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反洗錢金融行動特別工作組《40條建議》(2003)

 

字體大小:大  小  來源:[]    日期:2010-03-18  

 
 
 

 

 

The Forty Recommendations (2003)

 

 

 

    背景:反洗錢金融行動特別工作組(Financial Action Task Forces on Money Laundering)簡稱FATF1989年成立,是一個獨立的專門進行國際反洗錢的政府間組織。現有31個國家和地區成員和兩個國際組織(歐洲委員會和海灣合作委員會)成員。其宗旨是制定和推動反洗錢政策。該工作組希望借助推行反洗錢政策,防止利用犯罪收益進一步犯罪,以及避免洗錢活動影響合法經濟活動。

 

  為了打擊個人濫用金融系統進行毒品洗錢,FATF1990年擬定了《40條建議》。該建議為反洗錢工作奠定了基本框架,是為全球而設計的。內容涉及刑事司法制度和法律執行,金融制度及其規章,以及國際合作事宜。為了適應新形勢下洗錢手段的發展,1996FATF對該建議進行了首次修訂。20036月,FATF在對洗錢方法和技術的年度評估基礎上,對《40條建議》做了進一步修訂。此次修訂結合《打擊恐怖融資8條特別建議》,對原有的《40條建議》進行了重大修訂,建立了一個更加廣泛,統一和有力的反洗錢和反恐融資的國際框架。

 

  下面將要介紹的就是2003年修訂以后與反洗錢直接相關的6條建議。

 

 

 

 

 

Introduction

 

 

 

Legal Systems

 

 

 

Scope of the criminal offence of money laundering (R.1-2)

 

 

 

Provisional measures and confiscation (R.3)

 

 

 

Measures to Be Taken By Financial Institutions and Non-Financial Businesses and Professions to Prevent Money Laundering and Terrorist Financing

 

 

 

Customer due diligence[1]and record-keeping (R.4)

 

 

 

Reporting of suspicious transactions and compliance[2](R.5-12)

 

 

 

Other measures to deter money laundering and terrorist financing (R.13-16)

 

 

 

Measures to be taken with respect to countries that do not or insufficiently comply with the FATF Recommendations (R.17-20)

 

 

 

Regulation and supervision (R.23-25)

 

 

 

Institutional and Other Measures Necessary in Systems for Combating Money Laundering and Terrorist Financing

 

 

 

Competent authorities, their powers and resources (R.26-32)

 

 

 

Transparency of legal persons and arrangements[3] (R.33-34)

 

 

 

International Co-operation (R.35)

 

 

 

Mutual legal assistance and extradition[4] (R.36-39)

 

 

 

Other forms of co-operation (R.40)

 

 

 

 

 

Introduction

 

     

 

     Money laundering methods and techniques change in response to developing counter-measures. In recent years, the Financial Action Task Force (FATF) has noted increasingly sophisticated combinations of techniques, such as the increased use of legal persons to disguise the true ownership and control of illegal proceeds, and an increased use of professionals to provide advice and assistance in laundering criminal funds. These factors, combined with the experience gained through the FATF’s Non-Cooperative Countries and Territories process, and a number of national and international initiatives, led the FATF to review and revise the Forty Recommendations into a new comprehensive framework for combating money laundering and terrorist financing. The FATF now calls upon all countries to take the necessary steps to bring their national systems for combating money laundering and terrorist financing into compliance with the new FATF Recommendations, and to effectively implement these measures.

 

 

 

      The review process for revising the Forty Recommendations was an extensive one, open to FATF members, non-members, observers, financial and other affected sectors and interested parties[5]. This consultation process provided a wide range of input, all of which was considered in the review process.

 

 

 

      The revised Forty Recommendations now apply not only to money laundering but also to terrorist financing, and when combined with the Eight Special Recommendations on Terrorist Financing[6] provide an enhanced, comprehensive and consistent framework of measures for combating money laundering and terrorist financing. The FATF recognizes that countries have diverse[7] legal and financial systems and so all cannot take identical measures to achieve the common objective, especially over matters of detail. The Recommendations therefore set minimum standards for action[8] for countries to implement the detail according to their particular circumstances and constitutional frameworks[9]. The Recommendations cover all the measures that national systems should have in place within their criminal justice and regulatory systems[10]; the preventive measures to be taken by financial institutions and certain other businesses and professions; and international co-operation.

 

 

 

      The original FATF Forty Recommendations were drawn up in 1990 as an initiative to combat the misuse of financial systems by persons laundering drug money. In 1996 the Recommendations were revised for the first time to reflect evolving money laundering typologies[11]. The 1996 Forty Recommendations have been endorsed by more than 130 countries and are the international anti-money laundering standard.

 

 

 

In October 2001 the FATF expanded its mandate to deal with the issue of the financing of terrorism, and took the important step of creating the Eight Special Recommendations on Terrorist Financing. These Recommendations contain a set of measures aimed at combating the funding of terrorist acts and terrorist organizations, and are complementary[12] to the Forty Recommendations.

 

 

 

A key element in the fight against money laundering and the financing of terrorism is the need for countries systems to be monitored and evaluated, with respect to these international standards. The mutual evaluations conducted by the FATF and FATF-style regional bodies, as well as the assessments conducted by the IMF and World Bank, are a vital mechanism for ensuring that the FATF Recommendations are effectively implemented by all countries.

 

LEGAL SYSTEMS

Scope of the criminal offence of money laundering[13]

Recommendation 1

 

 

 

     Countries should criminalize money laundering on the basis of United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances[14], 1988 (the Vienna Convention[15]) and United Nations Convention against Transnational Organized Crime, 2000 (the Palermo Convention)[16].

 

 

 

     Countries should apply the crime of money laundering to all serious offences, with a view to including the widest range of predicate offences. Predicate offences may be described by reference to all offences, or to a threshold linked either to a category of serious offences or to the penalty of imprisonment applicable to the predicate offence (threshold approach), or to a list of predicate offences, or a combination of these approaches.

