Journal articles on the topic 'Forfeiture'

The billions of dollars in assets seized by law enforcement each year represent a crucial source of revenue for these organizations, but also raise important constitutional questions and can create significant tensions within the jurisdictions they administer. Research on asset forfeiture to date has focused heavily on municipal police, largely neglecting forfeiture activities by sheriffs. Thus, it has missed an important opportunity to build theory about the differences between appointed and elected administrators and neglected an important source of institutional variation that may help to explain this particular administrative activity. To develop expectations about the relative levels of asset forfeiture and the response to intergovernmental incentives related to forfeiture, we draw on and extend scholarship comparing the behavior of elected versus appointed administrators in other settings. We test those expectations in analyses of more than 1,200 sheriff’s offices and over 2,200 municipal police departments between 1993 and 2007. Results suggest that sheriffs receive less forfeiture revenue than municipal police and are less responsive to state-level policies that change the financial rewards of asset forfeiture for agencies. These results hold whether we examine forfeitures made through the federal Equitable Sharing Program, where civil and criminal forfeiture cases can be distinguished, or jurisdictional level data on forfeiture, where civil and criminal forfeitures are combined. We conclude with a discussion of implications for both the research on asset forfeiture and on elected versus appointed public administrators more generally.

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.

Improving the method of asset confiscation to recover state losses is an urgent issue that needs to be addressed. The current approach, which relies on in-person procedures, presents numerous ongoing obstacles. Therefore, a breakthrough in asset confiscation is required, namely implementing in rem asset forfeiture. This paper explores the feasibility of adopting in-rem asset forfeiture in Indonesia while addressing the associated challenges. It is both descriptive and prescriptive, providing an analysis of how to establish a comprehensive regulatory framework to optimize asset confiscation. The research employs a normative juridical research method, focusing on the concept and legal policies on asset confiscation. The findings suggest the need to revamp the legal system governing asset confiscation in Indonesia by officially incorporating in rem asset forfeitures into positive law and achieving vertical and horizontal legal harmonization.

