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🌏 | US, ransomware attack sanctions over digital currency use = news


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US considers sanctions over digital currency use in ransomware attack = news

 
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According to media reports, new rules on anti-money laundering and terrorist funding scheduled later this year will limit the use of crypto assets (cryptocurrencies) to pay ransom for illegal activities such as ransomware attacks. Was intended.
 

[Reuters] – Ransomware (ransom-requesting malware) attacks to pay ransom ... → Continue reading

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Money laundering

Money laundering(Shikinsenjo,British: money laundering, Money laundering[Annotation 1]) IsRegulated drugtransaction,Stolen goodsSuch asGoods(Elephant) trading,Ransom,scam,Illegal gambling,tax evasion,Financial results,Back metal,Counterfeit billObtained by criminal acts such ascashIt is to erase the source (wash away the dirt) from (dirty funds) and make it look like the money was obtained by proper means (make it look beautiful).Investigation agencybyAccount freeze,Seizure,Raid,Tax collectionAnd so on. The fact that the criminal funds were used without washing the money prompted the criminals toArrestMay be done[5].

Al Capone,Meyer LanskyPioneered (three-step) money laundering[6].. The stages are, in order, placement (depositing), layering (sorting), and integration (integration).[7].. Layering includes wire transfer[Annotation 2]. In 2009United Nations Office on Drugs and CrimeAccording to figures reported byGDP3.6% (US$2.7 trillion) is laundered[9].World financial crisisCriminal proceeds were provided for money laundering to financial institutions that needed liquid assets in[10].

Deposit/separation/integration

In money laundering,Financial institution OfFictitious accountEtc., repeatedly sending and receiving money,Bond,stockAs a classic way to buyLarge donation, Remittance overseas, make a fictitious business record profits and return it to Japan, mix with legal property etc.[5][1].. Bank account orInvestment trustPlacement is a diversified investment. It for exampleOffshore marketIf you roll over with, it becomes layering (separation).Recording in fictitious businesses and mixing with legal assets fall under integration.

Deposit, segregation and integration are typical means of money laundering. There are literatures that say implementation is done from left to right, but usually they proceed separately or simultaneously. Placement is the physical deposit of certain cash from criminal activity into a financial system or legitimate commercial service. Placement includes structuring. Structuring refers to a procedure for escaping a large transaction report, a suspicious transaction report, and the record keeping network by dividing a large amount of cash transaction into a plurality of small transaction transactions. Layering refers to separating the source of cash from the source of criminal activity by passing through transactions with several financial institutions. Naturally, the transaction is carried out in a placed account. Integration refers to the integration of funds obtained from illegal activities with those obtained legally to provide a legal basis for ownership.[7]

In addition, money laundering does not necessarily use financial institutions[11].. Because there are many other ways to send money.[Annotation 3].. A scheme to achieve remittance by using an online payment service and mediating legal commerce is "BeggingCalled "law"[12][13][Annotation 4].

Featured examples

It is difficult to obtain materials that provide a historical overview of money laundering cases.[Annotation 5].Nazi germany TheSecond World WarPillaged a gold bullion in the occupied territory during (Nazi Gold). Close to 100 tonsSwiss bankIt is said that the money was washed in[15].

Cases of the 1980s, the dawn of regulation, are often documented in the personal name of the practitioner. Financial institutions that could not prevent this are named in some cases, but are not specifically pursued in the incident records. Instead, it became a problem in the Swiss Parliament, for example, and provided the basis for legislation.Ferdinand MarcosFormer President of the Philippines uses Swiss Bank to wash money to mark world history[16].. On the other hand, in both continents of AmericaLatin AmericaA huge amount of assets were moving rapidly due to the debt crisis. Isaac Kattan and others "washed" South American drug money on this stage[17][18].AustraliaNewgun Hand Bank (Nugan Hand Bank) IsCentral Intelligence AgencyRelated toTurks and Caicos IslandsWas washing money in[19][Annotation 6].

As an exception, the focus of financial institutions was in the Middle East.Oil moneyOf Capcom and the BritishBCCI(International Commercial Credit Bank)drugSuspected of laundering money[17][21][22].SecuritizationIs a radical placeChicagoWhen,big BangPromoteCity of LondonThe disproportionate point of contact with him emerged. BCCI received sanctions of £1990 million in 1130, but an investigation into BCCI began in 1991Bank of EnglandAt the order ofPrice WaterhouseReport evidence of widespread financial crimes over the years[23].. BCCI in 1991bankruptcyHowever, BCCI's total $200 billion of money launderingDansuke BankHas reached its highest level until suspicions of €2000 billion in money laundering emerged[24].

