| Money laundering and anti money laundering are two aspects of one thing,which have an important impact on financial security,national security and global security.For money laundering,China's criminal law regulation with the core of the 191 PC,but for the anti money laundering in China at present,only the administrative laws and regulations to be adjusted,there is no criminal evaluation on financial institutions' malfeasance of anti money laundering,so on the one hand the financial institutions are under the impact of money laundering crime,on the other hand,but also bear the negative effects of dereliction duty of anti money laundering,as a result which makes financial institutions in trouble under the money laundering and anti money laundering reverse hedge.So this paper takes the anti money laundering by financial institutions as the research object,reveal the financial institutions' anti money laundering difficulties and reasons from a criminal point of view,combined with the overseas related criminal legislative and judicial experience,solving the criminal difficulties.On the first level,take the financial institutions' anti money laundering as a typical representative,revealing the criminal dilemma.Financial institutions' anti money laundering is the subclass of the anti money laundering,as a kind of system,policy and country governance obligations,which has been the major issues of common concern between international community and China,because of its problems and difficulties are diversified,which not only relates to the money laundering crime and the control of the upstream crimes,but also relates to international criminal judicial assistance and punishment of overseas Chinese funded financial institutions and other aspects of prevention.The implementation of the above criminal judicial functions depends on the existence of intermediaries such as financial institutions.Anti money laundering exists in many areas,but the function of financial institutions' anti money laundering is the strongest and most representative.This article covered financial institutions' anti money laundering criminal difficulties,mainly in the following three aspects:first,the crime of money laundering is limited and its influence;second,the improper convergence of executive law and criminal law and its influence;third,localization of international legislation is not sufficient and its influence.The reasons why this paper select the above three criminal dilemmas as the focus are as following:Firstly,for the control of upstream crime,financial institutions' anti money laundering is the first fortification for money laundering;for foreign criminal judicial assistance,financial institutions' anti money laundering is the main channel for information sharing;large penalties for anti money laundering in overseas financial institutions,financial institutions is the main responsibility and the main prevention.Secondly,the above three aspects of criminal dilemma reflect the shortcomings of the crime of money laundering,the crime system of money laundering,the location of International law of convention against money laundering and the convergence of administrative legislation and criminal law.It also reflects the important position and role of financial institutions' anti money laundering in the judicial framework of anti money laundering criminal legislation.Therefore,this paper chooses financial institutions ' anti-money laundering as the research perspective,in order to reveal the above criminal problems in operation,and improve the systematic construction of anti money laundering criminal legislation.The second level:combing law,judging the causes of the criminal difficulties.Dialysis criminal dilemma of anti money laundering,to seek solutions to the dilemma,which should be based on domestic financial institutions anti money laundering legislation but also learning the trend of international legislation and its impact on China.Firstly,the domestic level,since China's accession to the FATF,the anti money laundering executive legislation is complex,but the criminal legislation only reflected in the crime of money laundering as 191PC.There no criminal legislation on dereliction of duty of financial institutions anti money laundering,reflected in the judicial field presenting the financial institutions anti money laundering frequent dereliction of duty,which influences on its function and lead oversea punishment.Secondly,the international level:the United Nations' "3 Convention" and FATF's "anti money laundering 40+9 recommendations" are very remarkable for the financial institutions' compliance,but some of them are just about public advice,do not have the force of law,resulting in some countries including China did not be synchronized with the international legislation in all aspects,which results in difficulties in the field of sharing information and international cooperation.Analyzing the reasons of the criminal difficulties based on Pareto optimality perspective,focuses on the problems in the field of existing legislative and judicial cost expenditure and its influence on the criminal prevention and control mechanism of financial institutions' anti money laundering.The third level:learn from experience and seek ways to solve difficulties.Although there are some money laundering legislation,and amendments to the criminal law have been introduced,but which is still difficult to calm the imbalance between the money laundering crime data surge and the incompetent function of financial institutions' anti money laundering.What's more the traditional measures such as increasing upstream crimes and the subject of money laundering crime still appear weak.This article holds that solving the present criminal dilemma effectively should be on the basis of the traditional solution whit the criminal judicial experience of foreign financial institutions' anti money laundering.So,this paper analyzes the data of criminal justice and legislation of financial institutions' anti money laundering in the United States,Canada,Britain and other European countries and China's Hong Kong,Macao and Taiwan regions,in order to learn the crime legislation pattern,anti money laundering organization,supervision channels,international cooperation and other aspects of experience,which will help solve the dilemma in the field of the criminal in China.On this basis,this paper proposes that the criminal system of financial institutions' anti money laundering should be constructed:firstly,the construction of the crime of money laundering crime.We need to adjust constitution of crime and adjust the scope of sentencing,in order to control the occurrence of money laundering and create a good criminal guarantee for the operation of financial institutions to against money laundering.Secondly,the systematic construction of the crime of money laundering.1.Create a small crime of money laundering system,combined with the characteristics of anti money laundering of financial institutions;strengthen the convergence between the pre-administrative legislation and criminal law,whit the blank counts add necessary new money laundering crime.2.Establishing big crime of money laundering system,analysis the relationship between the criminal law 191PC,312PC,349PC,re-adjust the above three terms reasonable and applicable;.Thirdly,the construction of anti money laundering of financial institution s criminal judicial system.Financial institutions' anti money laundering intelligence and supervision is the core of the establishment of the anti money laundering criminal judicial system.Only by establishing a classification reporting system of anti money laundering intelligence,strengthening the anti money laundering information sharing and promoting integrated supervision,can we enhance the quality and effectiveness of financial institution's anti money laundering. |
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