CC BY
9
№ 7 (106)
июль, 2023 г.
LEGAL SCIENCES
CRIMINAL LAW AND CRIMINOLOGY; CRIMINAL-EXECUTIVE LAW
THE SUBJECT OF MONEY LAUNDERING
Farkhod Fazilov
Doctor of Philosophy in Legal Sciences (PhD), Tashkent State Law University, Department of the Criminal law, criminology and fight against corruption
Associate Professor, Republic Uzbekistan, Tashkent E-mail: [email protected]
СУБЪЕКТ ОТМЫВАНИЯ ДЕНЕГ
Фазилов Фарход Маратович
доктор философии по юридическим наукам (PhD), доцент, Ташкентский государственный юридический университет, Кафедра «Уголовное право, криминология и противодействие коррупции»,
Республика Узбекистан, г. Ташкент
ABSTRACT
The article analyzes the general concept of money laundering. The article analyzes the general concept of money laundering. All over the world, the international community, including the United Nations, recognizes the legalization of proceeds from crime as one of the most widespread and dangerous transnational crimes.
АННОТАЦИЯ
В статье анализируется общее понятие отмывания денег. Во всем мире международным сообществом, в том числе Организацией Объединенных Наций легализация доходов, полученных от преступной деятельности, признается одним из самых распространенных и опасных транснациональных преступлений.
Keywords: crime, criminal liability, proceeds of crime, money laundering, legalization, punishment
Ключевые слова: преступление, уголовная ответственность, преступные доходы, отмывание денег, легализация, наказание
The legalization of revenue received from criminal activities is one of the most common and dangerous transnational crimes. According to experts, the income from various types of crimes in the field of legalization of revenue received from criminal activities has constituted from 2 to 5% of the total world gross product in recent years, that is, from 1 to 3 trillion US dollars.
The economic security and stability of the country may be threatened by the impact of such negative factors.
Currently, the growing public danger of legalization of revenue received from criminal activities is of concern to the vast majority of countries of the world community. With the globalization of the world financial system, the question arises on the need to coordinate the efforts of countries in countering the legalization of rev-
enue received from criminal activities at the international level. Under these conditions, Uzbekistan cannot remain aside from this problem.
In the realm of criminal law, the individual responsible for committing a crime and meeting the age requirements stipulated by the legal system is regarded as the subject of the offense. If any of these essential criteria are missing, it implies the absence of the crime's perpetrator and consequently negates the existence of the crime itself. [1].
The analysis reveals a significant fluctuation in the incidence of money laundering crimes and the corresponding data on the extent of revenue legalization during the study period. However, there is a clear trend of crime reduction in recent years, with the number of offenses decreasing by more than half.
Additionally, Uzbekistan is reported to have a substantial presence of the shadow economy, with estimates
Библиографическое описание: Fazilov F. THE SUBJECT OF MONEY LAUNDERING // Universum: экономика и юриспруденция : электрон. научн. журн. 2023. 7(106). URL: https://7universum. com/ru/economy/archive/item/15627
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suggesting that it accounts for around 50% of the overall economy. This high share of the shadow economy indicates a considerable loss in GDP, reaching up to 16-17 billion US dollars when measured by these estimations.
General scientific methods such as historical, comparative legal, and logical (analysis and synthesis) were used in the framework of the paper.
In many jurisdictions, the subject of money laundering crimes includes individuals, entities, or organizations involved in the process of disguising the origins of illicitly obtained funds. The specific criteria for identifying the subject may differ, but commonly recognized subjects of money laundering include:
Individuals: in most countries, individuals who knowingly engage in money laundering activities can be considered subjects of the crime. This typically includes perpetrators who knowingly facilitate the movement or transformation of illicit funds, such as through financial transactions or complex financial arrangements.
Financial Institutions: many countries impose obligations on financial institutions, such as banks, to prevent and report money laundering activities. These institutions have a responsibility to conduct due diligence on their customers, report suspicious transactions, and maintain robust anti-money laundering (AML) programs.
Designated Non-Financial Businesses and Professions (DNFBPs): certain countries extend AML obligations to designated non-financial businesses and professions, which can include sectors such as real estate, casinos, legal and accounting services, and trust and company service providers. Individuals or entities operating within these sectors may be subject to money laundering regulations and obligations.
Corporate Entities: in some jurisdictions, corporate entities can be held liable for money laundering offenses. This includes companies or organizations involved in facilitating or benefiting from money laundering activities, either directly or indirectly.
It's important to recognize that the specific definitions and criteria for identifying the subject of money laundering crimes can vary across jurisdictions. Each country may have its own laws, regulations, and interpretations regarding who can be considered a subject of the offense.
Заменить Pavlov posits that the subject of a crime is a legal term that defines the legal attributes of the individual who has committed the offense. It is delineated solely by the elements (individuality, age, sanity) required for the imposition of criminal responsibility upon the person who engaged in a socially harmful act. However, these elements represent only a fraction of the characteristics encompassing the individual involved in the criminal act. [2, p.270].