In the 1990s, there was an incident in which the relationship between money launderers and financial institutions appeared to be inseparable. First, Riggs Bank (oldSecond US Bank) Is ChileanAugust PinochetWas used as a customer, but because he used real estate transactions to hide the relationship, he was fined by the Bank Secretary Law.[17][25].. In January 2005 the bank was ordered $1 million[26].. Spain will have to pay a $800 million settlement.Bandar Bin Sultan BAE SystemsIt was also pursued that the bribe received from the bank was washed by the bank. AndBank of New York TheEdmund SafraRepublic Bank Investigated in 1999 on Unauthorized Transactions and Found Traces of Money Laundering[Annotation 7].. The case was summarized by the US Senate Commission (Permanent Subcommittee on Investigations) in a thick report of 305 pages (Correspondent Banking: A Gateway to Money Laundering)[Annotation 8].

In the 1990s, remittances by immigrants were used as a means of money laundering,Rose cartStopped operating due to regulations[30].

International regulation timeline

         FATF Extraordinary General Assembly, "8 Special Recommendations" on Terrorist Financing[7]

Manneron crisis

Follow the chronological tableWorld financial crisisIt is,Shadow bankingIt was a crisis as well as a Manneron crisis. Decline of pension, injection of public funds, deterioration of labor market, aggregation of customer information (due to merger), globalization of all of these. The absurdity triggered the question of the significance of finance. "Vaticano S.p.A." was published in May 2009,Religious business associationExposed evidence of money laundering. The book also referred to pre-chronological situations and enlightened many people. 2010,Wachovia£2925 billion in money laundering[23][39].. In 2010, a report on money laundering through pensions and life insurance was also published.[40].

"An agent of money laundering: Anobe of a huge settlement company exposed (Tokuma Shoten 2002, original titleRévélation $)'S author Duni Robert (Denis robert) Publicize the vulnerability of the International Securities Depository Center to money laundering,Clear streamHe was repeatedly sued for defamation by the relevant financial institutions, but he rejected all of them at the end of February 2011, 2,FranceInspired journalism. In a dispute with Clearstream, the court charged Clearstream with defendant litigation costs in excess of €56000.[41]

In 2012, a long-established store suffered from disaster.Standard Chartered BankHelped the Iranian government against Manneron regulations,New York State Department of Financial Services) Accused in August of the same year[23].. In 2014, the department ordered a fine of $3 million. Another case was blamed by the world for its involvement with the international exchange rate index.HSBC TheLIBORInvestigate tampering with money laundering in parallel, ordered a fine of £12 billion in the latter[23][42].

May 2013, 5, US online payment service(English edition)Was reported, and it was added that criminals used the service to launder $60 billion.[43][44].. July,Mitsubishi UFJ BankAgrees to pay $2.5 million for New York State violation of Manneron regulations[45].. From August, the US Department of Justice began to seriously investigate bank groups[46].. In June of the same yearJames Joseph BargerWas charged with money laundering and sentenced to life imprisonment in November. no longerDuffel BagIs no longer a financial sanctuary.

2014 year 1 month,Bitcoin FoundationVice Chairman of Charlie Silem (Charlie Shrem) Was arrested on charges of money laundering[47].

2015 year 1 month,Oppenheimer HoldingsWas fined $2000 million for violating Manneron regulations[48]. July of the same year,Commerz BankIs charged with US fines of $14.5 billion due to violations of Manneron regulationsOlympus caseAcknowledged the fact that they were involved in the[49][50].. Same March,Eur-lex.europa.eu eur-lex.europa.euBank of (Banca Privada d'Andorra) Also Russia,Chugoku,ベネズエラU.S. authorities suspected criminals are using it for money laundering[51].. Removed from May of the same yearFIFA corruption caseSwiss authorities look into 53 potentially laundered cases and 104 suspicious Swiss bank account transactions[52],Serious Fraud Investigation BureauAlso participated in the investigation[53].. July,ロシアCustomers to launder moneyDeutsche BankInvestigations on suspicion of using the software estimated total value of $ 60 billion[54].. Aug. 7,1 Malaysia Development Burhad(1MDB) reported an official document record of about 7 million dollars transferred to the Malaysian Prime Minister's personal account[55].. This case developed into an international investigation involving Europe.Panama documentIt was also linked with Manneron and became a trigger to pursue violations. October,Honduras economyDominating Continental Bank (Continental Bank) Will be under the control of the U.S. authorities and the Honduras authorities will direct the liquidation after the U.S. authorities pursued the deposited drug money.[56].. In November, ABN Amuro Bank Dubai Branch was reported fined $11 for breaching mannelon regulations[57].

