The opening of a bank account serves as the genesis of a bank customer relationship. It is imperative that the establishment of a bank customer relationship be regulated by law. Both the common law and statutory law regulate the admission of new clients to the realm of banking. It is a minimum requirement, in terms of both statutory and common law, that the identity of a prospective client who wishes to open a bank account must both be established and verified. This, the need to know one’s customer, is not only good law but common sense and an effective measure to prevent criminals from accessing the banking system. Parties who work together must know each other. The need to establish and verify the identity of a potential customer is commonly referred to as the Know Your Customer standards, alternatively the Customer Due Diligence framework. The Know Your Customer standards are neither unique to South Africa nor have their origins in South Africa. The Know Your Customer standards are international standards which the Financial Action Task Force and the Basel Committee on Banking Supervision have been advocating for quite some time. A confluence of the Recommendations of the Financial Action Task Force and the Basel Committee on Banking Supervision greatly influenced the birth of the Financial Intelligence Centre Act in South Africa. The Financial Intelligence Centre Act 38 of 2001 prescribes the steps that a bank has to take in order to establish and verify the identity of a potential client. It will be shown in this dissertation that the identification and verification regime established by the Financial Intelligence Centre Act 38 0f 2001 and the common law are not fool proof. This dissertation makes recommendations on how the current loopholes that exist in the law can be addressed. / Mercantile Law / LLM

The aim of this research is to show the effects of financial liberalisation on emerging market economies, how these economies removed restrictions on financial institutions so that they can be globally integrated, and to show the flow of international finance in and out of a country. This research also illustrates how the financial system in these economies moved from being government-led to being market-led. The main finding of this research is that many countries failed to reap the benefits of liberalisation because of weaknesses in the regulatory structure, undercapitalised banks, volatile markets and contagion effects. The research concludes that the long-term gains of liberalisation certainly supersede short-term instability of liberalisation. Thus, for financial liberalisation to have predominantly positive effects, attention should be drawn to the importance of a more prudent regulatory and supervisory environment. Furthermore, financial liberalisation must be accompanied by a sound institutional infrastructure, proper conduct of monetary and fiscal policies, a reduction in corruption, and an increase in transparency. In addition, liberalisation should be a gradual process whereby the right measures are taken in the right sequence. / Economics / M. Com. (Economics)