 

 

 

     Where countries apply a threshold approach, predicate offences should at a minimum comprise all offences that fall within the category of serious offences under their national law or should include offences which are punishable by a maximum penalty of more than one year’s imprisonment or for those countries that have a minimum threshold for offences in their legal system, predicate offences should comprise all offences, which are punished by a minimum penalty of more than six months imprisonment.

 

 

 

     Whichever approach is adopted, each country should at a minimum include a range of offences within each of the designated categories of offences[17].

 

 

 

    Predicate offences for money laundering should extend to conduct that occurred in another country, which constitutes an offence in that country, and which would have constituted a predicate offence had it occurred domestically. Countries may provide that the only prerequisite is that the conduct would have constituted a predicate offence had it occurred domestically.

 

 

 

     Countries may provide that the offence of money laundering does not apply to persons who committed the predicate offence, where this is required by fundamental principles of their domestic law.

 

 

 

Recommendation 2

 

 

 

Countries should ensure that:

 

 

 

     a) The intent and knowledge[18] required to prove the offence of money laundering is consistent with the standards set forth in the Vienna and Palermo Conventions, including the concept that such mental state may be inferred from objective factual circumstances.

 

 

 

     b) Criminal liability, and, where that is not possible, civil or administrative liability, should apply to legal persons. This should not preclude[19] parallel criminal, civil or administrative proceedings with respect to legal persons in countries in which such forms of liability are available. Legal persons should be subject to effective, proportionate[20] and dissuasive[21] sanctions. Such measures should be without prejudice to the criminal liability of individuals.

 

 

 

Provisional measures and confiscation

 

 

Recommendation 3

 

 

 

      Countries should adopt measures similar to those set forth in the Vienna and Palermo Conventions, including legislative measures, to enable their competent authorities to confiscate property laundered, proceeds from money laundering or predicate offences, instrumentalities used in or intended for use in the commission of these offences, or property of corresponding value, without prejudicing the rights of bona fide third parties.

 

 

 

      Such measures should include the authority to: (a) identify, trace and evaluate property which is subject to confiscation; (b) carry out provisional measures, such as  freezing and seizing, to prevent any dealing, transfer or disposal of such property; (c) take steps that will prevent or void actions that prejudice the State’s ability to recover property that is subject to confiscation; and (d) take any appropriate investigative measures.

 

 

 

     Countries may consider adopting measures that allow such proceeds or instrumentalities to be confiscated without requiring a criminal conviction, or which require an offender to demonstrate the lawful origin of the property alleged to be liable to confiscation, to the extent that such a requirement is consistent with the principles of their domestic law.

 

 

 

 

 

 

 

MEASURES TO BE TAKEN BY FINANCIAL INSTITUTIONS AND NON-FINANCIAL BUSINESSES AND PROFESSIONS TO PREVENT MONEY LAUNDERING AND TERRORIST FINANCING

 

 

 

Recommendation 4

 

 

 

     Countries should ensure that financial institution secrecy laws[22] do not inhibit[23] implementation of the FATF Recommendations.

 

 

 

Customer due diligence and record-keeping

 

 

 

Recommendation 5

 

 

 

     Financial institutions should not keep anonymous accounts or accounts in obviously fictitious names.

 

 

 

 

 

 

 

  Financial institutions[24] should undertake customer due diligence measures, including identifying and verifying the identity of their customers, when:

 

 

 

    establishing business relations;

 

    carrying out occasional transactions: (i) above the applicable designated threshold[25]; or (ii) that are wire transfers in the circumstances covered by the Interpretative Note[26] to Special Recommendation VII;

 

    there is a suspicion of money laundering or terrorist financing; or

 

  the financial institution has doubts about the veracity[27] or adequacy of previously obtained customer identification data.

 

 

 

    The customer due diligence (CDD) measures to be taken are as follows:

 

 

 

    a) Identifying the customer and verifying that customer’s identity using reliable, independent source documents, data or information.

 

    b) Identifying the beneficial owner, and taking reasonable measures to verify the identity of the beneficial owner such that the financial institution is satisfied that it knows who the beneficial owner is. For legal persons and arrangements this should include financial institutions taking reasonable measures to understand the ownership and control structure of the customer.

 

   c) Obtaining information on the purpose and intended nature of the business relationship.

 

   d) Conducting ongoing due diligence on the business relationship and scrutiny of transactions undertaken throughout the course of that relationship to ensure that the transactions being conducted are consistent with the institution’s knowledge of the customer, their business and risk profile[28], including, where necessary, the source of funds.

 

     Financial institutions should apply each of the CDD measures under (a) to (d) above, but may determine the extent of such measures on a risk sensitive basis depending on the type of customer, business relationship or transaction. The measures that are taken should be consistent with any guidelines[29] issued by competent authorities. For higher risk categories, financial institutions should perform enhanced due diligence. In certain circumstances, where there are low risks, countries may decide that financial institutions can apply reduced or simplified measures.

 

 

 

    Financial institutions should verify the identity of the customer and beneficial owner before or during the course of establishing a business relationship or conducting transactions for occasional customers[30]. Countries may permit financial institutions to complete the verification as soon as reasonably practicable following the establishment of the relationship, where the money laundering risks are effectively managed and where this is essential not to interrupt the normal conduct of business.

 

 

 

    Where the financial institution is unable to comply with paragraphs (a) to (c) above, it should not open the account, commence business relations or perform the transaction; or should terminate the business relationship; and should consider making a suspicious transactions report in relation to the customer.

 

 

 

     These requirements should apply to all new customers, though financial institutions should also apply this Recommendation to existing customers on the basis of materiality [31]and risk, and should conduct due diligence on such existing relationships at appropriate times.

