腐败、洗钱与反洗钱

洗钱已经是一个国际性的难题。认识洗钱犯罪不仅要立足刑法规范的角度,尤其还要注意从犯罪学立场把握洗钱的时代特征,只有这样才能更及时、有效地组织起反洗钱的防线。该防线主要由三部分组成:即加强金融业监管与自律;完善惩治洗钱罪的刑事立法;开展国际交流合作,打击和防治跨境犯罪。     

洗钱犯罪的特点与防治

改革开放以来,我国的经济、社会发展日新月异,一方面国力大大增强,人民的物质文化生活水平明显提高;但另一方面,也产生了一些新的犯罪诱因,贩毒走私、黑社会性质犯罪死灰复燃,犯罪的有组织化程度有很大提高,国外犯罪组织加强渗透,从而导致了新型犯罪--洗钱犯罪的出现,并呈现蔓延之势,本文就洗钱犯罪的特点与防治进行粗略探析。     

Fueling global crime: the mechanics of money laundering

Money laundering has been practiced in one form or another for thousands of years, dating back well before the birth of Christ, when highly motivated merchants moved their wealth beyond the confiscatory grasp of local rulers. Only in the recent past was the name ‘money laundering’ given to this financial hocus‐pocus. Popularly believed to have derived from Mafia ownership of Laundromats through which an endless stream of cash generated by extortion, prostitution and gambling flowed, ‘money laundering’ did not attract serious interest until the 1980s, and even then it fell primarily within a drug trafficking context. The phenomenon has pushed its way into the public consciousness as a mechanism used not only by traditional ‘underworld’ organizations, but some corporate and financial sector entities as well as individuals. Perhaps the events of 11 September 2001 did more to change the perception of money laundering as public discourse is now focused on methods used by terrorists to secure financing for their nefarious deeds. In point of fact, transnational criminality generally is exploding on a global level and money laundering is the lynchpin of their success. This article presents an overview summary of basic money laundering methods and is meant to help lay the foundation for further exploration.     

Extra-territorial money laundering legislation: criminal sanction,deterrence, and the African PEP

Many of the provisions of the major international conventions on money laundering concluded by Western-dominated international agencies have rightly metamorphosed into anti-money laundering domestic criminal legislation in several African countries. It is the contention of this paper that this development has happened only haphazardly, and it has been mainly at the prodding of Western financial institutions and donor agencies. African leaders themselves have shown little enthusiasm for the raft of legislations being encouraged (and in many cases enacted) as useful tools in prosecuting cases of money laundering involving politically exposed persons (PEPs). It is further contended that the reason for this antipathy lies in the fact that although these legislations have been construed on universal principles, they have ipso-facto, been construed outside the socio-legal context of the African PEP.     

Organized crime,money laundering and legal economy: theory and simulations

This paper proposes a dynamic model to simulate the relationships between the profits of organized crime, money laundering and legal investments. We develop a macro framework in which organized crime can increase its possibilities to invest in the legal sector by resorting to effective but costly money laundering schemes. The model explores the conditions under which the effectiveness of money laundering causes a positive trend in the legal assets owned by the criminal organizations. We use the model to simulate the total amount of legal wealth generated by organized crime through drug trafficking in different world regions, with particular attention to Europe.     

Money laundering laws as a political instrument: the social cost of arbitrary money laundering enforcement

The paper explains the reasons for modern money laundring legislation, namely to reduce the incidence of certain primary offences. Whereas enactment and effectuation of this legislation is costly, its postive effects typically materialize in other jurisdictions (positive external effects). The paper shows that international covenants seek to give direct incentives to overcome the possible underprovision in anti-money laundering legislation and enforcement. The paper also shows how, in such an international context, anti-money laundering legislation can be easily misused as a political weapon in the cross-border fight against "unwanted individuals" and gives concrete examples for such an arbitrary enforcement.