Fofeiture of property is the most severe of all penalties affecting property that have ever been imposed in hisiory. It consists in the convicted offender’s property being taken over – wholly or in part – by the treasury. The paper deals with the history of this particular penalty in the criminal policy of Polish People’s Republic in the years 1944–1990. The penalty of forfeiture of property was not provided for in the 1932 penal code (which remained in force till December 31, 1969). It appeared in the legislation shortly before World War II, in the act of June 23, 1939 on special criminal responsibility for desertion to the enemy or abroad. Before the passing of the 1932 penal code, the codes of the partitioning powers had been in force in the Polish territories (as until the regaining of independence in 1918, Poland was partitioned by Russia, Austria and Germany). Also those codes did not provide for forfeiture of property. It was only the legislator of People’s Poland who introduced forfeiture of property as an additionar penalty and provided for its broad adjudication. The history of forfeiture of property in postwar Poland is analyzed divided into four stages which differ from one another due to significant changes in the legislation. The changes reflected re-orientation of criminal policy in connection with a succession of political crises. The first such stage in the history of forfeiture of property were the years 1944–1958. The data discussed in the paper that concern this period are statistics of civilians convicted by military courts from the spring of l944 till April 30, 1955 (till which date in special cases provided for in statutes, civilians fell under the jurisdiction of military courts), and statistics of convictions by common courts till 1949. The second stage began with the passing of the act of June 18, 1959 on protection of social property. Stage three was initiated by the entering into force, on January 1, 1970, of the new penal code of April 19, 1969. The fourth and last stage began with the passing of the act of May 10, 1985 on special criminal responsability and ended with the act of February 23, 1990 which derogated the penalty of forfeiture of property. The introduction of forfeiture of property as an additional penalty is characteristic of the earliest legislative acts of the new authorities of People’s Poland, imposed from without. Its broad application and obligatory character demonstrate the importance attached by those authorities to forfeiture as an element of political game against society. The first legal acts of the Polish Committee for National Liberaltion provided for that penalty: the decree of August 31, 1944 on statutory penalties for the Nazi was criminals, the decree of September 23, 1944 – Penal Code of the Polish Army, and the decree of October 30, 1944 on protection of State. One year later, the decree of November 11,1945 was passed on offences of particular danger in the period of reconstruction of State (which quashed the former wartime decree on protection of State). It was in turn replaced with a new one under the same title, passed on June 13, 1946. The Council of Ministers justified the new decree with the need for aggravation of penalties for all activities that disturbed internal peace, order, and safety, and impaired Poland’s international position. The decree piovided for particularly severe penalties for perpetration of, incitement to, and approval of fratricide; for membership of illegal organizations and terrorist groups; for distribution of illegal literature; for illegal possession of firearms; for helping the members of terrorist groups; and in some cases of failure to inform on an offence. (The decree was generally known as the small penal code – s.p.c.). As provided for in the decree, the additional penalty of forfeiture of property was obfigatory in two cases: sentence to death or to life imprisonment, and conviction for attempt with violence or membership of an armed union. It was optional in the case of sentence to a prison term (Art. 49 para 1 and 2 of the decree). The provisions of s.p.c. extended the application of forfeiture: the court could at ail times adjudicate forfeiture of the property not only of the convicted person himself but also of his spouse or familly members (this did not concern, though, the property such persons attained themselves, inherited, or acquired gift not donated by the convicted persons). Thus forfeiture could affect a very large group of actually innocent persons. Here the decree introduced group responsability for crime. In 1953, four decrees were passed; according to the people’s legislator, they aimed at protecting social property and the interests of buyers in commercial trade. Two of them, the decree of March 4, 1953 on protection of buyers in commercial trade and another one passed on that same date on increased protection of social property, provided for the possibility of forfeiture of the offender’s property wholly or in part. In that case, forfeiture was optional. Statistical data concerning the adjudication of forfeiture were gathered since 1949. Beginning from August 15, 1944, though, forfeiture of property was also adjudicated in cases of civilians convicted by military courts which had civilians in their jurisdiction by force of the decree of October 30, 1944 on protection of State. Military courts were competent to decide in cases of persons accused of offences specified in Art. Art. 85–88 and 101 – 103 of penal code of the Polish Army, in the decree on protection of State, and – the latter quashed – in s.p.c. The jurisdiction of military courts in cases of civilians was abolished in the act of April 5, 1955 on transfer to common courts of the former competence of military courts in cases of civilians, functionaries of public security agencies, the Civic Militaria and Prison Staff. Military courts retained their competence in cases of the specified categories of civilians accused of espionage (Art. 7 s.p.c.). The passing of that act was the first manifestation of a gradual abolition of the legal and judiciary terror. Convictions of civilians tried by military courts were two or three times more frequent than convictions of military service men. Starting from as early as the latter half of 1944, civilians were convicted for membership of illegal or delegalized organizations (mainly the former Home Army) and for illegal possession of firearms (70 per cent of all