Ce mémoire traite du blanchiment d’argent. Précisément, il propose une réflexion sur la question suivante : les avocats, cabinets d’avocats et notaires du Québec devraient-ils être assujettis à la Loi sur le recyclage des produits de la criminalité et le financement des activités terroristes? Pour en arriver à une réponse, nous dressons d’abord une définition du recyclage des produits de la criminalité et en analysons l’historique. Puis, nous étudions la pièce maitresse de la stratégie canadienne de prévention du blanchiment d’argent, soit la Loi sur le recyclage des produits de la criminalité et le financement des activités terroristes. Par la suite, nous examinons la question de l’assujettissement des avocats, des cabinets d’avocats et des notaires du Québec en exposant le risque de blanchiment d’argent chez ces professionnels, les multiples tentatives du législateur canadien de légiférer en la matière et une analyse de la décision récente de la Cour suprême du Canada sur ce sujet. Enfin, nous offrons des solutions à l’assujettissement de ces professionnels afin d’éliminer le risque de voir leurs services utilisés à des fins illégitimes. / This thesis focuses on money laundering. Specifically, it reflects on the following question: should lawyers, law firms and Quebec notaries be subject to the Proceeds of Crime (Money Laundering) and Terrorist Financing Act? In order to obtain an answer, it first sets out to seek a definition of money laundering and examines its history. Furthermore, the Proceeds of Crime (Money Laundering) and Terrorist Financing Act is analyzed in great detail. Finally, the question whether lawyers, law firms and Quebec notaries should be included in the scope of the Act is studied by exposing the risk of money laundering with these professionals and by undertaking an examination of the Canadian legislator’s multiple attempts to include them as well as an analysis of the Supreme Court of Canada’s recent decision on that matter. In conclusion, it proposes solutions to include these legal professionals in order to eliminate the risk that their services will be used for illicit purposes.

