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Article

Lianlian Liu

The issue of concurrent jurisdiction over cross-border crimes has become common in a globalizing world, while the rigid compliance with territoriality and active…

Abstract

Purpose

The issue of concurrent jurisdiction over cross-border crimes has become common in a globalizing world, while the rigid compliance with territoriality and active personality jurisdiction has created a legal vacuum for cross-border crimes in many situations. The jurisdiction dispute between mainland China and Taiwan over cross-border telecom fraud crimes is a good example. In recent years, the Ministry of Public Security of the People’s Republic of China cracked down a series of cross-border telecom fraud crimes against mainland residents and extradited suspects to mainland China. Given a certain proportion of Taiwan residents in criminal gangs, the Taiwan side raised jurisdiction objections, arguing that mainland China had no right to exercise jurisdiction over Taiwanese criminals. The essence of the jurisdiction dispute between two sides is the concurrence of Taiwan’s right to exercise active personality jurisdiction and the mainland’s right to exercise passive personality jurisdiction. The purpose of this paper is to analyze the connotation of different jurisdiction principles (namely, territorial, active personality, protective and passive personality jurisdiction) and reinterpret their prioritization of applicability from a jurisprudential perspective, and thus, enhance the theoretical basis for resolving the issue of concurrent jurisdiction over cross-border crimes.

Design/methodology/approach

By reviewing the historical trajectory of major jurisdiction principles since the 1920s, and studying the specificities of the case in this context, this paper argues that territorial jurisdiction and active personality jurisdiction have presumed priority but not an absolute priority for resolving the issue of concurrent jurisdiction. The applicability of protective and passive personality jurisdiction could precede the former provided the jurisdictions of territoriality or active personality are inadequate, incompetent or lack of motivation to combat crimes, which harm other jurisdictions.

Findings

The developmental trajectory and contemporary connotation of major jurisdiction principles suggests that the legitimacy of the mainland’s exercise of passive personality jurisdiction over Taiwan criminal suspects lies in the urgent need to recover mainland victims’ significant property loss, the incompetence of Taiwan in detecting and prosecuting telecom fraud crimes committed by Taiwanese residents and targeting mainland victims and that the mainland has guaranteed the Taiwan side’s right to be timely informed and fully participate in its exercise of criminal jurisdiction over crimes involving Taiwan suspects.

Originality/value

Current literature on jurisdiction doctrines mainly uses a historical or descriptive approach to reveal the attitudes of different countries toward jurisdiction principles, which helps little in resolving the issue of concurrent jurisdiction over cross-border crimes in an era of globalization. This paper uses an interpretative approach, reinterprets the contemporary connotation of different jurisdiction principles and redefines the criteria for determining their prioritization in the context of the specificities of a case. It is expected to update the academic literature for resolving concurrent jurisdiction, fill the legal vacuum for combating cross-border crimes created by rigid compliance with territorial jurisdiction, and meanwhile relieve concerns about abuse of extraterritorial jurisdiction as it provides concrete standards for weighting the applicability of jurisdiction principles.

Details

Journal of Financial Crime, vol. ahead-of-print no. ahead-of-print
Type: Research Article
ISSN: 1359-0790

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Article

Chat Le Nguyen

The purpose of this paper is to examine the international standards for establishing national jurisdiction over the transnational crimes of money laundering and bribery…

Abstract

Purpose

The purpose of this paper is to examine the international standards for establishing national jurisdiction over the transnational crimes of money laundering and bribery and identify challenges to the adoption of those standards by different states in practice.

Design/methodology/approach

This paper, first, defines transnational money laundering and transnational bribery; then, it examines the legal bases and principles on which a state can claim criminal jurisdiction over these offences. This paper also discusses the application of jurisdictional conditions in a transnational context and how to deal with the problems arising from national claim of jurisdiction over these offences, for example, jurisdictional concurrence.

Findings

This paper argues that when the jurisdictional concurrence occurs, the involved states should consult one another by taking into account a number of relevant factors and take the “centre of gravity” approach to deciding which state or forum should prosecute eventually. States less able to establish jurisdiction over the offences are often those which have a weak legal basis and/or insufficient resources.

Originality/value

To the authors’ knowledge, this article would be the good guidance on how a state could claim jurisdiction over the offences of transnational money laundering and transnational bribery.

Details

Journal of Financial Crime, vol. 27 no. 4
Type: Research Article
ISSN: 1359-0790

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Article

Tyler W. Hodgson

The purpose of this paper is to explore the development of the common law test for asserting criminal jurisdiction over financial crimes. Historically, the British courts…

Abstract

Purpose

The purpose of this paper is to explore the development of the common law test for asserting criminal jurisdiction over financial crimes. Historically, the British courts at the turn of the twentieth century strongly advocated the territoriality principle to strictly limit the assumption of criminal jurisdiction to crimes which occurred entirely within the jurisdiction. With the rapid advance of telecommunications technologies during the latter half of the century, such a narrow approach to jurisdiction became unworkable, as the majority of financial crimes assumed multi‐jurisdictional aspects.

