On the financial criminal law science research object and scope of
Created:
/Author:
Aaron Lewis
Abstract:Financial criminal lawScience is a new interdisciplinary subject1.The author thinks, the financial criminal law is a product of modern financial market, it refers to the financial law and criminal law in the aspects of research object, research scope and research methods have some overlap between the creation and development of science.This paper discusses the concepts of financial criminal law, emergence and development of financial criminal law, and focuses on the object of financial research and the scope of criminal law.The object of financial criminal law is a financial crime; two is the criminal responsibility of financial crime; three is the financial crime penalty.The study analyzed the problems existed in the financial criminal law and direction.
Keywords: financial criminal lawScience, the object of studyThe scope
One, the concept of financial criminal law
We say that the financial criminal law, refers to the China financial criminal law.Is the Chinese criminal law, special criminal legislation, criminal legislation in affiliated financial criminal law, occur in the financial transaction, financial supervision, financial regulation and control in the process of financial crime, legal norm sum relevant criminal responsibility and punishment, it is a product of modern financial market.The higher education press21The law innovation series of financial law textbook series, Northwest University of Politics and Law professor
strong financial criminal law separately in this chapter.Chinese financier and jurists and judicial practitioners have recognized its particularity and called it the "financial criminal law".Although not the provisions of financial criminal law concepts of criminal law, but the financial criminal law formulation has scattered in academic writings, at home and abroad gradually accepted by the people.
Jurisprudence on the definition of financial criminal law have different interpretations, mainly has five points: one is the "financial criminal law is general laws on financial crime and punishment."2Friendly negotiationTwo is "the financial criminal law refers to the financial and economic operation of the camp as a crime and punishment regulations."3Three is "the financial criminal law is based on the financial theory of criminal law and the financial criminal judicial practice, the law of financial crime and its punishment, from the aspects of financial criminal legislation, criminal justice and social control, is a theoretical summary and the experience."4Four is the "refers to the provisions in the banking law, securities law, punishment against currency regulations, management of foreign exchange regulations, law of bills and regulations and economic law and financial economics."5The first view and the third view of the main problems is to ignore the financial criminal law "criminal responsibility" in the specification; the main problems of financial crime second view confined to camp for the type, also can be represented as non "camp" for "possession" or "not as" the crime.Limitation of fourth view only to subsidiary financial criminal law as the main mode of legislation, the content is narrow.The fifth view is the financial criminal law is stipulated in penal code, separate criminal legislation, criminal legislation of affiliated financial crime, legal norm sum relevant criminal responsibility and punishment.Therefore, I am inclined to the fifth view.
Financial criminal law formulation is scientific?This is an unavoidable problem, need careful analysis and research, make the correct answer.I think there are three points set up financial criminal law formulation reasons: one is the provisions China current criminal law and criminal law amendment concerning financial crime terms, provides not only the financial criminal standard, also includes the specification of criminal responsibility and penalty standard financial financial.Usually scholars only uses the concept of "financial crime", means the criminal liability and criminal law, is not scientific and complete.China's financial criminal legislation, from20Century90In the mid-1980s to the present, has been formed in the criminal code of financial criminal legislation, single financial criminal legislation, criminal legislation system of subsidiary financial.The formation of financial criminal legislation system laid the foundation for the generation of financial criminal law.From the criminal law science theory, financial criminal law formulation is more scientific, in line with the world trend of law.Two is the international also attaches great importance to financial criminal law and legislation.The United Nations from20Century80Time up to now, has introduced a number of international financial law.Such as1988The UN drug conventions years "",1999United Nations Convention against years of "Convention to provide funding to terrorism",2003Years of "United Nations Anti-corruption Convention" etc..1989Years7Month, France, Britain, America, Japan, Germany, Italy, the Paris issued a joint declaration, set up a special working group (Financial ActionFATF), devoted to the investigation of money laundering cases.The International Criminal Police Organization from1985Years begin to crack down on money laundering crime.1991Years6Month10Japan, the European community meeting adopted the "on the prevention of the use of the financial system for money laundering directive".Therefore, the financial criminal law is an international subject.Three is the content of the cross of financial criminal law.Financial criminal law can be said is a part of criminal law, but also can be said to be a part of the financial law.But the criminal law and financial law, is an important law expressly stipulated by the state.Therefore, this discipline focuses more on studying financial crime and its punishment from the criminal law point of view.This is the law of development to a certain stage of the product.
