Economic Analysis Of Financial Crim

The economic method is introduced to expound the criminalization boundary of the financial malpractice and the efficiency issues of financial punishment.The premise of the economic analysis on financial crimes is to define the concept of financial crimes and categorize the financial crime behaviors.In the modern society,Finance is the resource integrating natural and social resources,which are provided with two attributes: the financing integrity and the property attribute of financial resources.Of the two attributes above,financing integrity is the essential attribute of the financial resources,and financial crimes are ―actions destructing the financing integrity of the financial resources and requiring to be punished by the criminal law‖.As the criminal object of crime,the financial integrity of financial resources is interlinked with legal interests of order,while the difference lies in that financing integrity of financial resources is not fictive but is directly extracted from the underlying property of finance.Financing means a transaction,while finance is transaction-oriented.Besides,transaction and management rules are included in the market rules,financial resources need the support of these two rules.The protection path of transaction rules for financial resources is ―civil and commercial law specifications→regulations of the administrative law→ norms of the criminal law‖,while the protection path of management rules is ―regulations of the administrative law→ the norm of criminal law‖.Difference in breach of ―initial norms‖ provides standards for the classification of financial crimes.In the sense of criminal jurisprudence(classification standards of criminal objects),financial crimes are divided into crimes of violating the order of financial transactions and management.According to different types of behaviors violating financial management order,financial crimes have also been divided into three categories: crimes of financial forgery and alteration,non-forgery and financial malfeasance.Crimes in economics are interpreted by tort,and one of the tort ways is illustrated in the crime of breaking the order of financial transactions—the purely-forced transfer of financial resources.Market-oriented economy is the only way to improve human development and people’s well-beings.However,the purely-forced transfer of financial resources is avoidance of the explicit financial transaction market,resulting in inefficiencies in allocation of financial resources.Purely-forced transfer of financial resources and inefficiencies are basis for criminalization of financial malfeasance.―Compulsion‖ is quality of financial crimes,and ―purity‖ is quantity of financial crimes,combination of which is the element to judge the incrimination boundary of the illegal behaviors.―Compulsion‖ is measured by the degree of voluntariness in the financial market,which is divided into four categories of voluntariness,non-voluntariness of civil and commercial and speculation types and complete non-voluntariness in accordance with whether the financial transaction demands are realized and in combination with the category of the financial resources.However,the non-voluntariness degree regulated by the criminal law can only be the non-voluntariness of speculation type and complete non-voluntariness(More importance has been attached to the elements of the criminals in the identification of financial crimes in the trad itional criminal law,while non-voluntariness is always been taken into consideration from the perspective of the criminal victims).The non-voluntariness of speculation type can only be combined with the derogated ―pure value‖ of the ownership of the financial resources to achieve the convicting standard,that is,the consequential offence in the criminal law.Complete non-voluntariness may be combined with the derogated ―pure value‖ of ownership and use right of financial resources to achieve the criminalization standard,that is,behavioral offence(circumstance offence),potential damage and consequential offenses,etc in the criminal crimes.Therefore,it is not necessary to use criminal law intervene with the crimes of violating the order of the financial transactions currently,transacting of financial resources(no n-contraband)under voluntary transactions,derogated behaviors of use right of financial resources resulting from non-voluntariness of civil and commercial and speculation types.However,civil and commercial cases and administrative laws can be used to make interventions.The crime of violating the order of financial management is an early intervention of purely-forced transfer of financial resources,essence of which is potential damage and behavioral offences violating the financial management order.Criminalization of the crime is based on the increase of the social cost incurred to suppress the criminal behavior as well as the expected penalty cost of such behavior,which cannot be achieved by civil,commercial and administrative regulations.The possibility of the social cost incurred by the illegal behavior and the amount of the social cost induced shall be included in the judgment criteria of the crime of violating the order of financial management.Whether to result in complete non-voluntariness of the opposite party in the future transactions is the core indicator of the social cost induced by the illegal behaviors.(1)Referent objects of criminal behaviors of forgery and alteration type are monetary,financial securities,state negotiable securities,stocks,companies,enterprise bonds and other financial resources of the first layer.Moreover,such subject of crime doesn’t have the real transaction demand,which meets the complete non-voluntariness standard.