second, the process of money laundering
money laundering, in English, means washing money with a washing machine, and then the "clean" money can be used. The so-called money laundering is such a process, which puts the proceeds of crime on legitimate interests, at least on the surface. The method of money laundering is to change the source and nature of funds and legalize them. Even if the criminal is convicted in the future, it is difficult for the court to confiscate his property.
money laundering can be divided into three processes: the first is "deployment stage", the second is "layering stage" and the third is "integration stage".
For example, criminals deposit a sum of black money in banks or other financial institutions, which can also be used to buy property. This stage (referring to the deployment stage) is the first use of a sum of black money. The stratification stage is the stage when black money is transferred. For example, the money in the bank is used to buy a building, and then the building is sold. The money for selling houses looks different from the previous black money. But this method is relatively simple and probably won't succeed. Because there is a legal system of "tracking". In other words, if the judiciary can trace the final income of black money (just like the money from selling houses mentioned above), it can also confiscate the property. Therefore, the above example is not the best solution. Therefore, the stratification stage was later developed. (The following is an example:)
If a company A is established after purchasing foreign exchange in Beijing, Company A signs a purchase and sale contract with French company B and pays by letter of credit. Then, Company B sells the letter of credit to Company C in Spain. Company B remitted the money to South American countries. It can be seen that the stratification stage is to make the money laundering process as complicated as possible by transforming the original black money into different properties. And this is also to make it impossible for the judiciary to track its property in the future-even if the criminal is convicted, the judiciary still cannot confiscate the criminal's property. This is because the judiciary cannot prove that their property comes from the proceeds of crime. At present, most countries stipulate that when confiscating personal property, the person must be convicted first, and then the property must be proved to be the proceeds of crime.
after a complicated stratification stage, the nature of black money changes, and then it is put into legal operation. Business income is no longer "black money". This is the process of integration.
It is through these three stages that criminals launder money step by step. The layering stage is as complicated as possible. It can transfer property through international underground banks. It can also be used for investment, such as buying stocks, buying insurance, buying houses and so on. Of course, this is a very complicated process, not a single process.
Third, the scale of money laundering crimes
According to the statistics of the International Monetary Fund in 1996, the amount of money laundering involved is 59 billion to 15 billion US dollars each year, which is roughly equivalent to 2% to 5% of the global GDP in that year, which is about 5% of Spain's annual GDP. It can be seen that the scale of money laundering crime is very large. According to Chinese mainland's estimation in 23, the amount of money laundering involved is about $2 billion every year. It involves about 7 billion yuan in smuggling activities and about 3 billion yuan in corruption of civil servants. Hong Kong estimates that the amount of money laundering involved each year is about HK$ 93 million. But these figures can only be estimated, because it is difficult to prove that most of the black money has been washed away.
iv. international cooperation and international treaties against money laundering
international cooperation against money laundering began in 1988. In 1988, the United Nations adopted the United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. In 1989, seven western developed countries (G7) held a meeting in Paris to pay attention to problems related to money laundering. Subsequently, the Financial Action Task Force (FATF) was established. International cooperation in combating money laundering crimes began. After 1989, the "4 Recommendations" gradually took shape. These suggestions require relevant countries to make money laundering a crime in legislation, require relevant international and domestic financial institutions to conduct more review and internal supervision of customer information, and require countries to establish relevant financial intelligence units. Some countries and regions have also set up special anti-money laundering agencies.
another way to combat money laundering is the United nations convention against transnational organized crime, article 14 of which requires member States to enact laws to prevent and combat money laundering.
the third convention is the United nations convention against corruption, in October 23. The conventions on combating money laundering are basically the above three items.
v. Anti-money laundering laws in China
1. In 199, the National People's Congress Standing Committee (NPCSC)'s Decision on Drug Control contained provisions on cracking down on money laundering using the proceeds of drug crimes.
2. Article 191 of the Criminal Law of 1997 stipulated the crime of money laundering. This was not found in the Criminal Law in 1979. 3. In 21, the Criminal Law Amendment (III) amended the crime of money laundering. Mainly due to the "9-11" incident, terrorist activities were added as the predicate crime of money laundering.
