Journal articles on the topic 'Forfeiture laws'
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1
Grove, Sean M. "How the Government Can ‘Come and Take It’." Texas A&M Journal of Property Law 3, no. 2 (March 2016): 121–46. http://dx.doi.org/10.37419/jpl.v3.i2.2.
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As a model of review, this Comment will use Texas’s laws—juxtaposed against state laws that are providing more protections—to compare what Texas is doing wrong in light of what other states are doing right. First, this Comment will give a brief history of asset forfeiture in general and provide the status of civil asset forfeiture in the twentyfirst century. Part II will discuss the benefits of some asset forfeiture programs while highlighting the shortcomings and burdens that civil asset forfeiture brings. Part III will show state legislation aimed at curtailing civil asset forfeiture and the factors that make Texas’s laws (arguably) among the worst in the country. Finally, Part IV will discuss what Texas and similar states should do to improve the protections afforded to property owners and also improve the use of forfeiture overall.
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Thiyagu Ganesan, Mohd Zamre Mohd Zahir, Muhamad Sayuti Hassan, and Hasani Mohd Ali. "CIVIL FORFEITURE UNDER ANTI-MONEY LAUNDERING LEGISLATION IN MALAYSIA." IIUM Law Journal 31, S1 (November 10, 2023): 187–214. http://dx.doi.org/10.31436/iiumlj.v31is1.876.
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The Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 [AMLAFTA] empowers the Malaysian Courts to forfeit any property that is the subject of a money-laundering offence via sections 55 and 56 of the AMLAFTA. The rationale of this empowerment is to ensure that all property used in the commission of a money laundering offence is forfeited. Hence, the criminals do not gain any benefits from their crimes. However, it is observed that the provision related to civil forfeiture, specifically under section 56 of the AMLAFTA appears problematic in many instances due to the requirement attached and the civil standard of proof. As such, this article intends to detail the civil forfeiture mechanisms under the AMLAFTA. This article used the qualitative method in doctrinal legal research to collect and analyse all the information related to the topic from various primary and secondary data such as legal provisions, case laws and secondary sources, namely journals and articles on civil forfeiture, especially when applying the standard of proof. The article analyses the substantive law and procedural requirements for civil forfeitures based on Malaysia’s relevant legal provisions and cases. This article also examines the Malaysian Courts’ trends in deciding civil forfeiture cases and analyses the standard of proof for civil forfeiture. This article suggests amendments to section 56 of the AMLAFTA to introduce a provision on the rebuttable presumption to ensure that the objective of creating the civil forfeiture provision can be achieved.
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G. Kroeker, Robert. "The pursuit of illicit proceeds: from historical origins to modern applications." Journal of Money Laundering Control 17, no. 3 (July 8, 2014): 269–80. http://dx.doi.org/10.1108/jmlc-01-2014-0005.
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Purpose – The purpose of the paper is to trace the historical foundations of forfeiture from antiquity to its migration into early criminal law statutes. From there the discussion turns to gaps in the law that gained recognition with the emergence of globalized economies and the development of technologies that allowed illicit wealth to be moved transnationally with ease and stealth. The balance of the paper will give an overview of the countermeasures taken in response to these gaps. The paper concludes with comment on the recent spread of non-conviction-based asset forfeiture laws and the practical use to which these laws can be put in relation to the tracing, seizing and forfeiture of illicitly acquired wealth. Design/methodology/approach – The paper opted for a historical legal review of the development of forfeiture laws in common law jurisdictions. Findings – The paper traces the development of the origins of forfeiture in the common law. It lays out the original compensatory objectives of forfeiture and its eventual migration into the criminal law. The paper describes how non-conviction-based asset forfeiture has evolved in modern times as a response to gaps in the criminal law that have been exposed by the pernicious aspects of globalized economies and the ease with which electronic intangible assets can be moved and beneficial ownership obscured. Originality/value – This paper provides an overview of the origins of forfeiture law and traces the use and adaptation of that law as an emerging and effective response to transnational money laundering.
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Aurasu, Anusha, and Aspalella A. Rahman. "Money laundering and civil forfeiture regime: Malaysian experience." Journal of Money Laundering Control 19, no. 4 (October 3, 2016): 337–45. http://dx.doi.org/10.1108/jmlc-08-2015-0033.
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Purpose Money laundering is a complex issue which has been ongoing for many years globally. Developed and developing countries form anti-money laundering regime in the view to combat these ever-challenging criminal activities. Laundering of money involves the hiding and cleaning of “dirty money” derived from unlawful activities. Malaysia has come up with its own regime of anti-money laundering. Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (AMLATFA) provides power to forfeit proceeds at the end of proceedings. This paper aims to investigate whether the current civil forfeiture regime in Malaysia is effective in fighting against money laundering. Design/methodology/approach This paper will be based on a doctrinal research where reliance will mainly be on relevant case laws and legislations. AMLATFA is the primary legislation which will be utilised for the purpose of analysis. Findings Despite the enactment of AMLATFA, little study has been carried out on the effectiveness of civil forfeiture regime under Malaysian anti-money laundering laws. Furthering into forfeiture of criminal proceeds, the findings show that forfeiture provisions are the recent law enforcement strategy to fight against crimes. It is implicit that this strategy is more efficient than the conventional approach, which only focused on punishing the individual criminal but failed to diminish the criminal operations as a whole. Originality/value Strengths and weaknesses of AMLATFA are identified where it is less comprehensive in terms of offences covered and standard of proof. With that, this paper analyses the civil forfeiture regime under the Malaysian anti-money laundering laws. This paper would also offer some guiding principles for academics, banks, their legal advisers, practitioners and policymakers, not only in Malaysia but also elsewhere. Anti-money laundering laws can further be improved by being a better and established civil forfeiture regime where Malaysia will be able to discharge its duties well on forfeiting benefits from criminals.
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Waziri – Azi, Fatima. "The Scope of “in Rem” Forfeiture under Nigerian Law: Issues Arising." World Journal of Social Science 7, no. 1 (November 11, 2019): 1. http://dx.doi.org/10.5430/wjss.v7n1p1.
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Some criminals might be content to serve time in prison, if they know their assets will be available upon release, orthat their families may continue to enjoy the proceeds of crime and this is why in rem forfeiture of assets is animportant mechanism that can be used to prevent this from happening. Indeed it has, generally, been used as aneffective tool to counter organized crime, drug trafficking and certain other crimes in Italy since 1956 and in theUSA since 1970. In rem forfeiture removes the tools of the crime from circulation thereby depriving the wrongdoer,his associates or family from benefiting from the proceeds of crime. Even though for now Nigeria does not have acomprehensive framework for in rem forfeiture, it is however recognized under various Nigerian Laws. This paperdiscusses in detail the legal framework of in rem forfeiture under Nigerian laws, the gaps as well as management ofseized or forfeited assets pending final forfeiture order. The paper posits that for any meaningful progress in the fightagainst corruption and the recovery of proceeds of crime to be made, anti-corruption and law enforcement agenciesmust continue to apply in rem forfeiture mechanism. The paper however emphasizes that civil forfeiture shouldnever be seen as an alternative or substitute for the institution of criminal proceedings when there is sufficientevidence to support such proceedings and where such proceedings would otherwise be justified.
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Żołna, Małgorzata. "Forfeiture of real property in Polish and Lithuanian criminal law." Nieruchomości@ I, no. I (March 31, 2022): 133–48. http://dx.doi.org/10.5604/01.3001.0015.8073.
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This paper is a comparatist evaluation of forfeiture regulations, including the possibility of real property forfeiture under the Polish law and the law in force in the territory of the Republic of Lithuania. Being a legal institution that induces the perpetrator to realize the unprofitableness of committing a prohibited act, forfeiture is more effective than severe penalties, as its supreme goal is to deprive criminal activity of an economic sense. This is achieved through seizure of property and attachment of proceeds from crime. Lithuanian forfeiture laws are in many respects similar to Polish solutions. Their detailed analysis may be an inspiration to contemplate changes in institutions well known to Polish financial criminal lawyers.
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Sofian, Ahmad, Bambang Pratama, and Hanifah Azizah. "Mechanism For Asset Forfeiture In The Money Loundering Criminal Law And Asset Forfeiture Bill (Law Comparison With The United States)." Journal of Law and Sustainable Development 11, no. 12 (December 5, 2023): e1712. http://dx.doi.org/10.55908/sdgs.v11i12.1712.