 

(See Interpretative Notes: Recommendation 5 and Recommendations 5, 12 and 16) 

 

 

 

Recommendation 6

 

 

 

     Financial institutions should, in relation to politically exposed persons[32], in addition to performing normal due diligence measures:

 

 

 

    a) Have appropriate risk management systems to determine whether the customer is a politically exposed person.

 

    b) Obtain senior management approval for establishing business relationships with such customers.

 

    c) Take reasonable measures to establish the source of wealth and source of funds.

 

Conduct enhanced ongoing monitoring of the business relationship.

 

 

 

Recommendation 7

 

 

 

     Financial institutions should, in relation to cross-border correspondent banking[33] and other similar relationships, in addition to performing normal due diligence measures:

 

 

 

    a) Gather sufficient information about a respondent institution[34] to understand fully the nature of the respondent’s business and to determine from publicly available information the reputation of the institution and the quality of supervision, including whether it has been subject to a money laundering or terrorist financing investigation or regulatory action.

 

    b) Assess the respondent institution’s anti-money laundering and terrorist financing controls.

 

    c) Obtain approval from senior management before establishing new correspondent relationships.

 

    d) Document the respective responsibilities of each institution[35].

 

    e) With respect to “payable-through accounts[36]”, be satisfied that the respondent bank has verified the identity of and performed on-going due diligence on the customers having direct access to accounts of the correspondent and that it is able to provide relevant customer identification data upon request to the correspondent bank.

 

 

 

Recommendation 8

 

 

 

    Financial institutions should pay special attention to any money laundering threats that may arise from new or developing technologies that might favour anonymity[37], and take measures, if needed, to prevent their use in money laundering schemes. In particular, financial institutions should have policies and procedures in place to address any specific risks associated with non-face to face business relationships or transactions.

 

 

 

Recommendation 9

 

 

 

     Countries may permit financial institutions to rely on intermediaries or other third parties to perform elements (a) (c) of the CDD process or to introduce business, provided that the criteria set out below are met. Where such reliance is permitted, the ultimate responsibility for customer identification and verification remains with the financial institution relying on the third party.

 

 

 

    The criteria that should be met are as follows:

 

 

 

     a) A financial institution relying upon a third party should immediately obtain the necessary information concerning elements (a) (c) of the CDD process. Financial institutions should take adequate steps to satisfy themselves that copies of identification data and other relevant documentation relating to the CDD requirements will be made available from the third party upon request without delay.

 

 

 

     b) The financial institution should satisfy itself that the third party is regulated and supervised for, and has measures in place to comply with CDD requirements in line with Recommendations 5 and 10.

 

     It is left to each country to determine in which countries the third party that meets the conditions can be based, having regard to information available on countries that do not or do not adequately apply the FATF Recommendations.[38]

 

 

 

Recommendation 10

 

 

 

     Financial institutions should maintain, for at least five years, all necessary records on transactions, both domestic or international, to enable them to comply swiftly with information requests from the competent authorities. Such records must be sufficient to permit reconstruction of individual transactions (including the amounts and types of currency involved if any) so as to provide, if necessary, evidence for prosecution of criminal activity.

 

 

 

    Financial institutions should keep records on the identification data obtained through the customer due diligence process (e.g. copies or records of official identification documents like passports, identity cards, driving licenses or similar documents), account files and business correspondence[39] for at least five years after the business relationship is ended.

 

 

 

    The identification data and transaction records should be available to domestic competent authorities upon appropriate authority.

 

 

 

Recommendation 11

 

 

 

     Financial institutions should pay special attention to all complex, unusual large transactions[40], and all unusual patterns of transactions, which have no apparent economic or visible lawful purpose.  The background and purpose of such transactions should, as far as possible, be examined, the findings established in writing, and be available to help competent authorities and auditors.

 

 

 

Recommendation 12

 

 

 

      The customer due diligence and record-keeping requirements set out in Recommendations 5, 6, and 8 to 11 apply to designated non-financial businesses and professions[41] in the following situations:

 

 

 

     a) Casinos when customers engage in financial transactions equal to or above the applicable designated threshold.

 

     b) Real estate agents - when they are involved in transactions for their client concerning the buying and selling of real estate.

 

    c) Dealers in precious metals and dealers in precious stones - when they engage in any cash transaction with a customer equal to or above the applicable designated threshold.

 

   d) Lawyers, notaries, other independent legal professionals and accountants when they prepare for or carry out transactions for their client concerning the following activities:

 

     • buying and selling of real estate;

 

     • managing of client money, securities or other assets;

 

     • management of bank, savings or securities accounts;

 

     •organisation of contributions for the creation, operation or management of companies;

 

     • creation, operation or management of legal persons or arrangements, and buying and selling of business entities.

 

    e) Trust and company service providers[42] when they prepare for or carry out transactions for a client concerning the activities listed in the definition in the Glossary.

 

 

 

Reporting of suspicious transactions and compliance

 

 

Recommendation 13

 

 

 

      If a financial institution suspects or has reasonable grounds to suspect that funds are the proceeds of a criminal activity, or are related to terrorist financing, it should be required, directly by law or regulation, to report promptly its suspicions to the financial intelligence unit (FIU).[43]

 

 

 

Recommendation 14

 

 

 

      Financial institutions, their directors, officers and employees should be:

 

 

 

     a) Protected by legal provisions from criminal and civil liability for breach of any restriction on disclosure of information imposed by contract or by any legislative, regulatory or administrative provision, if they report their suspicions in good faith to the FIU, even if they did not know precisely what the underlying criminal activity was, and regardless of whether illegal activity actually occurred.

 

 

 

     b) Prohibited by law from disclosing the fact that a suspicious transaction report (STR) or related information is being reported to the FIU.

 

 

 

Recommendation 15

 

 

 

    Financial institutions should develop programmes against money laundering and terrorist financing. These programmes should include:

 

 

 

    a) The development of internal policies, procedures and controls, including appropriate compliance management arrangements, and adequate screening procedures to ensure high standards when hiring employees.