convictions). Aftcr 1952, the number of persons convicted for the latter went down; instead, more persons were convicted for banditry and failure to inform on an offence. Forfeiture of property was adjudicated in about 40 to 50 per cent of cases of civilians; it accompanied sentences to long prison terms or to death, as well as another additional penalty: deprivation of public rights. It was imposed first of all on those who opposed the newly introduced political system, but also on chance perpetrators of what was called anti-State propagande. Common courts adjudicated forfeiture of property mainly for offences specified in two decrees: the one of August 31, 1944 on statutory penalties for Nazi war criminals, and the decree of June 28,1946 on criminal responsability for repudiation of Polish nationality during the 1939-1945 war. Over 90 per cent of all forfeiture were adjudicated in such cases. During the 1959–1969 decade, the additional penalty of forfeiture of property was imposed basing on special statutes. Two statutes were passed as a novelty which provided for forfeiture while aiming at special protection of the social property. They were: the act of January 21, 1958 on increased protection of social property, and the act of June 18, 1959 on criminal responsability for offences against social property. Nearly all forfeitures in that period were adjudicated for offences specified in the act of June 18, 1959, and the actual offence concerned was appropriation of social property in practically all cases. Convictions for the offences specified in the discussed statut constituted one-fifth of all convictions; most cases, however, concerned petty or not too serious offences where forfeiture was optional only. This is why that penalty was imposed rather seldom; there were realatively few acts for which it was obligatory. Forfeiture was also most seldom adjudicated by force of ther statutes. It amounted to 1,5–2,2 per cent of all additional penalties imposed. The new penal code passed on April 19, 1969 introduced forfeiture of property to its catalogue of additional penalties. Forfeiture of the whole or part of property was obligatory on the case of conviction for the following crimes: 1) against the basic political or economic interests of Polish People’s Republic: betrayal of the fatherland, conspiracy against Polish People’s Republic, espionage, terrorism, sabotage, abuse of confidence in foreign relations, misinformation, participation in organized crime against the economy or foreign currency regulations; and 2) appropriation of social property of considerable value. Besides, the court could adjudicate forfeiture of property wholly or in part in the case of conviction of another crime committed for material profit. The code’s regulation of application of forfeiture was clearly copied from the earlier legislation: the s.p.c. and the acts that increased the protection of social property. During the fifteen years 1970–1984, forfeiture of property was among the least frequently imposed penalties and constituted from 1,2 to 3,3 per cent of all additional penalties. It accompagnied nearly exlusively the convictions for two types of offences: appropriation of social property of considerable value, and that same offence committed by a person who availed himself of the activity of a unit of socialized economy, and acted in conspiracy with others to the detriment of that unit, its customers or contractors. Convictions for these offences constituted about 1 per cent of all convictions for offences against property. The fourth and last period discussed are the years 1985–1990 when forfeiture was again adjudicated very often, as in the 1940’s – 1950’s, to be abolished completely in the end. The entire five-year period was characterized by changes in penal law, one completely opposing another: from extension of penalization and increase of repressiveness introduced by the acts of 1985 to liberalization in 1990. Two acts were passed bearing the same date – may 10, 1985: on changing some provisions of penal law and the law on transgressions, and on special criminal responsability (the so-called provisional act in force till June 30, 1988). They introduced significant changes in the range of application of forfeiture of property, making its adjudication possible, and for some time even obligatory, for common offences. In the discussed period, that penalty was imposed mainly for offences against property. Nearly a half of them were burglaries, and the victims were usually – in two-thirds of cases – natural persons. In the period of particular intensity of convictions – 1986–1987 – forfeiture accompanied 11–12 per cent of ail convictions, the proportion going down to a mere 0,1 per cent in 1989. The imposition of that penalty was extremely broad: consequently, forfeiture was adjudicated in cases of quite petty offences where it was inappropriate and out of all proportion to the seriousness of the act and the guilt of the offender. This made the execution of forfeiture actually ineffective as it usually proved objectless in the case of petty common offenders. Forfeiture of property evolved in a way from was practically non-existence to emergence in special statutes and then in the penal code, to its special use in the criminal policy of the eighties when grounds well known from the past were given for its broader imposition: the need for severe penal repression towards offenders against property, to a complete abolition of that penalty in 1990. Forfeiture was extensively applied in the years 1949–1958 (when common courts adjudicated 1044, and military courts – 1538 forfeitures a year on the average). The next two periods were similar as to the number of forfeitures (503 and 513 respectively). The use of forfeiture was the broadest under the provisional statute (10,345 cases a year on the average). Forfeiture is no doubt one of the most severe penalties affecting property, or penalties in general, which is why it should have been adjudicated in exceptional cases only. Its use under the provisional statute in cases of ,,ordinary” offenders violated the principle of just punishment. On the other hand, forfeiture can hardly be called a just penalty anyway as it always affects not only the offender himself but also his family. The political changes in Poland made it possible to liberalize penal law and to remove the most unjust solutions it contained, the penalty of forfeiture of property included.