The author thinks, the financial criminal law has the following characteristics:
First, professional.Financial criminal law refers to the criminal law provisions relating to financial activities, financial and economic benefits.Refers to all the financial activities and the relevant provisions of criminal law provisions of the criminal law penalty terms, including some property criminal law and accessory criminal law all financial regulation, such as the provisions of the criminal law on the dispersion law of the people's Bank, commercial bank law, insurance law.But on the whole, it is against the financial crime and special penal law, namely financial matters and the formation of the professional development of criminal law.So, the industry to plan to have a professional, financial criminal law.
Second, dispersion.In our country, the financial criminal law mainly include the following aspects: financial crime provisions of criminal law the third chapter fourth section, fifth section and other sections of the separate criminal laws, such as1995Years6Month30Day of the NPC Standing Committee "on the punishment of crimes of Disrupting Financial Order" and decided to2006Years6Month29The National People's Congress Standing Committee on the "PRC Criminal Law Amendment (six)"; financial crime provisions of other financial regulations and criminal penalties, such as the "law of the people's Bank of Chinese", "commercial bank law", "insurance law" and other relevant provisions.As can be seen from three legal norms, financial criminal is not stated in the penal code, which obviously has the characteristics of financial criminal law dispersion.
Third, correlation.Financial criminal law and financial law has the close relation, the content and the form of the relationship between the various professional criminal law more closely than.Such as commercial bank law in the eighth chapter79Article,80Article,83Article,84The provisions on the crime, it has a direct connection with the commercial bank law, is a part of the commercial bank law can not be separated, thereby making the criminal law, commercial bank law in a cross, as well as other special criminal law.So, because of the financial criminal law and financial regulations have overlapping content, crime and non crime limit unlike other economic crimes as clear, so we must carefully study and analysis.
Two, financial criminal law in the Chinese
In the economic and financial globalization era, the subject have many interrelated disciplines integration, system integration, unity, system engineering; also has the differentiation of the branch, refinement of an even disciplines from a subject; also has the edge on the common two scientific evolution door or two door above subject to certain questions out of the.6Financial criminal law as a marginal subject was put out, is to enter the90In the late 1990s, with the establishment of China's socialist market economic system and perfect, especially the reform of the financial system to develop in depth, in order to meet the need of the punishment and prevention of financial crime, to study law Chinese historical stage.
Get into21Century, increase financial system, economic crime amount is huge, the harm is serious, causing huge losses to the interests of the country and the people, attracted the attention of the party and the state.From the judicial organ and the financial system of all kinds of crimes, not only the value of large, high rate, and accounts for a large proportion of investigating the duty crime case, has become a hot industry a crime.As China Bank Guangdong Kaiping branch Xu Chaofan, Yu Zhendong, Xu Guojun et al. Corruption and embezzlement of public funds5Billion dollars.Another example Delong financial cases, involving up to450A billion, influence to the country20Many provinces and cities2500A number of financial institutions and3.2More than 50000 people, shocked the world.These cases are a serious threat to the country's economic and financial security, we need to use the criminal law to protect the country's economic security and financial security.Therefore, the standardization of financial and economic relationship and its hidden dangers, the urgent need for the use of criminal law means to regulate the financial relations.Therefore, the development of financial economy, calling the financial criminal law generation.
At the same time, the study of the financial crime of domestic law, the financial sector is also increasing, formed a financial crime research.The representative works have China Social Science Publishing House of Tan Bingxue, Wang Xuxiang editor of "financial criminology", China legal publishing house of Bai Jianjun's "financial fraud and prevention", Shanghai people's Publishing House published Xiao Rong Gu's "illegal securities crimes" and other books.1995Years6Month30Day, the NPC Standing Committee promulgated the "on the punishment of the crimes of decision", which opened the prelude of financial criminal law.From the1995The first half of the year to the new revised criminal law published in this period of time, China's legal circles, the financial circles and judicial workers, jointly investigated very fruitful.Shanghai, Beijing, Hainan and other places of procuratorial organs, also held a symposium on the theory of financial crime punishment, laid the foundation for the generation of financial criminal law.Many experts have become an author, and published a number of books, such as China plan Publishing House of the "Lang wins on punishing the financial order crime", China Legal Publishing House decided to interpretation of the publication of Chen Zhengyun's "financial crime perspective", Chinese legal publishing house of Chen Rongjun's "financial crime aspect", Chinese procuratorial Press published Qin Xingmin editor of the "financial crime prevention and punishment", published by Peking University press Wang new "Introduction to financial criminal law", published by Chinese People's Public Security University Shu Hui Ming editor of "China financial criminal law" etc..These books according to the theory of criminal law and the National People's Congress of the "decision", the financial crimes are studied, which has played an important role in the prevention and control of financial crime.