In the theory of criminal law, the subjects of crime are traditionally classified into the following types.
General subject - having all the characteristics specified in the Article 17 of the Criminal Code of the Republic of Uzbekistan.
A special subject of a crime is a person who, along with the general characteristics of the subject (reaching the age of criminal responsibility and sanity) also meets
additional special features specified in the disposition of the articles of the Special Part of the Criminal Code, which are subject to mandatory establishment when qualifying and limiting the circle of persons who may be liable under article 17 of the Criminal Code of the Republic of Uzbekistan [3]. A special subject must be defined by criminal law [4, p.104].
According to the viewpoints expressed by local scholars like R. Kabulov, Заменить Otajonov, and Заменить Sattiev, in cases where a crime involves both a general subject and a special subject, the special subject is considered the perpetrator, while the general subject assumes the role of an organizer, instigator, or accomplice based on their actions. [5, p.87].
Based on the examination of the corpus delicti concerning the legalization of revenue obtained from criminal activities, it can be inferred that the Criminal Code of the Republic of Uzbekistan does not explicitly designate a special subject for this offense. Consequently, it suggests that the subject of the crime of money laundering can be any mentally competent individuals who have reached the age of 16. Within the realm of domestic science, there are no contentious debates regarding the definition of the general and specific objects outlined in Article 243 of the Criminal Code of the Republic of Uzbekistan.
N.A. Lopashenko notes, the term "subject of self-laundering" refers to "an individual who has reached the age of 16 and has acquired money or property through criminal means, with the specific intention of giving a legitimate appearance to the ownership, use, and disposal of the criminal proceeds or other assets. If such intention is not established, the crime is not committed [7]".
The subject of money laundering typically refers to individuals who intentionally and systematically engage in concealing the origin of illegally obtained money or other assets. They can be financial intermediaries, lawyers, accountants, banks, asset management companies, or other enterprises offering services related to financial transactions. Subjects of money laundering actively participate in the creation of complex schemes and mechanisms aimed at the legal conversion of illicit assets and hindering the identification of their sources.
The subject of the crime is a competent individual who has reached the age of sixteen and has not participated (in any form of complicity) in the commission of a crime resulting in the acquisition of monetary funds or other property. This may include employees of financial institutions, professional participants in the securities market, companies involved in real estate transactions, etc.
The state policy in the field of combating money laundering is based on the international legal obligations of the Republic of Uzbekistan and the interests of protecting the normal functioning of the national economic system. International legal standards for combating money laundering indicate typical approaches to solving the issue, taking into account both the general laws of countering this phenomenon, characteristic of each state, and the needs of ensuring protection from crimes of a transnational nature.
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Following international standards, the state, however, cannot fail to take into account the specifics of their implementation, on the basis of the national legal system and specific socio-economic conditions. All of these aspects determine the direction of solving a complex issue, finding a balance between compliance with international standards and taking into account national interests.
Studies of the theory, legislative and law enforcement practice allow us to conclude that, despite the high degree of public danger of money laundering, the practice of applying the Article 243 of the Criminal Code of the Republic of Uzbekistan still does not meet the real scale of this crime.
The Law of the Republic of Uzbekistan 660-II "On countering the legalization of revenue received
from criminal activities, the financing of terrorism and the financing of the proliferation of weapons of mass destruction" of 26.08.2004[8] shall be further improved, taking into account the requirements of international law, in particular, the Recommendations of the Financial Action Task Force on Money Laundering (FATF). For instance, it should include issues related to virtual assets, financial investigations, and others.
Taking into account all of the above, it can be concluded that the issues of countering the legalization of revenue received from criminal activities are so large-scale that they require further research within the framework of other research works.
References:
1. Course of criminal law of the Republic of Uzbekistan. Special part. T.1 Uzbekistan, 2016.
2. Pavlov V.G. The subject of the crime. - St. Petersburg: Publishing House "Legal Center Press", 2001. - P. 270.
3. Rustambaev M.H. Course of criminal law of the Republic of Uzbekistan. Special part. T.2: Uzbekistan, 2016.
4. Abdurasulova K. A Jinoyatning maxsus su'bekti. O'quv qo'llanma [Special Subject of the Crime] Manual- T.: TSUL, 2005. - B. 110
5. Jinoyatlarni kvalifikatsiya qilish [Qualification of crimes]: a textbook for higher education institutions of the Ministry of Internal Affairs / R. Kabulov, A.A. Otajonov, I.A. Sattiev end others.T.-2012.- p.87
6. Criminal Code of the Republic of Uzbekistan URL: https://lex.uz/docs/111457 (accessed 03.06.2023).
7. Lopashenko N.A. Crimes in the sphere of economics: the author's commentary to the criminal law (section VIII of the Criminal code of the Russian Federation). Moscow, 2006.
8. The Law of the Republic of Uzbekistan 660-II "On countering the legalization of proceeds from criminal activity, the financing of terrorism and the financing of the proliferation of weapons of mass destruction" from 26.08.2004 URL: https://lex.uz/docs/284542 (accessed 03.06.2023).