The study examined forfeiture and refund on public expenditure: A model for effective financial management in Nigeria. the specific objectives of the study were to: establish the effect of forfeiture and refund in improving actual revenue collected, examine the effect of forfeiture and refund in improving actual public expenditure and determine the effect of forfeiture and refund in improving publicborrowing in Nigeria. Three research questions guided the study. It employed a documentary research design. The finding showed that forfeiture and refunds in improved actual revenue collected, that forfeiture and refunds in improved actual public expenditure and that forfeiture and refunds will reduce public borrowing in Nigeria. The study concluded that forfeiture and refund on publicexpenditure is a good model for effective financial management in Nigeria. Forfeiture and recovery of proceeds of corruption are vital aspects of the anticorruption efforts of the present government in Nigeria. The study among others recommended that Building anti-corruption agencies' capacities through continuous training and re-training programs and international cooperation will block ahaven to corruption and its assets, and it will enhance global combat against corruption. The effectiveness of any recovery, confiscation and asset forfeiture legal regime depends on institutional capacity and funding.

The study examined forfeiture and refund on public expenditure: A model for effective financial management in Nigeria. the specific objectives of the study were to: establish the effect of forfeiture and refund in improving actual revenue collected, examine the effect of forfeiture and refund in improving actual public expenditure and determine the effect of forfeiture and refund in improving public borrowing in Nigeria. Three research questions guided the study. It employed a documentary research design. The finding showed that forfeiture and refunds in improved actual revenue collected, that forfeiture and refunds in improved actual public expenditure and that forfeiture and refunds will reduce public borrowing in Nigeria. The study concluded that forfeiture and refund on public expenditure is a good model for effective financial management in Nigeria. Forfeiture and recovery of proceeds of corruption are vital aspects of the anticorruption efforts of the present government in Nigeria. The study among others recommended that Building anti-corruption agencies' capacities through continuous training and re-training programs and international cooperation will block a haven to corruption and its assets, and it will enhance global combat against corruption. The effectiveness of any recovery, confiscation and asset forfeiture legal regime depends on institutional capacity and funding.

Introduction. This paper highlights the main elements of the legal construction of special forfeiture at the present stage of its legal regulation. The purpose of the paper is the isolation of the main components of the legal structure of special forfeiture, their analysis separately and in conjunction with each other in order to identify inaccurate and conflicting provisions of the Law of Ukraine on Criminal Liability. Results. The content of each element of the legal construction of special forfeiture is analyzed both separately and in conjunction with other elements. The peculiarities of the actual criminal law content of the special forfeiture have been established. The peculiarities of the procedural basis for the application of special forfeiture are analyzed. The characteristic features of the criminal law conditions for the use of special forfeiture have been established. Some shortcomings of the legislative technique in constructing the provisions of the Law of Ukraine on Criminal Liability concerning the persons to whom provisions on special forfeiture are addressed have been established. The peculiarities of the criminal law basis of special forfeiture and the contradiction of this element of its legal structure with its other elements are characterized, which excludes the use of special forfeiture in some cases by its literal meaning in the form in which it is formulated in the law on criminal liability. The characteristic features of the subject of special forfeiture and the contradiction of this element of its construction with the forfeiture of property as a type of punishment are established. The exclusions from some of the above components of special forfeiture are analyzed. The success of the use of the phrase "bona fide purchaser" in the construction of Article 962 of the Criminal Code of Ukraine is analyzed. Conclusions. Ambiguous elements of the construction of special forfeiture that require legislative adjustment have been identified. Clearly conflicting provisions of the norms of the law of Ukraine on criminal liability concerning the legal construction of special forfeiture are singled out. Relevant conclusions are made.

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.

