Aproaches regarding money laundering

• Author: Mioara-Ketty Guiu
• Position: Associate professor
• Pages: 332-337

APROACHES REGARDING MONEY LAUNDERING

Associate professor Mioara-Ketty GUIU

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Abstract

From a compara tive law perspective, the present paper is a synthetic presentation of the issues rai sed by the

criminalization of the money laundering offence.

Key words: money laundering, concealment, real favouritism.

JEL Classification: K14

1. Money laundering - Concept and charaterisation.

This money laundering crime is defined in the Act no. 656 from 2002

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on prevention and

punishment of money laundering, an Act which transposes into national legislation the provisions

of the directive no. 2005/60/EC of the European Parliament and Council

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.

According to the 23rd article from the Act no. 656/2002, money laundering consists in:

a)the exchange or transfer of goods, knowing their origin is of criminal nature, with the purpose

of hiding or covering up their illegal origin or with the purpose of helping the person who

committed the crime in order to avoid criminal proceedings, trial or punishment execution; b)the

hiding or the covering up of the true nature, the origin, the location, the circulation or the

ownership of goods or the rights in respect to them, knowing their origin is of criminal nature;

c)the acquisition, the tenure or the usage of goods, knowing their origin is of criminal nature.

The above mentioned definition adds up to the conclusion that the crime of money

laundering is a correlative one, subsequent to another one -named “main crime”- from which the

“laundered” goods derive (correlative crimes d id not always have autonomy, those actions being

punished as posterior complicity acts).

The definition mentioned above also involves the idea that the crime of money laundering

is a comissive and formal crime

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.

Moreover, from the above mentioned definition it is obvious that the acts punishable as

money laundering can be mistaken both for the acts punishable by the 221st article from the

Criminal Code, known as concealment

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, and for the acts punishable by the 264th article from the

Criminal Code, known as real favouritism

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. In other words, according to the present legislation, it

is possible that an identical action should receive three different legal classifications, for which

there are different punishments stipulated - a fact that contravenes both the equality in rights

principle (Article 16 from the revised Constitution) and the determination of the criminal law

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Mioara-Ketty Guiu, „Alexandru Ioan Cuza” Police Academy, Bucharest, Associate Researcher of Romanian Academy, e -mail

mioarakettyguiu@yahoo.com.

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The l atest amendments to the Act no.656/2002 were performed by Emergency Ordinance no.26 from 31 March 2010 and Act

no. 238 from 5 December 2011.

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The directive 2005/60/CE suffered some consecutive amendments by Directive 2007/64/CE, Directive 2008/20/CE, Directive

2009/110/CE and Directive 2010/78/CE.

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See also G. Fiandaca, E. Musco, Diritto penale, Pa rte speciale, vol. II, Zanichelli Editore, Bologna, 1996, p. 222.

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Under Art.221 from the Criminal Code in force, the crime of concealment consists in receiving, acquiring or changing of a good

or facilitating its capitalization, knowing that good is provided through committing a crime if it was aimed at obtaining some

material benefits for himself or for a third party.

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Real favouritism is the support shown to a criminal, without an agreement established before or during the offence, in order to

provide the offender with the benefit or the proceeds of crime.