Fraud, banking crisis, and regulatory enforcement: Evidence from micro-level transactions data

Can widespread fraud cause large scale banking crises? We address this issue in the context of the recent Turkish banking crisis of 2000, which was followed by a severe recession and currency crisis. Using detailed micro-level transactions data, we show that related lending and back-to-back loans across banks were used to circumvent regulation and transfer deposits to private holding companies that were ruined. Our evidence suggests that systemic fraud coupled with weak enforcement of conventional regulatory principles can be a source of banking crisis.     

Special report on taxation. IRS issues stricter guidelines for audits of tax-exempt hospitals

The new audit guidelines serve as yet another reminder to tax-exempt hospitals that great care must be taken in structuring and documenting business arrangements with physicians and executives so as to withstand scrutiny by the IRS with regard to exempt status. Since increased census and utilization, and enhancement of the hospital's financial position, are no longer acceptable justifications for such activities as physician recruitment incentives (being suggestive of payment for referrals), it is important that hospitals make an effort to ensure that board minutes, recruitment policies, internal memoranda, and other documentation set forth the reasons--other than the benefits to the institution's bottom line--for having entered into such transactions. Hospitals must establish and document a community need for each physician recruited. Hospitals that actively recruit should be armed with studies evaluating recruiting needs in each clinical area, based on objective criteria, taking into consideration managed care contracting needs and the provision of services to the poor and needy. Finally, hospitals should re-examine all joint ventures and other business relationships with physicians to determine whether such arrangements resulted from arm's length negotiation, involve fair market value for goods and services, and conform, insofar as possible, with the Medicare fraud and abuse safe harbor regulations. Under GCM 39862 and the new guidelines, "aggressive" arrangements may not only create exposure under fraud and abuse laws, but could jeopardize the provider's tax-exempt status as well.     

金融凭证诈骗罪疑难问题探析

金融凭证指银行及银行类金融机构依法办理银行业务所使用的结算凭证;伪造、变造的金融凭证除形式要件虚假之外还包括有权制作人或无权制作人违法制作不实内容、形式要件真实的金融凭证。"使用"只指直接兑现金融凭证记载的财产权利,不包括用其质押、展示等间接使用。使用作废金融凭证或只是冒用他人真实有效的金融凭证诈骗不构成金融凭证诈骗罪。采盗窃、抢劫、抢夺等手段获真实有效金融凭证冒用取财以其手段行为定侵犯财产罪。内外勾结利用职务之便使用伪造、变造的金融凭证取财应以主犯人身份构成的罪名定性。     

电子提单冲突法问题研究

电子提单主要用于国际海上货物运输和国际贸易与融资中,这注定了电子提单交易中会产生大量的法律冲突。电子提单的发展尚处于初级阶段,各国法律对其规定多处于空白状态,即使少数已有规定的,彼此间也大相径庭,更何况电子提单除了海商法外,还要涉及电子商务法、电子证据法等问题,这些都使得电子提单的法律冲突问题相对于传统提单而言要远为复杂。     

基于指示交付的动产所有权移转——兼评《中华人民共和国物权法》第26条

我国物权法第26条规定了指示交付的方式,通过转让基于占有媒介关系的原物返还请求权,使出让人无须占有媒介人的同意和协助,就能移转动产的所有权,更无须将第三人的占有限于"依法"占有。出让人是否通知占有媒介人,并非动产所有权移转的要件,而只是设立动产质权的前提,并在债法领域发挥保护债务人的作用。为使无占有的出让人也能同其他占有人一样移转其动产所有权,以满足合理的交易需求,建议借鉴德国通说,允许当事人仅根据其合意来移转所有权,该种情形超出了物权法第26条的文义范围。我国法院不少判决以转让提单、仓单等交付证券作为适用物权法第26条的情形,有误解之嫌。当事人以该类证券的交付替代证券项下货物的交付,仍然是适用物权法第23条的现实交付。此类交易方式虽法无明文,但应根据商事交易习惯予以认可,以便证券项下的货物便捷流通。     

Reduced payer's liability for unauthorized payment transactions under the second Payment Services Directive (PSD2)

In 2015, the European legislator enacted the second Payment Services Directive, which, among other things, determines the payer's liability for unauthorized payment transactions. This paper will show that PSD2 has widened its scope and further reduces the payer's liability for unauthorized transactions, for example by making it impossible to hold the payer liable in case no strong customer authentication has been applied, by requiring supporting evidence to prove the payer's fraud or gross negligence and by applying the same rules when unauthorized transactions are initiated through a payment initiation service.     

