Abstract： The development of virtual currencies， network banking， and artificial intelligence technologies facilitates the implementation and completion of self-money laundering in crimes involving embezzlement and bribery. Amendment XI to the Criminal Law of the People's Republic of China lists self-money laundering as a separate money laundering crime， breaking the restrictive framework that it must be committed by someone else. This is reflective of the specific interest that China has in anti-money laundering. The criminalization of self-money laundering has been adopted as a powerful legal weapon against money laundering. However， it has confronted a series of dilemmas in terms of specific judicial applications. To gradually address the dilemmas in applying the clause， a comprehensive consideration of Chinese judicial and anti-money laundering practices， as well as international anti-money laundering regulations and practices， is carried out. Moreover， the following recommendations are given： that the protection of legal interests concerning self-money laundering should be expanded appropriately; that a penalty and cooperation system should be established for the crime of self-money laundering; and that the scope of the means of self-money laundering should be extended.

Keywords： embezzlement and bribery; self-money laundering; legal interests; coordination; application

CLC： DF 6 DC： A Artical： 2096-9783（2024）05?0123?13

The development of virtual currencies， network banking， and artificial intelligence technologies facilitates the implementation and completion of self-money laundering in crimes involving embezzlement and bribery.

At the same time， in the context of the digital age， the development of technology has also increased the difficulty of anti-money laundering. It can be shown in the following aspects， specifically：

First of all， the integration of science and technology with the financial industry makes the financial business show the characteristics of frequent frequency， complex business， and hidden transactions. Distributed network characteristics also break through the limitations of national sovereignty. In the context of the digital age， network platforms grow rapidly. For example， on the dark web platform similar to "Silk Road Company"， the website operates in the form of a Tor concealment service， mainly trading prohibited goods. Bitcoin is the main payment method for buying and selling goods on websites. Because this kind of transaction is difficult to track on the server， it cannot track the source and flow of relevant funds， which increases the difficulty of anti-money laundering activities.

Secondly， led by the new technological revolution （big data， cloud computing， artificial intelligence and blockchain）， technology is constantly breaking the boundaries and models of traditional financial business. From offline services to online services， customers can realise online shopping， investment， financial management， and other transaction activities through online platforms and apps. It is difficult to clearly distinguish between information services and financial services. This can lead to unclear liability subjects for anti-money laundering obligations.

Finally， Internet companies enter the financial field through technology and integrate financial business into e-commerce or social platforms. The various businesses of fintech enterprises mainly revolve around "data"， and they will have access to a large amount of personal financial information in various financial scenarios. Some technology and finance companies have loopholes in data security， leading to a large amount of customer identity data and transaction data leakage.

In view of this， there is an urgency to consider "self-money laundering" a separate crime. Because corruption-involved money laundering is closely intertwined with financial activities， the curbing of embezzlement and bribery and the crackdown on money laundering are interconnected. Currently， under the backdrop of frequent embezzlement and bribery， there are numerous difficulties in judicial practice owing to the diversity and complexity of self-money laundering， and the emphasis in the relevant studies varies. As a result， the countermeasures for prevention and control are also increasingly diversified. Making "self-money laundering" a crime is of substantial significance to the prevention and punishment of corruption-involved money laundering， the international repatriation of fugitives， and the recovery of assets in anti-corruption. Furthermore， this also comprises the core of the revised content in Amendment XI to the Criminal Law of the People's Republic of China （hereinafter Criminal Law）. However， given the simplicity of the legal provision and the absence of relevant judicial interpretations， the application of the "self-money laundering" clause may not be as satisfactory in practice. To provide concrete guidance on curbing bribery and embezzlement， this paper provides an in-depth analysis of this problem from the perspective of making "self-money laundering" a crime under the macro background of studies on embezzlement and bribery.

1 Legal Logic Behind Making "Self-Money Laundering" a Crime

1.1 Legislative Evolution

Money laundering， which is a criminal term that originates in the US， refers to an act by which the criminal proceeds or other illicit profit is legalised through disguise， concealment， conversion， and other means[1]. At the same time， such as the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances （Vienna Convention） in 1988， the International Convention for the Suppression of the Financing of Terrorism in 1999， the United Nations Convention against Transnational Organised Crime （Palermo Convention） in 2000， and the United Nations Convention against Corruption in 2003， etc.， these conventions respond in different ways to money laundering. To address the issue of money laundering， Chinese legislation has been developed on the crime of anti-money laundering. The main process is reflected in the 1997 Criminal Law， its subsequent three amendments， and China's entrance into relevant international conventions on anti-money laundering. In 1997， China formally made money laundering a crime under Article 191 of the Criminal Law1， which provides that the upstream crimes of money laundering include drug-related crimes and crimes committed by mafias or smugglers. Based on the basic theory of traditional booty crimes， the 1997 Criminal Law defines money laundering as a downstream crime that is affiliated with upstream crimes. Since its acts were a normal extension of upstream crimes， no repeated evaluation was needed herein. Therefore， Article 191 of the Criminal Law only regulates third-party money laundering without listing self-money laundering among upstream crimes. In 2001， Amendment III to the Criminal Law extended upstream crimes to include terrorist crimes and toughened the statutory sentence for the commitment thereof by a unit. In 2005， China formally signed the United Nations Convention against Corruption. In 2006， to adapt to the requirements of the Convention and based on the needs of the then judicial practice， the Standing Committee of the National People's Congress passed Amendment VI to the Criminal Law， in which the crimes of disrupting financial management order， embezzlement and bribery， and financial fraud were included as upstream crimes; "negotiable securities" was also added in the exchange of property. Given the references to the amendment of the crime of money laundering in Amendment III to the Criminal Law and Amendment VI to the Criminal Law， it is clear that the focus rested on the "extension" of the scope of upstream crimes of money laundering[2]. In 2007， China passed the Special Anti-Money Laundering Law， which provides regulations on the duties of financial institutions on anti-money laundering， the supervision and management of anti-money laundering， and international cooperation on anti-money laundering. However， from the perspective of its contents， the Anti-Money Laundering Law is an administrative law rather than a criminal law.

