Preface:

On September 20, 2023, the National Commission of Supervision, the Supreme People’s Procuratorate, and the Ministry of Public Security jointly issued the Opinions on Strengthening Cooperation in Combating Money Laundering in Handling Corruption and Bribery Crimes (《在办理贪污贿赂犯罪案件中加强反洗钱协作配合的意见》), implementing a “one case, two investigations” mechanism for corruption and bribery crimes and money laundering crimes, simultaneously reviewing the whereabouts and transfer process of the proceeds and benefits of corruption and bribery crimes. The three authorities clearly defined their respective responsibilities. In the future handling of related duty-related crimes, criminal filing and prosecution of “self-laundering” and other money laundering crimes are likely to increase. This article will use “self-laundering of bribery proceeds” as an entry point to explore legal issues.

I. Does “Self-Laundering of Bribery Proceeds” Require Combined Punishment for Multiple Crimes?

“Self-laundering of bribery proceeds” refers to the situation where an actor, after accepting bribes from others, “launders” the illicit proceeds and the benefits generated therefrom to make them formally legal. In fact, in the field of duty-related crimes, both third-party money laundering and self-laundering are relatively common. For example, in the common crimes of embezzlement and bribery, the process of transferring and laundering illicit proceeds frequently occurs. Recovery of proceeds is one of the key tasks of supervisory authorities in handling duty-related crime cases. Since March 1, 2021, the Criminal Law Amendment (XI) (《刑法修正案（十一）》) has independently criminalized self-laundering. Since then, self-laundering is no longer a “non-punishable subsequent act” but a new crime. If both the bribery and money laundering conduct have reached the threshold for criminalization, the actor will be subject to combined punishment for both the bribery crime and the money laundering crime. In the future, with the ‘one case, two investigations’ approach to corruption and bribery crimes and money laundering crimes, the situation where actors face combined punishment for both bribery and money laundering crimes is likely to become more common.

II. Defense Points for “Self-Laundering of Bribery Proceeds”

1

The Time Threshold for Criminalization of Self-Laundering

The Criminal Law Amendment (XI) independently criminalized self-laundering, effective from March 1, 2021. According to the principle of “applying the old law for acts before the amendment and the new law for acts after, and using the lighter punishment,” self-laundering conduct carried out before this date remains a “non-punishable subsequent act” and is only punished as the single crime of bribery. Additionally, if the self-laundering conduct was carried out before the amendment came into effect but continued without cessation after its implementation, criminal liability for such self-laundering should still be pursued.

2

Whether There Was Subjective Intent and Objective Conduct to Disguise, Conceal, or Transform the Illicit Proceeds and Their Benefits

In practice, it is easy to confuse whether the actor’s conduct — such as using illicit proceeds for investment, financial management, business equity participation, gifting to others, or purchasing real estate or vehicles in others’ names — constitutes self-laundering or post-facto disposal of illicit proceeds. The former constitutes a crime, while the latter is not treated as a crime. For example:

① If the actor gives illicit proceeds to family members for their use, or purchases real estate or vehicles in family members’ names, this is post-facto disposal and does not constitute self-laundering. Due to the fixed, close, and open blood relationship between the actor and family members — for example, a spouse or child depositing large amounts of cash into bank accounts opened in their own names, or purchasing real estate or vehicles in their own names — there is essentially no disguise, concealment, or transformation of the source and nature of the illicit proceeds. The fund chain has not been broken or “laundered.” This is clearly post-facto disposal of illicit proceeds.

② If the actor gifts illicit proceeds to relatives or close associates for their direct use, this is post-facto disposal and does not constitute self-laundering. It should be noted that while the gifting act does not constitute self-laundering, if the relative or close associate (such as a lover, cohabiting girlfriend, sibling, etc.) subjectively knows the source and nature of the funds, they may be suspected of the crime of concealing or concealing criminal proceeds (掩饰、隐瞒犯罪所得罪). Additionally, if the actor “pretends to gift but actually holds in name only” — for example, nominally gifting to relatives but actually purchasing real estate or making investments in the relative’s name while retaining the relevant rights or benefits — this may constitute self-laundering.