 

    b) An ongoing employee training programme.

 

    c) An audit function to test the system.[44]

 

 

 

Recommendation 16

 

 

 

     The requirements set out in Recommendations 13 to 15, and 21 apply to all designated non-financial businesses and professions, subject to the following qualifications:

 

 

 

    a) Lawyers, notaries, other independent legal professionals and accountants should be required to report suspicious transactions when, on behalf of or for a client, they engage in a financial transaction in relation to the activities described in Recommendation 12(d). Countries are strongly encouraged to extend the reporting requirement to the rest of the professional activities of accountants, including auditing.

 

 

 

    b) Dealers in precious metals and dealers in precious stones should be required to report suspicious transactions when they engage in any cash transaction with a customer equal to or above the applicable designated threshold.

 

 

 

    c) Trust and company service providers should be required to report suspicious transactions for a client when, on behalf of or for a client, they engage in a transaction in relation to the activities referred to Recommendation 12(e).

 

    Lawyers, notaries, other independent legal professionals, and accountants acting as independent legal professionals, are not required to report their suspicions if the relevant information was obtained in circumstances where they are subject to professional secrecy or legal professional privilege.[45]

 

 

 

   Other measures to deter money laundering and terrorist financing

 

 

 

Recommendation 17

 

 

 

    Countries should ensure that effective, proportionate and dissuasive sanctions, whether criminal, civil or administrative, are available to deal with natural or legal persons covered by these Recommendations that fail to comply with anti-money laundering or terrorist financing requirements.

 

 

 

Recommendation 18

 

 

 

    Countries should not approve the establishment or accept the continued operation of shell banks[46]. Financial institutions should refuse to enter into, or continue, a correspondent banking relationship with shell banks. Financial institutions should also guard against establishing relations with respondent foreign financial institutions that permit their accounts to be used by shell banks.

 

 

 

Recommendation 19

 

 

 

Countries should consider: [47]

 

 

 

     a) Implementing feasible measures to detect or monitor the physical cross-border transportation of currency and bearer negotiable instruments, subject to strict safeguards to ensure proper use of information and without impeding in any way the freedom of capital movements.

 

 

 

    b) The feasibility and utility of a system where banks and other financial institutions and intermediaries would report all domestic and international currency transactions above a fixed amount, to a national central agency with a computerized data base[48], available to competent authorities for use in money laundering or terrorist financing cases, subject to strict safeguards to ensure proper use of the information.

 

 

 

Recommendation 20

 

 

 

    Countries should consider applying the FATF Recommendations to businesses and professions, other than designated non-financial businesses and professions, that pose a money laundering or terrorist financing risk.

 

 

 

    Countries should further encourage the development of modern and secure techniques of money management that are less vulnerable to money laundering.

 

 

 

Measures to be taken with respect to countries that do not or insufficiently comply with the FATF Recommendations

 

 

 

Recommendation 21

 

 

 

    Financial institutions should give special attention to business relationships and transactions with persons, including companies and financial institutions, from countries which do not or insufficiently apply the FATF Recommendations. Whenever these transactions have no apparent economic or visible lawful purpose, their background and purpose should, as far as possible, be examined, the findings established in writing, and be available to help competent authorities. Where such a country continues not to apply or insufficiently applies the FATF Recommendations, countries should be able to apply appropriate countermeasures[49].

 

 

 

Recommendation 22

 

 

 

     Financial institutions should ensure that the principles applicable to financial institutions, which are mentioned above are also applied to branches and majority owned subsidiaries located abroad, especially in countries which do not or insufficiently apply the FATF Recommendations, to the extent that local applicable laws and regulations permit. When local applicable laws and regulations prohibit this implementation, competent authorities in the country of the parent institution should be informed by the financial institutions that they cannot apply the FATF Recommendations.

 

 

 

 

 

Regulation and supervision

 

 

 

Recommendation 23[50]

 

 

 

   Countries should ensure that financial institutions are subject to adequate regulation and supervision and are effectively implementing the FATF Recommendations. Competent authorities should take the necessary legal or regulatory measures to prevent criminals or their associates from holding or being the beneficial owner of a significant or controlling interest or holding a management function in a financial institution.[51]

 

 

 

    For financial institutions subject to the Core Principles[52], the regulatory and supervisory measures that apply for prudential[53] purposes and which are also relevant to money laundering, should apply in a similar manner for anti-money laundering and terrorist financing purposes.

 

 

 

    Other financial institutions should be licensed or registered and appropriately regulated, and subject to supervision or oversight for anti-money laundering purposes, having regard to the risk of money laundering or terrorist financing in that sector. At a minimum, businesses providing a service of money or value transfer, or of money or currency changing should be licensed or registered, and subject to effective systems for monitoring and ensuring compliance with national requirements to combat money laundering and terrorist financing.

 

 

 

Recommendation 24

 

 

 

    Designated non-financial businesses and professions should be subject to regulatory and supervisory measures as set out below.

 

 

 

    a) Casinos should be subject to a comprehensive regulatory and supervisory regime that ensures that they have effectively implemented the necessary anti-money laundering and terrorist-financing measures. At a minimum:

 

      • casinos should be licensed;

 

      • competent authorities should take the necessary legal or regulatory measures to prevent criminals or their associates from holding or being the beneficial owner of a significant or controlling interest, holding a management function in, or being an operator of a casino

 

       • competent authorities should ensure that casinos are effectively supervised for compliance with requirements to combat money laundering and terrorist financing.

 

     b) Countries should ensure that the other categories of designated non-financial businesses and professions are subject to effective systems for monitoring and ensuring their compliance with requirements to combat money laundering and terrorist financing. This should be performed on a risk-sensitive basis. This may be performed by a government authority or by an appropriate self-regulatory organisation, provided that such an organisation can ensure that its members comply with their obligations to combat money laundering and terrorist financing.

