2017 | Book

Anti-money Laundering Law: Socio-legal Perspectives on the Effectiveness of German Practices

Author: Verena Zoppei

Book Series : International Criminal Justice Series

Part of: Springer Professional "Business + Economics & Engineering + Technology" , Springer Professional "Business + Economics"

Table of Contents

About this book

In the aftermath of recent multiple leaks such as the Panama Papers, the Swiss leaks, the Lux

leaks, and the Bahama leaks, this book offers an interesting view on the underlying conflicting

interests that impede the adoption of more effective legislation to stop money laundering

by way of the financial system.

The central position of the book is that the declared goals underlying the criminalization of

money laundering have not been fulfilled. The effectiveness of the anti-money laundering

regime in Germany is assessed by examining the indirect effects, collateral consequences,

and positive interpretations of the law in action and of the law inaction; reducing the issue

to a question of symbolic effectiveness does not reflect the complexity of the matter. What is

demonstrated, is that the goals attributed to the regime were too ambitious, and that a lower

degree of effectiveness has been accepted in order to balance the inherent political, economic

and financial conflicting interests.

Unlike other volumes focusing on this issue, this book deals with the implementation of the

legislation and the consequences thereof, and is primarily aimed at legal sociologists, sociology

of law researchers, criminal lawyers, criminologists with an interest in white collar crime and

political scientists studying measures against illicit financial flows and the concrete implementation

of anti-money laundering laws. The book will be of interest to both international

policymakers and consultants as well as their counterparts in Germany for instance working

on improving the instruments to fight organized crime and prevent the financing of

terrorism through money laundering.

The complexity of the anti-money laundering regime and all the variables are exhaustively

and critically reviewed in the assessment, thereby providing complete instructions for future

legislative steps. The case study regarding the situation in Germany maximizes readers’ insights

into concrete effects of the implementation of international anti-money laundering standards

at a national level, and the opinions of professionals working in the field and of experts on the

law-making process are also illuminating. Moreover, the book equips non-German speakers

with the information needed to deal with the extensive German legal scholarly production on

article 261 of the German criminal code and the current internal political debate on the matter.

Verena Zoppei is a Fellow Researcher at the International Security Division of the German

Institute for International and Security Affairs in Berlin.

Frontmatter

Chapter 1. Introduction

Abstract

In a time of excessive legislation, questioning the effectiveness of a law helps lawmakers in assessing whether the law fulfils the purpose for which it was enacted, and thus in drafting more effective reforms. This book focuses on the money laundering offence; yet it surveys also the rules governing the prevention of money laundering.

Verena Zoppei

Instructions for the Socio-Legal Research

Frontmatter

Chapter 2. The Socio-Legal Framework

Abstract

This chapter proposes an operational definition of socio-legal effectiveness that is then applied for the empirical research. It first discusses different approaches to the definition of legal effectiveness provided not only by socio-legal studies, but also by other disciplines, such as administrative sciences, economic theories of law, and political sciences. Secondly, it outlines the preferred definition, and presents the variables chosen to assess empirically the effectiveness, according to the chosen definition, and the different methods used. Thirdly, based on the theoretical framework illustrated, it formulates a hypothesis on the effectiveness of the money laundering offence.

Verena Zoppei

The Genesis of the Anti-Money Laundering Regime: Tracing Statements of Legislative Purposes

Frontmatter

Chapter 3. The International Law-Making Process

Abstract

This part describes the genesis of the money-laundering offence and the subsequent developments. An historical look at how the legislative process has developed from the beginning to the present day is taken. The aim is not only to describe events anecdotally, but to comment on the developments as well. Given that the offence was introduced in the German Penal Code in fulfilment of international duties, the book traces firstly the international law-making process. The chapter specifically sheds light on which motives triggered the introduction of the offence as a transnational crime. Among European Member States, it has been mostly the European Directives that have further triggered the development of anti-money-laundering laws. Therefore, the book focuses on the European legal framework, and on the motives that drove European policymakers to adopt the current laws. The emphasis will be on the ever-new functions that lawmakers, at both the international and national level, have ascribed to the anti-money laundering regime, in order to reveal its ultimate latent or symbolic functions. In fact, the aim of this study is to investigate whether intents, other than those expressed officially, have driven the creation and the consequent development of the money-laundering offence.