20Century90In the late 1990s, the study of the financial criminal law of most of the scholars in China mainly stay in the study of financial crime, is scanty research of financial criminal law, did not rise to the height of the financial criminal law theory.Get into21Century, some domestic scholars began to study from the direction of the financial crime rises to a science to study the financial criminal law.Representative works are Chinese procuratorial Press published "on the application of" Hu Qizhong and Qu Xuewu "" financial criminal law of financial criminal law, Zhao Bingzhi, Yang Cheng "Legal Publishing House of the comparative study of" financial crime, Chinese People's Public Security University press, Lu Qinzhong "Chinese financial study on the internationalization of criminal law", China procuratorial Press published Liu Yuan "crime of financial fraud study", the results come out, make the financial criminal law research in Chinese began to raise to a new level.2005Years7Month, the Law School of Shandong University held a "national financial crimes and the crimes of financial criminal law theory seminar", the conference has had a significant impact on the study of financial criminal law, a strong impetus to the study of financial criminal law.Hainan University2005Years12Set up research center of financial criminal law, law and Political Science College of East China Normal University has established research financial criminal law, the subject into the national education series.
With the research on financial deepening, financial criminal law has also been highly valued by the legislature.1997Years3Month14On the Standing Committee of National People's Congress revised the criminal law, criminal law third chapter fourth, section fifth, a31A provision of financial crime, has stipulated more system.Other chapters of specific provisions of criminal law, some relevant and financial crime crime also made special provisions.1998Years12Month of the NPC Standing Committee issued "on the punishment of sale of foreign exchange, evasion and illegal trading in foreign exchange crime decision",1999Years12Month25Day,2001Years12Month29Day,2005Years2Month28Day,2006Years6Month29Day of the NPC Standing Committee promulgated the "PRC Criminal Law Amendment (a)" "PRC Criminal Law Amendment (three)", "PRC Criminal Law Amendment (five)", "PRC Criminal Law Amendment (six)", in which some amendment, many clauses have financial crimes.The laws and regulations, the financial criminal legislation is a step forward, but also provide a powerful legal weapon for punishing financial crime judicial organs.Therefore, the objective existence of financial crime, calling the financial law and criminal law cooperation.Visible, the matter of ensuring the normal financial order, or from the angle of financial crime punishment and prevention, it is necessary to the financial regulations and the criminal law into an organic whole, comprehensive adjustment of real-life financial legal relationship and the relationship of criminal law.In this sense, perfect the criminal legal system of finance, cannot do without the criminal law.Using the means of criminal law to punish the financial crime, should be an important part of the financial legal system construction.
Study three, financial criminal law
Any discipline has its own study object.Financial criminal law is based on the financial criminal law as the research object, the legal science research financial criminal law thought, principle, system, criminal legislation and the provisions of financial crime criminal responsibility.Object to study the financial criminal law from the broad sense, it is the main object of adjustment of behavioral finance in the legal relationship of all kinds of financial operation.These acts according to the market economy at the present stage of China's socialist system of ownership is different, can be divided into three types, namely the financial legal, illegal financial acts and financial crime.The whole process and the three kinds of behavior throughout the financial activities.Focus on the financial criminal law is undoubtedly the financial crime and its punishment, but not to the exclusion of the illegal behavior of financial, even relates to financial legal behavior.But these financial behavior in the legal nature, must take the national laws and policies.We will financial criminal law as a marginal subject financial law and criminal law reason is here.