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Objective: This paper attempts to compare the law between Indonesia and The United States of America regarding the mechanism of asset forfeiture in the context of criminal law. In Indonesia, several criminal law provisions already regulate the possibility of confiscating and forfeiting the proceeds of criminal acts. However, under these provisions, asset forfeiture can only be carried out after the perpetrator of the criminal act is legally and convincingly proven to have committed a criminal act. The Asset Forfeiture Draft Law the text of which is just about to be submitted to parliament can bridge the norm of illicit enrichment or improperly obtained wealth, which is actually set out in the UN Convention Against Corruption, but not yet in Indonesian law. Theoretical framework: To present Indonesian and U.S. experience in regulating the possibility of confiscating and forfeiting the proceeds and instruments of criminal acts. It takes a complete and comprehensive normative juridical approach to asset forfeiture law, presents theoretical elaboration from international scientific publications, reports, and empirical studies. This paper presents a comparison between Indonesian and United States law regarding the forfeiture of assets resulting from money laundering. The United States has been the initiator of the Non-Conviction Based Asset Forfeiture mechanism. As a result of applying the concept of Non-Conviction Based Asset Forfeiture, the United States has benefited by being able to recover state losses suffered due to corruption without having to go through criminal proceedings. Thus, it has been able to minimize state losses occurring due to corruption. Methodology: There have been many studies examining asset forfeiture in various countries, but no study has been found thus far which adequately describes the norms and implementation of laws Indonesian and United States laws, respectively. It is important for Indonesia to understand the United States’ experience, both normatively as well as empirically. Therefore, the normative juridical approach with comparative study approach serves as a tool to investigate various legal aspects of the two countries. Articles with relevant themes that occur in various countries, including Indonesia and the United States, are included in this study. Results and conclusion: An asset forfeiture mechanism is required in national law which adopts the model of forfeiture of assets resulting from criminal acts through civil law. The implementation of the model of criminal asset forfeiture by the means of civil law is needed for the prompt recovery of state losses without first having to prove the criminal act committed by the perpetrator. Originality/ value: This paper is a comparative study of Indonesian and U.S. law respectively which highlights money laundering and asset forfeiture. This study also demonstrates that the asset forfeiture mechanism applied in the United States of America using Non-Conviction Based Asset Forfeiture is a revolutionary concept in forfeiting the proceeds of crime.
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Tzenios, Nikolaos. "Proposal for policy change in the procedure of civil asset forfeiture." Routledge Open Research 2 (January 10, 2023): 1. http://dx.doi.org/10.12688/routledgeopenres.17693.1.
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Without the proper due process, the civil asset forfeiture procedure violates the constitutional rights of citizens. The proposal aims to address the current right granted to the police to seize the property of civilians. The authorizing laws established by the Assets Forfeiture Fund and the Equitable Sharing Program are problematic in offering a loophole for the abuse of the property rights of American citizens. While some states have abolished the practice, federal laws still support their enforcement. The deficiencies in the policies raise discussion of the issue of policies for profit as a major aspect of civil asset forfeiture. This proposal is to outlaw instances of civil asset forfeiture without due process on the federal level. On the state level, the preferred outcome would also include reform by repealing the laws allowing property seizure. The resistance to change in the legislature should be addressed by securing the success of the policy, taking advantage of the current unpopularity of unregulated asset forfeiture, and creating the base for integration of the process on the federal level. The proposal calls for identifying stakeholders, analyzing their views, and strengthening their support. The social and political opposition should be addressed by putting emphasis on fundamental American values. The action plan and implementation process are built upon efficient communication by the policy committee to engage stakeholders and the wider public in the process. With clearly defined priorities and budget allocation, the policy will ultimately evolve into a legislative and organizational tool. Using the strategies of ascertainment of stakeholders and reframing issues to ensure appeal to American values, the change at federal and state levels will be achievable. While the change will lead to debate, significant improvement and the protection of rights is attainable in due process.
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Tonry, Michael. "Forfeiture Laws, Practices and Controversies in the US." European Journal of Crime, Criminal Law and Criminal Justice 5, no. 3 (1997): 294–307. http://dx.doi.org/10.1163/157181797x00419.
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Redpath, Jean. "Forfeiting rights? Assessing South Africa's asset forfeiture laws." African Security Review 9, no. 5-6 (January 2000): 15–23. http://dx.doi.org/10.1080/10246029.2000.9628078.
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Fuadi, Gumilang, Windy Virdinia Putri, and Trisno Raharjo. "Tinjauan Perampasan Aset dalam Tindak Pidana Pencucian Uang dari Perspektif Keadilan." Jurnal Penegakan Hukum dan Keadilan 5, no. 1 (March 30, 2024): 53–68. http://dx.doi.org/10.18196/jphk.v5i1.19163.
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Money laundering is a crime that harms the public interest, causes economic instability in a country, and is more dangerous than corruption because tracking money flow from money laundering will be more difficult. When considering the impact, asset forfeiture is vital since it employs a "follow the money" strategy. This study reviews asset forfeiture in money laundering from the perspective of justice. This study is a normative or doctrinal research, also called dogmatic research, with a conceptual and statutory approach. The study shows that asset forfeiture in money laundering has been regulated in Indonesia as criminal forfeiture based on the Criminal Code and Criminal Procedure Code, civil forfeiture, and administrative forfeiture based on the PPTPPU Law. However, in its regulation and implementation, there are still legal loopholes that criminals can use to hide the proceeds of their crimes, so it has not provided a sense of justice and is detrimental to the state and society as victims of money laundering. Based on the perspective of justice rooted in the principle of fundamental justice, crime should not benefit the perpetrators. This perspective underlies the need to expand the scope of asset forfeiture arrangements, especially civil/in rem forfeiture, by reformulating the provisions in the PPTPPU Law. Furthermore, broadening coverage can be achieved by enacting laws that govern asset forfeiture. This legislation should encompass not only assets held in the user accounts of financial service providers but also all assets connected to criminal activity. Protecting good faith third parties is necessary to enhance the society and state's sense of fairness.
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SAMOILOV, Vadym. "Genesis of regulation of special forfeiture in Ukraine." Economics. Finances. Law, no. 7 (July 30, 2021): 18–23. http://dx.doi.org/10.37634/efp.2021.7.3.
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Introduction. This paper analyzes the development of norms on the implementation of special forfeiture in Ukraine since its independence. The purpose of the paper is determining the main periods of development of legal regulation of special forfeiture in Ukraine and highlighting the main features of each period. Results. According to the criterion of development of features of structural placement of norms on special forfeiture in the Criminal Code of Ukraine, three main periods of regulation of the specified measure of criminal character are allocated. The main features of the first period of regulation of special forfeiture, which is the regulation of the implementation of the specified measure of criminal nature at the level of norms of the Special Parts of the Criminal Codes of Ukraine of 1960 and 2001, are characterized. The main problems concerning the law enforcement of the rules on special forfeiture, which arose in connection with the legislative approach to special forfeiture at this stage, are described. The peculiarities of the second period of development of regulation of special forfeiture are described, during which the latter was carried out at the level of both the General Part of the Criminal Code and its Special Part. The conflicts between the provisions of the General and Special Parts of the Criminal Code regarding special forfeiture that arose at this stage are described, as well as some inconsistent legislative steps to amend the provisions of the law on criminal liability relating to special forfeiture. The main features of the current stage of legal regulation of special forfeiture are described. The problems of making changes to the legislation related to the adoption of laws that do not take into account the peculiarities of the development of legal regulation of special forfeiture are described. Conclusion. Relevant conclusions have been made, in particular, that special forfeiture, contrary to stereotypical views, is not a fundamentally new (implemented over the last decade) measure of a criminal nature in the criminal law of Ukraine. The stages of development of norms on special forfeiture are singled out. The chronological boundaries of each of the stages are set.
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Aurasu, Anusha, and Aspalella Abdul Rahman. "Forfeiture of criminal proceeds under anti-money laundering laws." Journal of Money Laundering Control 21, no. 1 (January 2, 2018): 104–11. http://dx.doi.org/10.1108/jmlc-04-2017-0016.
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Purpose Money laundering has been a focal problem worldwide. Governments constantly come up with initiatives to fight against this offence. To clean proceeds of corruption, the laundering of money is utilised, as it transforms “dirty” money into “clean” ones. A comparative analysis between Malaysia’s Anti-Terrorism Financing and Proceeds of Unlawful Activities Act (AMLATFPUAA) and United Kingdom’s Proceeds of Crime Act (POCA) is performed on the basis of the similarities and differences of both legislations, in terms of forfeiture provisions. The purpose of this paper is to investigate whether the current forfeiture regime in both jurisdictions is effective in fighting against money laundering. Design/methodology/approach This paper is based on a doctrinal research where reliance will mainly be on relevant case laws and legislations. AMLATFPUAA and POCA are key legislations which will be utilised for the purpose of analysis. Findings Strengths and weaknesses of both AMLATFPUAA and POCA are identified through a comparative analysis where findings show that POCA is more comprehensive than AMLATFPUAA in terms of offences covered by it and standard of proof. With that, the anti-money laundering (AML) laws can further be improvised by being a better and efficient regime where Malaysia and United Kingdom will be able to discharge their duties effectively on forfeiting benefits from criminals. Originality/value This paper offers some guiding principles for academics, banks, their legal advisers, practitioners and policy makers, not only in Malaysia but also elsewhere.
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Baicker, Katherine, and Mireille Jacobson. "Finders keepers: Forfeiture laws, policing incentives, and local budgets." Journal of Public Economics 91, no. 11-12 (December 2007): 2113–36. http://dx.doi.org/10.1016/j.jpubeco.2007.03.009.
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Walther, Susanne. "Forfeiture and money laundering laws in the United States." Crime, Law and Social Change 21, no. 1 (March 1994): 1–13. http://dx.doi.org/10.1007/bf01307805.
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Pratisthita, Ni Wayan Gita, and Pieter E. Latumeten. "Implementation Implications Non-Conviction Based Asset Forfeiture on Notaries Whose Authentic Deeds Are Indicated as Means of Money Laundering." International Journal of Social Service and Research 3, no. 11 (November 15, 2023): 2768–82. http://dx.doi.org/10.46799/ijssr.v3i11.578.