In May 2016, the drug king Nidal Waked and his father (Abdul)コロンビアWas arrested in. The bank of Balboa in Panama (Balboa Bank and Trust)was there[58].. In July, HSBCGeorge OsbourneTo escape criminal prosecution over money laundering[59].. The consideration was a huge settlement and business restrictions.

2017 year 5 month,CitigroupRan a $9740 million settlement in Banamex laundering[60].. July,Society GeneralWas fined €500 million for breaching Manneron regulations[61].. In December, on the investigation line of 12MDBJP Morgan ChaseSwiss branch found serious violation of Manneron regulations[62].

2018 year 2 month,RabobankBankruptcy law pays over $3.6 million for bank laundering[63].. July,Commonwealth Bank of AustraliaAgrees to pay $7 million for violating Manneron regulations[64].. July,ING groupWas fined $9 million for violating Manneron regulations[65].. July,Dansuke BankAccepts U.S. authorities' investigation over money laundering[66],Capital OneWas fined over $1 million for violating Manneron regulations[67].

Japanese money laundering

Check by FATF

1989 OfArche SummitEstablished by agreementFinancial Activities Working GroupThe (FATF) continues to harshly point out Japanese money laundering measures. In the third screening conducted in 2008, 3 items out of 49 items required to be improved, including a lack of confirmation as to who actually controls the legal entity of the trading partner. Has also pointed out that Japan's money laundering measures are inadequate[68][69].

Based on these circumstances, a review will be conducted regarding the status of compliance with the recommendations based on the "New 40 Recommendations" (4th Recommendation),2019 Before implementing the Fourth Mutual Examination for Japan, the FSA enacted "Guidelines for Countermeasures against Money Laundering and Terrorism Financing" to encourage financial institutions to establish a system based on a risk-based approach (RBA). We are promoting measures such as monitoring the implementation status[70].

Regulations in Japan

The money laundering act regarding regulated drug transactions isDrug exception method(Act No. 3 of 94), other acts of money laundering and organized money laundering (such as corporate takeover by illegal funds)Organized crime punishment law"(Law No. 11 of 136).

2004 IsCitigroupUnder the umbrellaCitibank, NA Japan Branch OfPrivate bankingIn the department, there was a scandal that involved illegally tying loans and bonds together, providing funds for stock price manipulation, helping the people involved in organized crime to wash funds, and opening accounts for large clients while knowing that they were anonymous accounts.Financial Services AgencyThe Financial Services Agency conducted severe administrative sanctions, including the cancellation of the site's authorization, and the department was closed and completely withdrawn (Citibank, N.A.).[Annotation 11]

there,2007 From December 1Identity verification methodThe enforcement order, etc. has been partially revised, and the cash transfer limit for ATMs has been reduced to 10 yen at a time.IdentificationWas required to present.

In addition, for the purpose of implementing the FATF “2003 Recommendations” revised in 40 in Japan,2007 XNUM X Month X NUM X Day,Crime Profit Transfer Prevention LawWas partially enforced. As a result,Financial Services AgencyFIU (Specified Financial Information Room) installed inNational Public Safety Commission(National Police Agency Criminal Affairs BureauOrganizational crime control departmentCriminal Profit Transfer Prevention Director).

2007 year 9 month,YamaguchigumioldGoryokaiSystemDarkness financeSuspected to help illegal fraudulent remittance by money laundering by the group (Credit SuisseEx-innocence of Hong Kong branch former employee) confirmed[33].. Lack of recognition of criminal proceedsConfiguration requirementsIt did not correspond to.

In 2002Teikyo UniversityHowever, in 7 years, 150 billion yenBack door entranceThere is a case in which 65 billion yen of the donations was collected and the income was hidden from the corporations in the group.