 

 

 

Recommendation 25

 

 

 

     The competent authorities should establish guidelines, and provide feedback which will assist financial institutions and designated non-financial businesses and professions in applying national measures to combat money laundering and terrorist financing, and in particular, in detecting and reporting suspicious transactions. 

 

 

 

 

 

 

 

INSTITUTIONAL AND OTHER MEASURES NECESSARY IN SYSTEMS FOR COMBATING  MONEY LAUNDERING AND TERRORIST FINANCING

 

 

 

Competent authorities, their powers and resources

 

 

 

Recommendation 26[54]

 

 

 

     Countries should establish a FIU that serves as a national centre for the receiving (and, as permitted, requesting), analysis and dissemination of STR and other information regarding potential money laundering or terrorist financing. The FIU should have access, directly or indirectly, on a timely basis to the financial, administrative and law enforcement information that it requires to properly undertake its functions, including the analysis of STR. 

 

 

 

Recommendation 27[55]

 

 

 

      Countries should ensure that designated law enforcement authorities have responsibility for money laundering and terrorist financing investigations. Countries are encouraged to support and develop, as far as possible, special investigative techniques suitable for the investigation of money laundering, such as controlled delivery, undercover operations and other relevant techniques. Countries are also encouraged to use other effective mechanisms such as the use of permanent or temporary groups specialised in asset investigation, and co-operative investigations with appropriate competent authorities in other countries. 

 

 

 

Recommendation 28

 

 

 

      When conducting investigations of money laundering and underlying predicate offences, competent authorities should be able to obtain documents and information for use in those investigations, and in prosecutions and related actions. This should include powers to use compulsory measures for the production of records held by financial institutions and other persons, for the search of persons and premises, and for the seizure and obtaining of evidence.

 

 

 

Recommendation 29

 

 

 

      Supervisors should have adequate powers to monitor and ensure compliance by financial institutions with requirements to combat money laundering and terrorist financing, including the authority to conduct inspections.  They should be authorised to compel[56] production of any information from financial institutions that is relevant to monitoring such compliance, and to impose adequate administrative sanctions for failure to comply with such requirements.

 

 

 

Recommendation 30

 

 

 

     Countries should provide their competent authorities involved in combating money laundering and terrorist financing with adequate financial, human and technical resources.  Countries should have in place processes to ensure that the staff of those authorities are of high integrity.

 

 

 

Recommendation 31

 

 

 

      Countries should ensure that policy makers, the FIU, law enforcement and supervisors have effective mechanisms in place which enable them to co-operate, and where appropriate co-ordinate domestically with each other concerning the development and implementation of policies and activities to combat money laundering and terrorist financing.  

 

 

 

Recommendation 32

 

 

 

     Countries should ensure that their competent authorities can review the effectiveness of their systems to combat money laundering and terrorist financing systems by maintaining comprehensive statistics on matters relevant to the effectiveness and efficiency of such systems[57]. This should include statistics on the STR received and disseminated; on money laundering and terrorist financing investigations, prosecutions and convictions; on property frozen, seized and confiscated; and on mutual legal assistance or other international requests for co-operation.

 

 

 

Transparency of legal persons and arrangements

 

 

Recommendation 33

 

 

 

    Countries should take measures to prevent the unlawful use of legal persons by money launderers. Countries should ensure that there is adequate, accurate and timely information on the beneficial ownership and control of legal persons that can be obtained or accessed in a timely fashion by competent authorities. In particular, countries that have legal persons that are able to issue bearer shares[58] should take appropriate measures to ensure that they are not misused for money laundering and be able to demonstrate the adequacy of those measures. Countries could consider measures to facilitate[59] access to beneficial ownership and control information to financial institutions undertaking the requirements set out in Recommendation 5.

 

 

 

Recommendation 34

 

 

 

     Countries should take measures to prevent the unlawful use of legal arrangements by money launderers. In particular, countries should ensure that there is adequate, accurate and timely information on express trusts[60], including information on the settlor, trustee and beneficiaries[61], that can be obtained or accessed in a timely fashion by competent authorities. Countries could consider measures to facilitate access to beneficial ownership and control information to financial institutions undertaking the requirements set out in Recommendation 5. 

 

 

 

INTERNATIONAL CO-OPERATION[62]

 

 

Recommendation 35

 

 

 

     Countries should take immediate steps to become party to and implement fully the Vienna Convention, the Palermo Convention, and the 1999 United Nations International Convention for the Suppression of the Financing of Terrorism. Countries are also encouraged to ratify and implement other relevant international conventions, such as the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime[63] and the 2002 Inter-American Convention against Terrorism.[64]

 

 

 

Mutual legal assistance and extradition[65]

 

 

Recommendation 36

 

 

 

     Countries should rapidly, constructively and effectively provide the widest possible range of mutual legal assistance in relation to money laundering and terrorist financing investigations, prosecutions, and related proceedings. In particular, countries should:

 

 

 

     a) Not prohibit or place unreasonable or unduly restrictive conditions on the provision of mutual legal assistance.

 

     b) Ensure that they have clear and efficient processes for the execution of mutual legal assistance requests.

 

    c) Not refuse to execute a request for mutual legal assistance on the sole ground that the offence is also considered to involve fiscal matters.

 

    d) Not refuse to execute a request for mutual legal assistance on the grounds that laws require financial institutions to maintain secrecy or confidentiality.

 

   

 

     Countries should ensure that the powers of their competent authorities required under Recommendation 28 are also available for use in response to requests for mutual legal assistance, and if consistent with their domestic framework, in response to direct requests from foreign judicial or law enforcement authorities to domestic counterparts.

 

 

 

     To avoid conflicts of jurisdiction, consideration should be given to devising and applying mechanisms for determining the best venue[66] for prosecution of defendants in the interests of justice in cases that are subject to prosecution in more than one country.

