http://dspace.cityu.edu.hk:80/handle/2031/5666 Tue, 30 Apr 2013 11:54:01 GMT 2013-04-30T11:54:01Z http://dspace.cityu.edu.hk:80/handle/2031/6279 Title: Developing an anti-money laundering regime and implementing anti-money laundering preventive measures in China : from the perspective of financial institutions Authors: Wong, Yuet Alex (黄越) Abstract: After China adopted its open-door policy in 1978, money laundering problems began to appear and soon proliferated. China first started its campaign against money laundering in 1989. Despite significant improvement in China's fight against money laundering over the last 20 years, research of this thesis indicated that China's AML regime was still inadequate when compared to international anti-money laundering (AML) standards. Also, financial institutions (FIs) in China currently encountered significant practical difficulties in implementing risk-based AML preventive measures in their daily operations. This research aimed, first, to investigate the areas of improvement that could be made, from the perspective of FIs, to China's AML regime so as to enhance its effectiveness, and second, to explore possible ways to enhance the implementation of existing risk-based AML preventive measures by FIs in China. With respect to the first part of the research, findings indicated that China's primary money laundering offence could be improved by extending the scope, applicability, predicate offences, mental and physical requirements, etc. Also, auxiliary money laundering offences, such as reporting and tipping-off offences, should be introduced into China's criminal law. Regarding current administrative and regulatory AML preventive measures imposed on FIs in China, this thesis called for more risk-based elements to be included, such as those related to customer due diligence and customer transaction monitoring. The research also indicated that China had yet to reach a stage at which it was able to adopt a full-blown risk-based approach to AML compliance. This thesis suggested that the proper approach to AML compliance in China was a mixed approach in which the rule- and risk-based AML preventive measures co-existed to retain the benefits of simplicity and certainty, enhancing the effectiveness of AML compliance. Regarding the second part of the research, in response to the practical difficulties currently encountered by FIs in China when implementing risk-based AML preventive measures, this thesis suggested a practical proposal to overcome such difficulties. The proposal included the following elements: practical and functional ways to identify AML risk factors and ultimate beneficial owners; ways to assess customers' money laundering risks and categorize them into different risk levels; ways to mitigate and manage customers' different money laundering risks; ways to conduct customer transaction monitoring; and ways to test internal compliance with AML programs. Due to the vast volume of transactions conducted each day by FIs, this thesis highlighted the importance of automation of transaction monitoring and suggested essential components that should be included in an effective automated transaction-monitoring model. As only minimal research on the above research areas existed, the author believed that the findings of this research present very practical applications that could contribute positively to the development of a more effective AML regime and to the implementation of AML preventive measures by FIs in China. Notes: CityU Call Number: KNQ966 .W66 2010; xiii, 308 leaves 30 cm.; Thesis (JSD)--City University of Hong Kong, 2010.; Includes bibliographical references (leaves 279-299) Fri, 01 Jan 2010 00:00:00 GMT http://dspace.cityu.edu.hk:80/handle/2031/6279 2010-01-01T00:00:00Z http://dspace.cityu.edu.hk:80/handle/2031/6277 Title: Medical negligence in Hong Kong Authors: Lam, Sau Ping (林秀萍) Abstract: Medical negligence has begun an increasing concern recently. In Hong Kong, perhaps the awareness of medical negligence can be explained by the improved education of the general public as well as the increasingly easy accession to medical information. This relatively high degree of awareness inevitably leads to frequent challenges to doctors for their suspected malpractice. This is a striking contrast with the past perception of doctors, whom had been viewed as an elite group of academics with absolute power and knowledge. The rising numbers of tabloid newspapers and magazines like Oriental Daily and Next magazine which like to report medical blunders as attractive stories even increase such challenges. Of course, the increase in compensation after verdict from the court of appeal in 1996 contributes to the complaint culture of Hong Kong public as well. With the increasing medical blunders, our legal profession will inevitably involve in representing either party in court or, more commonly, giving medical-legal advice to the plaintiffs or defendants concerned. In order to prove medical negligence and claim for compensation, legal profession will have to refer to Tort Law, which forms the foundation for dealing with those issues. When this thesis points out that the three elements for proving medical negligence in a medical litigation should be duty of care, breach of duty and causation, it further points out that the Bolam and Bolitho tests should be considered as the cornerstone