“讨价还价”的背后——对现行市场销售模式的法理批判

当今,讨价还价已经成为市场销售的主要模式。讨价还价虽然与自愿和公平有联系,但并不反映自愿与公平;相反,讨价还价与欺诈联系在一起。从效率的角度看,讨价还价也不能反映真实的市场供需关系;相反,它极大地增加了市场的交易成本以及政府的决策成本和管理成本,也抑制了供应商的生产积极性。商品的价格不只是人与自然的关系,更反映了人与人之间的关系,因此,商品价格的确定就不只在于效率,更在于公平。商品价格的公平性就在于成本加合理利润,因此,成本与利润信息的充分披露可以保证消费者在讨价还价中免于欺诈。集团购买以及标准合同也在一定程度可以弥补消费者讨价还价能力的不足。而作为消除讨价还价的销售模式最为有效也最为现实的办法,莫过于以明码实价的方式代替明码标价的规定。对此,政府的价格调控措施必须有所作为。     

“I knew it was a scam”: Understanding the triggers for recognizing romance fraud

Research Summary

This article investigates the contributing factors (or triggers) to a realization of romance fraud victimization, based on 1015 reports lodged with Scamwatch (Australian online reporting portal for fraud) between July 2018 and July 2019 (inclusive). The article examines the free text narrative of each report to propose five discernible trigger categories: further requests for money; characteristics of communications; verification checks; an offender's action(s); and being told by a third party.

Policy Implications

Based on a comprehensive understanding of these five categories, the article advocates for broader messaging approaches to encompass financial literacy and well-being, cyberliteracy and critical thinking skills, cybersecurity practices, and respectful and healthy relationships. Leveraging the use of these wider education and awareness campaigns could improve recognition of romance fraud. Importantly, it is suggested that banks and other financial institutions are in a strong position to focus their efforts on some of these broader messages to effect positive change.     

You've been warned: Consumer liability in Internet banking fraud

This contribution provides a critical analysis of the treatment of consumer liability in cases of Internet banking fraud. Whereas generally banks refund the financial losses associated with Internet banking fraud to the individual victim, exceptions do occur, at least in certain EU jurisdictions. These, however, are rarely spoken about, but do indicate a number of (legal) problems. The main problems are lack of clarity and lack of consistency as to when a consumer can be held liable. These problems also maintain potential negative consequences such as increase in perceived risk, loss of trust and demands for better security, which may be suboptimal from an economical perspective. This article concludes by reflecting on the potential benefits of the introduction of zero liability as an alternative.     

Regulatory Sloth and Activism in the Effervescence of Financial Crisis

Certain financial market practices, previously denied or disregarded by financial market regulators, are being redefined as candidates for active investigation and enforcement. This article contrasts the passive stance of the U.S. Securities and Exchange Commission vis‐à‐vis the Madoff fraud with its relatively diligent but now settled Complaint against Goldman Sachs. The article also explores compromises in the EU's approach to market regulation of information asymmetry, suggesting that grounds for pessimism outweigh those for hope. The introduction sets the context, describing aspects of the first leg of the crisis (states bail out banks) and the second leg (states themselves come under strain).     

Client privilege,compliance and the rule of law: Swedish lawyers and money laundering prevention

Can, and will, lawyers police their clients? This article aims to shed light on the private front-line workers of the Financial Action Task Force on money laundering (FATF). The analysis is based on a study of how Swedish lawyers perceive and handle obligations to police clients within FATF style risk-based anti-money laundering/counter terrorism (AML/CTF) regulation. We find that the lawyers were reluctant to taking on the responsibility for AML/CTF, and that their front-line work was directed towards being compliant enough. Relatedly, we identify several practices of separation that serve to mediate between the conflicting aims and interests in the everyday of this form of private policing. Another finding is that the lawyers by and large position themselves as knowledgeable actors, and view risks of AML/CTF as knowable. Nevertheless, lawyers experienced a principle clash between being ‘not banks’, and being front-line workers for FATF. In particular, the lawyers perceived their role as front-line workers to be more complex due to their professional norms and ethics on client privilege, and what they saw as the proper role of lawyers, being in conflict with the obligation to report clients and their transactions. In concluding, we suggest that paying more attention to the everyday experience of front-line workers when devising regulatory tools may be a way to promote engagement in ‘true’ crime prevention on their part.     

Postal rule in acceptance via email

The fact that the digital world has conquered almost all aspects of life drives contracting parties to adopt a more expedient means of communication in their formation of a contract, which was traditionally executed in the paper form. Consequently, communication in most of contractual transactions nowadays is generally no longer made on paper but shifts to paperless documents through technological devices such as email and other electronic forms. This article focuses on the issue of the application of a traditional postal rule in acceptance through post in a contemporary acceptance via email. In dealing with this issue, the approaches adopted by jurisdictions such as Singapore, Australia, as well as Malaysia are examined. The findings have established that at present, there is no definite answer due to the inadequacies of existing legal frameworks and provisions, amplified by the lack of judicial interpretations to provide clear resolution. Although in certain countries, the approaches are comparatively well defined, uncertainties remain and the clear way towards resolution appears to be far from defined.     