 

 

 

Recommendation 37

 

 

 

     Countries should, to the greatest extent possible, render mutual legal assistance notwithstanding the absence of dual criminality.

 

 

 

      Where dual criminality is required for mutual legal assistance or extradition, that requirement should be deeme to be satisfied regardless of whether both countries place the offence within the same category of offence or denominate the offence by the same terminology[67], provided that both countries criminalise the conduct underlying the offence.

 

 

 

Recommendation 38

 

 

 

     There should be authority to take expeditious[68] action in response to requests by foreign countries to identify, freeze, seize and confiscate property laundered, proceeds from money laundering or predicate offences, instrumentalities used in or intended for use in the commission of these offences, or property of corresponding value. There should also be arrangements for co-ordinating seizure and confiscation proceedings, which may include the sharing of confiscated assets. [69]

 

 

 

Recommendation 39

 

 

 

     Countries should recognize money laundering as an extraditable[70] offence. Each country should either extradite its own nationals, or where a country does not do so solely on the grounds of nationality, that country should, at the request of the country seeking extradition, submit the case without undue delay to its competent authorities for the purpose of prosecution of the offences set forth in the request. Those authorities should take their decision and conduct their proceedings in the same manner as in the case of any other offence of a serious nature under the domestic law of that country. The countries concerned should cooperate with each other, in particular on procedural and evidentiary aspects, to ensure the efficiency of such prosecutions.

 

 

 

     Subject to their legal frameworks, countries may consider simplifying extradition by allowing direct transmission of extradition requests between appropriate ministries, extraditing persons based only on warrants of arrests or judgments, and/or introducing a simplified extradition of consenting persons who waive formal extradition proceedings.

 

 

 

Other forms of co-operation

 

 

 

Recommendation 40

 

 

 

     Countries should ensure that their competent authorities provide the widest possible range of international co-operation to their foreign counterparts. There should be clear and effective gateways to facilitate the prompt and constructive exchange directly between counterparts, either spontaneously or upon request, of information relating to both money laundering and the underlying predicate offences. Exchanges should be permitted without unduly restrictive conditions.[71] In particular:

 

 

 

    a) Competent authorities should not refuse a request for assistance on the sole ground that the request is also considered to involve fiscal matters.

 

    b) Countries should not invoke laws that require financial institutions to maintain secrecy or confidentiality as a ground for refusing to provide co-operation.

 

c) Competent authorities should be able to conduct inquiries; and where possible, investigations; on behalf of foreign counterparts.

 

 

 

     Where the ability to obtain information sought by a foreign competent authority is not within the mandate of its counterpart, countries are also encouraged to permit a prompt and constructive exchange of information with non-counterparts.[72] Co-operation with foreign authorities other than counterparts could occur directly or indirectly. When uncertain about the appropriate avenue to follow, competent authorities should first contact their foreign counterparts for assistance.[73]

 

 

 

     Countries should establish controls and safeguards to ensure that information exchanged by competent authorities is used only in an authorized manner, consistent with their obligations concerning privacy and data protection.

 

 

 

--------------------------------------------------------------------------------

 

[1] Customer due diligence:客戶盡職審查,簡稱CDD。這是反洗錢活動中的一個審慎性原則,它要求金融機構對其客戶進行審查,包括客戶的身份、住址、職業和收入等等。

 

[2] Reporting of suspicious transactions and compliance:對可疑交易和經營合規性的報告, 這是反洗錢活動的一個重要措施, 通過向FIU報告,可以發現并打擊洗錢活動, 這要求所有的金融機構都遵守這個規定。

 

[3] Transparency of legal persons and arrangements:法人和法律協議的透明度。法人是指法人團體、基金、合伙公司、協會或其他任何類似的能夠與金融機構建立一種永久性客戶關系或擁有財產的組織;法律協議是指書面信托和其他類似的法律協議。這主要是保證在反洗錢活動中,主管部門能夠及時獲得有關法人以及法律協議的受托人、委托人以及受益人充分、準確的信息。

 

[4] Mutual legal assistance and extradition:司法互助和引渡。隨著洗錢活動范圍的擴大,反洗錢活動的順利開展需要各國進行有關方面的合作,司法互助和引渡就是這方面的合作。

 

[5] interested parties:利益主體

 

[6] Eight Special Recommendations on Terrorist Financing:《打擊恐怖融資8條特別建議》,相關內容見本書相關章節

 

[7] diverse[dai5vE:s] 不同的,各種各樣的

 

[8]  minimum standards for action:行動的最低標準

 

[9] circumstances and constitutional frameworks:現實情況和制度性體系

 

[10] criminal justice and regulatory systems:刑事司法和監管體系

 

[11] typologies[tai5pClEdVist] 類型,在這里可以理解為洗錢的手段,方式或形勢

 

[12] complementary[kRmplE5mentErI] 補充的

 

[13] Scope of the criminal offence of money laundering:洗錢犯罪的范圍

 

[14] United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances:聯合國《禁止非法販運麻醉品和精神藥物公約》相關內容見本書的其他章節

 

[15] The Vienna Convention:簡稱《維也納公約》,相關內容見本書的其他章節。

 

[16] United Nations Convention against Transnational Organized Crime, 2000 (the Palermo Convention):聯合國《打擊跨國有組織犯罪公約》也簡稱《巴勒莫公約》,具體內容見本書的有關章節。

 

[17] designated categories of offences:指定的犯罪類型。FATF在《40條建議》中指出 “指定的犯罪”指以下20類犯罪: 1)參加有組織犯罪集團和進行敲詐活動; 2)恐怖主義活動, 包括恐怖融資; 3)販賣人口及偷渡; 4)利用、組織他人進行色情活動,包括利用兒童進行色情活動; 5)非法販賣毒品和精神性藥品; 6)非法販賣軍火;7)非法販賣盜竊所得及其他物品; 8)貪污和賄賂; 9)詐騙; 10)偽造貨幣; 11)偽造和非法復制產品; 12)環境方面的犯罪; 13)殺人、重傷害; 14)綁架、非法監禁和劫持人質; 15)搶劫或盜竊; 16)走私; 17)勒索; 18)偽造文件; 19)盜版; 20)內幕交易和操縱市場。