This report discusses the goals that asset forfeiture is intended to serve in the federal criminal justice system, the types of property that are subject to forfeiture, and the procedures that are used to initiate, litigate, and conclude asset forfeiture cases. With respect to procedure, its focus is on non-conviction-based (NCB) forfeiture, and especially on the safeguards that protect the property interests and due process rights of property owners.

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.

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.

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.

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.

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.

The article contains selected issues concerning the institution of forfeiture in Polish criminal law and its compatibility with the constitutional protection of property. The nature of compensatory measures as a special type of criminal measures is discussed. The above-mentioned issues remain a prelude to those discussed in the following parts of this article and form the foundation of the conclusions, providing a view of the legal order with the historical context and references to constitutional law. The institution of forfeiture is also discussed along with showing the characteristics of corporate forfeiture. Analysing the institution of forfeiture in the Polish criminal law, the prerequisites of its adjudication provided by the legislator in the penal code in force have been indicated. Selected issues concerning the consequences of imposing the forfeiture on the basis of legal regulations and doctrine are also presented. The culmination of considerations undertaken in this article is the juxtaposition of the institution of forfeiture with the provisions concerning the constitutional protection of the right to property. The comments from the doctrine and jurisprudence on the nature of this right, as well as the conclusions, inferences and arguments confirming the fulfilment of the aim of this article are included here. An assessment of the compliance of the substantive criminal law provisions concerning the adjudication of forfeiture with the provisions of the Constitution of the Republic of Poland relating to the protection of the right to property has been indicated, as well as conclusions concerning the intention and expected effectiveness of the institution of forfeiture by the legislator. The article has been developed through the use of the historical-legal and dogmatic-legal method. The aim of this article is to present the discussed measure of criminal reaction in Polish criminal law juxtaposing this issue to the essence of the right to property and its constitutional protection. The existence of the institution of forfeiture is significant in terms of both substantive and procedural criminal law. The present considerations lead to an answer to the question whether the current provisions on forfeiture do not constitute a violation of the constitutional right to property and whether they are compatible with it.

Purpose: The Narcotics Law as a foundation in law enforcement to eradicate illicit drug trafficking, is not effective enough in tackling narcotics crime, because the legal paradigm adopted in the narcotics law is oriented towards imprisoning the perpetrator (follow the suspect), while the assets resulting from narcotics crimes continue to be used for narcotics trafficking and distribution. The problem is what is the urgency of renewing the model of asset forfeiture from narcotics crimes? What is the ideal model of asset forfeiture from narcotics crimes? Design/Methodology/Approach: The research method used is a normative approach and empirical approach sourced from primary data and secondary data. Primary data is obtained by means of field studies and interviews while secondary data is obtained by means of literature studies. The data that has been collected is analyzed qualitatively. Findings: The urgency of updating the model of seizure of assets resulting from narcotics crimes must receive attention in criminal law policy, this is because the current mechanism is not adequate and even tends to use assets as an instrument of illicit drug trafficking, which should be maximized for the rehabilitation of drug addicts and abusers. The future model of asset forfeiture in relation to the renewal of the investigation for asset forfeiture of narcotics crimes is a model of asset forfeiture without punishment. This model is known as in rem forfeiture, or also known as civil forfeiture, and NCB asset forfeiture. The NCB model is essentially a suit brought against assets, not against persons. The action is separate from the criminal court, but only determines that the assets have been tainted by the criminal offense.

