On The Legislative Incrimination Of Financial Offenses

With our country market economy system's establishment and continuous improvement, the role that the finance plays in national socio-economic development and people's life is more and more prominent. Finance activities have become the center of the entire economic activities. The fast development of the financial activities needs a stable financial order. To maintain the stability of the financial order, legal maintenance and adjustment is necessary. As a safeguard, criminal law should play an important role. Throughout the legislative process of our financial crime, the Criminal Code of 1979 only has the crime of counterfeiting currency, counterfeit securities crimes and the crime of trafficking in counterfeit currency requirements. On the basis of inheriting the formerly stipulation of the legislation,1997 criminal law has carried on the expansion of the financial crimes to conviction. And in the Penal Code, sections IV and V of Chapterâ…¢, it has been systematic stipulated. From 1997 until now, it has released seven Criminal Law Amendments and a single. Among seven amendments to the Criminal Law, only Amendment 2 and Amendment 4 did not revise the financial crime. Among other five amendments,22 clauses are in involved in financial crime revision, accounting for nearly half of.57 provisions in total.The original intention of financial crime to conviction is good, but from the effect point of view, it is not to the expected results. Financial crimes and criminal acts are still emerging. At the same time, frequent changes of the Penal Code also caused serious damage to the possibility of national forecast. Theorists have also emerged the critique that the penalty is involved in the financial field too excessively. Regarding the critical response, some scholars advocate changing the current legislative pattern of financial crime, transplanting "dual track" legislative model of Germany and Japan, falling to a single criminal law and subsidiary criminal law, and providing the corresponding charges and the legal punishment. This view is certainly desirable, but it is still merely natural level, the idea should be. In our current legislation model, from reality to be addressed should be thinking of a good policy. Based on this, the establishment of a scientific theory of financial offenses conviction becomes the task of this article.With various literatures at the author's disposal, the present paper follows the conventional pattern that a doctorial dissertation should bring up the question first, and then finds a way to solve it, and finally verify the solution offered by the author. Centering on the theoretic basis of financial crimes, the foundation of incrimination and concrete criteria, the author deepens his research progressively.Firstly, by reviewing people involved in the Sun Dawu's case, the public opinion, some scholar's opposition of related articles in the criminal law, the present paper cuts into the present law-making situation, points out the defects existed and states clearly the significance of the research. Then, the paper goes on to designate the distinctiveness between the incrimination of natural crimes and statutory offense so as to state clearly the peculiarity of the incrimination of financial crimes and build up the criminal law basis for this study.Moreover, with the criminal law of constituting crimes in mind, the thesis further studies the proofs of constituting the crime of financial illegal activities. In addition, the author establishes the criteria of the incrimination of illegal financial activities based on the proofs of constituting crimes. Finally, the thesis examines the theory suggested by the author. Through employing logic analysis, comparative analytic approach and demonstration study, the present thesis conducts a systematic research of the theory of constituting crimes, expecting to push the relevant study to a new stage. The structure of this paper is as follows:Chapter 1:Introduction. This chapter introduces the issues raised and research profile, and domestic and international literature review. The issues that exist in financial crime legislation over the issue of stand sin; the same time, in a large number of the paper will draw on the research results, based on the research at home and abroad a survey of existing studies that neglect of financial violations convicted of the problem; and the main content of paper, the basic ideas, research methods are described.Chapter 2:Financial Illegal basis for the crime of criminal law. This chapter analyzes the nature guilty and convicted of committing a statutory distinction between convicted of financial offenses laid the basis of criminal law. First of all, naturally committed abroad briefly the difference between theory and statutory offense, and a brief analysis was carried out, revealing the nature of Japan committed and the statutory distinction between committing to explain the theory is founded on theory, is to illustrate the possibility of administrative criminal law need not fully applicable to the problems of ordinary criminal law General; Germany Natural Crime and Legal Crime is the difference between the theory of the executive from the legislative note the distinction between criminal and criminal wrongfulness. Therefore, the theory can not be transplanted directly to natural and legal offenders committing real difference is that the differences in legislation and the main differences is convicted. On this basis leads to the Extraordinary Official guilty of the concept and conduct a comparative analysis and argument, that the statutory nature committed with the difference between the crime committed into the extraordinary nature of the statutory offense. Financial crime is committed because the scope of the statutory and therefore guilty of the extraordinary legal theory convicted of financial offenses have important guiding significance, at the same time, with knowledge of finance, from the money market, credit market and the association between that financial crime possible link to its extraordinary nature of further evaluation.Chapter 3:According to the Extraordinary Official guilty of theory, the system described the basis for conviction of financial violations. First, in the conviction based on the domain of choice, that conviction based on the fact that the scope