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Money laundering, which arises from illicit activities, typically requires a legitimate document to facilitate the transfer of funds into an asset. Notaries, authorized public officials capable of creating such legitimate documents, may be implicated in money laundering offenses. In the ongoing efforts to combat money laundering, there is an increasing emphasis on asset confiscation without the need for criminal convictions (Non-Conviction Asset Forfeiture), as exemplified in the Draft Law on Asset Confiscation. This study aims to evaluate the concept of Non-Conviction Asset Forfeiture, explore the role of Notaries in preventing money laundering activities, and scrutinize the implications of implementing Non-Conviction Asset Forfeiture on Notaries who authentically notarize documents that may be used for money laundering. The research employs a normative juridical approach focusing on theoretical and statutory considerations. It elucidates the core principles of Non-Conviction Asset Forfeiture, specifically the pursuit of assets derived from criminal activities when the perpetrator cannot be held accountable due to circumstances. Furthermore, the research underscores that Notaries who authenticate documents suspected of facilitating money laundering may face legal consequences, potentially including the confiscation of their assets if they violate relevant laws and regulations.
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Abdul Raof, Nurazlina, and Aiman @. Nariman Mohd Sulaiman. "SHOW ME THE MONEY! UNEXPLAINED WEALTH AND CIVIL FORFEITURE IN MALAYSIA." IIUM Law Journal 31, no. 2 (December 11, 2023): 127–54. http://dx.doi.org/10.31436/iiumlj.v31i2.825.
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Unlike criminal forfeiture, civil forfeiture allows corrupt assets recovery without the necessity of proving the corruption act. In Malaysia, a combination of criminal and civil mechanisms for recovering corrupt assets is available. Civil forfeiture removes capital for future corrupt activity, deprives a person of enrichment due to the corruption, escalates the cost of perpetrating corruption and improves the probability of detection and imprisonment. Still, there are critiques against this technique globally. Using the doctrinal approach, this study analyses the application and sufficiency of Section 41 of the Malaysian Anti-Corruption Commission Act 2009 and Section 56 of the Anti-Money Laundering, Anti-Terrorism Financing And Proceeds of Unlawful Activities Act 2001 in recovering corrupt assets in Malaysia. The legal framework, its benefits and drawbacks are investigated. The study takes a comparative approach by looking at the practice in the United Kingdom for benchmarking and lessons to be learned. The study discovers constraints in the present civil forfeiture laws, which prevented the law enforcers from successfully meeting the burden of proof. Hence, reform suggestions for its enhancement are made via the unexplained wealth order (UWO) route. The UWO can potentially accelerate the process of recovering corrupt assets as it allows a court order requiring a person to provide details of the origin of specific assets. The assets could be recovered through the subsequent civil forfeiture proceedings. The study outcome may assist the government, policymakers and stakeholders in understanding the UWO concept in addressing corruption offences in Malaysia.
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Joseph, Jared, and Bill McCarthy. "California Civil Asset Forfeiture and the Policing of Minority Residents." Law & Social Inquiry 48, no. 4 (November 2023): 1138–56. http://dx.doi.org/10.1017/lsi.2022.84.
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In Who Are the Criminals?, John Hagan argues that legislators use “crisis framing” to influence how the general public thinks about crime. President Ronald Reagan used reports of a drug use epidemic fueled by organized crime as part of his crisis framing. In 1984, he signed the Comprehensive Crime Control Act (CCCA) as part of his “war on drugs.” The CCCA allowed law enforcement to use civil asset forfeiture (CAF) to keep or sell property that it suspected was connected to illegal activity. State legislators followed suit and passed their own CAF laws. Some critics argue that law enforcements’ use of CAF has disproportionately targeted minority populations. We draw on racial threat theory to examine connections between the size of minority populations and the use of CAF in California. Our analysis uses nineteen years of CAF cases filed with the California Attorney General’s Office. Consistent with racial threat theory, we find a positive association between the number of forfeitures in a jurisdiction and a logged measure of the percentage of Black residents, net of crime, and other jurisdiction attributes. Our results support concerns that law enforcement has incorporated CAF as a technique used disproportionately against some minority communities.
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Irena Rzeplińska. "Kara konfiskaty mienia w prawie polskim i obowiązującym na ziemiach polskich oraz w praktyce jego stosowania." Archives of Criminology, no. XX (August 1, 1994): 79–96. http://dx.doi.org/10.7420/ak1994d.
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Forfeiture of property is one of the oldest penalties in Polish law. Its origins can be traced in pre-state law, in the penalty of exclusion from tribe. Anybody could kill a person thus punished and destroy his property, and would suffer no penalty for such acts. Later on, in early Middle Ages, the penalty of plunder was introduced: the offender’s possessions were looted, and his house burned. Destruction of the offender’s property as a penal sanction resulted from the conception of crime and punishment of that time. Crime was an offence against God, and punishment was seen as God’s revenge for crime – that offender’s house was destroyed as the place that had become unchaste, inhabited by an enemy of God. The penalties imposed in Poland in the 12th and 13th centuries were personal, material, and mixed penalties. There were two material penalties: forfeiture of the whole or part of property and pecuniary penalties. The utmost penalty was being outlawed which consisted of banishment of the convicted person from the country and forfeiture of his property by the ruler. Being outlawed was imposed for the most serious offences; with time, it became an exceptional penalty. In those days, forfeiture of property was a self-standing, as well as an additional penalty, imposed together with death, banishment, or imprisonment. As shown by the sources of law, forfeiture of property (as an additional penalty) could be imposed for “conspiracy against state” rape of a nun forgery of coins, cheating at games, and profiteering. Other offences punishable in this way included murder, raid with armed troops and theft of Church property, murder of a Jew committed by a Christian, and raid of a Jewish cemetery. Data on the extent of the imposition of that penalty in the early feudal period are scarce; as follows from available sources, it was applied but seldom. The consequences of forfeiture were serious in those days. Deprived of property, the convicted person and his family inevitably lost their social and political status which made forfeiture one of the most severe penalties. From the viewpoint of the punishing authority (duke), forfeiture was clearly advantageous due to its universal feasibility; to the duke’s officials, it was profitable as they were entitled to plunder the convicted persons’s movables. In the laws of the 16th and 17th centuries, forfeiture was provided for: serious political crimes (crimen leaesae maiestatis – laese-majesty; perduelio – desertion to the enemy), offences against currency and against the armed forces. As an additional penalty, it accompanied capital punishment and being outlawed. The law also provided for situations where forfeiture could be imposed as a self-standing penalty. In 1573, the Warsaw Confederacy Act which guaranteed equality to confessors of different religions banned the inposition of forfeiture for conversion to another faith. Initially absolute – the whole of property being forfeited and taken over by the Treasury where it was at the king’s free disposal – forfeiture of property was limited already in the 14th century. To begin with, in consideration of the rights of the family and third to forfeited property, the wife’s dowry was excluded from forfeiture. Later on, in the 16th century, the limitations concerned the king’s freedom of disposal of forfeited property. A nobleman’s property could no longer remain in the king’s hands but had to be granted to another nobleman. Forfeiture of property can also be found in the practice of Polish village courts; as follows from court registers, though, it was actually seldom imposed. European Enlightenment was the period of emergence of ideas which radically changed the conceptions of the essence and aims of punishment, types of penalties, and the policy of their imposition. In their writings, penologists of those days formulated the principle of the offender’s individual responsibility. This standpoint led to a declaration against forfeiture of property as a penalty which affected not only the offender but also his family and therefore expressed collective responsibility. The above ideas were known in Poland as well. They are reflected in the numerous drafts of penal law reform, prepared in 18th century Poland. The first such draft, so-called Collection of Jidicial Laws by Andrzej Zamojski, still provided for forfeiture. A later one (draft code of King Stanislaw August of the late 18th century) no longer contained this penalty. The athors argued that, affecting not only the offender, that penalty was at variance with the principles of justice. The drafts were never to become the law. In 1794, after the second partition of Poland, an insurrection broke out commanded by Tadeusz Kościuszko. The rebel authorities repealed the former legal system and created a new system of provisions regulating the structure of state authorities, administration of justice, and law applied in courts. In the sphere of substantive penal law and the law of criminal proceedings, an insurgent code was introduced, with severe sanctions included in the catalog of penalties. Forfeiture of property was restored which had a double purpose: first, acutely to punish traitors, and second – to replenish the insurgent funds. When imposing forfeiture, property rights of the convicted person’s spouse and his children’s right to inheritance were taken into account. Yet compared to the administration of justice of the French Revolution with its mass imposition of forfeiture, the Polish insurgent courts were humane and indeed lenient in their practice of sentencing. After the fall of the Kościuszko Insurrection, Poland became a subjugated country, divided between three partitioning powers: Prussia, Russia, and Austria. The Duchy of Warsaw, made of the territories regained from the invaders, survived but a short time. In the sphere of penal law and the present subject of forfeiture of property, that penalty was abolished by a separate parliamentary statute of 1809. After the fall of the Duchy of Warsaw, Poland lost sovereignty and the law of the partitioning powers entered into force on its territories. In the Prussian sector, a succession of laws were introduced: the Common Criminal Law of Prussian States of 1794, followed by the 1851 penal code and the penal code of the German Reich of 1871. Only the first of them still provided for forfeiture: it was abolished in the Prussian State by a law of March 11, 1850. Much earlier, forfeiture disappeared from the legislation of Austria. lt was already absent from the Cpllection of Laws on Penalties for West Galicia of June 17,1796, valid on the Polish territories under Austrian administration. Nor was forfeiture provided for by the two Austrian penal codes of 1803 and 1852. Forfeiture survived the longest in the penal legisation of Russia. In 1815, the Kingdom of Poland was formed of the Polish territories under Russian administration. In its Constitution, conferred by the Tsar of Russia, a provision was included that abolished forfeiture of property. It was also left in the subsequent Penal Code of the Kingdom of Poland, passed in 1818. Forfeiture only returned as a penal sanction applied to participants