 

[18] intent and knowledge:故意和明知

 

[19] preclude[pri5klu:d] 排除

 

[20] proportionate[prE5pC:FEnit] 相稱的

 

[21] dissuasive[di5sweisiv]  勸戒的

 

[22] financial institution secrecy laws:金融機構保密法。一般來說, 金融機構有對客戶信息進行保密的義務,但是《40條建議》要求各國應確保金融機構保密法并不妨礙反洗錢活動的順利實施。

 

[23] Inhibit[in5hibit]: 阻止

 

[24] financial institutions:金融機構。在本建議中,金融機構系指為客戶或代表客戶從事以下一種或多種業務的任何人或個體:(1)接受公眾存款及其須支付的款項(這也包括私營銀行業)(2)借貸(主要包括:消費品信用貸款; 抵押貸款; 有追索權或無追索權的應收款項收購; 貿易融資(包括福費廷))(3)融資租賃(不包括消費品的融資租賃協議)(4)貨幣或價值的轉移(既適用于金融機構也適用于金融機構的金融交易,如替代性匯款活動. 不包括僅為金融機構提供資金轉移的信息或其他支持體系的任何人員或實體)(5)發行和管理支付手段(如貸記卡和借記卡,支票,旅行支票, 郵政支票, 銀行匯票, 電子貨幣)(6)融資擔保和委托;(7)從事下列交易:a.貨幣市場工具(支票、匯票、存款憑證和金融衍生品) b.外匯 c.匯兌 、利率和指數票據d.可轉讓證券 e.商品期貨交易;(8)參與證券發行或提供與此有關事宜的金融服務;(9)個人或集體的投資組合管理;(10)代表他人進行現金或流動證券的保管;(11)代表他人投資、管理或經營資金或貨幣;(12)人壽保險的承銷和分保以及與保險有關的其他投資(既適用于保險公司,也適用于保險中間商)(13)現金和貨幣交易。

 

[25] designated threshold:規定金額。在《40條建議》中, 金融交易中的規定金額系指: 1.金融機構(針對第5條建議中規定的非經常性客戶): 1.5萬美元;2. 賭場,包括網絡賭場(針對第13條建議): 3000美元; 3. 貴金屬和寶石交易商進行的任何現金交易(針對1216條建議): 1.5萬美元。超過規定金額的金融交易既包括超過規定金額的單筆交易,也包括看似關聯的連續多筆交易。

 

[26] Interpretative Note:注釋

 

[27] veracity[vE5rAsiti] 真實性,準確性

 

[28] profile [5prEufail] 概況

 

[29] guidelines[^aIdlains] 指導方針

 

[30] occasional customers:非經常性客戶

 

[31] materiality[mE7tiEri5Aliti] 現實情況

 

[32] politically exposed persons:政治公眾人物。系指那些在外國履行重要公共職能的人員,如國家或政府首腦、 高層政要、資深的政府、司法或軍事官員、國有企業的高級主管和政黨要員。同政治公眾人物的家庭成員或關系密切者發生商業關系所產生的風險, 與同政治公眾人物自身發生商業關系所產生的風險類似。此定義不涵蓋中層或較低層次的官員。

 

[33] cross-border correspondent banking:海外代理銀行的業務

 

[34] respondent institution:回復機構

 

[35] document the respective responsibilities of each institution:用文件明確記錄每個機構各自應負的責任

 

[36] payable-through accounts:可通過賬戶支付。系指可直接被第三方用以自行交易的代理銀行賬戶

 

[37] anonymity[7AnE5nimiti] 匿名

 

[38] 本建議不適用于外部采購和機構間商業關系, 也不適用于金融機構之間為客戶進行的商業關系,賬戶來往和其他交易.

 

[39] correspondence[7kCris5pCndEns] 函件

 

[40] transactions[trAn5zAkFEns] 在第10條和第11條建議在適用于保險業時, transactions”一詞系指保險產品本身,以及保險金支付和收益。

 

[41] designated non-financial businesses and professions: 指定的非金融行業和職業。在<條建議>, 指定的非金融行業和職業都有特定的內涵,對此下文中有詳細的列示。

 

[42] trust and company service providers:信托和公司服務提供者

 

1 本建議中提到的犯罪活動系指:1)在司法區可能構成洗錢犯罪上游犯罪的所有犯罪活動. 2)至少應包括第一條建議中所規定的構成洗錢犯罪上游犯罪的犯罪.  大力鼓勵各國采用上述第1)條規定. 包括未遂交易在內的所有可疑交易,無論其交易金額的大小,都應該報告. 2. 在執行本建議時,無論可疑交易是否還涉及到稅務問題, 金融機構都應該報告. 為阻止金融機構報告可疑交易, 洗錢者有時會聲稱交易涉及到稅務問題, 各國應對此加以關注。

 

[44] 為執行每一條建議的規定而采取的措施的類型和強度應與存在的洗錢和恐怖融資風險大小及交易的規模相適應。金融機構實行的合規管理體制中, 應包括在管理層任命一名合規官員。

 

[45] 關于交易是否與法定的行業特權與職業秘密有關,由各國自行決定。這通常包括律師、公證人或法律職業工作者在進行以下活動時從一個或多個客戶那里收到或獲取的信息: (1) 在確定其客戶法律地位時; (2) 在司法程序、行政程序、仲裁程序、調解程序或與這些法律程序有關的業務活動中履行代理其客戶或為客戶辯護的指責時。 如果會計受到同時的保密或特權義務的約束,他們也不必報告可疑交易。 2. 如果本國的律師和會計自律組織與金融情報中心之間存在適當的合作機制,各國可允許律師和會計將可疑交易報告遞交給其相應的自律組織。