Thus far， the Chinese legal system has essentially established crimes of embezzlement， bribery， and money laundering to crack down on crime. Amendment XI to the Criminal Law was the third amendment to the crime of money laundering， the contents of which include the four aspects of self-money laundering， the means of behaviour， the elements of the definition of "clearing knowing"， and fines. Establishing "self-money laundering" as a crime in this amendment marks enormous progress for the Chinese criminal legal system on anti-money laundering. On one hand， it satisfies the practical needs of Chinese legislation and judicature in anti-money laundering. On the other hand， it helps deepen the cognition of the novel relationship between the crime of money laundering and upstream crimes， which is a sign of innovative development of the basic theory of traditional booty crimes.

1.2 Legislative Evaluation

The Chinese legislation on anti-money laundering is related to the dynamics of international situations and is inseparable from the changes in the essence of criminal policies. From the Chinese legislation process on anti-money laundering， one can conclude that the purposes of policies varied under different development backgrounds in different historical periods and changed accordingly with international rules based on domestic judicial practice. International situations and rules have provided the historical environment and social soil for judicial practice in China， while the priority of anti-money laundering has also been adjusted in judicial practice owing to changes in international situations and rules[3]. On this basis， the Chinese legal system for anti-money laundering has been improved. Regarding the evolution of the legislation， as with international legislation on anti-money laundering， Chinese legislation on money laundering also underwent the following processes： Initially， the crime of money laundering was clarified in the Criminal Law and codified in legislation; subsequently， amendments to the Criminal Law were issued to improve the system for addressing money laundering crimes. The Anti-Money Laundering Law was then formulated to form a relatively complete legal system; finally， self-money laundering was made a crime， marking a significant next step in the Chinese criminal system for anti-money laundering.

From the perspective of the international environment， China became a formal member of the Financial Action Task Force （FATF） in 20072. The FATF is the most influential international organisation in terms of anti-money laundering and anti-terrorist financing. In the two rounds of inter-evaluation in 2007 and 2019， the FATF believed that most provisions on anti-money laundering in China were compliant with its standards[4]. Nonetheless， it pointed out that there was an obvious flaw in technical compliance because most money laundering crimes were committed by criminals of upstream crimes in Chinese judicial practice， but self-money laundering was not included in the Criminal Law. Therefore， making "self-money laundering" a crime is not only a performance of serving international obligations under the FATF's evaluation procedures and rules but also directly relates to the image of China as a responsible country in anti-money laundering[5]. From the perspective of the domestic environment， with the establishment of a holistic approach to national security， China has highlighted the importance of money laundering in its national strategy， believing that anti-money laundering is of critical importance for the maintenance of national economic security， the stability of its financial system， and the fight against corruption and economic crimes[6]. In 2007， to complete the top-level design for "improving the supervision system and mechanism of fighting against money laundering， terrorist financing， and tax evasion"， the State Council issued the Opinions on Improving the Supervision System and Mechanism of Fighting against Money Laundering， Terrorist Financing， and Tax Evasion， requiring the inclusion of offenders in upstream crimes as part of the subjects of money laundering[7]. On this basis， a legislative response was made in Amendment XI to Criminal Law by including self-money laundering into the scope of money laundering crime.

In objective terms， the Chinese legislation on anti-money laundering is roughly consistent with the overall trend of international legislation on anti-money laundering， providing powerful legal safeguards for curbing corruption-involved money laundering crimes in China at different development stages in different historical periods. This profoundly reflects the gradual adjustment of the domestic legislation on money laundering in alignment with the international legislation under the background of the international community's strengthened efforts to curb money laundering crimes， the Chinese legislation's expansion of the scope of such crimes， the strengthened anti-money laundering effort， and the essence and substantial connotations of the legislation in toughening punishments for these crimes.

2 Judicial Application of the "Self-Money Laundering" Clause to Embezzlement and Bribery

2.1 Introduction of the Case

2.1.1 Embezzlement and Money Laundering as Committed by Tang XX

（1） About the Case3

Tang XX was the principal of a middle school in Xichang City， Sichuan Province. The couple Li XX comprised two contractors for the school's dining hall， but their bank cards were controlled by Tang XX in actuality. During her tenure as principal， Tang XX received two sums with a total amount of RMB 226 817.29 in Li XX's bank cards through the falsification of lunch fees and purchase orders. Upon receiving the foregoing funds， Tang XX made two transfers of RMB 200 000.00 and RMB 26 500.00 to an Agricultural Bank of China （ABC） bank account held by her mother， Zhou XX. Subsequently， on the 26th day of the same month， she transferred RMB 200 000.00 to the ABC account of her husband， Liu XX.

Later， Tang XX directed Liu XX to transfer the said RMB 200 000.00 and his own funds of RMB 300 000.00 to a financing company in Liangshan for borrowing and lending， through which RMB 300 000.00 was lent to the Zhaojue Hydroelectric Project and then to a wine company in Chengdu after it became due; the remaining RMB 200 000.00 was lent to a real estate company in Suining. Before Tang XX could be investigated， she directed Liu XX to withdraw the investment. The first sum of RMB 300 000.00 was received by Yuan XX; on the same day， Yuan XX transferred the RMB 300 000.00 to a China Construction Bank （CCB） account （tail number： 2380） held by Liu XX. When Tang XX was investigated， Liu XX asked the financing company to return the RMB 200 000.00 that had been borrowed. Later， the financing company transferred RMB 200 000.00 to the CCB account （tail number： 4688） of Liu XX. Following receipt of the two sums， Liu XX concealed them through transfer or withdrawal.

（2） Flows of Self-Money Laundering

In this case， self-money laundering was specifically reflected in concealing illicit income through legal transfers. Subsequently， the money was invested in hydroelectric projects and real estate companies. Upon the recovery of the investment， the funds were subject to layering through the transfer and withdrawal of cash， etc.， thus concealing the gains from embezzlement and bribery. The flows are shown in Figure 1.

2.2 Stages of Self-Money Laundering in Embezzlement and Bribery

The processes of self-money laundering in embezzlement and bribery crimes are similar to those in other crimes. There are no fixed modes; however， generally， the money is laundered through several rounds of repeated manipulations. Based on the characteristics of the behaviours， these rounds are roughly divided into three stages： the placement stage， the layering stage， and the integration stage.