of the anti-Russian November insurrection of 1831. The Organic Statute of 1832, conferred to the Kingdom of Poland by the Tsar, reintroduced the penalty of forfeiture of property. Moreover, it was to be imposed for offences committed before Organic Statute had entered into force which was an infringement of the ban on retroactive force of law. Of those sentenced to forfeiture in the Kingdom of Poland, Lithuania, and Russia as participants of the November insurrection, few had estates and capital. A part of forfeited estates were donated, the rest were sold to persons of Russian origin. The proces of forfeiting the property of the 1830–1831 insurgents only ended in 1860 (the Tsar’s decree of February 2/March 2,1860). After November insurrection, the Russian authorities aimed at making the penal legislation of the Kingdom of Poland similar to that of the Russian Empire. The code of Main Corrective Penalties of 1847 aimed first of all at a legal unification. It preserved the penalty of “forfeiture of the whole or part of the convicted persons’ possessions and property” as an additional penalty imposed in cases clearly specified by law. It was imposed for offences against the state: attempts against the life, health, freedom or dignity of the Emperor and the supreme rights of the heir to the throne, the Emperor’s wife or other members of the Royal House, and rebellion against the supreme authority. Forfeiture was preserved in the amended code of 1866; in 1876, its application was extended to include offences against official enactments. The penalty could soon be applied – towards the participants of January insurrection of 1863 which broke out in the Russian Partition. The insurgents were tried by Russian military courts. After the January insurrection, 6,491 persons were convicted in the Kingdom of Poland; 6,186 of tchem were sentenced to forfeiture of property. Of that group, as few as 28 owned the whole or a part of real estate; 60 owned mortgage capital and real estate. The imposition of forfeiture on January insurgents stopped in 1867 in the Kingdom of Poland and as late as 1873 in Lithuania. The penalty was only removed from the Russian penal legislation with the introduction a new penal code in 1903. As can be seen, the Russian penal law – as opposed to the law of Prussia and Austria retained forfeiture of property the longest. It was designet to perform special political and deterrent functions as the penalty imposed on opponents of the system for crimes against state. It was severe enough to annihilate the offender’s material existence. It was also intended to deter others, any future dare-devils who might plan to resist authority. It was an fitted element of the repressive criminal policy of the Russian Empire of those days. Forfeiture of the whole of property of the convicted person can be found once again in the Polish legislation, of independent Poland this time: in the Act of July 2, 1920 on controlling war usury where forfeiture was an optional additional penalty. At the same time, the act prohibited cumulation of repression affecting property (fine and forfeiture could not be imposed simultaneously). It originated from the special war conditions in Poland at the time. The ban on cumulation of repression affecting property is interesting from the viewpoint of criminal policy. The Polish penal code of 1932 did not provide for the penalty of forfeiture, and the Act on controlling war usury was quashed by that code’s introductory provisions. In the legislation of People’s Poland after World War II, forfeiture of property was re-established and had extensive application.
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Lukito, Anastasia Suhartati. "Revealing the unexplained wealth in Indonesian corporation." Journal of Financial Crime 27, no. 1 (December 21, 2019): 29–42. http://dx.doi.org/10.1108/jfc-11-2018-0116.
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Purpose The purpose of this paper is to analyze the unexplained wealth inside the corporation and to initiate and apply unexplained wealth order in the Indonesian corporation based on the Indonesian legal system and prevailing laws. An effective tool needs to be implemented because of the facts that numerous corporate illegal activities lead to economic and financial crime. Meanwhile, there are difficulties to implement the corporate criminal liability. Non-conviction-based asset forfeiture will be a way out to deal with the current condition. Design/methodology/approach This paper explores and analyzes the Indonesian legal system, particularly a non-conviction-based asset forfeiture for corporate illegal activities. This paper is based on the research paper conducted with the legal normative approach. Findings Non-conviction-based asset forfeiture through unexplained wealth order will be an effective tool and a revolutionary pattern in the crime prevention perspective dealing with corporate crime. Corporate criminal liability in anti-corruption regime can be viewed from two perspectives by combining and integrating crime prevention approach as well as the repressive approach. The Indonesian Supreme Court Regulation number 13 of 2016 is a breakthrough in the criminal justice system to redesign case handling procedure toward corporate crime. It needs to be supported by precise asset forfeiture law. Furthermore it is necessity to strengthening and built corporations with moral and ethical business values. Practical implications This paper can be a source to explore the unexplained wealth that can occur in the corporation and the way to overcome it through unexplained wealth order and non-conviction-based asset forfeiture. Originality/value This paper contributes by initiating a non-conviction-based asset forfeiture, which is implementing the in rem proceeding, to make sure the crime does not pay and the victim and society suffer less because of the corporate crime.
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Kaniki, Abdulrahman O. J. "The Role of Criminal Investigation in Facilitating Asset Recovery in Economic Crime in Tanzania." Eastern Africa Law Review 48, no. 1 (June 30, 2021): 172–207. http://dx.doi.org/10.56279/ealr.v48i1.5.
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This paper seeks to discuss the role of investigation in facilitating the asset recovery process in Tanzania. In so doing, it gives an overview of the conceptual, legal, and practical aspects tied to investigation of asset recovery cases and looks at the extent to which they facilitate asset recovery in the country. There cannot be successful asset recovery if no proper and adequate investigation is conducted. It is through investigation that watertight evidence is gathered and collected whereupon it is adduced in court against accused persons who stand charged with money laundering and/or any of predicate offences. Prosecution cannot secure conviction, which is a pre-condition for asset forfeiture if both criminal and financial investigations are not adequately or thoroughly well done. Equally important, application for forfeiture order process in court after conviction depends on what was revealed by investigators in respect of assets that are subject to forfeiture. The paper finds that the legalinstitutional framework on dealing with asset recovery cases in Tanzania is inadequate thereby causing investigation to face several challenges. Having identified those challenges, the paper makes some recommendations aimed at remedying the situation. The recommendations focus on reforming the laws so that they adequately address asset recovery issues in the country. Keywords: criminal investigation, investigators, predicate offences, conviction-based forfeiture, asset recovery.
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Holcomb, Jefferson E., Marian R. Williams, William D. Hicks, Tomislav V. Kovandzic, and Michele Bisaccia Meitl. "Civil Asset Forfeiture Laws and Equitable Sharing Activity by the Police." Criminology & Public Policy 17, no. 1 (January 31, 2018): 101–27. http://dx.doi.org/10.1111/1745-9133.12341.
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Mukminah, Lily Solichul, Hartiwiningsih Hartiwiningsih, Otto Yudianto, and Hufron Hufron. "THE IMPORTANCE OF REGULATING NON-CONCIVTION BASED FORFEITURE IN CORRUPTION CASES IN INDONESIA." IBLAM LAW REVIEW 3, no. 2 (May 23, 2023): 31–45. http://dx.doi.org/10.52249/ilr.v3i2.125.
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This research examines the importance of regulating Non-Conviction Based Asset Forfeiture (NCB) in corruption cases in Indonesia. NCB is a mechanism of asset forfeiture that allows the state to seize assets without a prior criminal conviction. The study argues that the regulation of NCB is necessary to ensure the effectiveness of asset recovery in corruption cases and to prevent abuse of power by law enforcement agencies. The research uses a qualitative approach and analyzes relevant laws and regulations, court decisions, and academic literature. The findings suggest that the current legal framework for NCB in Indonesia is inadequate, leading to the misuse of NCB by law enforcement agencies. The research recommends the enactment of a specific law on NCB in corruption cases that provides clear criteria and safeguards for the use of this mechanism.
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Ayuningsih, Irma Reisalinda, and Febby Mutiara Nelson. "Perampasan Aset Tanpa Pemidanaan dalam Perspektif Hukum Responsif." Jurnal Ius Constituendum 7, no. 2 (October 8, 2022): 246. http://dx.doi.org/10.26623/jic.v7i2.5142.
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<p><em>This research aims to </em><em>analyze </em><em>the implementation of asset forfeiture resulting from criminal acts in Indonesia and compare it with implementation in Australia from a responsive legal perspective. The results of this comparison are expected to provide solutions to the problem of implementing asset forfeiture in Indonesia. This research needs to be discussed more because the practice of asset forfeiture in Indonesia cannot recover state financial losses. The research method used in this study is a normative juridical research method using legal comparisons. The novelty of this study is to compare the implementation of </em><em>non-conviction</em><em> </em><em>based asset forfeiture </em><em>in Australia and add examples of criminal cases. This research concluded that the asset forfeiture with criminal forfeiture in Indonesia </em><em>implemented based on existing laws and regulations have not been able to accommodate the social needs of the community in the return of state financial losses</em><em>, as practiced in Australia. Therefore, Indonesia needs to establish a law on </em><em>non-conviction based asset forfeiture </em><em>whose regulatory material refers to the 36 (thirty-six) key concepts of </em><em>non-conviction</em><em> based asset forfeiture</em><em>.</em></p><p> </p><p>Penelitian ini bertujuan untuk menganalisis pelaksanaan perampasan aset hasil tindak pidana di Indonesia dan membandingkannya dengan pelaksanaan di Australia ditinjau dari perspektif hukum responsif. Hasil perbandingan ini diharapkan memberikan solusi atas permasalahan pelaksanaan perampasan aset di Indonesia. Penelitian ini dilatarbelakangi oleh praktik pelaksanaan perampasan aset hasil tindak pidana di Indonesia yang tidak dapat mengembalikan kerugian keuangan negara. Metode penelitian yang digunakan dalam penelitian ini adalah metode penelitian yuridis normatif dengan menggunakan perbandingan hukum. Kebaruan dari penelitian ini adalah dengan membandingkan pelaksanaan perampasan aset tanpa pemidanaan di Australia serta menambahkan contoh kasus tindak pidana. Penelitian ini menyimpulkan bahwa perampasan aset dengan pemidanaan atau <em>criminal forfeiture </em>di Indonesia yang dilaksanakan berdasarkan peraturan perundang-undangan yang berlaku saat ini belum dapat mengakomodir kebutuhan sosial masyarakat dalam pengembalian kerugian keuangan negara, sebagaimana dipraktikkan di Australia. Indonesia perlu membentuk suatu peraturan perundang-undangan perampasan aset tanpa pemidanaan yang materi pengaturannya mengacu pada 36 (tiga puluh enam) konsep kunci perampasan aset tanpa pemidanaan.</p><p> </p>
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Fedorov, Aleksandr V. "Criminal Sanctions against Legal Entities in the Former Yugoslav Territory." Russian investigator 12 (December 12, 2018): 72–80. http://dx.doi.org/10.18572/1812-3783-2018-12-72-80.