本國為因應2018年亞太防制洗錢組織（APG）相互評鑑事宜，相關單位陸續參照國際規範，如防制洗錢金融行動工作組織（FATF）2012年發布之「防制洗錢及打擊資恐與武器擴散國際標準40項建議」、巴塞爾銀行監理委員會(BCBS)2014年發布之「健全有關防制洗錢及打擊資恐之風險管理」文件等，以及他國作法進行有關防制洗錢及打擊資恐法制規約、監管措施及自律規範等之修正，並促請義務機構強化執行，以期順利通過第三輪相互評鑑。 銀行向為洗錢及資恐犯罪喜好之金流管道，基於銀行提供之金融服務具安全性、便利性及多元化、全球化等優點，不僅吸引一般金融消費者與銀行緊密往來，亦同時受到不良分子之青睞，致金融體系資源易遭不當利用。銀行為金融體系之核心主體，負有防制洗錢及打擊資恐之義務與責任，本文爰就銀行業防制洗錢及打擊資恐實務切入，針對本國銀行應採行之因應措施基本架構進行探討。 本文將先介紹FATF之評鑑流程及方法論，以立下銀行進行防制洗錢及打擊資恐工作之目標，復就達成前開目標為方向，引述金融機構防制洗錢及打擊資恐機制之國際標準，繼而回歸國內外對銀行實際作為之法規要求，試行建構銀行防制洗錢及打擊資恐基本機制，末則就銀行於執行面可改善空間提出重點觀察建議。 隨著工業4.0、Bank3.0及Fintech（金融科技）之快速演進，銀行客戶樣貌及交易型態正在改變，健全防制洗錢及打擊資恐機制是所有銀行業共同面臨之進階版挑戰，本文謹提出銀行機制基本實務報告，俾作為開展細緻化措施之參考。另本文為一般性原則之探討，並非針對特定機構主體之描述，併此敘明。 / For the Mutual Evaluation which will be conducted by the Asia/Pacific Group on Money Laundering (APG) in 2018, basing on the following consulting international norms, such as “International Standards on combating Money Laundering and the Financing of Terrorism & Proliferation (The FATF Recommendations)” published by Financial Action Task Force (FATF) in 2012, “Sound management of risks related to money laundering and financing of terrorism” published by Basel Committee on Banking Supervision (BCBS) in 2014 and foreign advanced practices, the Taiwan authorities have amended the legal system, laws and regulations, supervision measures and self-disciplines referred to Anti-Money Laundering (AML) and Counter-Terrorism Financing(CTF). Meanwhile, every relevant entity is enhancing the prevent measures and internal control on AML/CFT (Counter-Financing of Terrorism) as well. The satisfactory result of the Third Round Mutual Evaluation will be expected. As people know, the banks are always the favorite cash flow channel of money laundering and terrorism financing, since the banks provide the financial services with advantages of safety, convenience, diversification and globalization, etc. Both general financial customers and criminals on ML/FT are attracted to make transactions with the banks. Thus, the financial system’s resources could be utilized improperly. Due to the role of the core of financial system, the banks should take the responsibility and bear the liability of Anti-Money Laundering and combating the financing of terrorism. In this paper, the primary framework on AML/CFT of domestic banks will be outlined according to the real practice. First, this paper has an introduction of mutual evaluation process and methodology in order to set the goal related to AML/CFT of the bank. Next, the model practices of international standards are presenting to achieve the goal for references. Then, this paper will focus on domestic and foreign regulatory requirements on banking, and try to construct the bank’s primary internal system of AML/CFT. Finally, there are some observations of the bank’s performance related to this issue. With the rapid evolution of Industry 4.0, Bank 3.0 and Fintech, the customers’ financial behaviors and transaction types are changing. Therefore, to keep sound internal system of AML/CFT is an advanced challenge to all the banks. This paper is trying to set a primary framework on AML/CFT of domestic banks, and to be taken reference for banks to start developing appropriate prevent measures. In addition, the statement of this paper is an approach to general principles, not indicating any specific institution.

Money laundering involves activities which are aimed at concealing benefits that were acquired through criminal means for the purpose of making them appear legitimately acquired. Money laundering promotes criminal activities in South Africa because it allows criminals to keep the benefits that they acquired through their criminal activities. It takes place through a variety of schemes which include the use of banks. In this sense money laundering control is based on the premise that banks must be protected from providing criminals with the means to launder the benefits of their criminal activities. The Financial Intelligence Centre Act 38 of 2001 (‘FICA’) in aggregate with the Prevention of Organised Crime Act 121 of 1998 (‘POCA’) form the backbone of South Africa’s anti-money laundering regime. Like its international counterparts FICA imposes onerous duties on banks seeing that they are most often used by criminals as conduits to launder the benefits of crime. In turn, POCA criminalises activities in relation to the benefits of crime and delineates civil proceedings aimed at forfeiting the benefits of crime to the state. This study identifies the idiosyncrasies of the South African anti-money laundering regime and forwards recommendations aimed at improving its structure. To this end nine issues in relation to money laundering control and banks are investigated. The investigation fundamentally reveals that money laundering control holds unforeseen consequences for banks. In particular, a bank that receives the benefits of crimes such as fraud or theft faces prosecution if it fails to heed FICA’s money laundering control duties, for example, the filing of a suspicious transaction report. However, if the bank files a suspicious transaction report, it may be sued in civil court by the customer for breach of contract. In addition, if the bank parted with the benefits of fraud or theft whilst suspecting that the account holder may not be entitled to payment thereof, it may be sued by the victim of fraud or theft who seeks to recover loss suffered at the hand of the fraudster or thief from the bank. Ultimately, this study illustrates that amendment of some of the provisions of South Africa’s anti-money laundering legislation should enable banks to manage the aforementioned and other unforeseen consequences of money laundering control whilst at the same time contribute to the South African anti-money laundering effort. / Criminal and Procedural Law / Mercantile Law / LL.D.