集资诈骗罪的司法困境与罪群立法完善

集资诈骗罪一方面被认定为特殊诈骗罪,与诈骗罪表现为一般与特殊的关系,另一方面又被当作“加重型”非法吸收公众存款罪。因此在刑事司法过程中出现了“骗”与“被骗”的构成要件缺失却依然构成集资诈骗罪、非法吸收公众存款罪中的“欺骗”与集资诈骗罪中的“诈骗”混淆不清、两罪以“非法占有目的”为区分标准的主观化趋势的问题,从而导致“非法占有目的”在被扩大化的同时又被弱化,进而造成集资诈骗罪被矮化、限缩。应从金融秩序法益的立场,回归集资诈骗罪的金融犯罪属性,重塑诈骗罪与集资诈骗罪的关系,明确“欺骗”“诈骗”的同质性,增设“骗取集资款罪”,调整非法吸收公众存款罪的规制范围,构建体系化的集资诈骗罪罪名群,化解集资诈骗罪刑罚供应过度与不足并存的尴尬。     

利用数字图像处理技术伪造文件的研究

介绍了利用数字图象处理技术剪贴伪造文件、变造签名、彩色打印伪造原始印文和签名等三种伪造文件的方法及其特点.数字图象处理技术能够克服许多传统伪造方法的"缺点",使伪造的文件达到较高的逼真度.讨论了数字图象处理技术的滥用引发的新问题.     

关于合同诈骗罪的数额标准评析

合同诈骗罪从普通诈骗罪中分离,其目的在于对利用合同实施诈骗的犯罪行为从重打击,其原因在于一般诈骗罪所侵犯的是公私财产所有权,而合同诈骗罪不仅侵犯了公司财产所有权,更侵犯了市场经济秩序和合同管理制度。然而,在两罪法定刑量刑幅度基本一致的情况下,司法解释和司法解释授权地方制定的合同诈骗罪"数额较大"、"数额巨大"的标准均高于一般诈骗罪的数额标准,导致司法实践中出现同一个合同诈骗行为依合同诈骗罪条款无罪或罪轻,依诈骗罪条款有罪或罪重的悖论。     

Fishing for Precarious Status Migrants: Surveillant Assemblages of Migrant Illegalization in Toronto,Canada

Migrants with precarious immigration status in Canada encounter surveillant assemblages of illegalization that threaten their safety and ability to access social goods. Drawing on qualitative interviews, media stories, and government documents, this article analyses how surveillance is produced through various ways of knowing, by various actors, and in different institutions in Canada. My case study demonstrates that the sites of operation for surveillant assemblages of illegalization extend beyond immigration authorities and into more diffuse sources including the police, the health‐care sector, banks, employment agencies, and acquaintances. I also suggest that there is a level of overlap and integration among such sites, including the use of shared databases and the possibility that any interaction with precarious status migrants can be reported to immigration authorities.     

Checklist of fraud issues affecting e-health transactions

This checklist is intended to serve as a starting point from which to untangle the web of laws and regulations affecting e-health transactions, focusing on fraud issues.     

船舶融资的法律与实践

探讨目前最典型的船舶融资结构及相关法律文件,分析贷款银行所需考虑的法律与实践方面的问题,以及在实务操作中银行行使船舶抵押权时应当考虑的因素。     

Addressing identity crime in crime management information systems: Definitions,classification, and empirics

Identity fraud as a term and concept in its formative stages was often presumed to be identity theft and visa versa. However, identity theft is caused by the identities (or tokens) of individuals or organisations being stolen is an enabling precursor to identity fraud. The boundaries of identity fraud and identity theft are now better defined. The absence of specific identity crime legislation could be a cause of perpetrators not classified as breaching identity crimes but under other specific entrenched law such as benefit fraud, or credit card fraud. This metrics overlap can cause bias in crime management information systems. This study uses a multi-method approach where data was collected in both a quantitative and qualitative manner. These approaches are used as a lens for defining different classes of online identity crimes in a crime management (IS) security context. In doing so, we contribute to a deeper understanding of identity crime by specifically examining its hierarchical classes and definitions; to aid clearer structure in crime management IS. We seek to answer the questions: should current law around identity fraud continue to be reinforced and measures introduced to prevent identity crime; should laws be amended; or should new identity crime laws be constructed? We conclude and recommend a solution incorporating elements of all three.