4. In 23, the National People's Congress Standing Committee (NPCSC) ratified the United Nations Convention against Transnational Organized Crime.
5. In 23, the People's Bank of China issued "one regulation and two measures" against money laundering.
VI. The relationship between currency crime and other crimes-the theory of criminal interaction
I mainly talk about this content today. The year before last, I put forward this theory at Cambridge University in England. I call it the theory of criminal interaction.
The main content of the theory of criminal interaction is that all crimes are not isolated, but interact with each other.
Take organized criminal groups as an example. The gang often commits crimes through violent crimes, which leads to the problem of underworld crimes. In addition, the gang also committed organized crimes such as fraud, smuggling and human trafficking. These crimes will generate a lot of benefits. Then, criminals use these proceeds to launder money. These gains can also be legally invested, which will also produce some "legitimate gains". These gains, in turn, provide funds for criminal activities, making the wealth of organized criminal groups more abundant. In addition, in order to make the proceeds of these crimes easier to be "cleaned up", criminals can bribe relevant state officials, intermediaries, financial institutions and so on. This, in turn, produced "corruption proceeds". The proceeds of corruption have become another source of money laundering. In addition, criminals can also commit international financial crimes through international financial institutions and underground banks.
It can be seen that organized crime can lead to many other crimes. These crimes, in turn, make the power of criminal groups grow. When the economic strength of criminal groups reaches a certain level, they often collude with the government or government departments. This is "politics of power and money".
VII. Problems in China's Money Laundering Crime Law
(1) Problems of upstream crimes
Upstream crimes refer to crimes that generate criminal proceeds. And the proceeds of crime are used for money laundering. There are only four kinds of upstream crimes stipulated in Article 191 of China's Criminal Law: smuggling crime, organized crime of underworld nature, drug crime and terrorist organization crime. This article is flawed, it does not include some important upstream crimes, such as corruption and financial fraud. Therefore, this article is to combat money laundering crimes. However, according to the provisions of relevant international conventions, all serious crimes should be defined as the predicate crimes of money laundering.
(2) International cooperation in anti-money laundering
Anti-money laundering is not just a matter for one country. From the "layered stage" of money laundering just mentioned, it can be seen that criminals often transfer the proceeds of crime outside the jurisdiction of a country. If criminals transfer property from China to other countries, China has no jurisdiction. Therefore, the cooperation of many countries is needed. In fact, there are many international conventions, but the problem is that too much is said and too little is done.
therefore, we must start with criminal conviction and procedure. According to the law, we must be convicted before we can confiscate the criminal's property. However, conviction through criminal procedure requires a high standard of evidence. If we can't convict because of jurisdiction or evidence problems, then we can't confiscate their property. Therefore, some countries, such as English-speaking countries and Australia, have begun to confiscate the proceeds of suspected crimes through civil litigation. But this is only the beginning of the attempt. In addition, due to the differences of judicial systems in different countries, international cooperation is also difficult.
(3) Conflicts between corporate interests and public interests
Public interests here refer to combating crime and money laundering. But the main interests of an enterprise are profit and accountability to shareholders. However, enterprises are often reluctant to cooperate with the fight against money laundering crimes in accordance with relevant requirements. Because it will harm their interests. For example, the Forty Recommendations of the Financial Action Task Force on Money Laundering require relevant financial institutions to declare suspicious assets. But if banks do this, they will lose many customers. And these customers will choose banks in areas with less supervision.
Now, the whole world is facing the same * * * *, and financial institutions in some countries will accept customers' money, regardless of its source. This makes money laundering easier. Because as long as the money is transferred to these countries and then transferred out, the judiciary cannot track it. This also shows that the judicial department also has their difficulties. At present, there are many difficulties in international cooperation, and there is great room for international cooperation.
At present, in addition to the "one regulation and two measures" promulgated by the People's Bank of China in 23, the People's Bank of China also established the Anti-Money Laundering Bureau in 23. However, Chinese mainland does not have a special anti-money laundering law, while Hong Kong does. Therefore, China should consider improving relevant legislation.
In the following discussion, besides money laundering, we can also discuss anti-corruption issues, legal issues in Hong Kong and so on.