First， in the above case， the placement stage is the first link in self-money laundering. Its essence comprises covering up and concealing the illegal nature and source of the proceeds of crimes. Offenders of embezzlement and bribery conduct a primary treatment of the proceeds of crimes， providing a basis for formal money laundering. At the placement stage， the behaviour of self-money laundering is most easily noticeable in all the flows. The offenders of embezzlement and bribery deposit the proceeds into banks through financial institutions or a third-party payment platform， use them to purchase stock， or convert them into electronic currency to change the form of assets. Some offenders also transfer their assets to foreign countries through illegal private banks.

Second， the layering stage is the core stage of money laundering. Offenders carry out virtual financial transactions through repeated and complex manipulations using different means and names to give a legal disguise to the illegal gains; furthermore， the offenders scatter the proceeds of embezzlement and bribery to blur the connection between the illegal gains and criminal acts and integrate the illegal gains with legal property， thus "laundering" the money. Take Tang XX as an example： her proceeds of bribery were transferred between the bank accounts of Zhou XX and Liu XX and merged with Liu XX's legal property. Subsequently， further transfers were made through Yuan XX's and Pu XX's accounts. The purpose of the complicated transactions is to legalise the proceeds of crime.

Third， at the integration stage， legal financial transactions are disguised. Offenders launder the proceeds of embezzlement and bribery into legal income， which is finally received by the offenders. In the integration stage， the illegal gains and legal property are fused and given a legal disguise， and the money is thus laundered.

In implementing self-money laundering in embezzlement and bribery crimes， there might be no clear boundaries between the foregoing three stages. In practice， there can be crossovers， repetitions， and integrations. Overall， the foregoing stages essentially cover all behaviours in self-money laundering.

2.3 Subjective Awareness of Self-Money Laundering in Embezzlement and Bribery

Because self-money laundering was made a crime， an understanding of the subjective awareness of self-money laundering in embezzlement and bribery is now crucial to securing convictions in cases of money laundering. This paper endorses the following opinions：

The subjectivity of offenders in embezzlement and bribery crimes lies in "covering up" and "concealing"， which are defined as intentional acts. Although the expression "clearly known" is revised to "to cover up or conceal" in Amendment XI to Criminal Law， the original expression of "clearly known" may refer to either subjective intention or other subjective factors. However， in essence， both aspects are still concerned with the subjectivity of acting subjects. Accordingly， it is appropriate to construe "covering up and concealing" as the subjectivity of the offenders of self-money laundering in embezzlement and bribery crimes[8]. In determining subjectivity， a comprehensive analysis based on subjective and objective judgement is required to determine the cognitive ability of the subjects， the flows of the corruption-involved funds， the means of the transactions or transfers， and the specific behaviours during the process. In the case of the embezzlement and money laundering crime committed by Tang XX， in the subjective sense， Tang XX clearly knew that the RMB 226 817.29 in Li XX's bank accounts constituted the proceeds of bribery. Based on her analysis and judgement， she had a subjective cognition about the possibility of investing with funds that were procured through corrupt means. In the objective sense， Tang XX transferred the RMB 200 000.00 to the ABC account of her husband， Liu XX， and directed Liu XX to mingle the illegal gains with his legal funds for lending and investment. This behaviour constituted the act of "covering up and concealing".

Subjectivity should be defined as an intentional act based on self-money laundering behaviour in embezzlement and bribery crimes and the semantic interpretation of "covering up and concealing". An intentional act means that the subject knows the consequence of infringing on legal interests but still enables or indulges in the consequence[9]. The elements for determining subjective intentions include behaviours， results， and the causal relationship between behaviours and results. Insofar as self-money laundering in embezzlement and bribery crimes is concerned， this means that the acting subject realises that the object of behaviour is the proceeds of embezzlement and bribery income and that the transfers， investments， etc. will cover up or conceal the source and nature of the proceeds and the gains derived therefrom. Tang XX clearly had obvious intentions to commit the offence.

2.4 Means of Self-Money Laundering in Embezzlement and Bribery

The specific means of self-money laundering are divided into two categories. In the first category， the identity of others is directly used to open bank accounts. Subsequently， the proceeds of embezzlement and bribery are deposited into these accounts through deposits or transfers or are used to purchase negotiable securities. Through complex transactions via banks and other financial institutions or by fabricating contracts and bills， the amounts are remitted to other places or the accounts of related persons through transfer. Finally， the proceeds are recovered through legal means such as borrowing， investments， donations， and dividends via related persons. In the second category， corruption-involved black money is transferred to foreign countries through illegal private banks and other informal financial institutions.

In the aforementioned self-money laundering case， money laundering occurred after embezzlement. Under this mode， the offender first committed embezzlement and bribery before self-money laundering. There is an obvious boundary between the two behaviours， and self-money laundering is a concentrated process. As the principal of a middle school in Xichang City， Sichuan Province， Tang XX embezzled RMB 226 817.29 through the falsification of lunch fees and purchase orders. The funds were transferred to Li XX's bank accounts， which were actually controlled by Tang XX. Later， Tang XX covered up the funds through two transfers and directed Liu XX to mingle the corrupted funds with legal funds for lending and investment. The self-money laundering committed by Tang XX conformed to Paragraph III， "helping transfer capital through transferring accounts or any other form of settlement"， and Paragraph IV， "covering up or concealing by any other means the nature or source of the illegally obtained proceeds and the gains derived therefrom"， of Article 191 of the Criminal Law.

3 Judicial Dilemma of the Application of the "Self-Money Laundering" Clause to Embezzlement and Bribery and an Analysis of Causes

3.1 Judicial Dilemma of the Application of the "Self-Money Laundering" Clause to Embezzlement and Bribery

The creation of the crime of money laundering aimed to curb money laundering in order to prevent embezzlement and corruption crimes and deter criminals. However， self-money laundering， specifically， had not been criminalised previously; thus， perpetrators could not be effectively deterred from engaging in the act. In judicial practice， if there was a lack of evidence that an offender committed an embezzlement or bribery crime， the offender would escape punishment because neither embezzlement nor money laundering were criminalised， as self-money laundering did not constitute a money laundering crime.

Upon the retrieval and sorting of money laundering crimes between 2011 and 2020 on the China Judgement Online database， there were only 92 judgements relating to the crimes of embezzlement， bribery， and money laundering and less than 10 judgements on average per year， indicating the scarcity of such judgments[11]. Given the background of continuous anti-corruption and the increasingly rampant money laundering of corrupted funds， the judgements relating to the money laundering of corrupted funds are extremely few.