Financial criminal law is a financial crime and its punishment for the study of the subject.Specifically, it is in order to study the financial crime and punishment rules as the center, and to conduct a comprehensive study on the financial criminal legislation and criminal justice and other scientific financial.It studies the content range is between financial law and criminal law between crime and criminal responsibility, criminal penalties and other issues.It is our country socialist countries of the working class and the masses of working people to maintain their own political and economic interests, according to his own will, through the state legislature, making what behavior is the financial crime and law of financial crimes should be punished.Simply put, the financial criminal law refers to the provision of financial crime and criminal punishment law.The research object of financial criminal law there are three: one is the financial crime; two is the criminal responsibility of financial crime; three is the financial crime penalty.It also includes the provision of financial general violations and penalties.Therefore, financial criminal law, is based on financial theory of criminal law and the financial criminal judicial practice, the law of financial crime and its punishment, from the aspects of financial criminal legislation, criminal justice and social control, a discipline to study the relevant criminal responsibility and punishment.
Regulation of financial criminal law is different from ordinary criminal matter, study of financial criminal law can further expand, so will the financial criminal law as an independent interdisciplinary research, is completely feasible.Marginal financial criminal law, cross ties, connected relationship depends on it and financial law and criminal law, thus forming the criminal law and finance and other interdisciplinary nature of different disciplines.The ancient Greek philosopher Aristotle once pointed out, the dialectical reasoning can seek out a proposition two pairs of contradictions are acceptable answer.7The so-called "contradictory propositions are accepted" means a thing can therefore and so.The reasoning method of interpreting the theme is a financial criminal law in financial criminal law can be a part of the criminal law, but also can be said to be a part of the financial law.In particular criminal law compared with the general financial law, criminal law is not only a single branch of law, and is the basic law in a country by the constitution of china.Therefore, in accordance with the standard of subject construction, the author believes that the establishment of financial criminal law have the following four conditions:
One is its own independent research objects.Despite the financial criminal law is a new interdisciplinary subject, but this does not hinder its own attributes from different from other disciplines, the independent research object and the scope of the study, which as the difference between a branch disciplines, from other branches and maternal discipline independent character.The study of financial criminal law is mainly the behavioral finance in the legal relationship of all kinds of financial operation.This act according to our country socialist market economy system is different, can be divided into three types, namely the financial legal, illegal financial acts and financial crime.The whole process and the three kinds of behavior throughout the financial activities.Focus on financial criminal law is undoubtedly the financial crime and its punishment, but not to the exclusion of the illegal behavior of financial, even relates to financial legal behavior.The research object of the relative independence, self-contained, different from other studies in science.
There are two important theoretical value and independent of society, compared with the related theory research, with their theoretical advantages.Finance is the core of modern Chinese economy, occupies an important position in the national economic life.China in21Century became a world power, it must become an economic power and financial power.American economist Krugman also think, Chinese is to make the global economic recovery continued financial center.In a sense, threatening the financial security will endanger the overall situation of national economy.While the financial criminal law is to maintain financial security by the criminal law, punishment and prevention of financial crime.That reform and financial development in our country, the financial criminal law is the need to develop Chinese market economy, is of great theoretical and practical significance, while the other science also has the research object, its own but, financial criminal law different point of view, meaning is not a kind of other similar studies, and can not be replaced.
Three is the financial criminal law is scientific system and the basic category of their independent existence.Financial criminal law general introduction and two parts.The main research object, is the general financial criminal law scope, research methods, and basic theories of other disciplines, the relationship between the historical background, constitution of crime and other issues, the theory part is to study a variety of specific financial crime and punishment.This couplet together, constitute a complete financial criminal law theory system.
Four is in the generalized degree theory, reaches a higher level.Legal theory has the branch of administrative levels.The macro, meso, there can be divided into microcosmic theory.Financial criminal law as a comprehensive and interdisciplinary subject, it can summarize the financial crime, law, development of abstract problems with general characteristic, should belong to the category of macroeconomic theory.
It should be pointed out, China's financial criminal law is just started, as the research object of financial criminal law, also remains to be the future a more scientific conclusion.In the present circumstances, financial risks and financial crimes endangering the safety of Asian economy and the world economy, China's financial system also has some problems in operation, a variety of financial crime cases growth, major cases shocked at home and abroad, has attracted the attention of the community.So, in the fight against financial crime, the study of financial criminal law should vigorously strengthen, improve research level, more excellent works, so as to accelerate the development of financial criminal legislation and judicial.
