Research on the International Regulation of Financial Crime Punishment

Author: Gu Xiaorong
Publisher:
Publish Date: 2005-06-01
Features: The internationalization of financial crime punishment regulation is an objective phenomenon that has emerged since the late 20th century and is also a future trend. Its emergence and development stem from the need to prevent and mitigate financial risks brought by economic globalization, as well as to maintain social stability and financial security in countries. International agreements, recommendations, declarations, and customary practices on the punishment of financial crimes are important manifestations and contents of the internationalization of financial crime punishment regulation. Many of them lack legal binding force and are merely recognized as action guidelines. For example, the FATF (Financial Action Task Force) Recommendations on Anti-Money Laundering (developed in 1990 and revised in 1996). After China joined the WTO, the internationalization trend of the financial market has become increasingly evident. Therefore, adapting to the internationalization of financial crime punishment rules has become an inevitable choice for building an efficient and fair punishment system. The construction of domestic existing punishment systems must align with the reform of China's financial supervision system. Meanwhile, the reform of China's financial supervision legal system is based on learning and respecting the relevant rules of the WTO. China's financial crime punishment agencies (legislative, judicial, and supervisory bodies) must not only pay attention to the modernization and internationalization of punishment methods and approaches, promptly grasp the new characteristics and trends of financial crimes to improve the efficiency and adaptability of punishment; but also should focus on the internationalization characteristics of financial crime punishment regulation. In recent years, research on China's financial crime punishment regulation has achieved fruitful results. However, so far, there has been insufficient specialized research on the internationalization of financial crime punishment regulation, and no monographs have been published. There is a lack of systematic and comprehensive research that goes beyond the limitations of individual crime comparison studies. This book attempts to conduct a comprehensive study on this topic. The basic approach and content of this book: Refer to existing international agreements and practices on punishing financial crimes to propose standards for the internationalization of financial crime punishment regulation. Use these standards to compare China's existing legislative and judicial systems, identify gaps, and thus propose countermeasures and suggestions for improvement in terms of punishment methods, techniques, theories, supporting legal system construction, and the degree of participation in international cooperation. Should be based on China's national conditions and adapt to the "regulation internationalization" trend. Should improve China's legal system in stages, with key focus and steps. At the same time, should selectively and step-by-step participate in some international organizations and actively engage in international cooperation. Punishment of crimes typically includes three stages: investigation, prosecution, and trial. While international agreements, recommendations, and other documents on the punishment of financial crimes usually include content such as crime control and prevention, investigation, conviction and punishment, international assistance and cooperation. Therefore, this research will focus on international standards in the above four aspects, while also focusing on several major individual or category financial crimes, such as money laundering, securities and futures, currency, credit cards, letters of credit, bills, and insurance fraud. Therefore, the research object is relatively concentrated. Main arguments: (1) The internationalization of financial crime punishment regulation is increasingly evident and can be manifested in three levels: First, represented by anti-money laundering, with the highest degree of internationalization. This includes UN treaties, regional agreements (Europe, Asia, America, etc.), bilateral or multilateral agreements, and some recognized action guidelines. International cooperation also has fixed organizations and multiple levels. Second, represented by anti-insider trading in securities, with only regional agreements (Europe) and some bilateral or multilateral securities supervision agreements, without UN treaty constraints. Third, the international rules and cooperation mechanisms for punishing most financial crimes are still in a blank or initial state, but all countries feel the urgency of cooperation, such as bank crimes and letter of credit crimes. (2) It is necessary to refine the main standards for the internationalization of financial crime punishment regulation. ① Some crime punishment regulations have very clear international standards, such as money laundering crimes. The United Nations Convention on Illicit Drugs has clearly stipulated the concept, composition, criminal jurisdiction over drug money laundering crimes, procedures for confiscating drug trafficking funds, and international legal assistance for investigating such cases. In addition, the United Nations Office on Drugs and Crime's "Standardized Rules for the Punishment and Prevention of Money Laundering" have also made many international standards for punishing and preventing money laundering crimes. ② Some are not clear and need this research to collect relevant international agreements, recommendations, and declarations, summarize and clarify them; for example, insider trading crimes in securities. ③ Some do not exist at all, but are very necessary in practice, such as letter of credit crimes. We can refer to the international standards for punishing money laundering crimes to propose countermeasures and suggestions. (3) Currently, it is particularly important to pay attention to discovering and proving methods and technologies for financial crimes. After joining the WTO, the subjects of our financial market have become