On March 1， 2021， Amendment XI to the Criminal Law was formally implemented， and self-money laundering was made a money laundering crime. In this paper， following the retrieval and sorting of money laundering cases between March 2021 and December 2021 on the China Judgement Online website， a total of 18 effective judgements relating to corruption-involved crimes were obtained， including 6 judgements concerning self-money laundering crimes4. According to the China Anti-Money Laundering Centre， a total of 810 million large-amount transaction reports were received in 2021. Of these， there were 4 271 300 suspicious reports， from which the clues for 328 reports were delivered， and 922 reports were submitted. The People's Bank of China and its branches at all levels identified and received 15 637 suspicious reports in total， conducted administrative anti-money laundering surveys for 1 265 cases， and reported 494 cases to investigative organs5. Clearly， there is a polarisation of the judicial situation and anti-money laundering coS4FZf13PVLtZH2JwrKaXeA==ncerning corruption-involved money laundering crimes， and the application rate of the self-money laundering clause in cases of embezzlement and bribery has been relatively low[12]. In 2021， the administrative authority of anti-money laundering received numerous large-amount transaction reports and suspicious transaction reports; however， by contrast， only 18 cases were judged by judicial organs in the name of crimes of embezzlement， bribery， and money laundering. According to a work report by the Supreme People's Court， a total of 17 000 cases of embezzlement and bribery were tried， involving 21 000 offenders. However， only six judgements were related to self-money laundering for the same period on the China Judgements Online database. Embezzlement and bribery crimes and money laundering crimes are clearly interdependent： corruption pushes money laundering， while money laundering protects corruption. Upon the receipt of illicit money， the offender of an embezzlement and bribery crime will surely commit money laundering to legitimise the crime， resulting in self-money laundering. However， in view of the present situation， the role of self-money laundering in preventing and curbing corruption-involved money laundering crimes has not been given the requisite attention， which is detrimental to the fight against corruption[12].

The judgements relating to self-money laundering-involved embezzlement and bribery cases reflect the current Chinese judicial practice in tackling self-money laundering crimes. In particular， a substantial contrast has been observed in three aspects[13]. First， there are clear differences between the judgements concerning self-money laundering in crimes of embezzlement， bribery， and money laundering and the cases of embezzlement and bribery crimes. For most embezzlement and bribery crimes， as long as a criminal act exists， there will be money laundering acts to cover up or conceal the proceeds of the crime and the gains therefrom. However， the aforementioned data indicate that the judgements relating to self-money laundering in crimes of embezzlement， bribery， and money laundering are significantly fewer compared to judgements relating to embezzlement and bribery crimes. Second， there is a strong contrast between the judgements relating to corruption-involved self-money laundering crimes and the upstream achievements in anti-money laundering， foreign exchange supervision， anti-money laundering investigations， etc. Take shadow banks， for example. In 2021， the People's Bank of China and its branches at all levels received a total of 3 073 reports relating to shadow banks and delivered the clues in 685 cases to public security organs. The public security organs solved more than 470 cases involving shadow banks; however， in the same period， there was only 1 corruption-involved self-money laundering case that was related to shadow banks. The crackdown on corruption-involved self-money laundering is a complete system that involves the linking of legislation， law enforcement， adjudication， etc. The judgement on a money laundering crime is the last link that has benchmarking significance[14]. If the judgements that pertain to relevant cases are few， it might have a negative influence on the overall process of addressing corruption-involved self-money laundering crimes. Third， there are differences between the judgements relating to self-money laundering in crimes of embezzlement， bribery， and money laundering and the social public's perception. In recent years， with continuous advancements in anti-corruption work in China and the formation of basic anti-corruption systems based on institutions and the rule of law， the social public has been highly satisfied with the achievements in anti-corruption. However， excessively few corruption-involved self-money laundering cases can cause bewilderment for the public， who will believe that the self-money laundering that accompanies embezzlement and bribery crimes is not subject to due legal punishment. At the same time， the judgements concerning corruption-involved self-money laundering cases are completely inconsistent with the Chinese population and economic indexes. Moreover， considerable room for improvement remains in terms of meeting the FATF's correction requirements after it evaluates the effectiveness of the "investigation and prosecution of money laundering".

3.2 Analysis of Causes

3.2.1 Limitation of legislative Design—Excessively Small Scope of the Protection of Legal Interests

A social interest may be referred to as a "legal interest" only when it is protected by the Criminal Law[15]. From a theoretical perspective， the scope of the protection of legal interests under criminal law may be measured based on the following three points： whether the extension of legal interests concerning a criminal act fully covers the criminal act; whether the legal interests accurately reflect the basic attribute of the behaviour; and whether the harms of the criminal act to social relationships can be clearly expounded[16]. According to Chinese Criminal Law， the protection of legal interests concerning money laundering crimes （including self-money laundering） is directly reflected in the protection of the national financial management order. It can be easily ascertained that the provisions of the Criminal Law on the legal interests concerning money laundering （including self-money laundering） do not entirely conform to the requisite comprehensiveness of legal interests. In this paper， after a summarization of judgements relating to corruption-involving self-money laundering crimes on the China Judgement Online database and the sorting and statistical calculation of opinions on the legal interests therein， it was found that the mere construction of legal interests concerning self-money laundering crimes as part of the national financial management order cannot satisfy the demand for curbing self-money laundering crimes in judicial practice. If the legal interests concerning corruption involved self-money laundering are limited to the national financial management order， corruption-involved self-money laundering crimes must be limited to the disruption of the financial management order， as the legal interests concerning a crime directly reflect the nature of a criminal act. Undoubtedly， self-money laundering is achieved through financial institutions and financial instruments in most cases[17.. However， extravagant consumption， investments in immovable properties， and transactions of artworks are also common means of asset disposal. These are nonfinancial means of money laundering. Therefore， the current provisions of the Criminal Law on the protection of legal interests concerning corruption-involved self-money laundering are not reasonable and fail to comprehensively protect legal interests. Following consideration of the legislative provisions on money laundering in other countries， it was found that no country limits the legal interests concerning the financial management order. Thus， it is necessary for China to make expansions and adjustments to the foregoing provisions so as to better satisfy the demand for curbing corruption-involved self-money laundering crimes in judicial practice.