本文所要探討的問題在於如何消弭銀行業中具有「大至不能倒」地位的銀行對整體經濟與金融體系所帶來的負面效應。 為了處理此一問題，本文將從比較法經驗進行歸納分析，理出「大至不能倒」理論在美國法上的面貌，並對「大至不能倒」銀行的界定提出比較法上採取的途徑，之後本文將進入檢閱現有的「大至不能倒」的解決方案，並以本文核心目標：『正視「大至不能倒」銀行的存在，並最小化「大至不能倒」政策適用的餘地！』來檢驗這些解決方案，緊接著本文將提出金融穩定委員會對於「大至不能倒」銀行的「資本強化」、「監理強化」與「復原與退場計畫」這三個監理方案供參酌，本文在結論上強力主張應將「復原與退場計畫」納入我國的法制架構中，為我國未來面對「大至不能倒」議題預做準備，並提出立法建議。 所謂「復原與退場計畫」(銀行事前預囑)是國際上處理「大至不能倒」問題所創造出全新的監理工具，簡介其內容，就是藉由事前周全的計畫使大型銀行在遭遇嚴重的壓力事件(尤其是系統性事件)時能藉由實施事前計劃快速地使財務狀況回復正常，或退而求其次藉由實施事前計畫使銀行能在不影響金融穩定或損及納稅人(即紓困政策)的狀況下退出金融市場。簡而言之其精神在於「卸除大型銀行的系統重要性」。

Money laundering involves activities which are aimed at concealing benefits that were acquired through criminal means for the purpose of making them appear legitimately acquired. Money laundering promotes criminal activities in South Africa because it allows criminals to keep the benefits that they acquired through their criminal activities. It takes place through a variety of schemes which include the use of banks. In this sense money laundering control is based on the premise that banks must be protected from providing criminals with the means to launder the benefits of their criminal activities. The Financial Intelligence Centre Act 38 of 2001 (‘FICA’) in aggregate with the Prevention of Organised Crime Act 121 of 1998 (‘POCA’) form the backbone of South Africa’s anti-money laundering regime. Like its international counterparts FICA imposes onerous duties on banks seeing that they are most often used by criminals as conduits to launder the benefits of crime. In turn, POCA criminalises activities in relation to the benefits of crime and delineates civil proceedings aimed at forfeiting the benefits of crime to the state. This study identifies the idiosyncrasies of the South African anti-money laundering regime and forwards recommendations aimed at improving its structure. To this end nine issues in relation to money laundering control and banks are investigated. The investigation fundamentally reveals that money laundering control holds unforeseen consequences for banks. In particular, a bank that receives the benefits of crimes such as fraud or theft faces prosecution if it fails to heed FICA’s money laundering control duties, for example, the filing of a suspicious transaction report. However, if the bank files a suspicious transaction report, it may be sued in civil court by the customer for breach of contract. In addition, if the bank parted with the benefits of fraud or theft whilst suspecting that the account holder may not be entitled to payment thereof, it may be sued by the victim of fraud or theft who seeks to recover loss suffered at the hand of the fraudster or thief from the bank. Ultimately, this study illustrates that amendment of some of the provisions of South Africa’s anti-money laundering legislation should enable banks to manage the aforementioned and other unforeseen consequences of money laundering control whilst at the same time contribute to the South African anti-money laundering effort. / Criminal and Procedural Law / Mercantile Law / LL.D.