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注 釈

  1. ^ MaDRussiaUndering (English pronunciation: [ˈMʌnɪ ˈlɔːndərɪŋ]). Official documents from the Financial Services Agency, National Police Agency, etc.[1][2]Is standardized by "money laundering", and by the Ministry of Economy, Trade and Industry "money laundering"[3], Ministry of Foreign Affairs[4]-In the press, “money laundering” is often used, and the notation of “money laundering” alone is rare. Abbreviation is "Maneron".
  2. ^ Real money trading(RMT) There is a strong concern about misuse such as acts. furtherVirtual currencyThe method of using is also occurring.[8]
  3. ^ Hawara,Money mulesSee also
  4. ^ IndiaDiamond trading is used for money laundering[14].. IndiaDe BeersIt has been a diamond importing country since its decline. Although not India, in December 2016 the diamond merchant Steinmetz (beny steinmetz) Was arrested on suspicion of money laundering.
  5. ^ Since this situation does not necessarily contribute to crime prevention, we sought and organized fragmentary information.
  6. ^ The blackout is Fairfax (Fairfax Media) Marshall Green (Marshall Green), and Ted Shackley (who worked on the securities crisis in November 1975)Theodore Shackley) Is considered to be[20].
  7. ^ Former Vice President of the Bank of New York, Lucy Edwards, and his husband Peter Berlin allege[27].Central Bank of the Russian FederationIn the explanation of the President (Viktor Melnikov),Russian financial crisisIn 1998Russian criminal (I.e.Said that it washed away about $700 billion[28].
  8. ^ Brady Milo MontesinosHave at least two accounts in the Bank of New York[17]The total amount of overseas deposits, including this, will reach 1000 million dollarsPresident FujimoriExplained[29].
  9. ^ Financial Intelligence Unit
  10. ^ International terrorismOrganization "Al QaedaWas suspected that he was conducting money laundering,United States Federal Government, The financial institutions of each country freeze the accounts of terrorist members. Europe was in tuneClearstream caseWas also in mind.
  11. ^ In addition, assuming that the business improvement at this time was insufficient, it will be the successor to the branch office in Japan.CitibankWas subject to administrative sanctions in 2009 (again, including its predecessor), and sales operations in the personal finance sector were suspended for one month (About administrative disposition for Citibank Japan Ltd.).