 

[46] shell banks:空殼銀行。系指在某司法區成立, 但在該司法區內沒有實際注冊也不是受監管金融機構成員的銀行。

 

[47] 為了便于發現和監控現金流動,同時又不影響資金的自由流動,成員可考慮對所有超過一定限額的越境資金轉移進行查證、行政監控、申請和記錄保存。 2. 如果某國發現一個不平常的貨幣, 貨幣工具,名貴金屬或寶石的國際船運,其應考慮在適當的時候將此情況通報船運的起運和/或目的國的海關或其他主管部門,并且在核查此次船運的來源、目的地和目的以及采取適當措施方面進行合作。

 

[48] computerized data base:電腦數據庫

 

[49] countermeasure [5kauntE7meVE] 對策,制裁措施

 

[50] 該條建議只是強調了FATF希望各國對金融機構中的控股股東進行審慎審查的愿望,并不要求僅僅為了反洗錢目的而在金融機構中建立一個對注冊的控股股東進行定期審查的機制。因此,如果存在一個測試股東適當性( “準確性與正當性”)的機制,監管者的注意力應集中在其體制是否足以應對洗錢活動。

 

[51] holding or being the beneficial owner of a significant or controlling interest or holding a management function in a financial institution:持有金融機構的有影響的或控股的投資股份,或成為有影響或控股的投資股份的收益人,或在金融機構中擔任管理職務。

 

[52] Core Principles:核心原則。系指巴塞爾銀行監管委員會發布的《有效銀行監管的核心原則》, 國際證券委員會組織發布的《證券管理的目標和原則》以及國際保險監管機構協會發布的《保險監管原則》。

 

[53] prudential[pru(:)5denFEl] 審慎的

 

[54] 如果某國已建立情報中心, 那么應爭取使其成為埃格蒙特集團的成員. 各國應重視《埃格蒙特集團的聲明和目標》及《金融情報中心之間交換洗錢案件情報的原則》。這兩份文件在金融情報中心的任務和功能方面提供了重要的指導, 并規定了各國金融情報中心情報交換的機制。

 

[55] 為了識別參與反洗錢活動的人員的身份或搜集證據,各國應該考慮在全國范圍內采取立法在內的措施,以使其調查洗錢的主管部門能夠推遲逮捕犯罪嫌疑人及/或沒收黑錢。沒有這樣的措施, 則無法采取控制下交付和秘密調查等措施。

 

[56] compel[kEm5pel] 強迫,迫使

 

[57] 事實上從國際經驗來看, 當局或政策制定者對FIU的工作不應有過多的干預, 但其可以對FIU的運作效率提出質疑, 當然即使FIU的效率低下,這也不能成為當局或有關當局對FIU活動進行干預的理由.

 

[58]  bearer shares:不記名股票

 

[59]  facilitate[fE5siliteit] 有利于,有便于

 

[60]  express trusts:書面信托

 

[61]  settlor, trustee and beneficiaries:委托人,受托人和收益人

 

[62]  合作對反洗錢活動來說特別重要, 而隨著洗錢活動跨境的進行, 洗錢手段的電子化, 國際合作對于打擊和防范洗錢活動具有愈來愈重要的意義。

 

[63]  the 1990 Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime:1990年歐洲委員會《清洗、搜查、查封和沒收犯罪收益的公約》

 

[64]  the 2002 Inter-American Convention against Terrorism: 2002美洲《反恐怖主義公約》

 

[65]  司法互助包括司法協助和司法當局間的合作。司法協助主要指刑事司法互助. 刑事司法協助是作為引渡的附隨形式發展起來的,現已發展成為防范和打擊跨國犯罪不可或缺的重要手段, 成為國家間打擊刑事犯罪的重要工具。引渡是指一國的主管機關應有管轄權的另一國主管機關的請求,依據國際法或雙邊協定的相關規定, 將被指控或判決犯有可引渡之罪的域內之人送交有管轄權的請求國進行懲處。引渡是在近代通過雙方或多邊條約或協定發展起來的, 是一種國際司法協助形式。

 

[66]  venue[5venju:] 審判地, 犯罪地點

 

[67]  terminology[7tE:mi5nClEdVi] 術語

 

[68] expeditious[ekspI5dIFEs] 迅速的

 

[69]  各國應考慮: 1)在本國范圍內建立一個資產沒收基金, 將所有被沒收的資產或其中一部分存入其中, 以用于執法,醫療衛生、教育或其他適當的目的。 2)采取必要的措施, 以使其能夠和其他一個或多個國家共享沒收的財產,尤其是當沒收的財產來源于聯合執法行動時.

 

[70] extraditable[5ekstrEdaitEbl] 可引渡的

 

[71] 根據有關主管部門的類型及合作的性質和目的, 有多種可進行情報交換的適當方式,包括通過雙邊或多邊協議和框架、諒解備忘錄及基于互惠基礎上的互換以及通過適當的全球性和區域性國際組織等。然而, 本建議不涵蓋與雙邊司法互助和引渡有關的合作。

 

[72] 本建議中提到的與外國部門間進行的非對口部門間的間接性情報交換包括下列情形: 通過一個或多個國內和外國部門, 將國外請求提供的情報最終傳到提出申請的部門。

 

[73] 金融情報中心應能代表外國對口部門進行與金融交易分析相關的調查。這種調查至少包括: 1)搜索其包括與可疑金融報告相關信息在內的數據庫。2)搜索其他能夠直接或間接登陸的數據庫, 包括: 執法數據庫, 公共數據庫, 行政管理數據庫和商業性質的可用數據庫。在經允許的情況下, 金融情報中心還應與其他主管部門和金融機構聯系, 以獲得相關的信息。

 
   
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