Italy: 意大利自我洗钱罪:所指情况和具体适用

Last Updated: 20 August 2019
Article by Arnone & Sicomo

意大利自我洗钱罪:所指情况?具体适用?与洗钱的关系?相关制裁和惩罚?在此详细阅读

自2015年1月1日起,意大利最新的非法自我洗钱罪生效,对私自或协助他人犯下将上游非法所得洗钱的行为进行惩罚。

依据刑法第648条规定,包括两类情况:

- 任何犯下或协助他人犯下最多可判处五年以上监禁的蓄意罪行的人,使用、替换和转让由该犯罪活动产生的金钱、物品及其他赃物进行投机、经营、金融和创业活动,以"具体地"阻碍其犯罪来源的识别。

罚款为2 8年监禁,罚款 5000欧元 25000欧元。

- 如果上述情况所涉及的犯罪活动最多可判处徒刑不超过五年(刑法第648条ter.1 co.2),所规定惩罚为一至四年监禁和2500欧元至12500欧元的罚款。

如果金钱、物品或其他赃物的犯罪来源属于刑法第416条第二项(黑手党式协会,包括外国协会)所指代的情况,则适用第一类情况所述的处罚,或是同一法律条款中对此类协会活动进行管制的规定(刑法第648条ter.1 co.3)。

私自洗钱罪确立的一个不可或缺的因素是这种行为"具体地"阻碍了赃物的犯罪源的认定。否则就是一般的洗钱罪行。

从主观的角度来看,有关罪行可以 按恶意欺诈行为予以惩罚,如果罪犯认识到赃物的犯罪来源并且通过将其投入生产性的活动来阻碍其识别。

金钱,物品或其他赃物仅用于个人使用或享受的行为不应被视为自我洗钱。

从犯罪发生时算起,自我洗钱罪的法律追究期为8年。

意大利自我洗钱和洗钱:二者是否相关?  

关于洗钱和自我洗钱两种犯罪假设之间的关系,最高上诉法院最近的一项判决很重要(刑事法院2018年4月18日审判第二节第17235条)。

详细说,该审判确定了:

- 私自或协助他人进行上游犯罪活动获得非法所得,并将非法所得赃款输入回合法经济体中,属于自我洗钱罪;

- 没有参与产生非法所得的犯罪活动,只涉及洗钱犯罪。

如果机构的法律代表犯下自 罪,会发生什么?

引起特别争论的一个问题涉及到实体可能要对其法律代表所犯下的自我洗钱事件负责。

毫无疑问,从法理学和理论上来讲,一般原则是:如果其目的是严格的个人使用和享受, 钱的犯罪事实 则不成立,实体的责任 也就被排除在外

相反,引起争论的问题在于,如果个人对税收犯罪洗钱所得的消费是为了实体的利益和好处,并且在此情况下自我洗钱罪成立,实体是否应对为此负责。

此情况的异常之处是实体不能犯下上游犯罪,因为法律没有设置其对税收犯罪的责任,因此不能考虑对其追究自我洗钱行为的责任。

迄今为止的该问题尚未明确界定,但可以肯定的是, 洗钱 - 根据立法法令 231/2001被列入上游犯罪目录 - 也可能对实体 构成指控,尤其是在与其利益相关的税收犯罪方面。

自我洗钱 和自愿披露

 "自愿披露"是指 自愿合作,作为一种工具,允许非法持有海外资产的纳税人将其情况在税务机关合法化。

根据刑事上诉法院(第二节,第14101号)的一项最近裁定,如果纳税人在自愿合作程序(所谓的自愿披露)的范围内宣布虚假申报,对其拥有的实际上不在国外而在国家领土上的资产进行合法化,则自我洗钱罪不予成立。

自愿披露也可以有益于那些不受税收监管申报义务管辖的人,或者违反了所得税和相关附加税,替代税,生产活动地区税和增值税申报义务以及替代品申报义务的人,实现合法化。

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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