Source

  1. ^ a b Financial Services Agency Specific Financial Information Office "Money Laundering Countermeasures"
  2. ^ Cooperation between JAFIC and international organizations (National Police Agency)
  3. ^ "Countermeasures against money laundering" Mineral resource policy (Ministry of Economy, Trade and Industry Agency for Natural Resources and Energy)
  4. ^ International community and Japan's efforts against international organized crime (Ministry of Foreign Affairs)
  5. ^ a b An investment-based wire transfer scam with a large amount of damage. What are the tricks and techniques for "purifying money"? (Nikkei BP)
  6. ^ Wikileaks, Re: List of Money Laundering Examples, Released on 2013-02-13 00:00 GMT
  7. ^ a b c d e f g Hiroshi Ozaki "US Anti-Money Laundering RegulationsCenter for Security Trade Information March 2008, 3
  8. ^ Consensus on strengthening anti-money laundering measures using virtual currency at G2018 in March 3
  9. ^ FATF, "How much money is laundered per year?", Retrieved Oct. 23, 2018
  10. ^ Joras Ferwerda, "Criminals saved our Banks: The Effect of Money Laundering during the Financial Crisis", April 2010, See Conclusion (p.9).
  11. ^ Ken Honjo "Tax Issues Regarding Money Laundering Not Through Financial Institutions: Imminent Confrontation With Underground Economy" International Tax Research (13) 95-107 2004
  12. ^ Money Compliance, Cuckoo Smurfing Means Criminal A Pays Criminal B In Different Countries, April 7, 2015
  13. ^ Edward Greaves, Cuckoo smurfing
  14. ^ Economic Times, India's diamond trade being used for money laundering: Report, Feb 02, 2014
  15. ^ Simons, Marlise (10 January 1997). "Nazi Gold and Portugal's Murky Role". New York Times.Retrieved 1 June 2011.
  16. ^ New York Times, Ferdinand Marcos's Swiss Bank Legacy: Tighter Rules for Despots and Criminals, OCT. 23, 1998
  17. ^ a b c d e f ACAMS, "Study Guide for the CAMS Certification Examination", Fourth Edition, Chapter.2
  18. ^ New York Times SUSPECT HELD ON $ 10 MILLION BOND IN A CRACKDOWN ON DRUGS IN MIAMI, FEB. 28, 1981
  19. ^ CS monitor, A crime reporter unravels tale of Nugan Hand Bank scandals, September 18, 1987, By Leonard Bushkoff
  20. ^ Wordpress.com, Whitlam, the CIA and Nugan Hand, Sunday, November 21, 2010
  21. ^ The Washington Post, PROBE OF BCCI'S LOST FUNDS LEADS TO AN AFFILIATE, September 29, 1991
  22. ^ Joel Bainerman, The Crimes of a President: New Revelations on Conspiracy & Cover-up in the Bush & Reagan Administrations, SP Books, 1992, p.301.
  23. ^ a b c d ICT, Top 5 Money Laundering Cases of the Last 30 Years, Jul 22, 2016
  24. ^ "Column: “Black Swan” of financial stocks, Manneron's darkness of 200 trillion yen = Nana Otsuki”. Reuters (June 2018, 12). October 2018th, 12Browse.
  25. ^ Washington Post, Riggs Bank Hid Assets Of Pinochet, Report Says, Thursday, July 15, 2004
  26. ^ New York Times Riggs Bank to pay $ 16 million fine, JAN. 28, 2005
  27. ^ New York Times Banker and Husband Tell Of Role in Laundering Case, FEB. 17, 2000
  28. ^ New York Times Magazine, The Billion-Dollar Shack, DEC. 10, 2000
  29. ^ Cicago Tribune, ANOTHER $ 10 MILLION LINKED TO EX-SPY CHIEF, Nov. 10, 2000
  30. ^ Kimito Sakurai "Remittance and Money Laundering by Immigrants" Rikkyo Economics Research 60(2) 57-69 October 2006, 10
  31. ^ Matthew R. Auten, "Money Spending or Money Laundering: The Fine Line between Legal and Illegal Financial Transactions", Pace Law Review, Vol.33 Issue 3 Article 8, p.1235. July 2013
  32. ^ Koichi Miyazawa "Money Laundering and Responsibilities of Financing Companies: Focusing on Article 63-12 of the Swiss Criminal Code" Law Studies Law, Politics, Society 9(32) 1990-12 December XNUMX
  33. ^ a b c Takashi Kubota "On the Money Laundering Problem" Waseda Law 84(2) 309-321 Mar. 2009, 3
  34. ^ New York Times New Hiding Place For Drug Profits: Insurance Policies, DEC. 6, 2002
  35. ^ New York Times ABN to Pay $ 80 Million for Violations, DEC. 20, 2005
  36. ^ Wall Street Journal, How Top Dutch Bank Plunged Into World of Shadowy Money, December 2005, 12 31:13 JST Update
  37. ^ Nobuyoshi Chihara (October 2006, 10). “Deletion of applicable countries/regions for transactions that require special attention regarding notification of suspicious transactions". Financial Services Agency General Affairs Planning Bureau Specified Financial Information Manager. October 2018th, 2Browse.
  38. ^ Reuters, American Express fined $ 65mln over money laundering, August 7, 2007
  39. ^ Guardian, How a big US bank laundered billions from Mexico's murderous drug gangs, Sun 3 Apr 2011
  40. ^ Moneyval, Money laundering through private pension funds and the insurance sector, 30 September 2010
  41. ^ Journalism.co.uk, French landmark case: A new dawn for investigative journalism?, 11 January 2012, By Marianne Bouchart
  42. ^ Guardian, Bleak day for British banking as Libor arrests follow record fine for HSBC, Tue 11 Dec 2012
  43. ^ 60 billion dollars total? Era of "money laundering" on the Internet (NewSphere)
  44. ^ New York Times Online Currency Exchange Accused of Laundering $ 6 Billion, May 28, 2013
  45. ^ Washington Post, Bank of Tokyo to pay $250 million to NY in money-laundering case, June 20, 2013
  46. ^ Wall Street Journal, Probe Turns Up Heat on Banks, Aug. 7, 2013
  47. ^ Guardian, Bitcoin Foundation vice chair arrested for money laundering, Mon 27 Jan 2014
  48. ^ Wall Street Journal, Oppenheimer Hit With $ 20 Million Penalty over Money-Laundering Safeguards, Jan. 27, 2015
  49. ^ New York Post, US slaps Germany's Commerzbank with $1.45B money-laundering fine, March 12, 2015
  50. ^ US Department of Justice, Commerzbank AG Admits to Sanctions and Bank Secrecy Violations, Agrees to Forfeit $ 563 Million and Pay $ 79 Million Fine, Thursday, March 12, 2015
  51. ^ Reuters, Andorra moves to contain money-laundering scandal, March 16, 2015
  52. ^ Guardian, Swiss investigating 53 cases of possible money laundering at Fifa, Wed 17 Jun 2015
  53. ^ Guardian, Serious Fraud Office investigating'money-laundering' related to Fifa, Tue 27 Oct 2015
  54. ^ Reuters, Deutsche Bank probes $ 6 billion suspected money laundering, June 5, 2015
  55. ^ Wall Street Journal, Investigators Believe Money Flowed to Malaysian Leader Najib's Accounts Amid 1MDB Probe, July 2, 2015
  56. ^ Reuters, Honduran bank at center of money laundering case to be shut down, October 12, 2015
  57. ^ Reuters, ABN Amro pays fines over Dubai irregularities ahead of IPO, November 4, 2015
  58. ^ BBC, 'Money-launderer' Nidal Waked arrested in Colombia, 7 May 2016
  59. ^ Guardian, HSBC escaped US money-laundering charges after Osborne's intervention, Mon 11 Jul 2016
  60. ^ New York Times Citigroup Agrees to $ 97.4 Million Settlement in Money Laundering Inquiry, May 22, 2017
  61. ^ Reuters, French bank watchdog fines SocGen 5 million euros over anti-money laundering shortcomings, July 22, 2017
  62. ^ New York Times JPMorgan'Seriously Breached' Money-Laundering Rules, Swiss Regulator Says, Dec. 21, 2017
  63. ^ US Department of Justice, Rabobank NA Pleads Guilty, Agrees to Pay Over $ 360 Million, Wednesday, February 7, 2018
  64. ^ Guardian, Commonwealth Bank agrees to pay $ 700m to settle money laundering lawsuit, Mon 4 Jun 2018
  65. ^ Reuters, Dutch bank ING fined $ 900 million for failing to spot money laundering, September 4, 2018
  66. ^ New York Times Danske Bank Faces US Inquiry Over Money Laundering, Oct. 4, 2018
  67. ^ Reuters, Capital One Bank fined $ 100 million over money-laundering controls, October 24, 2018
  68. ^ "Column: “Black Swan” of financial stocks, Manneron's darkness of 200 trillion yen = Nana Otsuki”. Reuters (June 2018, 12). October 2018th, 12Browse.
  69. ^ "Keyword of the month Financial Activities Working Group (PDF)”. Mizuho Research Institute (2014). October 2018th, 12Browse.
  70. ^ "Countermeasures against money laundering and terrorist financing without waiting" 4st (XNUMX times)Tokyo Shoko Research July 2019, 1