in relevant judgments. Through necessary investigations, this thesis further reveals that legal and medical professions in Hong Kong have not properly implemented those principles. This is especially a true case in Hong Kong because some of the Ordinance related to Health Care was made years before and amendments are needed to them in order to keep in pace with the rapidly changing society. As one of the methodologies apply in this thesis, interviews have been conducted in order to evaluate the different views on medical negligence in Hong Kong and to discover ways of improving the imperfect healthcare system. Both physicians and the public who have been interviewed believed that medical errors are one of the most serious problems in health care today. The issues cited most frequently by physicians were the costs of malpractice insurance and lawsuits. As for the public, however, the most frequently cited problems were the cost of health care in the private sector and the tremendously long waiting list for operations in public hospitals. That could a reason why the public cannot tolerate any medical error. Ultimately, the saying that prevention is better than cure is true for all problems. This wise statement not only applies to the medical profession, but also to legal profession alike. Even though medical negligence cannot be totally avoided by medical professionals, as legal advisers, we have the responsibility not only defend them but also to advice them the specific ways to minimize medical negligence. One of the contributions of this thesis is to offer many recommendations to doctors after analyzing in depth common causes of errors from cases of medical blunders in Hong Kong. Several of my recommendations are crucial because they could enable medical practitioners to minimize the chance of being complained or even sued for medical negligence. Notes: CityU Call Number: KNR110.45 .L35 2010; 318 leaves 30 cm.; Thesis (JSD)--City University of Hong Kong, 2010.; Includes bibliographical references (leaves 280-283) Fri, 01 Jan 2010 00:00:00 GMT http://dspace.cityu.edu.hk:80/handle/2031/6277 2010-01-01T00:00:00Z http://dspace.cityu.edu.hk:80/handle/2031/5794 Title: Regulation of related party transactions of financial institutions in China Authors: Sui, Ping (隋平) Abstract: In financial industry, the phenomenon of related party transactions with agent-principal problem commonly exists. Related party transaction is a type of activity in economic life, which becomes the object of legal regulation because the agency problem and conflicts of interest in it may give rise to unfairness of the transaction. In this research, the author makes reference to the suggestion of economic theory of agency problem to give a structural picture of the transactions, which describes related party transactions as transactions concluded by “agent” on behalf of “principals” with agent himself or his related parties sharing common interest with the agent. In such definition, the concepts of “agent” and “principal” are in the economics’ meaning referring the relationship in which the achievement of one party’s interest is relied on actions taken by another party. Person who is relied in the transactions is “agent”, while the relying person is called “principal”. Such definition has an additional benefit that it indicates the three roles and corresponding three relations with different supervisory issues. In related party transaction, at least three parties are involved playing different roles. Correspondingly, different legal relationships exist between different parties playing different roles. Such analysis is useful for dentifying from which relation the agency problem and the conflicts of interest stem because the agency problem and conflicts of interest are resources of unfair related party transactions. From a legal point of view, in Chinese civil law, different legal relationships between private parties are established based upon different legal facts. Correspondingly, different legal relationships will confer different rights and impose different duties on parties. Therefore, it is sensible to analyze the legal nature of the relationships of different participants and their roles in financial institutions’ related party transactions. One of them is the relationship between agent and his principal. They establish a contractual relationship of providing service between them in related party transactions, a relationship constituting the basis of agent-principal relation. The focus of regulating such relation is how to establish mechanisms to promote and supervise ‘agent’ to serve the interest of principals honestly and diligently. In regulating such relation based upon service providing contract, some external and internal strategies are employed to balance informational asymmetry and supervise agents’ fulfilling their contractual duty. In nature, internal and external supervisory strategies as well as corresponding civil liability systems are aimed to increase principals’ right to information. The arrangements are to engage professional supervisory agents with informational ability. Furthermore, supervisory agents also need to be empowered to collect relevant information necessary for supervision. Therefore, in regulating related party transaction in financial industry in China, laws and regulations should pay more attention to the