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The article is dedicated to review of criminal sanctions against legal entities in states, which originated in the former Yugoslav territory. The author focuses on the fact that national criminal codes and special criminal laws on liability of legal entities of these states stipulate criminal sanctions against legal entities. It is noted that criminal sanctions include criminal punishments, probation and protection (security) means. Apart from sanctions, some former Yugoslav states stipulate so-called 'legal consequences of conviction of a legal entity'. The main punishment types are a fine and liquidation of a legal entity. The author gives specific sanctions against legal entities including such protection (security) means as: sentence publication, prohibition on carrying out specific types of activities or works, seizure (forfeiture) of objects. The publication reviews two groups of legal consequences of conviction of legal entities: referring to termination or loss of specific rights and constituting a prohibition on receipt of specific rights. Attention is paid to the fact that some former Yugoslav states stipulate property forfeiture as punishment, while others establish forfeiture of objects used for or aimed at commissioning of crimes as a protection (security) means. Besides, some former Yugoslav states refer forfeiture of illegally gained benefit to legal consequences of conviction of a legal entity. The carried out analysis proves that the states located in the former Yugoslav territory differ in the demarcation and content of some punishment, protection (security) means and legal consequences of conviction of a legal entity, but in general, the indicated states established quite common sanctions against legal entities for commissioning of criminal offenses.
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Bishopp, Stephen A., and John L. Worrall. "DO STATE ASSET FORFEITURE LAWS EXPLAIN THE UPWARD TREND IN DRUG ARRESTS?" Journal of Crime and Justice 32, no. 2 (January 1, 2009): 117–38. http://dx.doi.org/10.1080/0735648x.2009.9721272.
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Голованова, Наталья, and Natalya Golovanova. "Confiscation as Necessary Response to Acquisitive Crime." Journal of Russian Law 3, no. 7 (June 25, 2015): 0. http://dx.doi.org/10.12737/11754.
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This article is dedicated to the issues of foreign successful experience in legislative regulation of asset forfeiture mechanisms resulting from offenses. Modern states increasingly use different types of confiscation to deprive criminals of any proceeds derived from their offenses. It can be confiscation with criminal conviction, non-conviction based confiscation in rem. Application of civil procedure methods transfers the burden of proof to the defendant. Though confiscation in rem cannot replace criminal forfeiture. The author concludes that at the present time there occurs transformation of different types of confiscation, their enhancement. Particular emphasis is laid on extended confiscation. This type of confiscation allows using similar methods which are used in civil proceedings. Under the influence of international laws extended confiscation is implemented and used in the European criminal law on a large scale, which demonstrates tendencies to unification. On the basis of the analysis of the legislation on forfeiture of illicit assets in several countries in recent years (Great Britain, Australia), the author concludes that there are significant changes in the traditional approach to this institution. One can say that the scope of the institution expands and undergoes modifications in various jurisdictions. Extended confiscation of an offender’s assets, if the crime was committed out of selfish motives, is a fair public response. It is necessary to introduce this type of confiscation in Russia.
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BAUMER, ERIC P. "EVALUATING THE BALANCE SHEET OF ASSET FORFEITURE LAWS: TOWARD EVIDENCE-BASED POLICY ASSESSMENTS." Criminology & Public Policy 7, no. 2 (May 2008): 245–55. http://dx.doi.org/10.1111/j.1745-9133.2008.00505.x.
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Fedorov, Aleksandr V. "Criminal Liability of Legal Entities under the Laws of the Republic of Slovenia." Russian investigator 5 (May 24, 2018): 75–80. http://dx.doi.org/10.18572/1812-3783-2018-5-75-80.
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The article is dedicated to review of the laws of the Republic of Slovenia on the criminal liability of legal entities; the main acts are the Special Law on the Liability of Legal Entities for Criminal Offenses of 1999 and the Criminal Code of the Republic of Slovenia. The article reviews statutory resolutions making it possible to review a legal entity as a criminal liability subject; gives a number of persons, which can be brought to criminal liability; focuses on the fact that legal entities can be brought to criminal liability in the Republic of Slovenia for a limited number of acts (crimes) defined by the law; considers criminal sanctions applicable to legal entities: fi ne, forfeiture of property, legal entity liquidation, prohibition to place securities held by a legal entity; reviews the possibility of imposition of a conditional sentence on a legal entity and the security measures applicable to legal entities, including: sentence publication and prohibition to engage in specific commercial activities.
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Rahman, Aspalella A. "Anti-money laundering law: a new legal regime to combat financial crime in Malaysia?" Journal of Financial Crime 23, no. 3 (July 4, 2016): 533–41. http://dx.doi.org/10.1108/jfc-07-2014-0033.
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Purpose Before the enactment of the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (AMLATFA), the fight against financial crime can be found in several statutes such as the Penal Code, Anti-Corruption Act 1997 and Companies Act 1965. It is generally accepted that by freezing and forfeiting the proceeds of the crime, it would give significant impact on the fight against financial crime. However, under these legislations, there were few shortcomings of the procedures on how the proceeds of the crime could be seized and forfeited. As such, the enactment of the AMLATFA is considered timely to overcome these problems. This paper aims to examine how the AMLATFA could be utilized to combat financial crime in Malaysia. Design/methodology/approach This paper mainly relies on statutes as its primary sources of information. As such, the relevant provisions under the Malaysian anti-money laundering laws that relate to measures for freezing, seizure and forfeiture of proceeds of the crime will be identified and analyzed. Findings The AMLATFA provides innovative tools for the law enforcement officials to follow the money trail, which will eventually lead to those who committed the financial crime. It also provides authorities with more powerful seizure and forfeiture measures. This is seen as a new law enforcement strategy to combat financial crime. It is believed that this approach is more effective than the traditional approach, which only punished the individual criminal but failed to diminish the criminal operations. However, it is vitally important to ensure that the effectiveness of the regime must not jeopardize the innocent third parties who could lose their money or any other proprietary interest due to the invocation of the forfeiture order. Originality/value This paper analyzes the new legal regime under the Malaysian anti-money laundering law that can be invoked to combat financial crimes activities. This paper would provide some guidelines into this particular area for legal enforcement authorities, academics, legal practitioners and policy makers, not only in Malaysia but also elsewhere.
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Fedorov, Aleksandr V. "Criminal Liability of Legal Entities under the Laws of the Former Yugoslav Republic of Macedonia." Russian investigator 8 (August 1, 2018): 73–80. http://dx.doi.org/10.18572/1812-3783-2018-8-73-80.
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The article is dedicated to the review of the laws of the Republic of Macedonia (the Former Yugoslav Republic of Macedonia) on criminal liability of legal entities established in 2004 by introduction of amendments and supplements to the Criminal Code of the Republic of Macedonia. The article analyzes legal resolutions allowing consideration of a legal entity as a criminal liability subject; gives a scope of legal entities which can be brought to criminal liability; focuses on the fact that legal entities in the Republic of Macedonia may not be brought to criminal liability for any acts acknowledged as punishable by the national criminal laws, rather for the acts which are specifically addressed in the articles of the Special Part of the Criminal Code of the Republic of Macedonia or other criminal laws. The author reviews such types of criminal sanctions applicable to legal entities as a fine, legal entity liquidation, forfeiture and sentence publication; notes the circumstances taken into account at punishment imposition and conditions for release from punishment as well as criminal and procedural peculiarities of bringing legal entities to liability including indication of broad discretionary powers of a prosecutor in solution of issues on bringing legal entities to criminal liability.
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Fedorov, Aleksandr V. "Criminal Liability of Legal Entities under the Laws of the Republic of Croatia." Russian investigator 6 (June 6, 2018): 76–80. http://dx.doi.org/10.18572/1812-3783-2018-6-76-80.
