On The Protection For Financial Security By The Criminal Law

As a global problem, the financial security has caused highly attention. Many countries have launched theory exploration and measure research about the financial security. This article stands in the criminal law standpoint, discusses Chinese financial security protection question from some angles. The article divides into five chapters, approximately 162,000 words.Chapterâ… introduces two major problems. On the one hand, discusses the historical background of the financial security problem, proposes that financial security is one kind of condition and the ability, which a country can maintain the financial system and the financial movement steady, can effectively resist and reduce risks coming from the domestic and foreign areas, can maximum protect the local economic, thus obtains the economical, political and the military security. Along the new national security strategy the financial security stands the central position, without the security of finance, the economy and the entire national safety would be challenged, its influence is the overall importance and systematic. Through observing Chinese finance situation, we can find our country's financial security problem is unoptimistic. On the other hand, describes legal framework and legislation achievement that protects the financial security of China, sets forth the positive roles and limitations of financial legal system.Chapterâ…¡mainly thinks about some basic questions about the financial security and the criminal law. The first is the relation of financial security and the legal interest of criminal law. The author proposes that the financial security is a kind of surpasses individual law interest, the traditional criminal law takes the financial order as a law interest is not wise. The financial security represents the steady condition of country's financial system and movement, protects country's economic, has broader protection scope, evenly behalves the benefit, accords with the time and the legal development request. The second is the relation of financial security and the function of the criminal law. The reason that the criminal law can protect the financial security lies in the protection function of legal interest, the standard function and protection function of human rights. The third is the discussion about the value conflict of criminal law while protecting finance security. On the utilitarianism standpoint, the criminal law needs to protect the finance security. Through observing the anti-terrorism in financial activities, we can find it is difficult to balance the national interest and the individual freedom in the financial security area. Fourth, the author compares with"crimes of endangering financial security"and"the financial crime". Looking from the narrow sense, The crimes of endangering financial security include"Crimes of Undermining the Order of Financial Management"(Criminal Law of the People's Republic of China,Chapter III. Section 4.) and"Crimes of Financial Fraud"(Criminal Law of the People's Republic of China,Chapter III. Section 5.) and some articles in the Chapter III of Criminal Law Code, such as smuggling counterfeit currency crime, smuggling precious metals crime, providing false financial and accounting statements crime, fraud issuing shares or bonds crime. They have the same scope with the narrow academic comprehension of financial crime.The concept of the"crimes of endangering financial security"somewhat is an idea term, may promote ours research angle from the traditional financial crime concept to national security area, enhances the research , satisfies the reality needs.Chapterâ…¢firstly reviews the criminal policy's basic trend and main content from 1949 in China. Its brief conclusion was: expanded crime circle, ruled and regulated strictly, punished severely, warned the other members of the society. Then, discusses the factor should be considered in the criminal policy of Chinese financial security, such as Chinese economic and financial environment, financial crimes situation in China and other countries, international organization's influence, legal culture influence, world's current of criminal policy, and so on. Then, proposes the content of the criminal policy of financial security,that is, we should expand the crime circle, establish a strict criminal law net, imply relatively lighter penalty. In the judicial process, we should stick to some point: firstly, enhance crime investigating rate and efficiency, use the criminal coercive measures very carefully. Secondly, we should be prudent, decisive and flexible in the trial stage, limit death penalty as far as possible, imply the life imprisonment carefully, imply fixed-term imprisonment reasonable, prominent fine penalty, increase the type of qualification penalty. Thirdly, in the execution of punishments, we should carry out the socialization style, make punishing crime and protecting finance and economy as a whole. In addition, the author also takes some suggestions to the international criminal judicial cooperation.Chapterâ…£separately introduces the criminal legislation of financial security in the Continental Legal System and the Anglo-American Legal System, and compares them with our country's legislation. Then, the author proposes the basic idea of the criminal legislation of financial security, that is, the legislation should base on the new criminal law culture especially on the credit view and the security view, should surmount the tradition and has the international vision, should coordinate with another law. The financial security criminal legislation should persist the scientific principle, the prompt principle, the modest and restrained principle. So the author proposes basic conception of the financial security criminal legislation. We should enhance merit and avoid weaknesses in the legislation model, display respective merits of criminal law code, specific criminal law and attached criminal law. Corresponding, we may try to set up"crimes of endangering financial security"as an independent chapter in the criminal law code, arranges the name of crime and the facts about the crime under this chapter. On the establishment of the penalties, we should try to transfer the serious punishment orientation to the medium and the light punishment, increase qualifications penalty type and suitably revises the property penalty, and so on.Chapterâ…¤firstly proves the relation between the criminal legislation and the criminal justice, proposes that criminal justice can make up the value of the criminal legislation. Then, the author analyzes some questions about detection, sentence and penalty execution of crimes of endangering financial security, discusses some aspects about criminal amount, the criminal number shape, joint crime. This chapter also discusses the judicial assistance of the crimes of endangering financial security, studies the questions about extradition and the belongings involved in the cases, research the inter-regional judicial assistance and jurisdiction coordination between mainland of China, Hong Kong and Macao.