Chen Zhonglin: I just noticed that when Mr. Shen speaks, he often stays away from the microphone. I also noticed that the students in the last row listened carefully. I think this shows that today's lecture is very good. Teacher Shen said that his Mandarin was not good at first, but the students in the last row listened carefully, so his Mandarin was definitely better than mine.
In this evening's lecture, Mr. Shen just said that he studied common law, but the way he spoke, the things he put forward, and tonight he explained money laundering with the interaction theory of crime, which should be said to explain the process of money laundering movement very vividly and systematically.
I remember the year before last, when he was talking about corruption, he put forward a theory. Unlike common law judges, these judges usually tell us how the case will be handled. He put forward the "risk-return theory" from rich practice, and systematically expounded the causes, manifestations and prevention methods of corruption. Today, he uses the theory of criminal interaction to explain the various manifestations of money laundering. Of course, he explained the causes of money laundering from a broader background ── globalization. He is also very clear about a series of international conventions and laws in Chinese mainland, not to mention Hong Kong laws. Therefore, when we engage in law, we must have "the soul of the Anglo-American legal system and the shape of the continental legal system". In other words, we should not only have the spirit of paying attention to practice in Britain and America, but also have a systematic, expressive, systematic and acceptable theoretical framework in continental law system. In this respect, I think Mr. Shen is a good example. The following comments are made by reviewers first, and the following students ask questions. You can write notes or ask questions directly.
first of all, please welcome professor Li bangyou.
I listened to Mr. Shen's lecture on money laundering this evening. He spoke systematically, and I benefited a lot. First of all, I would like to thank Mr. Shen for his lecture, which made me learn a lot.
Of course, money laundering is a complicated problem. It is not only a problem of one country, nor is it only our country. In fact, it exists in many countries in the world. Perfecting legislation is a problem, but I think it is more important to crack down on crime in the judiciary.
It may be very difficult to solve this problem through international cooperation, mutual cooperation between countries and judicial assistance. Mr. Shen also talked about it just now. Now the international community is a stakeholder (constituting society), and every country has its own interests. In 23, we joined the United Nations Convention against Corruption. At that time, our people were very happy and thought that anti-money laundering now had legal weapons. People can get their money back even if they go to America. But now, two years later, the situation is still not optimistic. Extradition is not so easy because it involves mutual legal assistance. We have signed mutual legal assistance agreements with many countries, but there is little mutual legal assistance in criminal matters. Even if there is, it is only to provide evidence. It is also unrealistic to extradite suspects and retrieve property for free. Therefore, on the issue of anti-money laundering, I think the focus should be on punishing crimes. Including punishing corruption crimes, drug crimes and smuggling crimes. It also includes combating terrorist crimes. Of course, our country has dealt a big blow in these four aspects. However, the possibility of recovering money laundering is still small, and it is basically impossible to recover it.
Of course, less money is laundered through banks, and more money is laundered through underground banks, which is a way used more in our country. In our country, this is a very complicated problem. It may take generations to solve it. Maybe I'm pessimistic. Because the international judicial system is very different, and there are also problems of stakeholders in the world. Your money is in my pocket, and now you want to take it out of my pocket. It's hard, and it's hard for me to accept.
this is my point of view. In my opinion, at present, cracking down on upstream crimes is the best way to fight money laundering. I will ask Mr. Shen for advice on this issue (whether this view is correct or not).
because this is an unsolvable problem, a lot of our money has been washed to America. We saw on the internet that many national staff washed their money to the United States, bought villas in the United States, and could support a family by rent. In Japan, it is easy for national staff to spend two or three million dollars overnight. The money in their hands is no longer money, but a total figure. Therefore, we must strengthen our efforts to crack down on crime now. Of course, for anti-money laundering, we should also work hard to push the international community to strengthen assistance, so as to recover foreign money.
one more question. One of Mr. Shen's ideas, of course, is also a heated discussion in the theoretical and judicial circles in China, that is, to use criminal law less to recover the money, and to use civil methods to recover the money. I think this is a very good way to recover because our country has signed civil judicial assistance with many countries.