The scope of the study, four of financial criminal law
China's criminal law science is a comprehensive subject, the scope of its research is in accordance with the internal relations and set up.Mainly consists of four parts: the first part is the introduction, mainly discusses some fundamental, general questions, including the concept of criminal law, the essential tasks, guiding ideology and basic principles, scope of application; the second article crime section, discuss general issues related to crime; third for the general theory of penalty, is discussed all kinds of crime constitution and sentencing principles.The fourth article of various types of crime.Discusses the research scope of financial criminal law, must understand the content.
Financial law in China is a kind of discipline, it is the main object of adjustment of financial transactions, financial supervision and financial regulation, the scope of its research mainly includes: the concept of financial law, financial law basic principle, financial organization, financial tools, financial market, financial transactions, financial management law, financial capital market laws and regulations, the securities and Futures Law, insurance law.
Financial criminal law is based on a legal science research foundation of financial criminal law.Criminal law there are financial law, financial law inside the contents of criminal law science, both Become, mutual penetrated, the financial criminal law established between financial law and criminal law.If the research scope and then the financial criminal law research scope and ordinary criminal law financial criminal law will lose the characteristic, is derived from the criminal law, as a new independent subject shape, systematic, scientific.The creation of financial criminal law this emerging discipline, I think we should pay attention to the following two points:
First, the financial criminal law with respect to the ordinary criminal law, is specialized in criminal law, it has the common characteristic of ordinary criminal law.The basic principle of criminal law applicable to the financial criminal law.But the financial criminal law only research related to financial crime content, the other has nothing to do with the financial crime content do not belong to the research category of financial criminal law, so the financial criminal law common law system is not so complete, has its own particularity, this is the first characteristic of financial criminal law.
Second, various financial crimes to the financial criminal law mostly financial regulations, some of it is related to other crimes of financial crime, beyond the law to a great extent, with scattered on the characteristics of the specific provisions of criminal law, not as self-contained.Therefore, research on various financial crimes of financial criminal law, in the content is not limited to the crime and punishment of the boundaries, and more focused on some specific crime and non crime division, especially some super before the study on some financial law no explicit provisions of the act, which is different from the ordinary financial criminal law second features of the criminal law.
The research scope of financial criminal law, the author thinks that mainly includes the financial concept of criminal law, financial law, financial law of historical development, the financial criminal law basic principle, financial crime, financial crime, the criminal responsibility of the forms of financial, financial penalty, financial crime all kinds of crime, criminal financial case analysis, financial internationalization, financial innovation and development, financial criminal legislation, financial crime, financial crime, the basic question research.
The above content, including the basic scope of financial criminal law.It should be noted that, financial criminal law is a new discipline in start-up, it is the research object, its own range, it is devoted to the study of the criminal law of financial crime, criminal responsibility and penalty application, and the general rule of the theory of legal science, therefore, it is a independent subject.The research object of financial criminal law and the scope of discussion, with the exploration of the nature of, still need to be expert criticism, and in future studies continue to be improved.
In the law, there are closely related to many disciplines and financial criminal law, can be regarded as the subjects of financial criminal law.The research object and financial criminal law they learn both connections and differences, the following points are as follows:
Financial law.Financial law is general on the financial activities of formulating and recognised by the various legal norms.It is the main content of the concept, the evolution of financial law, legislative principles, the financial legal system, financial organization, financial tools, financial activities.The legislation specifically, is also the bank and its legal status, management of financial institutions, the legal system, the legal system, the legal system of securities settlement management, management of the legal system, trust investment legal system, legal system and management law system, settlement management legal system, legal system, security management trust and investment legal system, legal system and management, international financial law, guarantee law, financial crime and punishment legal system.Therefore, financial law includes part of financial criminal law.But the two are different, the financial law is focused on the research and finance related laws and regulations, and the financial criminal law stipulates focus on financial crime and punishment.
Criminal jurisprudence.Criminal law is the legal standard of crime and punishment and the theory of subject of criminal legislation and judicial practice.Its main task is to the scientific concept on crime and punishment, the correct determination of the crime, the correct application of penalty, criminal penalty by punishing crimes, protecting the people, promote reform and opening up and modernization construction.Relatively speaking, the scope of criminal law research should be broad, content to be more focus is not the same.
