رویکرد نظام عدالت کیفری به ریسک مجرمان دارایی های مجازی (مقاله علمی وزارت علوم)
درجه علمی: نشریه علمی (وزارت علوم)
آرشیو
چکیده
دارایی های مجازی به عنوان ابزاری فنّاورانه با برخورداری از ظرفیت های جنایی، نظر بزهکاران را نیز به خود جلب کرده است. ویژگی های منحصربه فرد این فنّاوری، سرآغاز تحولات مفهومی و مصداقی برخی جرایم شده است؛ ازاین رو مهار مخاطرات جنایی این فنّاوری و اتخاذ تدابیر و اقدامات کنشی و واکنشی در برابر آن، اجتناب ناپذیر به نظر می رسد. در این میان، مخاطرات پول شویی دارایی های مجازی آن را محور تدابیر سیاست جنایی قرار داده است. ویژگی هایی مانند سرعت و گم نامی و ردیابی نشدن سبب شده بزهکاران از این دارایی ها به طور گسترده ای استفاده کنند؛ ازاین رو کشورها در چهارچوب نظام عدالت کیفری خود در تلاش اند نسبت به مهار مخاطرات جنایی پول شویی دارایی های مجازی در دو بُعد پیشگیرانه و واکنشی اقدام کنند. براین اساس، برای اتخاذ راهبردهای مطلوب در سطح نظام عدالت کیفری، در وهله نخست شناخت چیستی دارایی های مجازی از حیث فنی و حقوقی و سپس بررسی ظرفیت های جنایی آن از اهمیت بسیار زیادی برخوردار است؛ چراکه پیش شرط اتخاذ هر راهبرد کنشی یا واکنشی شناخت دقیق پدیده موضوع این اقدامات خواهد بود. امری که زمینه لازم را برای ارائه الگوی مطلوب سیاست جنایی در دو سطح پیشگیرانه و کیفری فراهم خواهد ساخت؛ ازاین رو در پژوهش حاضر، با رویکردی توصیفی تحلیلی و با بررسی منابع کتابخانه ای ازجمله اسناد فراملی، قوانین و مقررات داخلی، رویکرد نظام عدالت کیفری به ریسک مجرمانه دارایی های مجازی بررسی خواهد شد. در این چهارچوب، با بررسی وضعیت موجود در نظم حقوقی کیفری ایران، بایسته های سیاست جنایی در این زمینه ترسیم خواهد شد.The Approach of the Criminal Justice System to the Criminal Risk of Virtual Assets
As a technological tool with criminal capabilities, virtual assets have also attracted the attention of criminals. The unique features of this technology have become the beginning of conceptual changes and examples of some crimes. Hence, curbing the criminal risks of this technology and taking preventive and confrontational measures against it seems inevitable. In the meantime, the risks of money laundering of virtual assets have made it the focus of criminal policy measures. Features such as speed, anonymity, not being tracked have caused criminals to use these assets widely. Therefore, within the framework of their criminal justice system, countries are trying to control the criminal risks of money laundering of virtual assets in two preventive and confrontational dimensions. Based on this, in order to adopt optimal strategies at the level of the criminal justice system, first of all, it is very important to know what virtual assets are from a technical and legal point of view, and then to examine its criminal capacities. Because the prerequisite for adopting any action or reaction strategy is to know the exact phenomenon of the subject of these actions. This will provide the necessary background for presenting the ideal model of criminal policy at two both preventive and penal levels. Therefore, in the present study, the approach of the criminal justice system to the criminal risk of virtual assets will be investigated with a descriptive-analytical approach and by examining library sources such as transnational documents, domestic laws, and regulations. In this framework, by examining the existing situation in Iran's legal-criminal system, the needs of the criminal policy in this field will be outlined. Keywords: Criminal Justice System؛ Delinquency؛ Virtual Assets؛ Risk 1. Introduction The process of transition to a global society is rapidly evolving with the development of international trade exchanges, international economic cooperation, and extensive communication at the world level; which ultimate example has crystallized in the global economy. Breaking social boundaries and becoming a single global society and introducing technological tools made economic exchanges easier. These technological tools with the function of money or as a new method of payment are known as virtual assets and quickly spread in different countries. This new technology, although provided a platform for ease of exchanges; But at the same time, due to its special features, such as the anonymity of individuals, the impossibility of tracking the chain of transactions, and sometimes the lack of governmental support, attracted the attention of criminals. Wide networks of communication and information technology have created many fields for abuse by international criminals in the form of crimes such as money laundering, which are less materially controllable. Money laundering aims to clear illegal money by hiding the source of income. Perpetrators of money laundering consider the use of virtual assets as a safe platform to hide the traces of criminal proceeds and the anonymity of the chain of people involved in transactions, and pursue their criminal goals from this path. Virtual assets can be accessed through the Internet and with tools, including mobile phones, even in cross-border payments. Additionally, these technologies typically rely on complex infrastructures, involving multiple entities in different countries, used to transfer funds or perform payment operations. This way of providing services and involving several countries, as different jurisdictions, will create problems in determining the responsible for combating money laundering and terrorist financing, the supervisor and the enforcer of these regulations. In this regard, the Financial Action Task Force (FATF), which aims to prevent and combat money laundering and terrorist financing, as a transnational organization, provided recommendations to countries to prevent and combat these crimes. This group, in reviewing its recent recommendations, has paid particular attention to virtual assets and by following a risk-based approach to identifying this category and including anti-money laundering requirements, has focused on virtual asset service providers. Thus, considering the formation of national and transnational approaches regarding the criminal risk of virtual assets, how the criminal justice system intervenes in this field and how it faces the criminal risks of virtual assets is of great importance. In this regard, by looking at the existing and relevant regulations and approvals in Iran's legal system, in the first part of this research, virtual assets are examined in terms of their technical and legal nature And then their criminal capacities are introduced. It is through this that in the second part, the necessity of including the requirements of the anti-money laundering system on virtual assets will be discussed with a view to transnational approaches And finally, the needs of the criminal policy in this field, which includes two preventive and punitive strategies, will be examined. 