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The article is dedicated to review of the laws of the Republic of Croatia on the criminal liability of legal entities; the main acts are the Special Law on the Liability of Legal Entities for Criminal Offenses of 2003, the Criminal Code of the Republic of Croatia and the Criminal Procedure Code of the Republic of Croatia. The article reviews statutory resolutions making it possible to review a legal entity as a criminal liability subject; gives a number of legal entities, which can be brought to criminal liability; focuses on the fact that legal entities can be brought to criminal liability in the Republic of Croatia for any acts defined by the law as crimes; considers criminal punishments (sanctions) applicable to legal entities: fi ne and legal entity liquidation; reviews the possibility of imposition of a conditional sentence on a legal entity; reviews the security measures applicable to legal entities, including: professional prohibitions (prohibitions to perform specific activities or transactions), prohibitions to perform transactions using national or local budgetary funds, prohibitions to receive licenses, permissions, subventions or concessions provided by national bodies; sentence publication and forfeiture.
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Fedorov, Aleksandr V. "Criminal Liability of Legal Entities under the Laws of the Republic of Montenegro." Russian investigator 7 (July 25, 2018): 69–76. http://dx.doi.org/10.18572/1812-3783-2018-7-69-76.
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The article is dedicated to review of the laws of the Republic of Montenegro on the criminal liability of legal entities; the main acts are the Special Law on the Liability of Legal Entities for Criminal Offenses of 2006, the Criminal Code of the Republic of Montenegro and the Criminal Procedure Code of the Republic of Montenegro. The publication reviews statutory resolutions allowing consideration of a legal entity as a criminal liability subject; gives a scope of persons who can be brought to criminal liability; pays attention to the fact that legal entities in the Republic of Montenegro may be brought to criminal liability for any actions acknowledged as crimes by the national criminal laws with no exceptions; specifies articles of the General Part of the Criminal Code of the Republic of Montenegro, provisions of which are applied to bringing legal entities to criminal liability; reviews such criminal sanction types applicable to legal entities as a fi ne, liquidation of a legal entity, forfeiture and sentence publication; analyzes circumstances considered at punishment imposition and the conditions for release from punishment. The author notes criminal procedure peculiarities of bringing legal entities to liability including broad discretionary powers of a prosecutor in resolution of issues on bringing legal entities to criminal liability
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Saleh, Saleh, I. Nyoman Nurjaya, Herman Suryokumoro, Setiawan Noerdjasakti, and Zana Zerlina. "ASSET RECOVERY POLICY IN THE DRAFT OF THE ASSET FORFEITURE BILL IN CORRUPTION CASES." Journal of International Legal Communication 9, no. 2 (June 23, 2023): 46–55. http://dx.doi.org/10.32612/uw.27201643.2023.9.pp.46-55.
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The criminal act of corruption, defined as the abuse of power for personal gain, is essentially a matter of social injustice. Corruption is considered an extraordinary crime because it is carried out in a systematic way, and the impact caused might adversely affect the economic life and national development. For this reason, handling cases of corruption requires extensive legal actions and extraordinary measures. The Corruption Eradication Law of the Republic of Indonesia regulates the process of returning assets resulting from corruption through civil and criminal channels, but asset returns in corruption cases are still considered to be not effective, as it takes long to pass a court decision. Taking into account the duration of asset seizure in the case of the criminal act of corruption, the idea emerged that asset seizure can be carried out before a court decision is passed, notably by way of applying the Asset Forfeiture Bill to raise the return on state financial losses. Thus, a breakthrough is needed to accelerate the discussion process concerning the Asset Forfeiture Bill which has gone through a long process of ratification since it was initiated in early 2010 and introduced into National Legislation Program (Prolegnas) 2023, so that it could be promptly discussed and passed by the Government and Parliament. This research is a legal study, which implies the analysis of laws and regulations, based on dogmatics, legal theory, and legal philosophy. The purpose of this article is to examine the provisions of Article 18 Para (1), (2), and (3) of the Law on the Eradication of Criminal Acts of Corruption No.31 (1999). Meanwhile, asset seizure through the civil route approach is also regulated in the provisions of Article 32 Para (1), Article 33, Article 34, and Article 38(C) of the Law No.31 (1999) with amendmends in Law No.20 (2001) on the Eradication of Criminal Acts of Corruption. The Asset Forfeiture Bill should be discussed and passed by the Government and Parliament as soon as possible, so that the return of state financial losses in cases of criminal acts of corruption could be enhanced.
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Fedorov, Aleksandr V. "The Kosovan Option of the Criminal Liability of Legal Entities." Russian investigator 10 (September 12, 2018): 75–80. http://dx.doi.org/10.18572/1812-3783-2018-10-75-80.
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The article is dedicated to a review of the laws on criminal liability of legal entities of a partially recognized state, the Republic of Kosovo. Its main acts are the Criminal Code of the Republic of Kosovo, the special Law on the Liability of Legal Entities for Criminal Offenses and the Criminal Procedure Code of the Republic of Kosovo, which came into force on January 1, 2013. The publication reviews statutory resolutions allowing considering a legal entity a criminal liability subject; pays attention to the fact that legal entities in the Republic of Kosovo may be brought to criminal liability for any actions acknowledged as crimes by the national criminal laws with no exceptions; specifies articles of the General Part of the Criminal Code of the Republic of Kosovo, provisions of which are applied to bringing legal entities to criminal liability; reviews such criminal sanction types applicable to legal entities as a fi ne, liquidation of a legal entity, property forfeiture; analyzes circumstances considered at punishment imposition and the conditions for release from punishment. The author notes the criminal procedure peculiarities of bringing legal entities to liability.
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Benson, Bruce L., and David W. Rasmussen. "The Context of Drug Policy: An Economic Interpretation." Journal of Drug Issues 28, no. 3 (July 1998): 681–99. http://dx.doi.org/10.1177/002204269802800307.
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Economics can be used to analyze public sector decision making because individuals make these decisions within a framework of incentives and constraints that are a product of individual preferences and institutional structure. Considering the emphasis on law enforcement in U.S. drug policy in this context, this paper presents an analysis of the incentives and constraints affecting drug policy that explains a reluctance to change the policy even in the face of considerable evidence that some reforms could be cost effective. Two specific incentives for an emphasis on enforcement are presented. First, police agencies have an incentive to allocate more resources to drug enforcement due to the factors that determine police budgets. Second, asset forfeiture laws give police agencies a direct monetary reward for making drug arrests. We conclude that understanding drug policy requires an examination of the incentives and constraints that affect the behavior of those who are responsible for policy development.
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Korhecz, Tamás. "The right to peaceful enjoyment of property and the security measure of the forfeiture of cash in the jurisprudence of the Serbian Constitutional Court: Certain uncertainty." Pravni zapisi 11, no. 2 (2020): 620–44. http://dx.doi.org/10.5937/pravzap0-28803.
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The right to peaceful enjoyment of property is a first-generation human right, protected by the international and domestic law of the highest rank. This is not an absolute right - the European standards of protecting property rights allow possible interferences prescribed by law. The interferences can be made in the public interest but only under the assumption that the proportionality between the public interest and property rights of individuals at stake is established. Forfeiture of undeclared cash the individuals are transferring across state borders, together with imposing fines for a misdemeanor, represent an interference with individuals' property rights. The EU Member States do not share an identical system of sanctions for this petty offense, but there is a tendency of unification related to the monitoring, registering, and sanctioning of undeclared, cross-border, individual cash transfer. The case-law of the European Court of Human Rights has established rather precise criteria for distinguishing permitted from unpermitted interferences in cases of undeclared cross-border cash transfers. The Serbian Constitutional Court has been faced with several constitutional complaints regarding alleged unconstitutionally of the imposed security measure amounting to the forfeiture of undeclared cash physically transferred across the state borders. The Constitutional Court has ruled inconsistently on the matter. Although it has regularly referred to the European Court of Human Rights' relevant decisions, it fails to be consistent in following the Strasbourg Court's rulings. In this article, the author has suggested that the legal certainty principle requires the Constitutional Court to consistently interpret the constitutional rights and be systematic in following Strasbourg. Only in this way, the Constitutional Court can help regular courts effectively to harmonize the interpretation and application of laws with the constitutional and international human rights standards regarding property rights.
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Simser, Jeffrey. "Bitcoin and modern alchemy: in code we trust." Journal of Financial Crime 22, no. 2 (May 5, 2015): 156–69. http://dx.doi.org/10.1108/jfc-11-2013-0067.
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Purpose – This paper aims to explore the challenge posed by Bitcoin to regulators, particularly anti-money laundering regulators. Bitcoin is a crypto-currency based on open-source software and protocols that operates in peer-to-peer networks as a private irreversible payment mechanism. The protocol allows cross-border payments, for large and small items, with little or no transactional costs. Design/methodology/approach – Case studies and case law are examined as are relevant reports by regulators. Findings – Bitcoin is based on complex computer code supported by a robust community in a peer-to-peer network. Unlike other virtual currencies, Bitcoin appears to have obtained purchase and as such poses unique challenges to regulators. Research limitations/implications – Bitcoin is at a nascent stage and the evolution of the virtual currency is difficult to predict. Practical implications – Those who study financial systems, anti-money laundering regimes and asset forfeiture laws will have an interest in this topic. Originality/value – This is a new and emerging currency; there is limited literature on the implications of this currency to anti-money laundering systems.
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Anindyajati, Titis, Irfan Nur Rachman, and Anak Agung Dian Onita. "Konstitusionalitas Norma Sanksi Pidana sebagai Ultimum Remedium dalam Pembentukan Perundang-undangan." Jurnal Konstitusi 12, no. 4 (May 20, 2016): 872. http://dx.doi.org/10.31078/jk12410.