3.2.2 Dilemma of Law Enforcement—"Negligence" of Self-Money Laundering by Judicial Organs

Under the background of economic globalisation， increasingly diversified and internationalised financial payments have ushered in enormous challenges for the investigation of self-money laundering crimes[18]. In corruption-involved self-money laundering crimes， offenders often carry out complex money laundering through multiple and elaborately designed paths and means， such as shadow banks， anonymous entrustment， and disguised accounts， increasing the difficulties in finding relevant evidence for and the determination of self-money laundering crimes[19]. Consequently， investigative organs struggle with handling complex and expertly executed corruption-involved self-money laundering crimes[20]. A self-money laundering crime is an accompanying crime. More often than not， investigative organs focus on solving embezzlement crimes while neglecting the investigation of self-money laundering. In the same case， the investigative organs of a self-money laundering crime and an embezzlement and bribery crime may be different[21]. Even if an investigative organ identifies a self-money laundering crime in the investigation of an embezzlement or bribery crime， adequate attention is rarely paid to the former. Generally， embezzlement and bribery crimes involve large sums of funds， with a high probability of self-money laundering. Even if self-money laundering is expressly made a crime in Amendment XI to the Criminal Law， there are sparse judicial precedents for corruption-involved self-money laundering crimes. This might be because investigative organs rarely pay attention to whether self-money laundering crimes exist during the investigation of a case， probe into the flows of funds， or deliver the clues of self-money laundering to public security organs.

The transfer of corrupt assets always aims to cover the illegal proceeds through legitimate means. Furthermore， these means chanG5vKmHn8k7L+3C6TKs+2NQ==ge and are complicated， thereby posing high requirements in terms of expertise and ability for the investigations of self-money laundering crimes to be carried out properly. Furthermore， since self-money laundering is a newly established crime， considerably few judicial precedents or experiences are available for reference. In specific cases， it is difficult for judges to distinguish one crime from another and determine its severity while making judgments. Given the practical dilemma， some judges will seek a relatively common crime for which they have more experience and substitute said crime for the self-money laundering crime. In judicial practice， many judges cannot accurately determine whether self-money laundering exists and will impose convictions and punishments on offenders based on the "crime of covering up and concealing proceeds and gains of crimes". Some judges have admitted after handling corruption-involved self-money laundering that the "current legal provisions on self-money laundering are still not clear， and very few similar cases are available for reference" and "I am not confident in determining whether a self-money laundering crime is constituted. A wrongful judgement will kick up great controversy". Although "alternative crime" also subjects offenders to punishment， the substitution is clearly not favourable for upholding the authority and seriousness of the Criminal Law. In addition， the measurement of penalties varies for the crime of self-money laundering and the "crime of covering up and concealing proceeds and gains of crimes". In such cases， inconsistencies will ensue between the crime and punishment， resulting in a serious violation of the basic principle of a legally prescribed punishment for a specified crime[22].

Notably， corruption-involved self-money laundering crimes are significantly characterised by expertise， complicity， and the crossover of disciplines， involving not only legal knowledge of domestic and international laws but also economic knowledge regarding， for example， finance， accounting， and investments in immovable properties[23]. In handling relevant cases， owing to the limitations of available expertise and talents， investigative organs might lack adequate expertise and support. In terms of corruption-involved self-money laundering， most offenders have to rely on financial services during money laundering. Thus， financial institutions have natural advantages in the monitoring， determination， and prevention of self-money laundering. Since China has only recently listed "self-money laundering" as a crime， it lags behind in terms of overall monitoring， and the social public lacks an adequate cognitive awareness of self-money laundering. Therefore， a social environment for curbing self-money laundering has not yet been created. The departments that are obliged to address self-money laundering crimes mainly perform their obligations based on administrative law without engaging in filing， investigations， trials， or other proceedings relating to corruption involved self-money laundering crimes. Thus， these departments fail to play a significant role in applying the Criminal Laws on self-money laundering. Public security organs， procuratorates， courts， etc. clearly have the right to crack down on corruption-involving self-money laundering crimes but must contend with disadvantages in obtaining information about self-money laundering behaviours， determining the existence of self-money laundering， and obtaining direct clues and evidence. Although financial institutions have significant advantages in terms of information and expertise， such institutions cannot exert their roles in the application of the Criminal Law on self-money laundering. In handling corruption-involved self-money laundering cases， the public security organs， procuratorates， and courts rarely receive expert support from financial institutions. The foregoing circumstances are due to a lack of coordination among the departments.

3.2.3 Limitation of the Means of Behaviors—Narrow Scope of Means for Self-Money Laundering

The stages of self-money laundering include placement， layering， and integration. Thus， all behaviours with a nature of money laundering that include the aforementioned stages should be included in the scope of the means of self-money laundering. To be specific， first， the proceeds of embezzlement and bribery and the gains derived therefrom are invested into a self-money laundering system through different channels and methods， after which these funds are more easily controllable; second， the nature of these funds is obscured through domestic and overseas transactions using financial and nonfinancial instruments. Third， after the foregoing two steps， the funds are circulated in different fields in the form of legal investments and finally laundered. However， according to Article 191 of the Criminal Law， 19 the means of self-money laundering only include relevant types of behaviours at the placement stage and exclude those behaviours at the layering and integration stages. Hence， there are obvious loopholes in the provisions for self-money laundering in the Criminal Law.

Article 191 of Criminal Law 20 provides for five means of self-money laundering， including a miscellaneous provision in Paragraph V. According to the basic principle of the Criminal Law， the extended interpretation of the means of self-money laundering should be equivalent to the foregoing provision on its nature. Considering the current practices in corruption-involved self-money laundering， the determination of the means of self-money laundering is merely limited to money laundering in the field of finance. Specifically， there are four problems with the current provisions. First， the legislation is biased. In the Criminal Law， the provision on the means of self-money laundering merely covers the typical money laundering behaviours at the placement stage with a rather noticeable legislative bias. Second， there is the hysteresis of the provisions. The provisions of the Criminal Law on means of self-money laundering comprise an incomplete enumeration of the currently common forms of self-money laundering and provide a miscellaneous clause. However， since self-money laundering has evolved from being simple to being complex and from involving mechanical manipulations to involving high technologies， these provisions have failed to adapt to the constantly evolving practice of self-money laundering. Third， the scope of the means of behaviour is narrow. The means of "acquisition， holding， actual use， consumption， disposal， and occupation" are not included in the means of self-money laundering. Fourth， the provision on the forms of behaviour objects is unclear. Clarity should be the basic characteristic of the provisions of the Criminal Law. Equivocal clauses will greatly increase the difficulties for judges in handling self-money laundering cases in judicial practice. Moreover， no unified criteria exist for the determination of self-money laundering， which is not favourable for the upholding of judicial justice.