Penelitian normatif ini dilakukan untuk mengetahui kelebihan mekanisme perampasan kekayaan melalui NCB Asset Forfeiture dibandingkan pemidanaan yang telah diberlakukan. Selain itu, penelitian ini juga bertujuan untuk mengetahui apakah NCB Asset Forfeiture dapat menjadi upaya penanggulangan tindak pidana korupsi yang terjadi dalam birokrasi. Pemidanaan korupsi di birokrasi belum berhasil menanggulangi tindak pidana korupsi, sehingga gagasan NCB Asset Forfeiture dimunculkan untuk memaksimalkan pengembalian keuangan kerugian negara. Penelitian ini menemukan fakta bahwa mekanisme NCB Asset Forfeiture lebih efektif karena tidak perlu membuktikan perbuatan dari pelaku tindak pidana selama harta yang menjadi kekayaan pelaku diduga merupakan harta tercemar sehingga lebih efisien waktu. NCB Asset Forfeiture juga lebih baik dibandingkan dengan perampasan kekayaan melalui jalur perdata sebagaimana telah tersedia dalam UU Tipikor saat ini. Hal ini terjadi karena menerapkan hukum perdata pada kasus pidana sama dengan membebankan pembuktian kepada jaksa dan memungkinkan terjadinya gugatan rekovensi terhadap jaksa selaku penggugat. Selain itu, NCB Asset Forfeiture dapat menjadi upaya penanggulangan tindak pidana baik dalam ranah birokrasi maupun secara general dikarenakan mekanismenya yang bukan lagi berdasarkan gagasan “follow the person” tetapi “follow the money” sehingga diharapkan pemikiran bahwa korupsi di Indonesia menguntungkan dapat terbantahkan.

AbstractCivil forfeiture is an asset forfeiture mechanism available to seize proceeds of crime. Kenya has embraced its use and provides statutory mechanisms for its implementation. The Proceeds of Crime and Anti-Money Laundering Act is the main statute in this regard. This article examines the substantive law and procedure for civil forfeiture provided in this statute. The analysis indicates that the provisions are technical in nature and that the process is systematic. This ensures a procedurally and substantively fair process before an individual's property is seized. This approach aims to safeguard against the arbitrary deprivation of property. Nonetheless, challenges are identified that interfere with the effective implementation of the civil forfeiture regime. These problems lead to the current underutilization of the regime. Accordingly, the article identifies viable ways of addressing these shortcomings. Implementation of these suggestions could enhance the use and success of civil forfeiture in dealing with the proceeds of crime.

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.

Purpose Civil forfeiture is an increasingly common way for governments to relieve criminal wrongdoers of the proceeds of their crimes and to restore the property to the victims of the offense. The question that is asked, however, is this: Is civil forfeiture an essential tool that is needed to fill a gap in the arsenal of weapons available to law enforcement or is it a prosecutorial shortcut that allows cases to be closed without obtaining the evidence needed to obtain a criminal conviction in cases that should be prosecuted criminally. The answer is that it is both. When properly used, civil forfeiture is an essential tool that provides a means of recovering property, but it is a tool that can also be used to save time and money even though the investment of those resources in bringing a criminal to justice would better serve the public interest. The aim of this paper is to show why this is so. Design/methodology/approach Analysis of the use of civil forfeiture in the USA. Findings Civil forfeiture is an essential law enforcement tool. Originality/value While undeniably an essential law enforcement tool, civil forfeiture is sometimes used as a shortcut to conserve resources.

Law enforcement departments across the country use civil asset forfeiture as a method to fund the work of law enforcement departments under the guise of combatting the “War on Drugs.” Attorney General Jeff Sessions made in- creasing civil asset forfeiture a DOJ priority. If civil asset forfeiture continues to rise to the level that Attorney General Sessions would like to see it, then we will soon find ourselves fighting to keep what is rightfully ours. This Comment will argue that the government should be required to prove that the owner of forfeited property had actual knowledge that the property was connected to an underlying crime. Dick M. Carpenter, Director for the Institute for Justice, believes that civil asset forfeiture is a thing of the past that today’s legal system should eschew. Civil asset forfeiture plays a relevant role in contemporary law enforcement, but additional safeguards should be enacted to ensure that civil asset forfeiture is not used at the expense of citizens’ property rights. Uniform reporting reform regarding forfeiture should occur amongst the states, and the government must prove that the innocent owner is not innocent. This is not to say that the government is required to succeed in a criminal prosecution before property can be forfeited, but this Comment argues that the government must prove from the onset that any owner of the property is not innocent and detached from the crime. Property owners should never be forced to prove their innocence without the constitutional protections guaranteed in criminal courts.