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Intentionally, criminal sanction was seen as an effective solution for the problem of crimes. On the other hand, criminal sanctions also pose as an implementation of state responsibility in maintaining public security, order and legal protection of its citizens. In the development of Indonesian legal system, most of the laws enacted by the state have included criminal sanction in its substance. Therefore, there is a shift in the political law (legal policy) regarding the application of criminal sanctions, which intentionally pose as a last resort (ultimum remedium) has shifted towards first resort (primum remedium). The inclusion of criminal sanctions in the legislation as primum remedium might result on the violation of the constitutional rights of Indonesian citizens. In addition, there is an emergence of numbers in applications of judicial review on the laws regarding the criminal sanctions issues. This research focuses to examine and determine about the position of criminal sanction norms in the law and about the deliberation and reasoning of the Constitutional Court in reconstructing the structure of criminal sanctions in law from primum remedium toward ultimum remedium. The research showed that most of the laws enacted from 2003 through 2014 have adapted the norms of criminal sanctions as primum remedium. This can be seen in the construction of the criminal forfeiture clause, where in the contrary, the concept of punishment states that criminal sanctions should be positioned as ultimum remedium. In the meantime, the Constitutional Court as the protector of citizens’ constitutional rights and protection of human rights has a very important role in restoring the position of criminal sanctions as ultimum remedium. This, by example, was set forth in the Constitutional Court decision 4/PUU-V/2007 on June 19, 2007 regarding the review of Law No.29/2004 on the Medical Practices.
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Litt, Marc, Jerome P. Tomas, Elizabeth L. Yingling, and Richard A. Kirby. "Kokesh v. SEC: the end of a disgorgement era?" Journal of Investment Compliance 18, no. 4 (November 6, 2017): 13–15. http://dx.doi.org/10.1108/joic-08-2017-0052.
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Purpose To explain the Supreme Court’s ruling in its recent Kokesh v. SEC decision and its impact on the SEC’s ability to recover disgorgement of ill-gotten gains beyond the five-year statute of limitations. Design/methodology/approach This article discusses the Supreme Court’s recent decision and the immediate effects it will have on the SEC’s approach to a variety of cases in which a significant portion of the recovery may now be outside the statute of limitations. Findings The article concludes that the recent Supreme Court decision will have an immediate effect of preventing the SEC from reaching back beyond five years for disgorgement; however, the SEC may be able to comply with Kokesh and modify its procedures so that its financial recoveries from those that violate securities laws may be categorized as an equitable remedy (like restitution) rather than as a penalty (like forfeiture) which is subject to a five-year statute of limitations. Originality/value The article provides practical guidance from experienced securities litigation and white collar crime lawyers. It explains and analyzes the Supreme Court decision that severely limits the ability of the SEC to seek disgorgement by limiting the SEC’s use of disgorgement to a five-year statute of limitations.
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Plass, Stephen. "Modernizing Notice of Breach Rules to Preserve Contract Remedies." University of Michigan Journal of Law Reform, no. 57.1 (2024): 57. http://dx.doi.org/10.36646/mjlr.57.1.modernizing.
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Recently, the legal community has scrutinized the capacity of mandatory arbitration rules to deter or foreclose claims for breach of contract. But little attention has been paid to express and constructive notice of breach rules that are just as effective at foreclosing contractual remedies. While four-year statutes of limitations are typically viewed as the default cutoff time for breach of contract claims, contracting parties, particularly buyers of goods, must act much sooner to preserve their legal remedies. It is now common practice for sellers to require notice of breach within days or weeks of their performance as an express condition precedent to buyers’ right to a remedy. Even in the absence of express notice rules, state laws require that buyers provide notice to sellers within a reasonable timeframe when they discover, or should have discovered, the breach. Failure to provide proper notice bars all buyers’ remedies. In effect, failure to satisfy the technical requirement of notice routinely produces forfeiture of contract remedies for the buyer. Such a forfeiture is contrary to the foundational doctrinal promise of adequate remedies for breach, anti-forfeiture rules, and the substantial performance rule for constructive conditions. Judges adjudicating notice defenses rely on an antiquated legal framework, crafted more than a century ago in a vastly different commercial environment. When the notice requirement was codified in 1906, it impacted merchant buyers who contracted directly with sellers for specific goods. Caselaw shows that sellers raised a notice defense when they sued buyers for the contract price, and that buyers sought an offset to damages by arguing that sellers provided defective goods. In the early twentieth century, courts routinely granted the damages offset for breach of promise, even when notice was untimely. Now, notice issues often arise in adhesive transactions in which buyers contract with downstream sellers of mass-produced goods such as vehicles, food products, dietary supplements, drugs, and medical devices. Sellers are usually aware of the breach or face no repercussions from buyers’ failure to provide notice. Product testing, customer complaints, post-sale audits, lawsuits, regulatory policing, and warranty software or warranty claims often give sellers actual notice of their defective performances. Yet judges continue to insist on individualized and particularized notice from each buyer. Judges theorize that sellers will be robbed of their legal rights to cure or settle claims, prepare defenses, or know their terminal point of liability, even though sellers’ curative or defensive interests are unimpaired. This judicial insistence on notice in the current commercial environment ignores how sellers and buyers respond to breach events. It also incentivizes sellers to fabricate and market defective products because only a small percentage of buyers will complain, and even fewer will satisfy the notice rule. This Article proposes that judges adjudicate notice defenses within the broader framework of the parties’ agreement, contract doctrine, and new commercial realities. Specifically, it proposes that judges require sellers to prove material harm when they seek to forfeit buyers’ substantive remedies on technical notice-failure grounds. This new standard would provide uniformity in the law and replace the ad hoc exceptions judges have used to avoid the harsh effects of pre-suit notice. A notice-prejudice requirement would also encourage sellers to create better products and honor the warranties they provide when marketing their goods.
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Hoh Teck, Gabriel Ling, Nur Amiera Suhud, Gabrielina Fui Tze Chai, Pau Chung Leng, Lee Bak Yeo, Loon Wai Chau, and Chin Siong Ho. "Tragedy of the Anticommons (ToA) in Agricultural Land Partition involving Fragmented Co-proprietorships: An Analysis of Malaysian Case Laws." International Journal of Built Environment and Sustainability 9, no. 2 (May 22, 2022): 11–20. http://dx.doi.org/10.11113/ijbes.v9.n2.921.
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There is a lack of understanding of the theory of the Tragedy of the Anticommons (ToA), a type of coordination breakdown or a hold-out problem involving multiple fragmented co-proprietorships with undivided shares, in the land partition context. This paper, hence, discusses how ToA occurs particularly in the agricultural land partition that is primarily governed under the National Land Code 1965 and proposes potential legal and non-legal approaches and mechanisms to address the land tragedy. An abductive content analysis of (9) case laws extracted from the LexisNexis database was performed through which themes and codes were developed to explain how ToA hindering land partition takes place. Subsequently, judicial decisions in solving disputes arising from land partition and existing best practices in dealing with the tragedy were reviewed. The case laws review indicated that unsuccessful agricultural land partition associated with high transaction costs in securing co-proprietors consensus is a form of simultaneous ToA, that most of the unpartitioned land (anticommons) may be subject to underinvestment (land mismanagement) and disuse. Key factors leading to disagreement among co-proprietors and consequently ToA are as follows: (i) unequal (unfair) proportion or shares of land; (ii) uneven geographical partition and spatial distribution of government reserves; and (iii) potential damages and negative effects (e.g., loss of income and property). To address ToA, these are legal mechanisms proposed: statutory enforcement of the National Land Code (NLC) 1965 (via land forfeiture and reversion), the Land Acquisition Act (LAA) 1960 on compulsory land acquisition, and judicial decisions (e.g., land partitions may take place if it is fairly distributed and made by the majority shareholders), while non-legal approaches cover negotiation and arbitration; en-bloc sales (partition); collective action through enhanced social capital; and imposition of a tax on underutilised land. By showcasing various agricultural anticommons tragedies and their potential negative externalities in the land partition context, this paper offers policy and management insights that help land officers and local authorities ensure the maximum efficiency and productivity (i.e., highest and best use) of the land
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Widijowati, Dijan. "Juridical Review of the Concept of Asset Forfeiture without a Judgment of Conviction in Returning State Financial Losses resulting from Corruption Crimes." Journal of Law and Sustainable Development 11, no. 11 (November 16, 2023): e1859. http://dx.doi.org/10.55908/sdgs.v11i11.1859.
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Objective: This research aims to analyze changes in criminal law, particularly in the context of corruption, within the new Criminal Code in Indonesia. It explores the reasons behind the rejection of certain provisions in the new Criminal Code, especially those related to the punishment for corruption offenses. Theoretical Framework: The theoretical framework of this research is rooted in the field of criminal law and legal reform. It considers the evolution of criminal law in response to societal needs and expectations. The study also examines the principle of proportionality in criminal sentencing, particularly concerning corruption offenses. Method: This research adopts a normative legal research approach, relying on an analysis of existing legal texts and previous studies related to criminal law in Indonesia. The primary data sources include statutory laws in Indonesia, while secondary data sources consist of scholarly works and legal analyses. Result and Conclusion: The findings of this research reveal that the rejection of the new Criminal Code is primarily due to the removal of specific articles related to corruption. In the new Code, corruption offenses are no longer categorized as extraordinary crimes but are treated as ordinary offenses, akin to theft. This shift has implications for law enforcement authorities, such as the police, the prosecutor's office, and the Corruption Eradication Commission, as it blurs the lines of their jurisdiction and responsibilities in addressing corruption. Originality/Value: This research contributes to the understanding of the legal changes brought about by the new Criminal Code in Indonesia, with a specific focus on corruption offenses. It highlights the concerns and implications of categorizing corruption as an ordinary offense, potentially impacting the effectiveness of anti-corruption efforts. The study's value lies in its ability to inform policymakers, legal practitioners, and scholars about the complexities surrounding criminal law reform and its consequences in the context of corruption.