4 Suggestions for the Application of the "Self-Money Laundering" Clause to Embezzlement and Bribery

4.1 Legislation Link—Appropriate Expansion of the Protection of Legal Interests

In Article 191 of the Criminal Law， the protected legal interests are the national financial management order. However， the protection of such legal interests against self-money laundering crimes cannot achieve the purpose of the Criminal Law， which is to impose a severe punishment on corruption-involved self-money laundering crimes. "It's the most reasonable to make up for legislative loopholes through legislative amendment; otherwise， the authority of laws is impaired". 21 Upon analysis of corruption-involved self-money laundering crimes， it is argued herein that the legislative purpose and protected legal interests concerning such crimes should be modified to protect the role of judicial organs against encumbrance and impediments in investigating major crimes. The purpose of the modern judicial system is to impose punishment on crimes， determine the specific criminal acts through investigation， prosecution， trial， etc.， and exercise criminal punishment as per the criminal acts， thus punishing the criminal behaviours that infringe on legal interests. If the exercise of judicial rights is encumbered or impeded， the fundamental objective of the judicial prosecution of crimes will likely fail， which is tantamount to admitting that the state can neither safeguard the legal rights and interests of the public nor protect their legal interests under the Criminal Law of China. Therefore， the protection of national judicial rights has always been stressed in the Criminal Law. Furthermore， specific clauses of punishment are also provided that undoubtedly address corruption-involved self-money laundering crimes. In other words， the legislative purpose of the crime of self-money laundering is to provide reasonable channels and basic safeguards for the recovery of proceeds from embezzlement and bribery and the gains derived therefrom after the occurrence of an embezzlement and bribery crime. In self-money laundering crimes， the means for covering up and concealing the proceeds of embezzlement and the gains derived therefrom are highly secret， creating considerable obstacles for judicial organs in investigating such crimes. Upon further pondering the connotations of corruption-involved self-money laundering， it can easily be ascertained that although self-money laundering seems to merely disrupt the national financial management order， it will finally disrupt the national normal economic and production order and constitute a negative influence on social stability and legal justice. For the aforementioned reasons， the protected legal interests concerning the crime of money laundering under Article 191 of the Criminal Law should be expanded to the normal judicial order. Namely， only a combination of the financial order and the judicial order will help prevent corruption-involved self-money laundering and satisfy the original legislative intention for the crime of money laundering.

4.2 Judicial Link—Establishment of a Penalty and Cooperation System for Self-Money Laundering

4.2.1 Establishment of a Penalty System with a Linkage Between Administrative Law Enforcement and Criminal Judicature for Corruption-Involved Money Laundering

For corruption-involved self-money laundering crimes， there exists a prominent problem of the lack of a link between administrative law enforcement and criminal judicature. In particular， administrative laws only oblige banks， securities companies， insurance companies， and other anti-money laundering institutions to fulfil anti-money laundering obligations without stipulating any punishment for the offenders of corruption-involved self-money laundering crimes. Moreover， criminal laws only provide punishment for individuals who commit corruption-involved self-money laundering crimes. Obviously， there is a separation of administrative and criminal duties in cracking down on corruption-involved self-money laundering crimes. To ensure stringent punishment for such crimes， there is an urgent need to establish a penalty system that links administrative law enforcement and criminal judicature to deter corruption-involved self-money laundering crimes.

Regarding specific provisions on administrative duties， the legal duties should be strengthened for the offenders of self-money laundering. If the corruption-involved self-money laundering does not constitute a crime， the offender should assume the corresponding administrative duties， be subject to fines， detention， and other administrative punishment， and assume legal liabilities as per the degree of harm caused by the self-money laundering. For specific provisions on criminal duties， the legal duties should be increased for the obliged institutions. If an anti-money laundering institution fails to truly fulfil supervision obligations and causes serious consequences， the institution should assume the corresponding criminal liabilities; if their corrections remain ineffective after several occurrences of administrative punishment， in serious circumstances， the institution should also assume the corresponding criminal liabilities. If the corruption-involved self-money laundering does not constitute a money laundering crime， the criteria of administrative punishment should be clarified， and the subject of punishment should be determined as per the nature of the legal violation. Finally， corruption-involved self-money laundering that negatively impacts the financial management order should be subject to punishment by public security organs.

In relation to the criminal punishment for the obliged anti-money laundering institutions， the following provisions may be made： If an obliged anti-money laundering institution receives an administrative punishment twice in a specific period because of a failure to properly fulfil its obligations in supervising corruption-involved self-money laundering and fails to make the appropriate corrections or perform the usual supervision， it should be punished for the money laundering crime. The offender of the foregoing crime may be a unit or a person in charge of the unit. If these acts are listed in the criminal Law， the subjectivity cannot be limited to direct intention. Instead， it should include "indirect intention"， "negligence"， etc.， owing to the characteristics of the behaviours of a unit.

It is necessary to impose criminal sanctions in situations when financial institutions fail to perform their obligations in supervising corruption-involved self-money laundering crimes. In performing such supervisory obligations， many financial institutions prioritise their interests. Thus， as long as a client brings economic profit， such institutions remain indifferent about where the assets come from， the identity and background of the client， or whether there is self-money laundering. Therefore， if a financial institution fails to properly perform its obligations and provides services for clients when it is unclear whether their funds are the proceeds of embezzlement and bribery， the institution should be considered to have committed a money laundering crime because it enabled the consequence of self-money laundering.

