how to establish a confiscation of international cooperation mechanism in China is also a problem to be solved. According to the definition of Interpol, money laundering means any act or attempt to conceal or conceal the source of illicit proceeds in order to enable them to have a legal origin, the predicate offences of which are extended to all offences, 1 by contrast, The scope of the crime of money laundering in our country is much smaller, and it is limited to the seven kinds of criminal acts. In fact, the crime of money laundering in the international community covers all criminal acts equal to the laundering of money and the concealment of the proceeds of crime in our country. Crime of proceeds of crime On the other hand, the criminal confiscation of anti-money-laundering by international anti-money-laundering organizations and international conventions includes the object of confiscation, the protection of the rights of bona fide third parties, and how to achieve confiscation without conviction, The international forms of confiscation cooperation mechanism and so on have all made the preceding detailed stipulation, these advanced provisions not only have the reference to our country to combat the crime of anti-money laundering, but also can further expand the other cover-up which can be applied to the crime of money laundering and conceal the proceeds of the crime. Therefore, it is not only our country to fulfill the obligation of international convention, but also to serve the need of our country to crack down on criminal crime, to absorb the proceeds of crime reasonably and draw lessons from the advanced international system. This paper attempts to make a brief discussion on the international advanced system and experience of anti-money laundering in order to benefit our country's criminal confiscation.
【學(xué)位授予單位】：江西財(cái)經(jīng)大學(xué)
【學(xué)位級(jí)別】：碩士
【學(xué)位授予年份】：2016
【分類號(hào)】：D924.3;D997.9
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