巴塞尔体制下网上银行业务风险及其法律监管研究

网上银行业务风险的存在表明，其不仅需要监管，而且需要传统银行监管框架作出适合其特点的具体调整。在改造传统监管框架方面，巴塞尔委员会进行了有益的探索，其有关经验对我国网上银行业务风险监管法制的建构和完善极具参考价值。     

Global Administrative Law: The View from Basel

International law-making by sub-national actors and regulatorynetworks of bureaucrats has come under attack as lacking inaccountability and legitimacy. Global administrative law isemerging as an approach to understanding what internationalorganizations and national governments do, or ought to do, torespond to the perceived democracy deficit in internationallaw-making. This article examines the Basel Committee on BankingSupervision, a club of central bankers who meet to develop internationalbanking capital standards and to develop supervisory guidance.The Basel Committee embodies many of the attributes that criticsof international law-making lament. A closer examination, however,reveals a structure of global administrative law inherent inthe Basel process that could be a model for international law-makingwith greater accountability and legitimacy.     

巴塞尔协议的性质疑析

对于巴塞尔协议及其规则的性质,目前相当流行的＂国际习惯说＂并无具体实例证明国家对于巴塞尔规则的法律确念,无法成立。＂有拘束力的建议说＂以规则的国内法属性直接推出其国际法属性,完全忽视了国际法和国内法的相对独立性。＂软法说＂的缺陷在于软法概念本身的不确定性。巴塞尔协议能否称为软法,取决于对软法概念本身的界定。巴塞尔协议本身是不具法律约束力的文件,而其中包含的规则迄今只构成＂通例＂。     

巴塞尔新资本协议框架下对金融衍生交易的监管

巴塞尔委员会认为,金融衍生工具一方面可以降低和转移银行的信用风险,另一方面也可能带来其他风险,因此,应采取严格的程序和步骤加以控制,并需要将其纳入资本监管的范围。     

《巴塞尔协议》的演变:银行监管新问题与新对策

现代银行业发展迅猛,日益国际化。国际社会也与时俱进,一直在努力合作寻求银行监管的最佳模式,提高监管效率,两个《巴塞尔协议》即是这一努力的结晶。本文旨在分析两个《巴塞尔协议》的演变过程及原因,揭示银行监管的新问题,探讨银行监管新发展对于我国的意义和挑战。     

Regulating and Combating Underground Banking

In combating and regulating underground banking, a choice can be made of roughly two models, the risk model and the assimilation model. The risk model comes down to a complete prohibition of underground banking combined with an active investigation and prosecution policy. In the assimilation model, underground banking is recognised as a form of financial services but at the same time, all rules that generally apply to financial services are declared applicable to underground bankers. An effort is made simultaneously to lower the threshold of the formal banking system. The international recommendations and legislation—in particular of the Financial Action Task Force and the European Union—take the assimilation model as their starting point, albeit that no or hardly any attention is paid to the role of the formal banking system. With that, relatively little account is taken as yet in the international community of the historic and socio-economic backgrounds of informal banking systems, their embedment in different cultures and the advantages of the services offered. Professor of Criminal Law and Criminal Procedure, VU University Amsterdam, Faculty of Law, Department of Criminal Law and Criminology.     

Money Laundering and Banking Secrecy in the Jordanian Legislation

Crimes targeting to damage the property of natural and legal individuals including states are in existence while the objective of people, groups and the entire organizations when committing crimes is illegal property gain in the structure of national, but also of global crime. However, they are insufficient hence they attempt to decriminalize money or other property earned in such manner, e.g. by inserting them into lawful operations and flows. Nonetheless, perpetrators of this kind of crime attempt to hide the right source of money or profit earned in such manner using all means possible. Banking secrecy is one of the main barriers that stand in front of anti-money laundering because it comprises of a barrier to access to bank deposits, and a protection for doubtful funds since it is one of the conventional rules pertinent to the work banks, where clients’ secrets and banking operations are saved by Bank’s commitment by law and custom unless there is provision in the law or in the agreement stating otherwise. This study is aimed at indicating the most significant stages and techniques of money laundering at banking institutions in Jordan and also discussing the function of the Jordanian banks in the light of the pertinent legislation.     

Global Governance,Criminalisation and Environmental Change

This article examines the environmental impact of criminalisation. It argues that developing societies are increasingly drawn into globalised networks that inextricably link the global and local, the legal and illegal. This means that in order to understand the causes of environmental degradation it is no longer useful to focus on the formal institutions and practices of government and business. Instead, this article uses the concept of the shadow state to examine and understand the causes of environmental change in two illustrative cases of Madagascar and Belize.     