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Lupianto, Ezzah Nariswari. "Asset Recovery for Victims of “Binary Option” Case in Review of International Criminal Law." Corruptio 3, no. 1 (October 18, 2022): 47–60. http://dx.doi.org/10.25041/corruptio.v3i1.2640.
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The Binary Option Trading Platform, also known as Binomo, is becoming increasingly popular due to the massive number of advertisements appearing on Youtube, until affiliates who are influencers have caused many application users to disguise themselves as trading investments who then fall victim to it. Indra Kenz has been named a suspect in fraud and money laundering under the guise of Binomo investment. The flow of funds for this investment is indicated to a number of countries in the world, not only in Indonesia so that the Binomo case is included in the realm of international crime. In this case can the binomo victim's money be returned? In this study, the empirical juridical method is used, referring to written regulations/laws and then seeing how it is implemented in the field. In this study, it does not only emphasize the rules that exist in legal science (legal aspects), but also emphasizes the practice carried out in the field. This research is descriptive, using primary legal materials and secondary legal materials. Data collection techniques with literature study of legal materials. The results of the study found that it is necessary to expand and add international legal regulations in implementing the return of assets resulting from transnational crimes, so that assets resulting from crimes with indications of money laundering can be confiscated and returned to victims, as well as an effective mechanism for returning assets resulting from crimes, namely through civil lawsuits against assets. proceeds of crime without criminal prosecution by using the NCB Asset Forfeiture concept.
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Maguire, W. A. "The estate of Cú Chonnacht Maguire of Tempo: a case history from the Williamite land settlement." Irish Historical Studies 27, no. 106 (November 1990): 130–44. http://dx.doi.org/10.1017/s0021121400018277.
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As J.G. Simms remarked more than thirty years ago in the introduction to his notable book on the subject, ‘the Williamite confiscation was the last of a series which in the course of a century and a half changed the ownership of the greater part of Ireland’. The Williamite confiscation in Ireland, 1690–1703 was a landmark in the complicated and, till then, much misunderstood history of the subject. In fact, and rather oddly considering the importance of the war of 1689–91 and its consequences, there was no earlier detailed account of the confiscation of Irish land that followed the defeat of the Jacobites at the Boyne, Aughrim, and Limerick; and most references to it were based upon the printed report of the parliamentary commissioners of 1699, in some important respects a highly tendentious and misleading document. Simms based his work upon manuscript sources not previously used: the detailed records of the 1699 commissioners; the records of the forfeiture trustees who succeeded them; and the Books of Survey and Distribution that recorded the ownership of Irish land and its redistribution during the years after 1641. His main general conclusions — that the treaty of Limerick and the dispute between William and his English commons made the confiscation much less comprehensive than it would otherwise have been; but that many of the catholics who thus succeeded in retaining their estates were induced to change their faith in the course of the eighteenth century by the pressure of the penal laws— have provided all later students of the subject with a firm frame of reference within which to examine the details of the settlement.
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Новгородцев, Виктор, and Viktor Novgorodtsev. "Analysis of legal acts on combating corruption in Ukraine." Services in Russia and abroad 9, no. 1 (June 25, 2015): 14–23. http://dx.doi.org/10.12737/11704.
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The article presents an analytical review of the new legislation adopted in Ukraine, which reflects the main directions of the reform in the field of legislation in the organs of public service and local government, as well as addresses the issues of financial accountability of political parties to ensure reviewing anti-corruption programs in the structure of state bodies, carrying out monitoring in the field of public procurement, amendments to the judicial system and the criminal justice agencies, ensuring free competition and the establishment of responsibility for bribery for persons working in private companies. According to the results of the analytical review it can be concluded that the country has adopted a number of innovations: created the National Agency, which is addressing issues in the field of prevention of corruption as a central executive body with special status; formed a list of specific restrictions on the use of official position in the preparation of gifts; limited capacity of public servants, the leading career concurrently; introduced regulated fundamental rules of ethical conduct for civil servants; strengthened financial control (paying special attention to providing the declaration of income); the legislator specified persons having authority to assist in the fight against corruption; conducted special checks of candidates applying to practice high-level government posts.
Based on the analysis of new laws adopted in Ukraine, the author marked obstacles to the effective fight against corruption in the country, the main ones are corruption in public procurement, the judiciary and criminal justice authorities in the activities of executive bodies in the private sector, as well as the virtual absence of responsibility for bribery of persons working in private companies, special forfeiture rules for all corruption-related crimes, guaranteeing the protection of corruption whistleblowers and the unified state register of legal persons involved in corruption.
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Brickey, Kathleen F. "Forfeiture of Attorneys' Fees: The Impact of RICO and CCE Forfeitures on the Right to Counsel." Virginia Law Review 72, no. 3 (April 1986): 493. http://dx.doi.org/10.2307/1072972.
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Tran, Thu Thi Hoai, and Louis De Koker. "Confiscation of proceeds of crime in Vietnam: improving the legal framework." Journal of Money Laundering Control 24, no. 2 (February 26, 2021): 215–33. http://dx.doi.org/10.1108/jmlc-11-2020-0123.
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Purpose The purpose of this paper is to analyze the Vietnamese laws and practices concerning the confiscation of proceeds of crime, especially in view of Vietnam’s obligations to meet the international standards on money laundering and terrorist financing, set by the Financial Action Task Force and relevant international conventions that Vietnam ratified. To limit the scope of this paper, the analysis focuses on the confiscation of proceeds of domestic crimes that do not require international legal assistance. This paper concludes with recommendations for improving the legal framework on criminal asset recovery in Vietnam. Design/methodology/approach This is a doctrinal study that considers the applicable legal framework. This study is supported by brief case studies of major cases involving the confiscation of proceeds of crime. Findings Vietnam has a functioning asset confiscation regime but gaps in the law, lack of financial investigation expertise and lack of focused investigative attention on asset preservation and confiscation are hampering its effectiveness. The key gaps can easily be closed with appropriate amendments to the law. These reforms should be combined with a dedicated skills development program to produce sufficient number of financial investigation experts and criminal asset management experts to support the regime. The training should extend to judicial officers to ensure an appropriate understanding of the asset confiscation law. Reforms such as these should follow on a comprehensive review of Vietnam’s law and practices relating to the confiscation and forfeiture of criminal assets. This review should extend to assets linked to the financing of terrorism and proliferation to ensure that Vietnam has a comprehensive regime to deal with criminal assets. Research limitations/implications This paper draws on publicly available information regarding the confiscation of proceeds of crime in Vietnam. Little data is available on asset confiscation and that prevents an in-depth assessment of the regime. Originality/value This paper highlights gaps in the current asset confiscation regime and proposes reforms and approaches that will ensure a more effective asset confiscation regime for Vietnam.
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Hakala, Leslie A., and Leonard Levy. "Opposing Forfeiture." Yale Law Journal 106, no. 4 (January 1997): 1319. http://dx.doi.org/10.2307/797156.
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Nowosad, Przemysław. "TRANSFER TO THE STATE TREASURY OF THE PROPERTY OF WAR SUPPORTERS IN THE LIGHT OF THE CONSTITUTION OF THE REPUBLIC OF POLAND. LEGAL ASPECTS IN THE CONTEXT OF THE PARLIAMENTARY BILL ON THE AMENDMENT OF THE CONSTITUTION OF THE REPUBLIC OF POLAND." Expert Paradigm of Law and Public Administration, no. 5(23) (March 2, 2023): 79–89. http://dx.doi.org/10.32689/2617-9660-2022-5(23)-79-89.
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Abstract. This paper contains an analysis of the issue of the scope and manner of restriction of the right to property on the grounds of the provisions of the Constitution of the Republic of Poland of 2 April 1997 (Journal of Laws of 1997, No. 78, item 483, as amended), hereinafter referred to as the Constitution, in the context of the Parliamentary bill on the amendment of the Constitution of the Republic of Poland of 7 April 2022 (print no. 2263). This draft postulates the introduction of Chapter XIa, entitled Threat to State Security, into the Constitution and containing a single provision, Article 234a, stipulating the premises for the State Treasury’s seizure of the assets of entities supporting armed aggression located on the territory of Poland. The rationale for the need to introduce the described editorial unit into the Basic Law is, in the opinion of the drafters, the need for the Polish state to respond to the aggression of the Russian Federation against Ukraine that began on 24 February 2022. At the same time, it should be emphasized, that the assets seized in the above-described manner would be used in full to support the victims of Russian aggression. This amendment, which is indispensable in the opinion of the drafters – in the face of Russian aggression against Ukraine – will be assessed by the author of the study in the light of the provisions of the Constitution regulating the general prerequisites of property restriction (preservation of the statutory basis, noninfringement of the essence of the right to property, justification of the restriction by one of the values..indicated in Article 31(3) Constitution and preservation of the principle of proportionality), the prerequisites of expropriation and forfeiture. At the same time, in this summary, the author would like to point out that entities financially supporting the actions of the Russian Federation vis-à-vis Ukraine can and should be subject to sanctions in the form of seizure of their assets located on the territory of Poland, because Russian aggression war is a manifestation of an action that finds no justification.