洗钱罪上游犯罪的立法比较研究

Comparative Study of Legislation on the Upper Reaches of Money Laundering Crime

The upper reaches of money laundering crime, which is also called “the antecedent crime” or “the pre-crime”, is the specific type of crime greedy for profits, established by the criminal law to attack money laundering crime, which can seriously undermine the financial order. In view of our criminal legislation adopting the parallel mode of conviction on the two kinds of booty crime, which are money laundering crime and the crime of covering up and hiding the outcomes and the profits of some other crimes, distinguishing between the two standards into the legislation become an important basis for discrimination. For the upper reaches of money laundering crime, the Criminal Code and the "Criminal Law Amendment" adopt the direct expression way of category accusation, for a total of seven categories of 75 kinds of specific crimes. Under the listed specific category accusations by the Criminal Law, this article generalize the commonness of the upper reaches of money laundering crime, which has serious harm, the possibility of destructing the financial order, stressing the importance of method in crime prevention, etc, and as the basis of that, discuss the range of the upper reaches of money laundering crime in our Criminal Law should extend gradually to some other crimes, such as some crimes of endangering national security, serious crimes against socialist market economic order, some crimes of infringement upon citizens' rights of the person, in the development of future legislation. 洗钱罪的上游犯罪，也被称为“先行犯罪”或“前置犯罪”，是刑法设立的为打击通过洗钱能够严重破坏金融秩序的特定贪财图利型犯罪。鉴于我国刑事立法上采取了洗钱罪与掩饰、隐瞒犯罪所得、犯罪所得收益罪两种赃物犯罪并行入罪的模式，区分二者的立法标准成为判别的重要依据。对于洗钱罪的上游犯罪，刑法典及《刑法修正案》采用了类罪名的叙明方式，共规定了七类七十五种具体犯罪。本文根据刑法所列举的这些具体类罪名，概括上游犯罪具有严重的危害、破坏金融秩序的可能、预防强调手段等共性，并以此为基础探讨了我国刑法中洗钱罪上游犯罪的未来立法发展中，应渐次扩展到部分危害国家安全的犯罪、重大的破坏社会主义市场经济秩序的犯罪、部分侵犯公民人身权利罪等类犯罪中。