(2)The establishment of financial institutions and issuance of stocks,companies and corporate bonds(supported by transactions)without authorization in the crime of non-forgery or alteration have violated financial resources of the second layer of financial and other institutions under state monopolized management,have relatively low possibility of inducing the social cost,and don’t reach the complete non-voluntariness standard.The crime of evasion doesn’t result in purely-forced transfer of financial resources all the time.The three types of crimes above shall not be criminalized.(3)Requirement of ―deminimis non curat lex‖: Even if the conditions of the crime of complete non-voluntariness forgery and alteration are met,a quantitative constraint is also required,that is,the second criterion for criminalizing the crime violating the order of the financial management—the quantity of the social cost induced,which is fictive,and has not occurred in the actual majority.(4)Owing to not to be the subject of transaction,the crime of financial malfeasance belongs to the crime of violating the order of financial management.However,malfeasance occurs in the transaction link,resulting in the purely-forced transfer of financial resources.From the perspective of economics,it is crime of violating the order of financial transaction,criminalization boundary of which shall distinguish the non-voluntariness of speculation type and complete non-voluntariness in accordance with the judgment standard of the crime of violating financial transactions.However,there is no distinction between them in the existing legislation,leading to doubts of the public about the low allocation of legal punishment on the crimes such as illegal loaning.The current legal punishment on the allocation of financial malfeasance can only regulate the financial malfeasance under the non-voluntariness of speculation type.As for the complete non-voluntary malfeasance,it is needs to be transferred to the crimes such as load fraud and duty encroachment.Punishment is the embodiment of justice and the main price to measure the crime,and the feature of resource of punishment determines the allocation of punishment shall follow the principle of maximizing the benefits.In economics,unprofitable punishment is a kind of passion,and penal efficiency is the standard of penal justice.In the static state,penal marginal deterrence is the judgment criterion of the maximum punishment benefit,that is,the cost of investing a unit of penalty amount equals to the benefit of reducing crimes‖(The optimal deterrence of punishment).In dynamic,the equal cost and deterrent curve of punishment show that the certainty of punishment is not equivalent to the quantity of the punishment.The realization path of the optimal deterrence is that,―punishment shall pay more attention to the certainty of punishment,but cannot ignore the severity(quantity).‖ Within the financial punishment system,fine punishment is as effective as the punishment against liberty,the former takes currency as the unit of measurement while the latter is measured in time.Meanwhile,fine punishment is a means of generating income,which can supplement the judicial cost expenditure,and increase the probab ility of accountability and conviction.In the equilibrium state,the optimal punishment probability determined by the marginal cost and benefit indicates that the optimal punishment probability of fine punishment is the highest,followed by punishment against qualifications.Besides,the optimal punishment probability of punishment of deprivation of freedom is the minimum.Therefore,fine punishment shall be advocated in the punishment system of financial crimes and made technically possible to substitute the penalty of deprivation of freedom.Penalty of deprivation of freedom shall be lightened and reprieved.However,punishment against qualifications for job forbidden should not be overlooked.However,avocation of fine punishment theoretically may encounter the problem of asset constraint of criminals in the actual life.Meanwhile,expenditure of judicial costs is also restricted by the risk preference types of diverse crime behaviors in reality,and the two conditions mentioned above give rise to changes of marginal income and costs of different penal measures and restrict the effectiveness of the penalty.Seen from the types of risk preference and measured by the size of risk pursued,the severity of the crimes arranged from the maximum to the minimum is as follows: the crime of violating the order of financial transactions,the crime of financial forgery and alteration,and the crime of financial malfeasance.The former two of them belong to the crime of violating the order of financial transactions,are the actions of non-forgery and alteration type in the crime of violating the order of financial transactions.Therefore,there is no need to intervene with them with the criminal law.Seen from asset constraint and measured by the degree to which the criminal is constrained by property,the severity of the crimes from the maximum is arranged in this order: the crime of financial forgery and alteration,followed by the crime of violating the order of financial transactions following the crime of financial malfeasance.Under the dual influence of risk preference type and asset constraint,the probability of the optimal penalty under the equilibrium condition is constrained by changes of marginal income and costs of different types of crimes.Therefore,the optimal penalty allocation measures for the crimes of violating the order of financial transaction shall be the priority of the fine penalty and the supplement of punishment of deprivation of freedom,taking the optimal penalty probability value as the measurement criteria of effectiveness of penalty(required by the realization of marginal deterrence).In economics,it is impossible to find the optimal penal allocation measures for the crime of forgery and alteration,and the penalty of deprivation of freedom becomes a helpless choice.The optimal penal allocation measure for financial malfeasance is the synchronization of fine penalty and punishment against qualifications.