2. Methodology this study is applied in terms of purpose and descriptive-analytic in terms of methodology and nature. the necessary data and statistics were collected by library method 3. Results and Discussion The nature of some virtual assets is such that it enables person-to-person transactions without the need for an intermediary. This feature has attracted the attention of countries that have always been economically unstable and the risk of bankruptcy of institutions and financial institutions in them is considered high. This has increased people's desire to use virtual assets, especially cryptocurrencies. In fact, for people who do not consider such institutions to be reliable enough, virtual assets are considered a suitable alternative. It is necessary to comprehensively examine the dimensions and types of virtual assets as a new and expanding phenomenon. Among the various dimensions, identifying the legal nature of virtual assets is a fundamental element in the formulation and regulation of appropriate laws and regulations. In fact, although the function of virtual assets can be considered similar to money in terms of legal and economic foundations, they can be accepted in exchanges; But this issue requires the recognition and acknowledgment of governments. Based on this, the invention and development of virtual assets appeared as a new manifestation of the globalization of the economy. In addition to all its advantages, it has provided the uncontrollable access of humans to geographical areas, financial resources and information, which itself has become a platform for illegal activities. In the meantime, the combination of virtual assets with some other technologies in the context of cyber space has led to the development of criminal capacities, the most obvious result of which is flexibility in identity. This means that there is no specific information about the users of this technology (sender, receiver and extractor) or this information does not necessarily match their real identity information. In fact, they can not only use fake identities, but they can also change their identities frequently. In fact, due to the lack of a supervisory body, it is difficult to trace the origin of the income. The absence of a central controlling body as well as the lack of identification of users is significant from another point of view. This dimension is the possibility of transnational alliances to commit crimes. Investigations show that the defendants of some cases related to virtual assets resided in different countries such as the United States and Thailand and participated remotely in criminal activities using virtual currencies. The presence of these features has attracted the attention of money launderers in order to clean up the criminal proceeds. In fact, the perpetrators of money laundering consider the use of virtual assets as a safe platform to achieve their goals, that is, to hide the origin of the proceeds and the anonymity of the transaction chain. Therefore, the need to provide a safe solution to prevent and deal with this phenomenon is inevitable. 4. Conclusions and Future Research Virtual assets can be examined from several aspects in the criminal justice system. This issue will have a considerable scope when it is to be examined in the framework of the concept of criminal policy. In this regard, it should be seen what combination of criminal policy should be taken into account in the two areas of preventive and reactive measures with regard to the criminal capacities of virtual assets. A prerequisite is the accurate identification of the criminal profile and criminal capacities of this technology so in the light of that set of effective criminal policy interventions from the passage of a combination of interventions; Criminal, non-criminal and preventive measures, be considered. First; In the field of reactive measures, first, by drawing the criminal profile and determining the criminal capacities of virtual assets, it is necessary to check on what basis the measures in this area should be based. Does this area require criminal interventions, or is it sufficient for legal regulation and non-criminal responses? Or should a combination of criminal and non-criminal measures be considered? Undoubtedly, in terms of criminal, this space includes possible and real capacities in creating quantitative and qualitative changes, and the examples and concepts of crimes. Therefore, answers to important questions such as what changes virtual assets make in the quantity and quality of crimes? How much crime will increase with the use of this technology? What new types of crime will be created, which are essentially different from the current crimes related to the Internet, artificial intelligence, etc.? Are the crimes that can be committed in the real world also punishable by using virtual assets, or does criminal intervention in this space require the criminalization of new types of behaviors specific to this space? It is an important part of justifying criminal intervention in this field and its types. Also, criminal response in this area and identification of the guarantee of criminal executions are also important. Questions such as the effectiveness of existing punishments or the need to adopt new approaches to criminal response based on the fundamental components of virtual assets are among the most important questions that are used in the application of criminal policy packages based on a combination of measures. However, the need for criminal intervention does not negate the need to adopt non-criminal responses within the framework of the regulatory system of this technology. A significant part of regulating relations regarding this technology can be based on union, administrative and civil actions. This is confirmed by the principle of minimum criminal law. Second; In the field of preventive measures, the criminal capacities of virtual assets and their criminal functions can be effective. In this framework, a combination of criminal policy measures can be planned. On the one hand, preventive measures based on criminological teachings of prevention at the level of situational and social prevention can be effective in curbing possible crimes with this technology, and on the other hand, the legal and criminal measures that prevent the passage of criminalizations in accordance with criminal justice can be prevented by the realization of deterrence through the development of criminalization of crimes and the guarantee of legal-criminal enforcement for preventive measures to curb important crimes in this area. Thus, if the approach of criminal policy against the risks of money laundering of virtual assets takes into account the mentioned cases, we can be optimistic about the beneficial results of its implementation.
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