supervisory agents’ informational ability and their power to have adequate access to relevant information. In addition, as agent-principal relation is established upon service providing contract including beneficiary contract, civil liability system in civil law will be applicable in case of occurrence of breach of supervisory duty. Another relationship exists between the actual contracting parties of the transaction transferring financial resources. In such contractual relationship, one party is the principal, and the other party is that related with agent acting on behalf of the principal, or sometimes, just the agent himself. In such resource transferring legal relation, the expression of legal intent of customer may be distorted and the contract may become invalid according to the rules of Chinese civil law. In financial regulations, some restrictions on related party transaction are demanded. In the context of financial integration, the prohibition to some extent decreases the economics of scope provided by the integration. As a substitute for prohibition, approval, consent by misrelated parties or disclosing relationship before the deals are commonly adopted. In nature, the mechanism of approval and consent is to not allow interested parties to make expressions of legal intent on behalf of customers of financial institution with plenary power as they usually do. To back up the controlling approaches in transferring relations, legal liabilities are necessary. Except the related administrative punishment for the related unlawful behaviors, civil liabilities rules apply. When it comes to the legal outcome of contracts without effective prior approval, Chinese civil law demands that only with the approval or consent of informed principals, can the expression of legal intent be intact, genuine, and one with legal binding force, otherwise, the expression is with some flaw that would make related legal act nullified at the election of delegating parties. Moreover, asset acquired as a result of a contract shall be returned after the contract is confirmed to be null and void or has been revoked. If the shifted asset can not be returned or the return is unnecessary, it shall be reimbursed at its estimated price. The third relationship is the transferring relation based on common interest between the agent and its related parties. To prevent related parties’ undue influence on the transactions in financial industry, legal rules set up some systems to prevent the making of common interest and to cut off the channel of influencing between agent and the principal’s counterparties. The specific controlling measure commonly adopted is the firewalls, or sometimes called Chinese wall, between the related parties or financial institutions’ internal departments to prevent the undue influence on parties who make, or take part in the making, the expression of legal intent on behalf of protected parties. The civil liability of counterpart related parties of the transaction is indispensable for supervising related party transactions. In China, the joint and several liability system in tort law sometimes can be the legal basis for holding shareholders liable. While joint liability can hold the contracting related parties to be liable for damages, it fails to hold their holding company liable. In some circumstances, the principle of piercing the corporate veil of company law would be applied. Furthermore, in financial institution’s unfair related party transactions, material things are rarely involved and thereby scarcely are body and property damaged. Therefore, in Chinese financial law, it is necessary to expressly establish the compensation system for pure economic loss. In China, the administrative regulatory authorities are main power to control the indecent behaviors in financial market, including the unfair related party transactions. To ensure related supervisory rules are observed by financial institutions, the periodical and unperiodical on-site inspections and off-site inspections are necessary. To enforce the rules of financial regulations, the regulatory unishments are set up. In China, the organizational form that financial nstitution shall take in the context of financial integration is a hotly debated issue. The institutional structure of universal banking in practice has advantages over the model of financial conglomerate. By and large, China has had a comprehensive supervisory system of related party transactions. However, as indicated by this research, there are still many flaws in existing system, especially in respective of consumer protection. Generally, the financial authorities have to take the private interest of financial consumers seriously and make more reference to the voice of legal scholars of private law in policy making. Key Words: Related Party Transaction; Agent-Principal Relation; Informational Asymmetry; Informational Ability; Information Power; Common Interest; Conflicts of Interest; Financial Integration; Universal Banking; Internal Control; External Control; Default Rules; Immutable Rules; Beneficiary Contract; Civil Liability Notes: CityU Call Number: HF5681.R33 S94 2009; viii, 358 leaves 30 cm.; Thesis (JSD)--City University of Hong Kong, 2009.; Includes bibliographical references (leaves 337-358) Thu, 01 Jan 2009 00:00:00 GMT http://dspace.cityu.edu.hk:80/handle/2031/5794 2009-01-01T00:00:00Z