| Guiding Case No. 211 of the Supreme People's Procuratorate: Case of reconsideration and review of a decision on disapproval of arrest of Wang [REDACTED] for covering up and concealing proceeds of crime | | 检例第211号：王某掩饰、隐瞒犯罪所得不批捕复议复核案 |
| Guiding Case No. 211 of the Supreme People's Procuratorate | | 检例第211号 |
| [Keywords] | | 【关键词】 |
| Covering up and concealing proceeds of crime; knowledge; prosecution standards; serious circumstances; reconsideration and review of a decision on disapproval of arrest | | 掩饰、隐瞒犯罪所得 明知 追诉标准 情节严重 不批捕复议复核 |
| [Key Points] | | 【要旨】 |
| "Knowledge" in a crime of covering up and concealing proceeds of crime or income derived from proceeds of crime shall be comprehensively determined in light of the nature of occupation, the cognitive competence of the actor, the form of the illicit goods, the purchase price, and the proceeds obtained. In the handling of a case involving covering up or concealing proceeds of crime, the people's procuratorate shall make a decision on whether to prosecute and whether to determine "serious circumstances" on the basis of the case facts, circumstances, consequences, and damage to society and in light of the nature of the upstream crime and balanced sentencing for upstream and downstream crimes. In the handling of a case of review of a decision on disapproval of arrest, where the people's procuratorate at a higher level finds any error in the reconsideration decision made by the people's procuratorate at a lower level, such error shall be corrected in accordance with the law. | | 对掩饰、隐瞒犯罪所得、犯罪所得收益罪“明知”的认定，应当结合行为人的职业性质、认知能力、赃物形态、收购价格、所获收益等综合判断。人民检察院办理掩饰、隐瞒犯罪所得案件，应当根据案件具体事实、情节、后果及社会危害程度，结合上游犯罪的性质、上下游犯罪量刑均衡等综合判断，决定是否追诉、是否认定为“情节严重”。上级人民检察院办理不批捕复核案件，发现下级人民检察院复议决定有错误的，应当依法予以纠正。 |
| [Basic Facts] | | 【基本案情】 |
| Defendant Xu [REDACTED], male, born in January 1989, a handyman on construction sites. | | 被告人徐某。 |
| Defendant Wang [REDACTED], male, born in September 1988, a self-employed operator of a salvage station. | | 被告人王某。 |
| From April to May 2021, Xu [REDACTED], who worked as a handyman on a construction site in [REDACTED] Industrial Park in Mingguang City, Anhui Province, stole scaffold fasteners on the site for 24 times and sold such fasteners to Wang [REDACTED], who ran a salvage station, in 29 batches. Knowing full well that the scaffold fasteners were from unknown sources, Wang [REDACTED] still purchased them at a low price and paid Xu [REDACTED] 19,700 yuan. The victim called the police after discovering that fasteners on the site were missing. | | 2021年4月至5月，在安徽省明光市某产业园工地从事水电工作的徐某，先后24次盗窃工地内脚手架扣件，分29次卖给经营废品收购站的王某。王某明知脚手架扣件来路不明，仍低价收购并付给徐某19700余元。被害人发现工地扣件丢失后报警。 |
| On May 15, 2021, Wang [REDACTED] was arrested and Xu [REDACTED] appeared before the authority after receiving a call from the police. The public security organ seized 1,201 pieces of stolen scaffold fasteners and returned them to the victim. It was identified that the total value of the stolen scaffold fasteners was 32,400 yuan. Xu [REDACTED] then refunded the ill-gotten money. | | 2021年5月15日，王某被抓获，徐某接民警电话通知到案。公安机关查扣被盗脚手架扣件1201个，已发还被害人。经价格认定，被盗脚手架扣件总价值32400元。后徐某退缴赃款。 |
| [Process of Performance of Duties by the Procuratorial Organs] | | 【检察机关履职过程】 |
| 1. Examination of arrest | | （一）审查逮捕 |
| On May 15, 2021, the Public Security Bureau of Mingguang City, Anhui Province put a case on file for investigation into Xu [REDACTED]'s suspicion of committing thefts. On the subsequent day, it put a case on file for investigation into Xu [REDACTED]'s suspicion of covering up and concealing proceeds of crime and detained the two persons. On May 21, it submitted a request for approval of arrests to the People's Procuratorate of Mingguang City on the grounds that Xu [REDACTED] was suspected of committing thefts and Wang [REDACTED] was suspected of covering up and concealing proceeds of crime. | | 2021年5月15日，安徽省明光市公安局对徐某涉嫌盗窃罪立案侦查，次日对王某涉嫌掩饰、隐瞒犯罪所得罪立案侦查，并对二人刑事拘留。5月21日，以徐某涉嫌盗窃罪，王某涉嫌掩饰、隐瞒犯罪所得罪向明光市人民检察院提请批准逮捕。 |
