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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

Keywords

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Article

Lianlian Liu

The purposes of this paper are to organize historical, solved questions and recent, unsolved questions in a coherent, progressive way; explore the key question to be…

Abstract

Purpose

The purposes of this paper are to organize historical, solved questions and recent, unsolved questions in a coherent, progressive way; explore the key question to be answered under this systematic framework; and reflect on an alternative analytical perspective to the current “problem-solving-oriented” approach. Transnational bribery regulation, with the Organization for Economic Co-operation and Development (OECD) Anti-Bribery Convention as the central governing legal instrument, is on the top agenda of international governance. However, its complex nature makes theoretical viewpoints on this topic rather fragmented. This fragmentation is used to help understand the wisdom of the Foreign Corrupt Practices Act (FCPA) approach in the early years. However, as the FCPA approach was internationalized and evolves to its current phase, in which individual inquiries become path-dependent and interdependent, the fragmentation causes more confusion than makes contribution.

Design/methodology/approach

Sections 2 and 3 retrospect the historical trajectory of academic research on the global regulation of transnational bribery, systemizes relevant theoretical insights and illustrates how people’s understandings of the wisdom of the FCPA approach in early years affect their evaluations of the effect of the OECD Anti-Bribery Convention in the contemporary era. Given that, at present, the most popular viewpoint is that the Convention is “ineffective”, Section 4 systemizes the diverse causal attributions of the “problem” in current academic literature, sorts out the roots causes and points out the key question for the next step forward under the version of the “problem-solving-oriented” analysis. Section 5 has a reflection on the inherent limitation of a “problem-solving-oriented” approach for our understanding of the effects of the Convention.

Findings

Under the version of a “problem-solving-oriented” approach, the key question to be solved is how to establish a mechanism to cope with the surreptitious nature of transnational bribery and the self-sacrificed nature of the FCPA-style approach simultaneously. The popular “problem-solving-oriented” approach has an inherent limitation to create new knowledge on the multilateral anti-bribery collaboration. A reality-based, historical analytical perspective is a good alternative to it.

Originality/value

The paper presents a personal, original organization of the conventional theoretical insights to the operation of the global anti-bribery collaboration and the underlying logics of these viewpoints. The paper also presents the author’s personal analysis of the “technical omission” and “inherent limitation” of a problem-solving-oriented approach to analyze the performance of the global anti-bribery collaboration, and the power of a historical analytical perspective as an alternative.

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Article

Anastasia Suhartati Lukito

The significant role of anti-corruption compliance should be encouraged to create good business and investment climate. Especially, in the circumstances of higher number…

Abstract

Purpose

The significant role of anti-corruption compliance should be encouraged to create good business and investment climate. Especially, in the circumstances of higher number of bribery and corruption cases, whilst preparing for Asian Economic Community, the necessary actions to reduce the financial crime and economic crime should be fostered into all aspects of business activities. To reduce bribery and corruption cases in Indonesia, National Integrity System as part of National Strategy on Corruption Prevention and Eradication is urged to be conducted. With the implementation of National Integrity System among all public or governmental institutions and private institutions, the institutions itself will be strengthened. National Integrity System should be implemented through all the people, process and technology in the organizations. So, at the end, the purpose of this paper is to prevent any financial crime, particularly in the Indonesian anti-corruption regime.

Design/methodology/approach

This paper explores and analyzes anti-bribery regulations and the important role of National Integrity System as the prevention approach to build anti-corruption compliance in Indonesia.

Findings

The National Integrity System and Anti-Corruption Compliance can be viewed as important elements for preventing any financial crime. The new perspective is needed for all of the public institutions and private institutions to build and implement National Integrity System in all business activities. Furthermore, all of business society has a significant role of developing the sustainable good business environment in Indonesia. Encouraging National Integrity System in every business sector is also a way to achieve the last purpose, which is to strengthen economic competitiveness.

Practical implications

The paper can be a source to explore about the National Integrity System and Anti-Corruption Compliance based on Indonesia perspectives.

Originality/value

This paper gives contributions by encouraging the public and private institutions to build anti-corruption compliance by implementing National Integrity System within their organizational culture to prevent financial crime and lead to sustainable economic growth.

Details

Journal of Financial Crime, vol. 23 no. 4
Type: Research Article
ISSN: 1359-0790

Keywords

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Abstract

Details

Angel Financing in Asia Pacific
Type: Book
ISBN: 978-1-78635-128-9

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