Criminal procedure law.Financial criminal law is the criminal substantive law, namely about what is financial crime and how to punish the substantive provisions.Criminal procedure law is the law of criminal procedure, procedural provisions on how crime investigation, prosecution, trial and sentencing.The relationship between the two is the content and form of the.That is to say, the two legal departments are two complementary parts of the unity of criminal procedure.No financial criminal law, there is no financial crime conviction and sentencing principles; no criminal procedure law, it cannot correctly prosecution of crime and penalty.Therefore, research on financial criminal law, criminal procedure law must contact.
The problems and direction of research in five, financial criminal law
Each subject in the field of law has its own inherent nature and reason to exist, any subject must be open system.In accordance with the rules and characteristics of the science of law, the development of any legal disciplines have distinction and theory, and in this discipline established within the contact characteristics.The financial law and criminal law as an example, generally considered: Financial Law and criminal law although belong to law science, but the financial law and criminal law belong to two different legal subject.Financial law is to seek a standard legal financial behavior science, and criminal law is about the research of crime and penalty and the criminal liability of science.Our previous studies, basically is the only financial criminal legislation and law enforcement follow sb.'s lead, too much emphasis on annotation financial criminal law and financial criminal legislation, judicial interpretation, and not an independent academic character.Indeed, the financial criminal law enforcement is the financial criminal law of life, is the source of financial criminal law study in existence and development, left the financial practice, financial criminal law has become passive water without source.
It should be noted that, although the financial law and criminal law are different, but the two disciplines must be open, otherwise it will lose its vigor and vitality.The contemporary legal science system is more and more prominent.Convergence of some major legal problems, these problems can be found in every branch of law.Therefore, the birth of the legal subject is objective existence and irresistible.It is not only the starting point of a new branch of knowledge growth, power is a new discipline development.In recent years the scientific movement can draw such a conclusion: the fact that knowledge new branch growing, and these new branches have combined mostly in adjacent disciplines, and each new branches of knowledge production will have a new goal of his.As Jean Piaget said: "the real purpose of interdisciplinary research, is by actually some communication construction of new combinations of the various fields, transformation and reorganization of knowledge."
Financial criminal law as a new discipline, future research are ambitious, but also more difficult.First of all, law research than natural science research interdisciplinary research more difficult.The natural science research has a rank order, specifically a subject classification of operational standards.And the law science is the opposite.The first is to find a natural science in the legal science sequence is without precedent; the second is the legal science research ideas do not exist or the need to restore the problem.Therefore, legal scholars of various disciplines and without the research direction to turn to their own disciplines outside of law subjects, cooperation is not natural science as significant is very urgent and necessary.
In addition, there are some traditional ideas led to difficulties in study of financial criminal law.One is in the setting of law education law institutes and University of the courses, compound talents and basic quality lack of high qualified.Although many scientific research institutions and universities put forward wide caliber, thick foundation, dilute the professional advice, but it can only within the law, is not extended to the financial law and criminal law.Even if is the study of financial criminal law, many are staying on the basis of financial crime, not the financial criminal law as a system of scientific research, repeatability, low quality work more, innovation ability is not high.Two is the law do not understand economics, economics of law are not familiar with.Scholars, teachers, students' knowledge is quite narrow, especially the legal scholars on the financial economic understanding is not much, it is difficult to study.The securities law as an example, China's securities law is completed under the auspices of the economist.Therefore, legal scholars learn financial knowledge brook no delay.Three, there is a preoccupation with the science of law, namely that only the basic theory of law is the law of other disciplines, interdisciplinary comprehensive or unnecessary, or may not, prevents the law of innovative thinking and creative research study.
Innovation is the engine of progress of science of law, open is the springhead development of financial criminal law.We only from the understanding of financial criminal law research significance, can go out the discipline strict limits, specialized rejection integrated cycle, in order to train and bring up a batch of innovative consciousness and innovative ability of the compound financial criminal jurist, make China became the first home world of financial criminal law.
Notes.
1Edge disciplines, refers to the two door or two door above subject for some coincidence relation in terms of its research objects, research scope and research method of the creation and development of science.
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