SPC interpretation on terrorist financing and money laundering

A SPC interpretation on terrorist financing and money laundering has become effective on Wednesday November 11.

The interpretation clarifies the wording of articles 120 (terrorist financing) and 191 (money laundering) of the Criminal Law. The full text is available at the end of this post.

Terrorist financing

Article 120 (bis) Any individual who provides funds to a terrorist organization or individuals who commit terrorist activities (...)

"Providing funds" has been interpreted extensively, as covering the direct provision of funds or supplies, but also the aiding of terrorist organization by providing "spaces" 场所 and other material advantages (物质便利)

"Terrorist organizations or individuals" has been interpreted as referring to those who prepare or carry out a terrorist attack, or premeditate 预谋 it.

Money laundering

This offence can be punished only if the person who transforms illegal income into "legitimate" funds is actually aware that income was obtained illegally.

"Article 191. Where anyone who obviously knows that any incomes are obtained from any drug-related crime, organizational crime of any gangland, terrorist crime, crime of smuggling, crime of corruption or bribery, crime of disrupting the financial management order (...)"

The SPC has specified the circustances in which it is assumed that a person knew about the illegal origin of proceeds. "Obviously knows" refers to any of the following:

* assisting the transfer of property or converting property the defendant knows to have been obtained illegally by a third person.

* assisting the transfer of property or converting property through illegal channels without justification

* accepting property at a price manifestly lower than its market value without justification

* assisting the transfer of property or converting property without justification, and receiving commissions above market value

* assisting third persons in depositing huge amounts of cash into several different bank account, or frequently transferring money between bank accounts without justification

* assisting close relatives or other persons with whom the defendant has a close relationship in transferring or converting property that does not correspond to their occupation or financial situation.

* other circumstance in which it can be considered that the defendant obviously knew about the illicit origin of property

(providing that no evidence proving the defendant lack of knowledge of these circumstances exists)

"Disguising or concealing the origin or nature of any crime-related income or the proceeds generated therefrom by any other means" has been interpreted as providing assistance to the transfer or conversion of illicit income and the proceeds generated therefrom through any of the following:

* mortgages, leases, trade, investments and other means

* shopping centres, hotels, entertainment venues and other high-cash turnover industries

* fraudulent transactions, financial misstatements, bogus bonds and other means.

* trade in lottery tickets and other similar methods

* gambling

* the carrying, transporting or sending to and from China.

* other methods










  第一条 刑法第一百九十一条、第三百一十二条规定的“明知”,应当结合被告人的认知能力,接触他人犯罪所得及其收益的情况,犯罪所得及其收益的种类、数额,犯罪所得及其收益的转换、转移方式以及被告人的供述等主、客观因素进行认定。










  第二条 具有下列情形之一的,可以认定为刑法第一百九十一条第一款第(五)项规定的“以其他方法掩饰、隐瞒犯罪所得及其收益的来源和性质”:








  第三条 明知是犯罪所得及其产生的收益而予以掩饰、隐瞒,构成刑法第三百一十二条规定的犯罪,同时又构成刑法第一百九十一条或者第三百四十九条规定的犯罪的,依照处罚较重的规定定罪处罚。

  第四条 刑法第一百九十一条、第三百一十二条、第三百四十九条规定的犯罪,应当以上游犯罪事实成立为认定前提。上游犯罪尚未依法裁判,但查证属实的,不影响刑法第一百九十一条、第三百一十二条、第三百四十九条规定的犯罪的审判。




  第五条 刑法第一百二十条之一规定的“资助”,是指为恐怖活动组织或者实施恐怖活动的个人筹集、提供经费、物资或者提供场所以及其他物质便利的行为。