4.2.2 Establishment of a Cooperation System among Departments for Cracking Down on Corruption-Involved Self-Money Laundering

In cracking down on corruption-involved self-money laundering crimes， coordination and cooperation among different departments are needed， either in administrative law enforcement or criminal judicature. Given the present circumstances， a cooperation system for curbing self-money laundering crimes in China has not yet been established. Regarding administrative law enforcement， as the competent anti-money laundering authority， the People's Bank of China should supervise financial institutions' supervisory obligations concerning corruption-involved crimes. For criminal judicature， the investigation of corruption-involved crimes is executed by public security organs. Thus， addressing corruption-involved self-money laundering crimes requires assistance from financial institutions owing to the complex and expert behaviours involved therein. Hence， an important measure is to construct a bank-police coordination system to eradicate corruption-involved self-money laundering crimes. Such a bank-police cooperation system may be carried out as follows： First， the People's Bank of China and its branches should strengthen cooperation with local judicial departments， truly fulfil their obligations in supervising self-money laundering behaviours during routine operations， and strengthen the abilities of their staff to identify， screen， and track suspicious transactions. In case of any suspicious circumstances， they should make timely reports to public security organs， ensure active coordination in the investigation of corruption-involved self-money laundering crimes， and readily provide clues， evidence， etc. The cooperation at the primary level is a mere sample; they must make bold explorations， follow the appropriate practices， and innovate forms， accumulating experience for in-depth bank-police cooperation. Second， inter-departmental cooperation should be explored. The People's Bank of China， the Ministry of Public Security， the Supreme People's Procuratorate， etc.， should jointly establish a coordination system to curb self-money laundering crimes and a comprehensive anti-money laundering data platform to achieve information sharing. A specialised institution may be introduced to determine the nature of corruption-involved self-money laundering. If a consensus cannot be reached concerning the nature of a case， the case should be determined by the People's Bank of China based on its authority and professionalism in self-money laundering. Third， once the inter-department cooperation system becomes mature， the relevant cooperation experience should be developed into written material and submitted to the legislative body to achieve the legalisation of the bank-police coordination mechanism. In this manner， the rights and obligations of the respective parties can be clarified through legislation.

4.3 Means of Behaviors—Extending the Scope of Self-Money Laundering Behaviors

The provisions on the means of self-money laundering in Article 191 of the Criminal Law are too specific and do not meet the current demand for eradicating corruption-involved self-money laundering. In judicial practice， the logic in determining the means of self-money laundering should be changed， with a focus placed on the "nature of conversion" rather than merely the specific "means of conversion" of the proceeds of embezzlement and bribery and the gains derived therefrom. According to the current Chinese criminal system， the means of corruption-involved self-money laundering generally involve the legalisation of the proceeds of embezzlement and bribery and the gains derived therefrom by offenders through financial instruments. In essence， it is more important that the foregoing behaviours seek to change the nature of illegal property through either financial or nonfinancial instruments. Thus， as long as the "conversion of nature" is achieved， such acts should be recognised as a means of corruption-involved self-money laundering. The weakening of the unique elements of corruption-involved self-money laundering will help achieve the legislative objective of curbing self-money laundering crimes.

China was relatively late in making self-money laundering a crime. Therefore， few judicial precedents are available for reference; furthermore， some opinions may be derived from the relevant literature. In this paper， it is argued that all the behaviours involved in the three stages of "placement"， "layering"， and "integration" in corruption-involved self-money laundering should be included in the means of self-money laundering. Namely， the means should be extended to "acquisition， holding， receipt， actual use， consumption， disposal， purchase， intermediary， occupation， etc". Given the hysteresis and ambiguity of the laws and regulations， judges may develop different understandings of the specific scope of self-money laundering. Consequently， frequent instances of "same cases with different judgements" and "similar cases with different judgements" may arise， which is not favourable for the upholding of judicial justice and authority. Thus， the specific scope of corruption-involved self-money laundering should be clarified through the amendment of legislation， the issuance of juridical interpretation， and the publication of typical cases of self-money laundering as guidance to form relatively consistent judgement criteria.

In conclusion， the crimes of embezzlement and self-money laundering are closely associated， but their judicial precedents vary significantly in judicial practice. After "self-money laundering" was made a crime， the "self-money laundering" clause failed to deter the offenders of embezzlement and bribery crimes and still faces the dilemma of judicial application. Upon analysis of the legislative design， law enforcement， and the means of behaviours， it can be concluded that the prevention and control of self-money laundering in embezzlement and bribery crimes may be strengthened by establishing a penalty and cooperation system and extending the means of self-money laundering， whereby the dilemmas in the application of the corruption-involved self-money laundering clause can be gradually addressed.

References：

[1] YANG M. Legislative restoration of "complementarity between administrative law enforcement and criminal justice" in anti-money laundering and asset recovery in China—a study and analysis based on normative protection purpose[J]. Political Science and Law， 2020（12）： 59?71.

[2] GAO L C. Money laundering issues in duty-related crimes， countermeasures and suggestions[J]. Gansu Shehui Kexue （Gansu Social Sciences）， 2020（2）： 45?52.

[3] JIANG J Y. The distinguishment between money laundering crime and the crime of covering up or concealing funds from crimes and the gains derived therefrom[J]. People's Judicature Application， 2020（2）： 30?33.

[4] SHI Y A， WANG Y J. Criminal governance of money laundering crime with Bitcoins[J]. Journal of National Prosecutors College， 2019（2）： 47?62.

[5] XU X P， GUO X P. A tentative study on money laundering crime[M]. Beijing： China Procuratorial Press， 2008： 46.

[6] ZHAO B Z. A study on the standard of conviction and punishment of embezzlement and bribery crime[J]. China Legal Science， 2018（1）： 138?146.

[7] ZHAO Y. The scope of "upstream crime" in money laundering crime[J]. Law Science， 2017（11）： 130?138.

[8] ZHANG M K. Science of criminal law[M] . 4th Edition. Beijing： Law Press China， 2016： 89.

[9] LIU X Q. A discussion on determination of network property-related crimes under the background of novel means of payment[J]. Law Review， 2017（5）： 32?42.

[10] LIU W L. Punishment and prevention of money laundering crime in China in internet financial environment[J]. Law Science Magazine， 2017（8）： 101?108.

[11] ZHANG M K. The orientation of judicature and legislation of embezzlement and bribery crime[J]. Tribune of Political Science and Law， 2017（1）： 3?20.