more diversified, and their behaviors have become more complex. With the entry of foreign-funded financial institutions, the complex innovative tools and products of various financial institutions have increased the difficulty of financial supervision and punishing financial crimes. Moreover, financial informatization has entered the application era, and the degree of paperless, placeless, and borderless financial transactions will be further improved. All of these have brought a series of challenges to discovering, proving, and punishing financial crimes. While countries like the United States and Singapore not only have effective measures for discovering and proving financial crimes, but also have corresponding legal systems to guarantee them, all of which are worth learning from. Punishment of financial crimes must be based not only on domestic financial risks but also on global or regional financial risks. Explore punishment methods and approaches targeting the internationalization of financial business, institutions, and risks. Create conditions for concept transformation and broadened perspectives in institutional setup and personnel allocation. (4) Actively participating in international cooperation is an important driving force for adapting to the internationalization trend. International cooperation in punishing financial crimes is mainly reflected in bilateral cooperation, partial regional cooperation, and global cooperation at multiple levels. In punishing money laundering crimes, securities crimes, financial fraud, credit card and letter of credit crimes, we have participated in many bilateral, multilateral, and even international cooperation, achieving positive results. These successful cooperation cases must be summarized from both procedural and substantive aspects. Further improve the depth and breadth of international participation. Its positive significance is: ① Can grasp the new dynamics of financial crime punishment legal systems and technologies in countries today; ② Can actively participate in the formation and development of new international rules and help reflect the requirements of developing countries, making international rules in this regard more reasonable; ③ Helps promote the reform of relevant domestic legal systems to adapt to new needs. (5) In-depth research on foreign experience is an important way to adapt to the internationalization trend. Punishment of financial crimes is a highly professional, technical, and universal work. Sometimes, the problems encountered domestically are very similar to those encountered abroad. For example, regarding the legislation on punishing insider trading in securities, as of the end of 1998, there were 103 countries and regions with stock exchanges worldwide, and all of them had enacted laws prohibiting insider trading. However, in terms of enforcement, only 5 countries and 1 region have actually convicted insider trading. In other words, there is a huge gap between legislation and enforcement. China's situation is very similar. Therefore, studying foreign practical experience is highly meaningful for China. The main features of this book's research are: ① Clarified the relationship between "the internationalization of financial crimes" and "international financial crimes," explicitly pointing out three differences and explaining that "the internationalization of financial crimes" includes transnational financial crimes, domestic financial crimes with foreign elements, and certain international financial crimes; ② Punishment regulation includes four stages: prevention, investigation, conviction and punishment, and international assistance and cooperation. The working mechanisms and legal systems of these four stages were summarized; ③ The international standards of financial crime punishment regulation were refined. Not only with a general summary, but also with the refinement of international standards for 8 major categories of crimes; ④ Generalized and abstracted a large number of domestic legislative examples and actual cases, which is a specialized attempt for foreign-related financial crime cases; ⑤ The application of domestic criminal law to financial crimes is a complex issue, and this research preliminarily explores it and puts forward several suggestions. The academic value and practical application value of this research are: ① Proposed the concept and standards for the internationalization of financial crime punishment regulation; ② Combined the internationalization of financial crime punishment regulation in terms of prevention, investigation, conviction and sentencing, and international cooperation, and explained that the degree of internationalization varies by crime and may differ in different countries and stages; ③ Although the trend of internationalization is very evident, there are still differences in the extent of international judicial assistance and cooperation among countries, and even significant gaps; ④ The legal countermeasures section has strong operability and targeting. For practical departments to encounter foreign-related cases in the future, they can generally understand the international background and quickly enter the actual operation process. The internationalization of financial crime punishment regulation is an objective phenomenon that has emerged since the late 20th century and is also a future trend. This research refers to existing international agreements and practices on punishing financial crimes to propose standards for the internationalization of financial crime punishment regulation. Use these standards to compare China's existing legislative and judicial systems, identify gaps, and thus propose countermeasures and suggestions for improvement in terms of punishment methods, techniques, theories, supporting legal system construction, and the degree of participation in international cooperation. Should be based on China's national conditions and adapt to the "regulation internationalization" trend. Should improve China's legal system in stages, with key focus and steps. At the same time, should selectively and step-by-step participate in some international organizations and actively engage in international cooperation.