刑法191条对涉毒洗钱犯罪适用性研究(李春)定稿解析.doc

刑法191条对涉毒洗钱犯罪适用性研究 Research On the Adaptability of Article 191 of the Criminal Law on Drug-related Money Laundering Crime 云南大学法学院 李春 【内容摘要】 刑法191条作为控制涉毒洗钱的法律惩戒利器在司法实务中遭遇适用困境，其原因是立法设计的局限、执法管辖的尴尬、民众和相关部门认知缺位以及金融机构和侦查部门的合作不畅。为解决此问题，必须置身中国司法实践的土壤和国际化的环境之中来考虑，建议从顶层设计中借鉴国际经验，成立独立“反洗钱委员会”，在立法环节中“三罪归一，严刑重罚”；在司法环节中以资金流查询为合作契机，加强经侦部门与上游犯罪管辖各部门的合作；在认知环节中加强对涉毒洗钱犯罪危害性认识；在银警合作环节中要统一协调，各司其职，信息流在职责范围内双向对称。如能理顺机制，积极融入国际反洗钱框架，实现共赢，涉毒洗钱司法适用的困境也会逐步明朗。 【关键词】涉毒洗钱 适用性 反洗钱委员会 立法完善 合作 Abstract: As a punishing weapon to fight against drug-related money laundering crime, Article 191 of the Criminal Law is having problems in practicing because of four reasons: limitations of legislation, difficulties in enforcement, lack of recognition among public and government departments, and inadequate co-operation between financial institutions and Investigation departments. To solve this problem, we should ground on Chinese judicial practice and international environment. I suggest we absorb international experience from the perspective of top-level design and suggestions are as follows. For legislation, set up independent “anti-money laundering committee” and combination of Aricle191, Aricle312and, Aricle349; for judicial part, strengthen the co-operation between economic crime investigation department and departments in charge with predicate offences, with the Cash flow query as the turning point; for recognition, raising greater awareness of the harm of drug-related money laundering crime; for the part of the co-operation between banks and police, it should be implemented in a unified and coordinated way and each performs its own functions. Banks and police will share as much information as possible under job description scope. Problems of the adaptability would be gradually solved with improved mechanism and joining in international anti-money laundering. Key words: drug-related money laundering; adaptability; anti-money laundering committee; legislation improvement; co-operat