我國經濟犯罪之範圍，係由司法機關(司法院)與行政機關(法務部) 分別以作業性之行政規則頒訂，仍以侵害個人財產法益之金融犯罪為 規範對象。 就經濟犯罪所得，由於其性質屬於準不當得利之衡平措施，自應予以 追繳或抵償(再發還被害人或充公收歸國有)以修復正義，該行為只要 與法規範對立矛盾(即具有不法構成要件該當之違法性)即足，無庸探 究行為人之罪責要件。我國將犯罪所得規定為從刑，須待行為人(即 被告)受有罪科刑判決方能併宣告沒收，緩不濟急。 建議將犯罪所得追繳後發還被害人之個別法律，移置於刑法總則一體 適用，定性為強制處分，並將沒收、追繳、追徵或抵償自從刑之規定 刪除，另於刑事訴訟法宣示判決之條文增加發還被害人或得請求損害 賠償之人，且得由法院依職權或依檢察官之聲請權單獨宣告。 我國附帶民事訴訟受請求之被告，不限於刑事訴訟進行中之被告，尚包括「其他依民法應負賠償責任之人」，刑事庭法官遇有此種情形，因對渠等並無確定刑罰權有無及範圍之權限，在刑事訴訟程序的操作上格格不入，有仿襲德國刑事訴訟法第403條規定，被請求人應以刑事被告為限。 由於附帶民事訴訟規範之目的在避免雙重工作負擔及二次裁判，惟依 現行刑事訴訟法之規定，法官除刑事判決外，另需製作一份民事訴訟 判決，如此顯違反前揭附帶民事訴訟規範之目的；故正本清源之道， 乃無庸另製作一份附帶民事訴訟之判決，就犯罪不法利得，逕於刑事 判決主文中諭知發還被害人或給付若干金額予被害人。 被害人與加害人間共同參與之修復式司法近年來在世界各國實務及 學說均肯定其實踐層面之重要性，為具體落實憲法訴訟權應保障犯罪 被害人公平且有效的權利救濟途徑及程序主體性之地位，本文建議在 審理刑事案件之前階段即擴大強制調解及和解制度之運用，由被告及 被害人共同參與決定採取何種途徑最有利於促成實質修復正義之結 果，俾利被害人程序主體性之建立及擴大紛爭解決一次性之要求。 / Economic crime in Taiwan is defined by the administrative regulations of the Judicial Yuan and the Ministry of Justice, respectively. Such regulations are aimed at financial crimes that damage personal property. Because the proceeds of economic crimes are “quasi-kondiktionelle Ausgleichsmaßnahme”, the courts should seize the profits, and then use them to either compensate victims or confiscate them in the name of serving justice. So long as this offense is contradictory to criminal law (i.e. constituting the penal code and finding no specific legal cause for that offense), the courts need not review the problem of offender's guilt. As ill-gotten gains are stipulated as “Nebenstrafe” in the Taiwan penal code, the courts cannot confiscate those gains unless there is a simultaneous conviction, which seems too slow. The following suggestions are presented. The individual laws regulating “Verfall” and compensation to the victims should be reorganized in the penal code and characterized as “maßnahme”. The legal effect of these laws as “Nebenstrafe” should be deleted. The articles relating to the compensation of criminal proceeds to the victims should be increased as well. In addition, the courts should be allowed to announce verdicts either alone by its authority or according to the prosecutor’s request. In Taiwan, defendants accused during the adhesion process are not limited to being defendants in the process of criminal litigation, but also include other persons who should bear damages in accordance with civil law. When criminal court judges face this situation, since it is not certain whether there is a right to impose criminal punishment, or what the scope of punishment should be, there are inconsistencies in the operations of the criminal litigation procedure. There have been attempts to imitate Germany’s Criminal Litigation Law Clause 403, in which the accused should be limited to criminal defendants. The purpose of the rules on the adhesion process is to prevent a double workload and multiple judgments. However, according to existing requirements for criminal litigation, in addition to criminal judgments, judges must also make civil litigation judgments. This violates the aforementioned purpose of adhesion process rules. Thus, the way to rectify this situation is to create another adhesion process judgment based on the proceeds of crime, in order to assign restitution or to pay a certain amount to the victim, inside the main text of the criminal judgment. Restorative justice, in which the victim and offender jointly participate, has recently been affirmed in its importance, both in theory and in practice, all over the world. In order to concretely realize the principle that constitutional litigation rights should protect crime victims, as well as provide fair and effective remedial paths and procedural subjectivity, this study suggested that in the stage prior to judging criminal cases, there should be expanded use of enforced arbitration and mediation systems, in which the defendant and the victim jointly participate, in order to determine the best course for promoting restorative justice, to satisfy the demand for victim procedural subjectivity, and to expand the one-time character of dispute resolutions.

This study evaluated money laundering investigation conducted at the Financial and Asset Forfeiture Investigation (FAFI) Unit of the Directorate for Priority Crime Investigation (DPCI) in Pretoria. Data were collected through semi-structured interviews conducted with financial and asset forfeiture investigators attached to the DPCI who are responsible for investigating money laundering. From the results of this study, it became apparent that participants experience a number of challenges in the investigation of money laundering. This study makes recommendations that could empower investigators at the FAFI of the DPCI with enhanced skills and knowledge to effectively investigate cases of money laundering. / Criminology and Security Science / M.A. (Criminal Justice--Forensic Investigation)

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.

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.

The researcher conducted a critical analysis of the policing of counterfeit crime in South Africa. A pure qualitative research design and approach was adopted. A literature review, interviews and observations were conducted to provide an overview of this problem nationally and internationally. Interview schedules were designed with pre-determined open-ended questions, which allowed participants to explain their perceptions, opinions and viewpoints on the policing of counterfeit in South Africa. Some of the designed questions were mailed to respondents. Questions were posed to members of the Specialised Commercial Crime Unit, members of the South African Police Service’s Crime Prevention Unit, members of the Department of Trade and Industry who deal with counterfeit, prosecutors who normally prosecute counterfeit cases, brand owners/holders/representatives, and attorneys who assist in the policing of counterfeit crime. The findings of this study informed the proposed recommendations for preventative and reactive response mechanisms. These proposed recommendations suggest ways of improving efficiency and effectiveness in policing counterfeit in South Africa. / Criminology and Security Science / Ph. D. (Criminal Justice)