自洗钱行为的罪数问题研究

Research on the Number of Offenses in Self-Laundering Behavior

摘要: 随着《刑法修正案(十一)》对自洗钱行为入罪化的明确，我国反洗钱法律体系与国际标准进一步接轨。然而自洗钱行为的罪数认定问题，即上游犯罪本犯在实施上游犯罪后又实施清洗犯罪所得及其收益的行为，应当认定为一罪还是数罪，在理论与实务界引发了广泛争议。自洗钱行为侵害了独立于上游犯罪法益的金融管理秩序，其行为具有独立的不法与罪责内涵，与上游犯罪之间不存在典型的吸收或牵连关系。坚持自洗钱行为与上游犯罪数罪并罚，不仅顺应立法目的以及相关刑法原则的需要，而且具有充分的司法实践依据，具有合理性。

Abstract: With the explicit criminalization of self-money laundering in the Amendment (XI) to the Criminal Law, China’s anti-money laundering legal system has further aligned with international standards. However, the issue of the number of crimes for self-money laundering, that is, whether the act of a perpetrator of an upstream crime who, after committing the upstream crime, also cleanses the proceeds and benefits of the crime should be regarded as one crime or multiple crimes, has sparked extensive debate in both theoretical and practical circles. Self-money laundering infringes upon the financial management order independent of the interests protected by the upstream crime, and its act possesses independent elements of unlawfulness and criminal responsibility, without a typical absorptive or collateral relationship with the upstream crime. Upholding the concurrent punishment of self-money laundering and the upstream crime not only conforms to the legislative purpose and relevant criminal law principles but also has solid judicial practice basis, demonstrating rationality.