| The People's Procuratorate of Mingguang City held upon examination that as Xu [REDACTED] committed thefts with a large value of stolen property, he may be sentenced to fixed-term imprisonment or a severer punishment in accordance with the law, and if he was not arrested, he may commit new crimes and was socially dangerous; the acts of Wang [REDACTED] did not fall under the four circumstances as provided for in paragraph 1 of Article 1 of the Interpretation of the Supreme People's Court on Several Issues concerning the Application of Law in the Trial of Criminal Cases of Covering up and Concealing Proceeds of Crime and Income Derived from Proceeds of Crime (hereinafter referred to as the "Interpretation"). Where there are no clear and specific standards under the provisions of paragraph 2 of Article 1 of the Interpretation that "the people's courts shall, in light of the nature of the upstream crime as well as the circumstances, consequences, and damage to society of covering up and concealing proceeds of crime and income derived from proceeds of crime, give conviction and punishment in accordance with the law,"it was unable to determine that the acts of Wang [REDACTED] constituted a crime of covering up and concealing proceeds of crime. On May 28, 2021, the People's Procuratorate of Mingguang City decided to approve the arrest of Xu [REDACTED], made a decision on disapproval of arrest of Wang [REDACTED] as his acts did not constitute a crime, and served on the public security organ a statement on reasons for disapproval of arrest. Wang [REDACTED] was released on the same day. | | 明光市人民检察院审查认为，徐某实施盗窃犯罪，数额较大，依法可能判处徒刑以上刑罚，不逮捕可能实施新的犯罪，具有社会危险性；王某的行为不符合《最高人民法院关于审理掩饰、隐瞒犯罪所得、犯罪所得收益刑事案件适用法律若干问题的解释》（以下简称《解释》）第一条第一款规定的四种情形，在第二款“人民法院审理掩饰、隐瞒犯罪所得、犯罪所得收益刑事案件，应综合上游犯罪的性质、掩饰、隐瞒犯罪所得及其收益的情节、后果及社会危害程度等，依法定罪处罚”的规定没有明确、具体的标准的情况下，无法认定王某的行为构成掩饰、隐瞒犯罪所得罪。明光市人民检察院于2021年5月28日决定批准逮捕徐某，以王某不构成犯罪作出不批捕决定，并向公安机关送达不批捕理由说明书。王某当日被释放。 |
| 2. Examination of reconsideration of the decision on disapproval of arrest | | （二）不批捕复议审查 |
| On May 31, 2021, the Public Security Bureau of Mingguang City submitted a request for reconsideration and held that Wang [REDACTED] purchased the scaffold fasteners for 29 times while knowing that the sources of the scaffold fasteners sold to him by Xu [REDACTED] were unclear, which met the provisions of item (2) of paragraph 1, Article 3 of the Interpretation that "covering up and concealing proceeds of crime and income derived from proceeds of crime for ten times or more, which falls under serious circumstances."In accordance with the provisions of Article 312 of the Criminal Law, Wang [REDACTED] should be sentenced to fixed-term imprisonment of not less than three years but not more than seven years. The decision of the procuratorial organ that Wang [REDACTED] should not be arrested as his acts did not meet the conviction standards and did not constitute a crime was inappropriate and the procuratorial organ should approve the arrest of Wang [REDACTED]. The People's Procuratorate of Mingguang City designated another procurator to examine request for reconsideration. With the approval of the chief procurator, the prosecutor decided upon examination to affirm the original decision on disapproval of arrest on the same grounds on June 7. | | 2021年5月31日，明光市公安局提出复议，认为王某明知徐某向其出售的脚手架扣件来路不明，仍29次予以收购，符合《解释》第三条第一款第（二）项“掩饰、隐瞒犯罪所得及其产生的收益十次以上，属于情节严重”的规定。根据刑法第三百一十二条的规定，应处三年以上七年以下有期徒刑。检察机关以不符合入罪标准作出不构成犯罪不批捕不当，应当批准逮捕。明光市人民检察院另行指派检察官审查。检察官经审查，并经检察长批准，于6月7日以同样理由决定维持原不批捕决定。 |
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