Design/methodology/approach

This paper traces the gradual liberalization of criminal jurisdiction over financial crime within the common law until the eventual emergence of the much more permissive comity theory of jurisdiction, which sanctions the assumption of criminal jurisdiction over any conduct which causes harmful consequences or effects in the territory of the country seeking to prosecute an accused.

Findings

While this is a welcome and necessary development in an age of global money laundering and organized crime, it is argued in this paper that unless a consistent and rational manner of prioritizing the claims of competing jurisdictions over the same criminal conduct is adopted, there is a risk that the first jurisdiction to be in a position to make an arrest may not necessarily be the correct or most appropriate one. As the double jeopardy principle operates to bar multiple prosecutions for the same criminal conduct, it is recommended that the doctrine of forum non conveniens, a familiar and developed concept in civil law, be applied to criminal prosecutions to maximize prosecutorial efficiency.

Originality/value

The paper is of value in discussing factors to be considered by law enforcement agencies in determining the most prudent sequence of legal proceedings that may be brought in different jurisdictions.

Details

Journal of Financial Crime, vol. 15 no. 3
Type: Research Article
ISSN: 1359-0790

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Book part

Roy F. Janisch

In this chapter, the author outlines the historical, legal, and jurisdiction regarding incarceration rates of Native Americans. It examines reports and data in areas where…

Abstract

Purpose

In this chapter, the author outlines the historical, legal, and jurisdiction regarding incarceration rates of Native Americans. It examines reports and data in areas where problems of racial disparity continue to endure. As the smallest minority population in the United States, it raises questions as to the disparity of Native Americans. Native Americans are unique in their relationship with the federal government, and should be critically examined to distinguish what makes their involvement in the criminal justice system inimical.

Design/methodology/approach

The author examines the law enforcement, courts, and corrections data, through various reports; concerning causes of Native American criminality, incarceration rates, health disparities, jurisdictional schemes, human rights, and race. It is argued that federal governmental laws and various bureaucracies exacerbate conditions through overreaching policies which invalidates many of the positive aspects Native People bring to themselves.

Findings

Native Americans are overrepresented in the criminal justice system. As the smallest segment of the population, they have a higher incarceration rate per capita. It is without question that chronic underfunding of law enforcement, courts, and corrections in reservation communities continues. In light of Congressional claiming to want to alleviate problems in Indian country, little impact has been realized.

Originality/value

Native American societies are often considered a silent minority. Information pertaining to the many social issues enveloping Native communities often falls on deaf ears and political party leaders who are more interested in a larger constituency fail to lend their assistance in a manner deemed appropriate to truly grasp the larger problems.

Details

Punishment and Incarceration: A Global Perspective
Type: Book
ISBN: 978-1-78350-907-2

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Book part

Karl B Shoemaker

This essay explores a radical shift in how the relationship between the power to punish and sovereignty has been conceived in modern American law; specifically focusing on…

Abstract

This essay explores a radical shift in how the relationship between the power to punish and sovereignty has been conceived in modern American law; specifically focusing on the quiet death of comity as an operative principle in the exercise of criminal jurisdiction. While this essay attends to certain legal issues arising from historical intersections of federal, state and Indian sovereignty in the field of criminal law, this essay is not an attempt to directly evaluate the history of federal policies applied to Indian tribes or tribal lands. Nor is this essay in any strict sense a legal history of federal-tribal relations, or federal penal policy in relation to Indian tribes. Rather, I am concerned here with a series of liminal moments in the American legal tradition in which the power to punish came to be understood ever more one-sidedly, as an atomizing attribute of sovereignty rather than an identifying feature of community within a pluralistic legal framework.

Details

Punishment, Politics and Culture
Type: Book
ISBN: 978-0-76231-072-2

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Article

Georgios I. Zekos

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and…

Abstract

Investigates the differences in protocols between arbitral tribunals and courts, with particular emphasis on US, Greek and English law. Gives examples of each country and its way of using the law in specific circumstances, and shows the variations therein. Sums up that arbitration is much the better way to gok as it avoids delays and expenses, plus the vexation/frustration of normal litigation. Concludes that the US and Greek constitutions and common law tradition in England appear to allow involved parties to choose their own judge, who can thus be an arbitrator. Discusses e‐commerce and speculates on this for the future.

Details

Managerial Law, vol. 46 no. 2/3
Type: Research Article
ISSN: 0309-0558

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Article

Peter Yeoh

This paper aims to examine tax leakages in secrecy financial centres.

Abstract

Purpose

This paper aims to examine tax leakages in secrecy financial centres.

Design/methodology/approach

This qualitative study relies on primary data from relevant statutes and secondary data from the public domain and in particular academic sources. The study makes concurrent use of the case study approach.

Findings

The study reinforces existing suggestions that tax evasion is significantly widespread from advanced to emerging economies. It also suggests serious enforcement difficulties because of light-touch surveillance among competing tax havens and financial professionals. Further, while relevant laws are in place to deal with illicit activities, enhanced transparency is needed to quell the problem and, in this instance, public access to beneficial owner data such as exemplified by UK’s public registry approach. The US Foreign Account Tax Compliance Act is proving to be effective, and similar expectations are raised for the equivalent the Organisation for Economic Co-Operation and Development initiative from 2017 onwards.

