洗钱:国家和国际法律制度

Ekta Jha
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引用次数: 0

摘要

国际反洗钱运动导致了各国实体刑法和执法机制同质化的压力,并在这样做的过程中帮助重塑了不同民族国家之间存在的关系。主权对犯罪分子来说没有任何作用,因为他们利用边界来为自己牟利,他们非常清楚,在涉及多个其他国家的情况下,追踪资金流动的难度会更大。洗钱者不会根据非法资金可能获得的回报来选择司法管辖区,而是选择监管较少的司法管辖区。尽管各国有不同的刑法,但重要的是要找到一个共同的洗钱定义。由于各国之间目前存在的法律结构的差异,洗钱者通过的漏洞继续存在。但是,有关洗钱的法律制度是在没有透明和有原则的公开分析的情况下发展起来的,而这种分析对于实体刑法的规定是必不可少的。研究表明,法律措施在世界范围内没有协调一致。人们常常想当然地认为,如果洗钱变得更加困难,上游犯罪就会大大减少。这绝不是不言而喻的。即使对洗钱犯罪有完善的执法,从毒品中赚取的利润也足以让毒贩有足够的动机把钱以现金形式持有,直到他们准备好使用。尽管印度有完善的反洗钱立法机制,但仍需要不断修订反洗钱法,以满足动态社会的需要,并确保其与国际标准保持一致。2002年《防止洗钱法》自制定以来已修订了10多次。这本身就说明,需要对法律进行分析,以解决现有的漏洞,并跟踪资金流向,以使其更有效。因此,有必要审查各国际机构确定的基本法律要求,并审查各国际组织为打击洗钱和印度洗钱法的细微差别而采取的立法和体制措施。
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Money Laundering: National and International Legal Regime
The international drive against money laundering has led to pressure for homogenization of substantive criminal law and enforcement mechanisms as among countries, and in doing so it helped recast relationship that existed between various nation-states. Sovereignty has no role for criminals, as they use borders to their advantage, knowing fully well that following the money trail is harder when several other countries are involved. The money launderers do not elect jurisdiction based on the return the illicit funds could fetch, but rather choose less regulated jurisdictions. Despite the fact that various countries have different criminal codes, it is important to find a common definition of money laundering. Loopholes through which money launderers escape continue to persist as a result of the discrepancies in the present legal structures that exist between countries. The legal regime surrounding money-laundering, however, has developed without the sort of transparent and principled public analysis, which would have been essential for the provisions of substantive criminal law. Research reveals that legal measures are not harmonized worldwide. It is frequently taken for granted that if laundering were to be more difficult, there would be substantially fewer predicate offenses. This is by no means self-evident. Even if there were to be perfect enforcement of laundering offences, the profits to be made from drugs are such that there would still be ample incentives for dealers to simply hold the money in cash until they are ready to use it. Despite existence of a sound Anti Money-Laundering legislative mechanism in India, there is constant need to amend the Anti Money Laundering laws to meet the needs of the dynamic society and to ensure that it is at par with the international standards. The Prevention of Money-Laundering Act, 2002, since its inception, has been amended over 10 times. This itself portrays that the laws needs to analysed in order to address the existing loopholes and to track the money trail in order to make it more effective. Thus, there is a need to review the basic legal requirements identified by the various International Institutions and to examine the legislative and institutional measures taken 10 by various International Organisations to combat money-laundering and nuances of money-laundering law in India.
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