外部 リンク

Illegality

Illegality(Ihosei,British: Criminal defenses) Is formallyLegal normsContrary tonatureTo say.However, there is a dispute over the essence of illegality as described below, and the definition (especially the definition of illegality in a practical sense) changes accordingly.

Distinguishing from illegality

Illegalness means that the act or condition violates the law (eg criminal law).On the other hand, in the case of civil cases or cases that should only be morally condemned, regardless of violations of the law (Tort(See also), even if it is an illegal act, it cannot be said that it is illegal. "Illegal" and "illegal" are generally used synonymously, but if anything, "illegal" is often used when the emphasis is on legal and "illegal" is emphasized on substantive and subjective ideas.[1].

Illegal relativity between legal fields (monism and pluralism)

For example, should an act that is evaluated as illegal or illegal under civil law be evaluated as illegal or illegal under criminal law, or is it permissible to be illegal on the one hand and legal on the other? There are conflicting views on the issue.

Illegal monism is the view that in all laws, judgments of illegality and legality are based on unified standards.

Illegal pluralism is the view that the criteria for judging illegal / legal may differ in each legal field.

According to the theory of illegal pluralism, for example, criminal illegality is illegal in the entire legal order to the extent that it is appropriate to face it with punishment (Punishable illegality) Must only be affirmed (eg, under civil law)Restitution for DamagesThe responsible person, for that reason,punishmentIt is possible to draw the conclusion that (there is no claim to be imposed).

On the other hand, according to illegal monism, such an understanding is logically impossible and criticized as inconvenient.However, even if the theory of illegal unification also evaluates an act as illegal, the act is also illegal under the criminal law, but what kind of legal effect it has is still reserved as a criminal law issue. (Just because it's illegal under the criminal law doesn't mean you have to punish it).A valid conclusion drawn by the illegal pluralism is the counter-criticism that it can be drawn in the same way by recognizing the pluralism of the legal effect corresponding to the illegality without understanding the illegality in multiple ways.

Illegalness in criminal law

According to pluralism, otherdecreeWhether or not an act that violates the above is criminally considered illegal is another matter.

Formal illegality theory and substantive illegality theory

Illegalness is formal illegality to understand that an act violates legal norms (alone: Formelle Rechtswidrigkeit) Theory.this is,Positive lawIt is based on (Adolf Merkel) andbindingAdvocated by

However, the formal theory of illegality only means that "it is illegal to go against the law" and does not reveal the substance of illegality.Therefore, it is not a formal violation of legal norms, but rather illegality in a more substantive sense, that is, substantive illegality (alone: Materielle Rechtswidrigkeit) is now being explored.

The content of the theory of substantive illegality varies considerably from person to person.For exampleFranz von LisztAccording to the socially infringing behaviorLegal benefitInfringement or threat toME MeyerAccording to (MEMayer), each attitude that is incompatible with the state-approved cultural norms (Kulturnorm) is the content of (substantial) illegality.上記リストの見解をThe views in the above listLegal infringement theory, Meyer's viewNorm violation theoryIn some cases, they are related to the theory of result worthlessness and the theory of action worthlessness, respectively.