Research limitations/implications

The paper is constrained with the general limitations associated with qualitative studies. These are, however, mitigated by triangulations of perspectives and so on.

Practical implications

The findings have implications for policymakers and the business community.

Social implications

The findings could help to narrow inequality gaps between and within economies.

Originality/value

The paper combines insights from high-profile cases with those from academic sources. The analysis is also undertaken from the combined perspectives of law, economics and accounting. It also focuses in secrecy issues in both offshore and onshore financial centres.

Details

International Journal of Law and Management, vol. 60 no. 3
Type: Research Article
ISSN: 1754-243X

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Article

John Liederbach, Eric J. Fritsch, David L. Carter and Andra Bannister

The purpose of this paper is to provide direct comparisons between the views of citizens and officers within a jurisdiction that has been largely influenced by the…

Abstract

Purpose

The purpose of this paper is to provide direct comparisons between the views of citizens and officers within a jurisdiction that has been largely influenced by the community‐oriented policing movement. Comparisons between police and citizen views are specifically made in terms of: the relative importance of crime problems in the jurisdiction; the value of community policing programs; overall satisfaction with the performance of the department; and strategies designed to improve the performance of the department.

Design/methodology/approach

The methodology of the study is officer and citizen surveys.

Findings

Officers and citizens significantly differed in their assessment of the importance of specific crime problems in the jurisdiction, the value of community policing programs, the degree to which they were satisfied with the performance of the department, and their assessment of improvement strategies. These differences are discussed within the context of previous literature that has focused on the implementation and continued acceptance of community policing.

Research limitations/implications

Findings are derived from surveys conducted in one jurisdiction. Findings are limited to the degree that citizen/officer views within this jurisdiction differ from those found elsewhere.

Originality/value

The study utilizes seldom‐used concurrent surveys of officers and citizens within a single jurisdiction. The method allows for the direct comparison of police and citizen views. Thus, this paper provides evidence regarding the feasibility of collaboration between police and citizens, and the continued viability of community‐oriented strategies.

Details

Policing: An International Journal of Police Strategies & Management, vol. 31 no. 2
Type: Research Article
ISSN: 1363-951X

Keywords

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Book part

Sara Kendall

Hybrid forms of international criminal justice have been lauded for combining the political and procedural legitimacy of international tribunals with increased attention…

Abstract

Hybrid forms of international criminal justice have been lauded for combining the political and procedural legitimacy of international tribunals with increased attention to the local contexts where mass crimes occurred. This work critically examines the hybrid legal structure of the Special Court for Sierra Leone, a novel post-conflict institution empowered to draw from both international and Sierra Leonean law. Although formally hybrid, the Court neglects domestic law in practice, suggesting that “hybridity” refers more to a rhetorical strategy aimed at legitimating its work than to its ontological status. By symbolically including and substantively excluding domestic law, the court's legal structure inadvertently resembles a colonial form of legal pluralism rather than a hybrid jurisdiction.

Details

Special Issue Interdisciplinary Legal Studies: The Next Generation
Type: Book
ISBN: 978-1-84950-751-6

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Article

Sundaresh Menon and Teo Guan Siew

The purpose of this paper is to identify the key challenges in tackling modern economic and cyber crimes, evaluate the existing legal and enforcement mechanisms in place…

Abstract

Purpose

The purpose of this paper is to identify the key challenges in tackling modern economic and cyber crimes, evaluate the existing legal and enforcement mechanisms in place, and propose a way forward to address these challenges.

Design/methodology/approach

The paper analyses the main difficulties posed by the borderless, complex and rapidly evolving nature of modern economic and cyber crimes. This allows the key shortcomings of the present legal and enforcement infrastructure to be identified. By examining different models, ranging from vertical supranational structures such as the International Criminal Court and the proposed European Public Prosecutor, to soft‐law regimes such as the intergovernmental network the Financial Action Task Force, as well as intermediate approaches like Eurojust, a hybrid model incorporating elements from these various regimes is proposed.

Findings

A transnational approach must be adopted to address the phenomenon of modern economic and cyber crimes which are cross‐border, complex, profit‐driven and rapidly evolving. A suitable multilateral platform needs to be created to facilitate international co‐operation in a more coordinated and sustained fashion, and for the development of a set of common standards and principles to be enforced through a process of mutual assessments and periodic peer review.

Originality/value

The paper advocates the establishment of a hybrid multilateral regime which incorporates both elements of a “vertical” supranational structure as well as a “horizontal” state‐centric framework. This will inject the institutional focus to facilitate international co‐operation and also provide the platform for the promulgation of common standards and principles in fighting cross‐border economic and cyber crimes. The paper will be of interest to law enforcement agencies, prosecutorial authorities and national policy makers.

Details

Journal of Money Laundering Control, vol. 15 no. 3
Type: Research Article
ISSN: 1368-5201

Keywords

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