③ If the actor transfers illicit proceeds to others and makes investments or business equity contributions in others’ names, this is generally considered post-facto disposal and does not constitute self-laundering. In practice, there are also cases where the actor directly transfers large amounts of cash to others, opens stock accounts in others’ names, and has others directly log into those accounts for stock trading. Does this constitute self-laundering? This lawyer believes that such conduct, undertaken for the subjective purpose of obtaining returns, temporarily deposits illicit proceeds in stock accounts under others’ names, with all principal and returns returned after completion, does not have the subjective intent to disguise or conceal the source and nature of the illicit proceeds and should not constitute self-laundering. Of course, in practice, investment, financial management, and business equity participation situations may be more complex and diverse. Whether self-laundering is involved requires case-by-case analysis.

④ If, during the bribery process, the bribe-giver and bribe-taker agree that the illicit proceeds will be kept in the name of the bribe-giver or a third party, this does not constitute self-laundering. Money laundering crimes occur after the predicate crime has been completed, involving the “laundering” of the source and nature of criminal proceeds and their benefits. However, this situation occurs during the bribery process itself, based on the mutual agreement between the bribe-giver and bribe-taker as a specific bribery method. It should still be punished as the single crime of bribery.

III. Circumstances for Establishing Voluntary Surrender in “Self-Laundering of Bribery Proceeds”

In practice, when handling duty-related crime cases, supervisory authorities not only require the actor to voluntarily confess the bribery crime facts but also require voluntary confession of the whereabouts of the illicit proceeds, using this to comprehensively assess whether voluntary surrender can be established. In the context of “self-laundering of bribery proceeds,” since bribery and money laundering are both interrelated and relatively independent multiple crimes, combined with the provisions on voluntary surrender in duty-related crimes, the establishment of voluntary surrender should be distinguished by circumstances:

① If the actor voluntarily surrenders and truthfully confesses both the bribery facts and the self-laundering facts, voluntary surrender is established for both the bribery crime and the money laundering crime. This meets the conditions for voluntary surrender of “voluntary surrender + truthful confession.” Under the premise of voluntary surrender, even if the judicial authorities may already have some leads on the bribery or self-laundering, voluntarily confessing the main facts of both crimes can establish voluntary surrender for both.

② If the actor voluntarily surrenders and truthfully confesses the bribery facts but does not confess the self-laundering facts, only voluntary surrender for the bribery crime is established. Since bribery and self-laundering are relatively independent multiple crimes, according to the Supreme People’s Court’s Interpretation on Several Issues Concerning the Specific Application of Law in Handling Voluntary Surrender and Meritorious Performance Cases (《最高人民法院关于处理自首和立功具体应用法律若干问题的解释》), if a criminal suspect who has committed multiple crimes only truthfully confesses some of the crimes, voluntary surrender is only recognized for the confessed crimes.

③ If the actor voluntarily surrenders but does not truthfully confess all bribery facts, while truthfully confessing partial bribery facts and the self-laundering facts, voluntary surrender for the money laundering crime may be established. In practice, it is unlikely that an actor would not truthfully confess bribery facts yet voluntarily disclose the whereabouts of illicit proceeds and self-laundering issues, so this is not within the scope of discussion. What is worth discussing is whether, when the actor, driven by a desire to only admit minor offenses, confesses only a small portion of the bribery facts and the corresponding self-laundering amount, voluntary surrender is established. For example, if an actor is suspected of bribery of RMB 10 million, of which RMB 2 million was transferred to a bank account provided by their mistress, and only confesses to the RMB 2 million bribery fact and the whereabouts of the proceeds, while the other RMB 8 million does not involve self-laundering, voluntary surrender for the money laundering crime may be established.

④ If the actor is brought to justice involuntarily but truthfully confesses the bribery facts and the self-laundering facts not yet known to the judicial authorities, voluntary surrender for self-laundering may be established. According to Article 67, Paragraph 2 of the Criminal Law (刑法), if a criminal suspect, defendant, or convict who has been subjected to compulsory measures or is serving a sentence truthfully confesses other crimes not yet known to the judicial authorities, this is treated as voluntary surrender. Since bribery and money laundering are different crimes, in this situation, voluntarily confessing self-laundering facts not yet known to the judicial authorities can still establish voluntary surrender.