Objective illegality and subjective illegality

About the nature of criminal illegality, onceObjective illegal theoryとSubjective illegal theoryThere was a conflict with.Objective illegal theory is supported from the standpoint of classical criminal law (old school), and subjective illegal theory is supported from the standpoint of modern criminal law (new school).School conflictThere was a lot of controversy in the world.

Objective illegality and subjective illegality differ in their views on whether to view law as an evaluation norm or a command norm.

Objective illegality (objectiveism) is the position that it is illegal to objectively violate legal norms, which are objective evaluation norms.According to thisAccountabilityEven the actions of those who do not have it can be evaluated as illegal, and in the extreme, the behavior of animals other than humans and natural phenomena can also be evaluated as illegal.

Subjectivism (subjectivism) is a position in which it is illegal to act and violate the legal norms, which are the norms of command for actors, while understanding the command.According to this, the actions of non-responsible persons cannot be evaluated as illegal (natural phenomena that are not human actions are not evaluated as illegal).

Originally, the theory of objective illegality was the view of traditional theory, but since the latter half of the 19th century, it has been criticized from the standpoint of the theory of subjective illegality advocated by (Adolf Merkel), and it also supports the theory of subjective illegality. Collected.However,Rudolf von JeringAs a result of (E. Mezger) et al. Attempting to refute from the side of objective illegality theory, subjective illegality theory gradually lost its supporters, and objective illegality theory became the dominant view.

According to this objective theory of illegality, the criminal code isEvaluation normsとCode of decisionIt has two aspects, and there is a violation of the evaluation norm.IllegalAnd the violation of the decision normresponsibilityIs said to be.

Result worthless and action worthless

While the theory of objective illegality (objectiveism) has become mainstream, this time, the conflict over the substance of illegality has become apparent within it.That is, about the substance of illegalityLegal infringement theory(Result valueless theory)Norm violation theoryIt is a conflict of (act worthless theory) (details of each areResult worthless,Act worthlessSee. ).

Result worthless theoryIs the substance of illegality,Result worthless(Erfolgsunwert), that is, the view that it is a negative evaluation of the consequences evoked by the act, and the substance of illegality.Legal benefitIt is equated with the theory of infringement of legal interests, which is understood as infringement and threatening of.例えばFor exampleMurderIf you look atAttemptedIn the case of, as a result of human death,attemptedIn the case of, it is illegal to cause the result of the death of a person, which is a risk of causing an accomplished result.

Act worthless theoryIs the substance of illegality,Act worthless(Handlungsunwert), that is, the view that understands that it is a negative evaluation of the act in a narrow sense (Handlung) that is separated from the result, and that the substance of illegality is the anti-normative theory of the act. Is equated with.For example, in the case of attempted murder, the malignancy of acts that could kill a person (malice aforethought and its mode of conduct) is considered to be the basis of illegality.

Furthermore, in terms of seeking the purpose of the criminal law from the protection of legal interests, there is a position to accept the theory of valuelessness as a result, but in addition to that, to understand the illegality in consideration of the valuelessness of the act.Eclectic act worthless theory,Dual act worthless theory, Or simplydualismAlso known as.In most cases, the term "act worthless theory" refers to this dualism.

Systematic status

In German criminal law theory, whether or not a crime is committed is judged through three stages: applicability of constituent requirements, illegality, and liability (trisection theory).

Acts that fall under the constituent requirements are considered illegal in principle, but exceptionallyLegitimate defenseAndEmergency evacuationIn the case of, it is evaluated as not illegal (prevention of illegality), and the act is not a crime.In this way, the circumstances that underlie the absence of illegality,The reason for illegal denialThat.

There is also a view that this ground for blocking illegality is positioned as a constituent element (passive constituent element) (German myth,Makoto Ida).

Illegal theory in Japan

Illegalness in criminal law

In Japan,Shigemitsu DantoSince then, the theory of act worthlessness has been regarded as a traditional myth.ただし、日本において「行為無価値論」と呼ばれている見解のほとんど全てが、結果無価値と行為無価値の両方を違法性の本質として承認する二元論であり、行為無価値のみを違法性の実質として理解する見解(かつてドイツにおいて通説的地位を占めたHowever, almost all of the views called "act worthless theory" in Japan are dualisms that recognize both result worthlessness and act worthlessness as the essence of illegality, and only act worthlessness is illegal. View to understand in substance (once occupies a mythical position in GermanyCentralized act worthless theory) Is different from.

In academia, the theory of act worthlessness has been criticized as an idea to protect morality criminally.その中心的人物がThe central figureRyuichi HiranoAs a result of his support, the theory of worthlessness has expanded its support and has become extremely strongly asserted.[2].