[12] ZHAO B Z.A study on the standard of conviction and punishment of embezzlement and bribery crime[J]. China Legal Science， 2015（1）： 25?47.

[13] LI Y F. An answer to infringement of legal interest under the macro and micro perspectives—methodological in the theory of financial management order[J]. Political Science and Law， 2013（12）： 42?51.

[14] CHEN Y. My opinions on distinguishment of intentional crimes[J]. Criminal Science， 2013（2）： 28?37.

[15] YE J X. A study on upstreaM CRIMe and self-money laundering in money laundering crime[J]. Tsinghua Forum of Rule of Law， 2010（1）： 383?395.

[16] YANG J J， FAN D. A study on legislation of money laundering crime[J]. Journal of Henan Normal University （Philosophy and Social Sciences Edition）， 2007（2）： 129?132.

[17] TURNER J E. Money laundering prevention： deterring， detecting， and resolving financial fraud[M]. Hoboken， N.J： Wiley， 2011.

[18] CHAIKIN D A， SHARMAN J C. Corruption and money laundering： a symbiotic relationship[M]. First ed. New York： Palgrave Series on Asian Governance， 2009.

[19] BARONE R， MASCIANDARO D， SCHNEIDER F. Corruption and money laundering： you scratch my back， I'll scratch yours[J]. Metroeconomica， 2022（73）： 318?342.

[20] BEDNARCZYK M. Money laundering[J]. The American Criminal Law Review 59， 2022（3）： 1129.

[21] TEICHMANN F M， SERGI B S. Compliance in multinational corporations： business risks in bribery， money laundering， terrorism financing and Sanctions[M]. Bingley： Emerald Points， 2018.

[22] HYTTINEN T. A european money laundering curiosity： self-laundering in finland[J]. European Criminal Law Review 8， 2018（2）： 268?293.

[23] MERIANI M. The crime vs the privilege of self-laundering： a forefront reform shakes the Italian criminal law system[J]. Journal of Money Laundering Control， 2016（19）： 426?431.

數(shù)字時(shí)代自洗錢行為防控研究

崔星璐

摘 要：虛擬貨幣、網(wǎng)絡(luò)銀行和人工智能技術(shù)的發(fā)展，促進(jìn)了貪污賄賂犯罪中自洗錢的實(shí)施和完成。《中華人民共和國(guó)刑法修正案（十一）》生效后，自洗錢行為單獨(dú)構(gòu)成洗錢罪，與貪污賄賂罪數(shù)罪并罰。在總體國(guó)家安全觀確立后，中國(guó)對(duì)反洗錢的重視程度持續(xù)提升，自洗錢只能由他犯的限制性框架被解禁。"自洗錢"入罪符合相關(guān)國(guó)際公約的立法宗旨，有利于推進(jìn)反腐敗國(guó)際追逃追贓。但“自洗錢”入罪作為加大涉腐洗錢犯罪懲治力度的法律利器，在具體司法適用過(guò)程中面臨困境，如適用率低、入罪難等問(wèn)題。這一方面與自洗錢行為的主觀認(rèn)識(shí)內(nèi)涵有關(guān)，另一方面也與貪污賄賂自洗錢行為模式復(fù)雜、過(guò)程隱蔽相關(guān)。針對(duì)該問(wèn)題，必須基于中國(guó)司法實(shí)踐環(huán)境與國(guó)際洗錢與反洗錢博弈綜合考量，建議適度擴(kuò)張自洗錢法益保護(hù)范圍，建立自洗錢犯罪處罰、合作體系，擴(kuò)充自洗錢行為方式范圍，涉腐自洗錢條款也會(huì)逐漸走出適用困境。

關(guān)鍵詞：貪污賄賂；自洗錢；法益；協(xié)作；司法適用

Fund Project： The project is the phased achievement of the National Scholarship Fund "National Construction High-level University Graduate Program" （No. CSC 202206040074）

Author Profile： Cui Xinglu， from Baotou of Innere Mongolia Province， Doctor of laws， Research Fields： Cyber Crime， Digital Law.

1 Article 191 of the Criminal Law （1997 edition）： The illegal gains from a drug crime， a triad organized crime or a smuggling crime and the income generated therefrom， To cover up and conceal its origin and nature， of one of the following acts， Confiscate the illegal gains from the above crimes and the profits generated， He shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention， It shall also be imposed， or only， be fined not less than 5% but not more than 20% of the amount of money laundering; cases of gross violation， To be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years， It shall also be fined not less than 5% but not more than 20% of the amount of money laundering： （1） providing a fund account; （2） assisting in converting property into cash or financial notes; （3） assisting in the transfer of funds through money transfer or other settlement methods; （4） assisting in remitting funds overseas; （5） covering up or concealing by other methods the illegal gains of the crime and the nature and source of the proceeds. Where a unit commits the crime mentioned in the preceding paragraph， it shall be fined， and the persons who are directly in charge and the other persons who are directly responsible for the crime shall be sentenced to fixed-term imprisonment of not more than five years or criminal detention.

2 The Anti-Money-Laundering Financial Action Task Force （Financial Action Task Force on Money Laundering—FATF） is an inter-governmental international organization established in Paris in 1989 to study the dangers of money laundering， prevent money laundering and coordinate international anti-money-laundering actions. It is one of the most influential international organizations in the field of anti-money-laundering and anti-terrorism financing in the world. Its members are major financial centers on all continent. Its 40 recommendations on anti-money laundering and nine special recommendations on anti-terrorism financing （FATF 40 + 9 recommendations） are the most authoritative documents on anti-money laundering and anti-terrorism financing in the world.

3 Case No.： （2015） Xichang Xingchuzi No.192.

4 In the judgment documents network first lock the criminal cases， and then through the senior search for the criminal judgment search. Enter the keywords "money laundering crime"， "corruption and bribery"， the limit time is March 1， 2021-December 10， 2021， the search results are 33 criminal judgments. Due to the repeated uploading of documents， a total of criminal judgments were obtained after the second screening. In the third round of detailed reading and detailed selection of the judgments， removing the prosecution of money laundering but the court did not adjudicate the crime of money laundering， a total of 18 criminal judgments were obtained， among which 6 were involved in self-money laundering.

5 Data source： China Anti-Money Laundering Monitoring and Analysis Center.