Criminogenic Cyber-Capitalism: Paul Virilio, Simulation, and the Global Financial Crisis

This essay is a manifesto expounding the relevance of the critical theory of Paul Virilio to critical criminology. I interpret the global credit crisis as a criminogenic ‘event’, explicable in terms of Virilio’s theory of speed-politics. The trans-national space(s) of globalization are inherently criminogenic. ‘Power crime’ is the criminogenic ‘substance’ of global capitalism. Globalization—intensity, extensity, velocity, and impact—equates with cyber-capitalism, which ensures the operational primacy of simulation. Simulation, the fast moving manipulation of post-reality, causes the ‘disappearance of the real’, which underlines the epistemological crisis that attenuates global economic catastrophe. Simulation equates with the ‘logistics of perception’, which manifests itself through both pure war and speed-politics. Simulation and power crime merge on the level of the criminogenic manipulation of reality, resulting in the ‘accident’ of the global credit crisis. Power crime is the criminogenic medium through which the periodic crises of global capitalism will now occur.     

Violent Crime in the Urban Community: A Comparison of Stockholm and Basel

In this article the authors present some preliminary findings from a comparative study of police recorded violent crimes in Stockholm and Basel. They present the first results from a comparative analysis of the situational context, the ecology of crime, and of offender residences in these cities. There is impressive evidence of basic similarities in the situational context of violent crime and the residential distribution of violent offenders. Yet there are also significant differences, some of which may have interesting implications for crime prevention. Firstly, violent crime seems to be more highly concentrated during weekend nights in Stockholm than in Basel. Secondly, they find evidence that the presence of weapons in a community increases the risk of more serious outcomes of violent events. Efforts to reduce the availability of weapons may thus have significant effects on the outcomes of violence, but not necessarily on its frequency. Thirdly, they show that offenders in both cities are highly concentrated in socially disorganised communities with few economic and social resources.     

Local Connections,Global Community

The ACC community provides a collaborative,supportive environment designed by in-house counsel,for in-house counsel.ACC is international with peer-to-peer advice available from members around the globe.Combined with networking opportunities at the regional chapter level,ACC offers local support and global reach.     

中国"除魔"进程中的普通法问题

本文首先批评了韦伯的一个错误现点。我们认为:普通法制度是“除魔”进程发展的重要制度保障。然后,我们从哲学、制度层面研究了普通法的制度禀赋,并分析了中国“除魔”进程中的普通法问题。最后,我们总结全文内容。     

网络银行业务对传统法律的挑战与回应

网络银行业务在突破传统银行业务理念的同时 ,也对既存的法律制度产生了巨大的冲击与挑战。这主要表现在法律管辖权的确定、电子资金划拨、网络银行的监管及对利用网络银行犯罪等方面。因此 ,既存法律制度的革新是新金融情势下的必然要求。鉴于网络银行的无时空性、虚拟性与跨国界性 ,所以传统法律的变革及全新的立法必须基于网络银行的本质属性 ,同时 ,从国内法与国际法两个层面双管齐下 ,才能使应然的法律适应网络银行业务的内在要求。     

Sovereignty, Migration and the Rule of Law in Global Times

This article argues that in the present era of globalisation, control over the movement of people has become the last bastion of sovereignty. This is important both to theoretical accounts of globalisation and to policy decisions by governments. Nation states threatened with loss of control in other realms are implementing a variety of 'crackdown' measures in questions of immigration. Issues of refugee law, illegal migration and skilled migration each challenge sovereignty in specific ways. While international human rights standards have made few inroads in questions of migration, recent decisions in England and Australia suggest that the rule of law may be emerging as a counter to traditional executive free reign in matters of migration law.     

Policy Coherence, Global Environmental Governance, and Poverty Reduction

This paper explores linkages between policy coherence, global environmental governance, and poverty reduction. It begins with a few thoughts on what these terms mean, and how they are linked. It then provides some perspectives on how the linkages might be improved over time. The paper takes the view that the most coherent institutional framework for both poverty reduction and environmental protection is likely to be one that is relatively decentralised, and based on a modular (networking) structure. The implication is that this framework should rely mainly on domestic and regional governance institutions, rather than on global ones. Effective management of environmental problems (both national and international) also implies a judicious mix of strong government institutions, smooth-functioning markets, and well-targeted infrastructure investments. The business and labour communities are therefore crucial. Other elements of civil society, notably the NGOs, also have important roles to play. Global environmental governance will have to overcome significant resistance insofar as the interests of the developing countries are concerned. Developing countries will need to be convinced that it is in their best interest to participate in global environmental institutions. The best way of making this case is to link (local) poverty reduction objectives explicitly to (both local and global) environmental protection goals. Bringing greater coherence to international trade, investment, and development co-operation policies could make an important contribution to strengthening these linkages. Investment is particularly important here – in the future, investment governance will likely prove to be more important for poverty reduction than environmental governance. Focusing on global environmental governance will not be enough.     

论政府对投资银行的风险监管

本轮金融危机中,投资银行业务过度创新而政府监管乏力,风险累积祸及世界.政府对投资银行的风险监管问题引起业界的高度关注.通过分析政府对投资银行监管的理论基础,探讨对投行监管的必要性及监管的目标.在分析政府对投资银行监管方面暴露的问题之后,提出政府应该为投资银行创设良好的运行环境,创建良好的信息披露和风险提示制度,特别是把好市场准人和退出关口及针对投资银行的业务链条设计风险监管制度,防止出现监管"真空",并且加强监管过程中的国际合作.