of value, based on those convicted of different subjects have different evaluation, a reasonable interpretation of the domain concept can be convicted based on diversity. Thus can be convicted based on two aspects:First, Criminology conviction based on the domain, the second is the criminal law to convict based on the domain. Criminology conviction based on the domain is mainly embodied in the elaboration of social deviance, and criminal law to convict based on the domain is mainly embodied in the understanding of the nature of the crime. Secondly, were determined to convict based on that conviction should be based on harm to society and should be considered both in terms of punishment, criminal law is not a conviction based on sex category. As on the financial basis for the conviction offense interpretation, pointed out that levels of social harm, Youyujinrong behavior complexity, people easily captured by the related financial organizations, departments interests of the whole, appearing to incriminate the continued view; According to the Extraordinary Official guilty of the theory of financial offenses should have the conviction shall be subject to punitive reasons, to limit shrinkage of determining.Chapter 4:According to the basis for conviction, presented the financial violations of specific standards for conviction. This chapter consists of three parts. The first part, the basis for the current existence of a mixture of standards and status, and Analysis was carried out, that can not be confused with the standard and applied basis. The second part, first, the current standard of the doctrine of conviction and a brief summary, points out the problems:one is the theory relies on the proposed standard is not obvious; the other hand, many proposed standards did not start the system argument. Accordingly, under the financial basis for the conviction offense, Cut from the necessity and feasibility of proposed his conviction of five specific criteria:the need for protection, the possibility of damage to produce, act to deal with nature of the punishment efficiency to prove the possibility, and its meaning is explained. The third part, on the proposed standards were described, that its reasonable.Chapter 5:Employing the five criteria that helps constitute financial crimes, the author analyzes the defects in defining various financial illegal activities. With regard to defrauding fund and altering financial bills, the legislation should not transgress the necessity of protection of constituting financial crimes. In terms of financial crimes related to securities and futures, the efficiency of punishment and possibility of proving of constituting crimes are not effective enough. Speaking of money laundering, the content of this crime contradicts the maintainability.Chapter 6:Conclusion. As the concluding part of this paper, this chapter summarizes the whole dissertation, points out the innovations and the defects and the direction of the follow-up study.The innovation of this paper can be summarized as follows:The first innovation of this paper is its research perspective. After a literature review of the relevant research home and abroad, the author notices that, the majority of scholars did not make a clear distinction of natural crimes and statutory offense, as a result, the research on featured statutory offenses is a void. In accordance with the present law-making situation, this paper suggests that study on constituting the crime of financial illegal activities should be approached from the angle of legislation.Second, the theoretical basis of this research is new. In order to find the criminal law basis of constituting the financial crimes and differentiate it from natural crimes, the present thesis invents the theory of over constancy of statutory offenses. According to this thesis, over constancy of the statutory offenses is based on the constancy of natural crimes. The constancy of natural crimes refers to the general knowledge, logical thinking and natural explanation. It is easy to constitute natural crimes just by referring to the citizen's common sense. To the statutory offenses, however, we need to have extraordinary knowledge to constitute them. In other words, the incrimination of statutory offenses is not based on people's common sense but extraordinary reasoning. Therefore, the paper clarifies its argumentation through two stratification planes. First, when constituting the statutory offenses, we need to take the higher-level of civilian ethics into consideration, which undoubtedly transcends people's baseline of morality. Second, the constituting of statutory offenses reflects the civilian's moral appeals, and more importantly, it exemplifies the wish that the pursuit of political society should exceed the citizens'common desire. The over constancy of statutory offenses adds a new dimension to the constituting of financial illegal activities from the angle of criminal laws. Consequently, the incrimination of financial violation should not copy the practice of constituting natural crimes.Third, the practice method of argumentation is without precedent. The old study tends to confuse the proofs of incrimination and the criteria of incrimination; the present thesis points out that we should distinguish the former from the latter. The proof of incrimination is to regard an action as the basis of criminal punishment, but this is not sufficient and lacking in the operability. The appearance of the criteria of incrimination, however, is helpful to make the best of the proofs of constituting crimes, and makes the macroscopic proofs concrete. By incorporating the research result of the forerunners into this paper, the author suggests that the criteria of incrimination should include two aspects, the necessity and operability. Taking the characteristic of financial illegal activities in account, the author comes up with five concrete criteria to constitute crimes:the necessity of protection, the possibility of damage, the maintainability of behaviors, the efficiency of punishment and the probability of testifying. Besides, the systematic argumentation is also included in this thesis. It is necessary to state clearly that former researchers also had the similar criteria, but this is the first time to dig up their connotations, make careful reasoning and consider them as the proofs of constituting financial crimes.