Impact on the conclusion of the theory of illegality and case law

The theory of result worthlessness and the theory of action worthlessness are often violently opposed, and it is sometimes pointed out that the theory of action worthlessness (dualism) tends to carry out punishment a little wider, but it is often deductive from the theory of illegality. It has been pointed out that the disagreement that is different from the theory of illegality actually causes the difference in conclusions, even for the issues that are explained as if the conclusions were drawn.[3]Therefore, it cannot be said that the scope of punishment will be expanded because it is an act worthless theory.[Original research?].

JapanesePrecedent・ Practice is said to be based on the theory of act worthlessness, but it is not clarified in the judgment sentence, and the theories that agree in the conclusion are not always based on the theory of act worthlessness.

Illegalness in tort law

JapaneseCivil Code Article 709There is a view that "illegalness" is a requirement for independence in the torts stipulated below, but there are also criticisms. 「違法性」は独立した成立要件になるとする見解が通説とされた時期もありThere was a time when it was generally accepted that "illegalness" was an independent requirement for establishment.[4], Affected by thatNational compensation lawThen, in Article 1, the word "illegal" is used.However, from the 1960s to the 1980s, criticism of the conventional wisdom increased, and the requirement of illegality was unnecessary.NegligenceThe theory that it should be resolved to the requirements ofYoshio Hirai) And the theory that it should be considered within the requirements of "infringement" and "intentional / negligence" as stated in the article (Eiichi Hoshino), A theory that improves this while maintaining the framework of traditional myths (Kazuo Shinomiya,Yutaka Sawai) Rather, the theory () that both the requirements of "infringement" and "negligence" should be resolved as illegality requirements has appeared one after another.Furthermore, in the 2000s, the theory of restructuring the tort law as a system for protecting the basic rights of individuals has been argued (Keizo Yamamoto)[5]..他方、裁判例においては、上記学説の動向にもかかわらず、「違法性」という文言が使われ続けているOn the other hand, in court cases, the word "illegal" continues to be used despite the trends in the above theory.[6].

Illegalness under default law

Delayed performanceReasons for justifying failure to perform when discussing cancellations and damages underSimultaneous performance defenseSuch. )がないことをもって「違法」と表現することがある) May be expressed as "illegal"[7](Therefore, the reason for justifying not fulfilling is sometimes called the reason for blocking illegality).これは、ドイツ民法理論を参照して債務不履行の要件を構成した学説においてみられるもので、そこでは、ドイツ刑法学と同じく、構成要件、違法性、及び責任の3段階に分けて考察する三分論を採用したものであるThis can be seen in the theory that constructs the requirements for default with reference to the theory of German civil law, where, like German criminal law, it is considered in three stages: constituent requirements, illegality, and liability. It adopts the theory of division[8].

References

Regarding criminal illegality

  • Hitoshi Otsuka, Kazuo Kawakami, Fumiya Sato, Yuki Furuta, "Large Commental Penal Code (2nd Edition)", Vol. 166, pp. XNUMX et seq.
  • Hitoshi Otsuka, New and Old Theories in Criminal Law (1957)

note

  1. ^ ["Yuhikaku Law Glossary" item "Illegal" / "Illegal"]
  2. ^ Ken Naito"Development of Act Valuelessness and Result Valuelessness in Postwar Criminal Law" Criminal Law Magazine Vol. 21, No. 4, p. 1 or less, Vol. 22, No. 1, p. 58 or less
  3. ^ Hitoshi Saeki "Judgment of Illegalness" Law School No. 290, p. 57 and below
  4. ^ The view that requires illegality isSuekawa HiroshiBeginning with "Rights Infringement Theory" (Kobundo Shobo, 1930)Sakae AzumaJudgment methods were prepared and established in "Administration, Unjust Enrichment, and Tort" (Nihon Hyoronsha, 1937).
  5. ^ Regarding the above, Yutaka Sawai, "The Confusion and Prospects of Tort Law: Illegalness and Negligence," Law Seminar-296, p. 72,Yoshio ShiomiSee "Illegal Acts" (Shinzansha Publisher, 1999), especially on page 33 et seq.
  6. ^ For example,Supreme CourtJudgment on July 17, 7 (MinshuSee Vol. 59, No. 6, p. 1783, Case of claiming compensation for not disclosing transaction history in the so-called overpayment refund claim case).
  7. ^ Sakae Wagatsuma, "New Revised Bonds General Remarks (Civil Law Lecture IV)", p. 111, etc.
  8. ^ See Yoshio Shiomi, "Introduction to Credit I (2nd Edition)" (Shinzansha Publisher, 2003), p. 259 et seq.

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