1. Legislative status. At present, there is no unified anti-money laundering legislation in China. The main contents of China's anti-money laundering legislation are as follows: 1997 revised criminal law (article 19 1) stipulates the charges and legal punishment of money laundering crime, ending the situation that there is no clear stipulation on money laundering crime; The State Council promulgated and implemented the "real-name registration system Regulations on Personal Deposit Accounts", which is conducive to anti-money laundering; The Provisions on the Registration and Filing of Large Cash Payment and the Notice on the Management of Large Cash Payment formulated by the People's Bank of China and other relevant regulations stipulate that if an individual depositor withdraws more than 50,000 yuan (excluding 50,000 yuan) in cash from his savings account at one time, the counter staff of the savings institution shall require the depositor to provide valid identity documents and pay them after being audited by the person in charge of the savings institution; In addition, the Securities Law of People's Republic of China (PRC), Regulations on Foreign Exchange Control of People's Republic of China (PRC) and other laws also stipulate the abnormal transaction reporting system and customer identification.
At present, China has initially formed an anti-money laundering legal framework with criminal law as the core, administrative regulations as the criterion and departmental rules as the norm. Among them, the new criminal law is the most effective part in the field of anti-money laundering in China, and it is also the part that is most closely related to international norms; Administrative regulations have also made corresponding provisions on anti-money laundering activities; It is the regulation of relevant departments to apply laws and regulations to the actual anti-money laundering work.
2. Bank anti-money laundering practice. The anti-money laundering work of China Bank is driven by many factors, such as internal factors, such as the bank's own development and the need to meet challenges. Whether and to what extent banks establish anti-money laundering mechanisms will not only affect the development of banking business, but also affect their business risks, competitiveness and social image. Especially after China joined WTO, strengthening anti-money laundering has become an important task for banks to enhance their competitiveness. In this regard, Chinese banks have a clear understanding and strengthened anti-money laundering work.
People's Bank of China. 1997. With the approval of the State Council, the People's Bank of China issued the Announcement on the Management of Large Cash Payment, which clearly stipulated the establishment of basic account, cash payment, prohibition of private deposit of public funds and management of bank cards. At the same time, some other supporting measures for anti-money laundering activities have been introduced one after another, such as the tax declaration system, the declaration method of balance of payments statistics, the People's Republic of China (PRC) Bill Law, the Commercial Bank Law and the People's Bank Law of China, which have made important preparations and provided support for the implementation of anti-money laundering work. Article 7 of the Detailed Rules for the Implementation of the Regulations on the Administration of Foreign-funded Financial Institutions in People's Republic of China (PRC) issued in June, 5438+2002 stipulates that the prudent conditions for establishing a bank include: "(6) having effective anti-money laundering measures", which shows that the People's Bank of China attaches importance to anti-money laundering work. It is reported that the third draft of the Anti-Money Laundering Regulations has been revised. It is particularly worth mentioning that the People's Bank of China established the Payment Transaction Monitoring Office and the Anti-Money Laundering Office in July 2002, which further strengthened the anti-money laundering work.
Bank of China. China Bank is the first bank in China to carry out anti-money laundering work. 1998 formulated the Basic Principles for Anti-Money Laundering of Overseas Institutions of Bank of China, requiring overseas branches to effectively strengthen anti-money laundering work. In June, 20001,the Anti-Money Laundering Working Committee was established, headed by the president himself, with a secretariat responsible for daily work. The Committee is responsible for the anti-money laundering work of China Bank, and improves the internal supervision of anti-money laundering by standardizing business processes according to relevant laws, regulations and regulatory requirements of China. In addition, China Bank has also formulated the Anti-Money Laundering Manual for China Bank, which shows that the anti-money laundering measures of China Bank mainly include four aspects: knowing customers and their businesses, identifying and handling suspicious transactions, keeping internal transaction records and business vouchers, and strengthening and perfecting internal control mechanisms. Moreover, since 200 1, Bank of China has included anti-money laundering in the performance appraisal scope of its branches. In April 2002, Bank of China also held a conference on anti-money laundering and compliance, and held an international forum on anti-money laundering to strengthen communication with relevant state departments and explore how to deal with money laundering activities in the international context.
Some legal problems involved in anti-money laundering
(a) Definition of "predicate offence" and anti-money laundering.
The so-called upstream crime refers to the types of crimes that can constitute the crime of money laundering, which is an indispensable problem in the field of criminal law. It not only affects the determination of money laundering crime, but also affects the anti-money laundering level of a country. Generally speaking, China's criminal law stipulates that the upstream crimes of money laundering are drug crimes, organized crimes of underworld nature and smuggling crimes, while different countries have different provisions on upstream crimes. For example, some only stipulate the punishment of money laundering from drug trafficking, some only stipulate the money laundering of certain crimes or crimes that exceed certain harmfulness, and some stipulate the punishment for money laundering of all crimes. The author believes that there are the following problems in the stipulation of "upstream crime" of money laundering crime in China: first, whether it is limited to the three specified crimes, whether it can cover the charges and penalties involved in money laundering crime, and whether it will not cause money laundering crimes other than the above charges; Second, the different definitions of drug crime, organized crime of underworld nature and smuggling crime in China will pose obstacles to the identification of money laundering crime; Thirdly, if the provisions of three kinds of upstream crimes are adopted, can all drug crimes, underworld crimes and smuggling crimes constitute money laundering crimes? Fourth, whether the current provisions will lead to the occurrence of money laundering crimes caused by other crimes, and whether it will affect people's neglect of other money laundering behaviors. Because these problems are not the focus of this article, I will not make further analysis.
