Legal Framework of Money Laundering Crimes

Behavioral Types and Legal Purpose

The behavior in money laundering involves the acquisition, conversion, or transmission of assets. The primary purpose is to disguise the origin of any illicit development or serious property crime. Property acquisition covers behaviors meant to conceal; such concealment can be performed through positive acts or omissions.

Subjective Elements and Perpetrators

Regarding the subjective element, there is no requirement for a profit motive to establish liability. The law punishes fraud, including eventual intent and negligence under Article 301.3. The perpetrator can be any person. It is debated whether the author of the predicate offense can also be the perpetrator of the laundering (self-laundering), with two main positions defended in legal doctrine.

Material Object and Predicate Offenses

The material object is broadly matched to assets derived from a crime, including rights, values, and credits (Art. 257). Money laundering requires a previous felony that establishes a connection with the laundered property. While social contacts of causality exist, defendants may argue avoidable or invincible error under Article 14 of the Penal Code (CP).

Aggravated Subtypes and Legal Concurrence

• Article 301: Origin in drug trafficking.
• Article 302: Involvement of organizations devoted to these ends.
• Article 301.4: Confiscation of substances of foreign origin.
• Article 301.5: Judicial orders and international cooperation.

In terms of concurrence (contest), money laundering absorbs the crime of concealment according to the principle of consumption (Art. 8.3).

Concept and Evolution of Money Laundering

Aimed at combating organized crime, this field has seen significant growth. Directive 91/308 emphasizes that criminal measures within a cooperation framework are essential, as mere administrative sanctions are insufficient to protect relevant legal rights.

Protected Legal Rights and Associated Crimes

The protected legal rights are plural, including the general economic order, financial market stability, and free competition. It threatens the administration of justice and facilitates criminal activity. It is often associated with document forgery, corporate crimes, and tax fraud.

The Three Phases of the Laundering Process

The process aims to give criminal assets the appearance of legitimacy through three phases:

1. Existence of a serious predicate offense (Art. 33).
2. Internalization and layering within the market.
3. Final integration of black money into legal activities.

Consummation and Continuous Crimes

Consummation occurs when an act is performed to disguise the illicit origin of money. Article 304 includes the punishment of preparatory acts. Regarding concurrence, it may involve document forgery, trafficking, or tax evasion. A continuous crime (Art. 74) may be applied in multi-party actions exploited for laundering purposes.