Verena Zoppei

Chapter 4. The German Law-Making Process: Tracing Legislative Intents

Abstract

This chapter analyses the German legislative process and the specific national legislature’s motivations for the criminalisation of money laundering and for widening of the reach of the offence. It focuses on the parliamentarian debate that resulted in the introduction of Article 261 in the German Criminal Code (GCC), and on the main issues that raised along the legislative process, also with regard to the approval and the changing of the preventive regime.

Verena Zoppei

The Integration of Article 261 in the German Criminal Code

Frontmatter

Chapter 5. The Doctrinal Legal Debate on Article 261 of the German Criminal Code

Abstract

This part looks at one of the determining factors for sociological research on the effectiveness of law mentioned in Part I, namely, how scholars, who are experts in the field, welcome a law. It questions whether the offence of money laundering is an adequate tool to combat money laundering from a theoretical perspective. In other words, does the legal provision on money laundering have the potential or not to achieve its goals. After having analysed the manifest and latent intentions of the legislature in making money laundering a crime, and having looked at the ultimate symbolic functions ascribed to the law, this study proceeds to examine how legal scholars have received the statutory provision that regulates the crime of money laundering. It deals with the following issues, in particular; the interests protected by Article 261 of the GCC; the wording of Article 261; the criminalisation of reckless conduct (leichtfertige Geldwäsche); and a summary of the critical opinions as to whether the provision regulating the crime of money laundering serves the purpose for which it was enacted or whether it has merely a symbolic function.

Verena Zoppei

The Implementation of the Anti-Money Laundering Regime: Between Law in Action and Law Inaction

Frontmatter

Chapter 6. Data on the Implementation of the Anti-Money Laundering Regime

Abstract

This chapter looks at the implementation of the criminal policy by observing the activity of law enforcement agencies and the judiciary. The effectiveness of these two organs of state is referred to as efficiency, which is measured in relation to their primary functions through criminal statistics on the number of (preliminary) investigations, proceedings, convictions, and types of punishments imposed. In order to disclose what impact that the money-laundering offence has had over the past years of its being in force, as compared to the above-mentioned highlighted intentions of the legislature, this part deals with the implementation of the law, which was identified in Part I as an empirical measure of the effectiveness of a law. The part looks both at the effects of criminalising money laundering and at the application of the Anti-Money Laundering Act. It does this by analysing official statistics and looking at the way the law is implemented, from the point of view of the authorities who provide the statistics. This data is not only representative of the implementation outcomes but expresses also the level of efficiency from the perspective of the different criminal justice authorities. Given the abundant literature that summarises and analyses the data and thanks to the results of an empirical research conducted shortly after the introduction of the anti-money laundering policy, this study, by now, approaches the statistics with an already critical perspective.

Verena Zoppei

Chapter 7. Opinions on the Anti-Money Laundering Regime. The Implementation of the Law from the Perspective of Legal Actors and Experts

Abstract

This part concludes the qualitative assessment of the effectiveness of the money-laundering offence by looking at legal role-players’ opinion and perception of the law. Issues that have emerged through the documental analysis are further discussed with experts and legal role-players. The interviews focus particularly on the size of the phenomenon of money laundering in Germany, on the legal framework’s technical appropriateness, on the conflicting interests, and finally, on the interviewees’ perceived (symbolic) effectiveness of the policy. Due to the fact that the enforcement of the money-laundering offence is strongly linked to other preventive and repressive measures, interviews consider also respondents’ opinion and perception on related regulations. Given the transnational nature of money laundering and of the anti-money laundering regulations, this part, whilst focusing on a national legal system, re-opens the perspective onto the global level. Some of the challenges faced at this global level to tackle money laundering, in fact, have an impact on the domestic dimension. At the same time, issues that are raised in the national context can be further theorised in a wider context.

Verena Zoppei

Conclusions

Frontmatter

Chapter 8. Conclusions

Abstract

The empirical research has revealed that while some of the declared goals underlying the ‘follow the money’ strategy have not been completely fulfilled, which leads to the inference that the law is ineffective, its existence can be justified in the light of its latent functions.

Verena Zoppei

Backmatter

Title: Anti-money Laundering Law: Socio-legal Perspectives on the Effectiveness of German Practices
Author: Verena Zoppei
Publisher: T.M.C. Asser Press
Electronic ISBN: 978-94-6265-180-7
Print ISBN: 978-94-6265-179-1
DOI: https://doi.org/10.1007/978-94-6265-180-7