(B) the legislative model of money laundering and the choice of anti-money laundering practice
This paper takes the "Know Your Customer" system as an example to analyze: Know Your Customer (KYC) is an important content in the field of anti-money laundering. The author believes that the practice of KYC includes its legal practice and banking practice.
1. Legal practice. The identification of customer identity varies according to different national conditions and legislative choices. For example, depending on whether an ID card system is established, a KYC system based on an ID card or a KYC system based on a transaction record is adopted. According to the practice of various countries, the main problems that should be considered when establishing KYC system are: the conditions for identifying customers and how to identify customers; There are two legislative models for the procedural provisions of customer identification in legislative practice in various countries: one is to stipulate various situations in which banks identify customers; The second is to stipulate the general requirements of KYC and give financial institutions greater discretion.
Legal practice of customer identification. An effective KYC system cannot be separated from the legal basis. It can be seen from the laws and regulations of various countries that although KYC is the focus of national laws, there are still differences in specific provisions, such as making principled provisions for KYC or making provisions with strong operability. Below, we briefly introduce the KYC system established by the Anti-Money Laundering Guidelines for Financial Systems (hereinafter referred to as the Guidelines). The Code establishes different methods to verify the identities of different customers, including local residents and multinational residents. Among them, local resident customers include individual customers, non-face-to-face accounts, local corporate customers and other commercial account customers, corporate and unincorporated business activities, local intermediaries and so on. Multinational resident customers include multinational resident company customers, multinational import business, trust/trustee/beneficiary accounts, individual trustees and agents. The customer identity record required by the Specification must: be able to show the nature of the identity certificate; It is to be able to form a piece of evidence or provide detailed information on how to obtain evidence and regain identification. It can be seen that when identifying customers, we should be prepared for customers to form evidence in the future, because KYC is not only the basis for banks to reduce the risk of money laundering, but also the basis for banks to fulfill the burden of proof required by law.
2. KYC practice of banks. Take Citibank's KYC system as an example, which regards KYC as one of the important anti-money laundering policies, and says that it will avoid trading with natural persons or legal persons with uncertain identities. The KYC system of Citibank generally includes: obtaining basic background information of customers, additional information of customers, information of special accounts, identifying the identity of agents, using existing customer information and establishing other policies and procedures related to customer identification. Specifically, if there is a contradiction between the natural person or customer who refuses to provide the required information or provides the information, and the contradiction has not been resolved after investigation, it is a "natural person or legal person whose identity cannot be determined"; Establish * * * access to customer identity information within the bank, establish business documents containing customer information, and ensure the consistency of KYC policies and procedures used in business.
3. Some thoughts on China's bank KYC system. There is no uniform anti-money laundering law in China, which hinders the establishment of KYC system. Therefore, for China's KYC system, from the perspective of legislation, the legislature should communicate with financial institutions, and first establish the way of legislation, that is, to determine whether it is a detailed KYC system stipulated by law or a KYC system with greater discretion stipulated by financial institutions. The author thinks that it is more appropriate to adopt the first legislative method when China's anti-money laundering work is still in its infancy and financial institutions and their customers are not fully aware of anti-money laundering. However, in determining the institutional framework, in order to strengthen the feasibility of the system, the legislature should have an extensive and in-depth exchange of views with financial institutions. Judging from the specific contents of the KYC system, the composition of the KYC system should be determined with reference to the Code. The author believes that a complete KYC system should include: establishing the status of KYC system and taking KYC as an important part of anti-money laundering; Establish different identification methods for different customers; Establish exceptions to customer identification, such as establishing cases where customer identification is not needed and cases where customer identification needs to be strengthened. The former can reduce repeated customer identification by sharing customer identification information within the organization, while the latter can identify customers through intermediaries; The relationship between customer identification and other aspects of anti-money laundering should be established, such as clarifying the relationship between KYC and transaction reporting and record keeping. In addition, the identification of different customers should also fully consider the good business relationship between customers and financial institutions, the credit rating of customers, and whether the country of customers is a country or region on the "blacklist" determined by the Financial Action Task Force (FATF).
Strengthen KYC publicity and establish a unified standard for financial institutions. Although KYC is not a new concept for financial institutions, how to carry out KYC work in our bank has become a concern of banks. Different degrees of KYC system have also caused confusion to financial institutions and their customers in business and understanding: banks are worried that excessive implementation of KYC system will make customers choose other services that require less information from customers, and customers' insufficient understanding of KYC will affect their understanding of banking business. Therefore, only by increasing the relevant publicity to customers, such as strengthening the lasting publicity on the significance of real-name registration system, the publicity on the harm of money laundering to banks, countries and society, and the publicity on the widespread implementation of customer identification abroad, can customers actively fulfill the obligations required by KYC; By establishing the KYC standard of the banking industry before the law clearly stipulates, the worries of banks can be eliminated, which will play a positive role in reducing the risk of money laundering. At the same time, strengthen the research on KYC and explore the methods of customer identification in new business. Due to the continuous innovation of financial instruments, new requirements are put forward for customer identification. For example, under the "automatic transaction mode" and "automatic payment mode", banks have to actively seek effective identification mechanisms from the aspects of technology, new business research and inter-bank communication to adapt to the changes in the situation. It can be seen that the choice of China's anti-money laundering legislative model needs to draw lessons from more advanced international legislative models on the basis of summing up its own current situation, and gradually formulate effective anti-money laundering laws that adapt to international trends.