Forfeiture and money laundering laws in the United States

Today Europe is faced increasingly with the phenomenon of organized crime, creating problems similar to those the United States faced as early as a decade ago. American forfeiture and money laundering laws provide the state with sweeping powers for use in its efforts to combat organized crime. Although study of these instruments might inspire European lawmakers to adopt similar ones, the instruments themselves carry a societal price tag that cannot be ignored. Classical principles limiting the reach of the criminal law (and the powers of its enforcement apparatus) and in a broader sense the liberal concept of the fragmentary nature of the criminal law have largely been abandoned by lawmakers in the area of organized crime. Thus, modern American forfeiture and money laundering laws have lowered the standards of protection against state intrusion into citizens' basic rights despite the lack of sufficient empirical proof that their investigative and punitive powers are efficient in skimming profits and deterring further crime.     

Prevention of money laundering and the role of asset recovery

The purpose of this paper is to examine the increasing emphasis of the UK anti-money laundering (AML) legislative framework, on the financial arrangements of criminals. Our qualitative study engaged key stakeholders from the AML environment through a series of focus groups. This included law enforcement; accountants; prosecutors; bankers and, importantly, ex-offenders. We argue that the inclusion of the views of a traditionally hard to reach group of ex-offenders, adds significantly to knowledge and understanding about effectiveness of AML. The research findings suggest that, at first glance, the focus on asset recovery has been successful. However, our respondents shared with us areas of tension and inconsistencies in application of the law, in particular between police and the courts. For example, whether it was better to prosecute the predicate offence  separately or in addition to the offence of money laundering; or whether to pursue criminal or civil recovery. We further find that criminals have been able to use their knowledge to circumvent the system, suggesting that greater effort is needed to promote cooperation, rather than competition, in successfully detecting and prosecuting offenders.     

BREXIT,democracy and the rule of law

This article employs the image of the antisyzygy, the yoking of opposites, as an analytical tool to understand the dynamic and unresolved tensions built into the very idea of the European Union. It describes the EU as a forming a supranational constitutional space which does not supersede nation states, but instead seeks to preserve their specific identities while promoting and protecting the fundamental values they are called upon to embody as liberal constitutional democracies. The article then critically examines constitutional developments in the UK subsequent to its decision to leave the European Union and suggests that, paradoxically, it may have been the European Union which held the post-War post-imperial United Kingdom together and, without it and outside it, we may anticipate the UK's imminent dissolution into its original constituent nations – Brexit leads inexorably to BreUK-up.     

Battered wives,lawyers, and district attorneys: An examination of law in action

The legal services received by 146 Milwaukee women who had been beaten by their husbands, but had been free of the violence for at least a year, are described and evaluated. Of these women 106 recieved legal help in connection with at least one battering incident. Some women saw more than one member of the legal profession, so the total number of legal contacts among the 106 women was 255. There is evidence that lawyers and district attorneys were most likely to be used by those battered women for whom the use of personal strategies and informal help sources (such as family and friends) were ineffective in combatting the violence. Contrary to the negative image of lawyers and district attorneys found in the literature on wife beating, most legal service contracts were rated as very or fairly successful by the battered women. The more difficult and severe the situation, the higher the success ratings given to lawyers and district attorneys by their clients. Despite the generally positive reactions that most beaten women had to lawyers and district attorneys, there were many negative incidents reported, including district attorneys who refused service or discouraged battered women from filing charges, and lawyers who sided with the aggressors or attempted to meet their personal and professional needs at the expense of their clients. These incidents remind us that it would be useful to educate legal professionals about the nature of family violence, the situation and needs of battered women, and the legal and ethical responsibilities that lawyers and district attorneys have when they are contacted by battered women.     

Water always finds its way: Identifying new forms of money laundering

Money laundering regulations have become stricter over time and involve more and more actors. This means that the accountability of laundering regulation will become more important; theoretically, money laundering should have decreased with the implementation of new regulations. However, as this paper shows, it is difficult to estimate even the sign of the trend in the proceeds of crime and of laundering over time with particular reference to the drug trade. There seems to be a substitution from hard to softer drugs, and no substantial decline in the proceeds of crime and likewise no substantial decline in money laundering. Criminals seem to switch from the more controlled banking sector into still less controlled parts of financial markets, and from financial markets to other sectors. These new sectors include electronic payments, trade and real estate. The paper shows how one can empirically approach the latter two by using economic information of unusual prices and other characteristics in order to identify the amount of laundering in these sectors. Combining economic information with criminological data facilitates the development of a new tool for identifying money laundering in some important sectors.