자금세탁방지법제에 대한 헌법적 검토

Abstract

This paper is intended to examine the constitutional basis of financial information privacy protection and money-laundering prevention, and to grope the legal strategy which would raise the effectiveness of money laundering prevention system. A careful study of constitutionality of Korea's anti-money laundering act has forced us to conclude that suspicious transaction reporting, currency transaction reporting, customer due diligence, and issues such as the requirement of search and seizure warrant do not disproportionately restrict the right to financial privacy. But even if the anti-money laundering system is not unconstitutional as determined by this study, the importance of protection of privacy regarding financial information cannot be overlooked. Rather, when people are convinced that privacy is protected to maximum level, the anti-money laundering system can be successful with full support from people and financial institutions. The anti-money laundering law should be reformed to minimize the infringement of the right to financial privacy and to foster an efficient anti-money laundering system at the same time. Therefore, the legal system which regulates the financial information privacy should meet the purpose specification principle, the collection limitation principle etc.. Of course due process of law can also be applied to the anti-money laundering system. If, however, the requirement of search warrant is too strictly implemented, it would hinder the efficiency of anti-money laundering system. Through the Financial Transaction Reports Act(FTRA), a suspicious transaction reporting(STR) and currency transaction reporting(CTR) system have been introduced. Under the STR system, financial institutions are required to report to KoFIU transactions over 20 million won or the foreign exchange equivalent of over US $10,000 that are suspected of laundering criminal proceeds or tax evasion. But if a financial institution suspects or has reasonable grounds to suspect that funds are the proceeds of a criminal activity, all suspicious transactions should be reported regardless of the amount of the transaction. And we suggest that CTR should be required by a domestic financial institution upon the deposit, withdrawal, exchange, payment or transfer of 50 million won in currency. In addition, when establishing business relations or carrying out occasional transactions above the applicable designated threshold, financial institutions should undertake customer due diligence measures, including identifying and verifying the identity of their customers. Finally there is an urgent need of an independent body in charge of protecting financial process practices of the FIU. The concrete roles of this body can be defined with enactments of related laws within the extent of social consensus.