Purpose This paper aims to answer three questions: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset civil forfeiture procedure imply a criminal charge? These are the main constitutional issues that have hampered the processing of, and consensus regarding, the regulation of the asset civil forfeiture in Brazil, the subject of bill 5681/2013 of the Chamber of Deputies and bill 255/2015 of the Federal Senate. The hypothesis is that the property or the possession of illegal assets implies a violation of the Brazilian Federal Constitution, which presumes good faith and non-abused use to be legitimated. This study intends to enrich this discussion with the current American debate, its main lessons and concerns to individual procedural safeguards. Design/methodology/approach There are some questions that should be addressed: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset civil forfeiture procedure imply a criminal charge? Thus, this paper aims to discuss these questions, which are the main constitutional issues that have hampered the processing of, and consensus regarding, the regulation of the asset civil forfeiture in Brazil, the subject of bill 5681/2013 of the Chamber of Deputies and bill 255/2015 of the Federal Senate. The hypothesis is that the property or the possession of illegal assets implies a violation of the Brazilian Federal Constitution, which presumes good faith and non-abused use to be legitimated. This study intends to enrich this analysis with the current American debate about asset civil forfeiture provisions, its main lessons and concerns to individual procedural safeguards. Findings This paper focused on answering three questions: Is the presumption of innocence principle in risk? How to balance it with the burden and standard of proof? Does the asset civil forfeiture procedure imply a criminal charge? The authors sustained the constitutionality of the asset civil forfeiture from a Brazilian perspective, based on three main arguments: First, asset civil forfeiture is based on the non-abused use of property rights constitutional provision. Second, asset civil forfeiture does not imply on or presume a criminal charge. Finally, asset civil forfeiture is not based on the same standard of proof as a criminal proceeding. Originality/value The value of this paper is based on its current debate, the regulation of the asset civil forfeiture in Brazil, which is subject of bill 5681/2013 of the Chamber of Deputies and bill 255/2015 of the Federal Senate. The hypothesis is that the property or the possession of illegal assets implies a violation of the Brazilian Federal Constitution, which presumes good faith and non-abused use to be legitimated.

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.

Civil forfeiture powers are a useful tool in the fight against crime — particularly the organised kind. They deter such crime by removing the proceeds from wrongdoers, thereby diminishing the incentives for offending. However, as the courts in South Africa have long recognised, the forfeiture powers must be calibrated to ensure a fair balance between the public interest in crime deterrence and private interests such as the right to property. Achieving this balance when forfeiting proceeds is a vexed question which this article seeks to explore. It argues that while the forfeiture of proceeds will usually be justified by the legitimate aim of crime deterrence, forfeiture should nevertheless be subject to a proportionality check. This check is arguably required by the property clause in s 25(1) of the Constitution of the Republic of South Africa, 1996, and is justified by the need to constrain the breadth of the powers under the Prevention of Organised Crime Act. It then explores what situations might justify refusing forfeiture of proceeds, and how the proportionality check should be applied.

Asset forfeiture is a solution to the problem asset forfeiture when a person cannot be criminally prosecuted on the grounds of death or cannot follow the criminal prosecution process as referred to in Article 77 and Article 83 of the Criminal Code of Indonesia. NCB Asset Forfeiture wants the seizure of assets resulting from corruption crimes without having to wait for a criminal verdict and is an alternative if a corruptor can’t criminally prosecuted. The regulation of asset seizure resulting from corruption by mechanism without criminalization in Indonesian law is stipulated in Article 32, Article 33, Article 34, and Article 38C of the Law of the Republic of Indonesia Number 20 of 2001 concerning Amendments to Law No. 31 of 1999 concerning the Eradication of Corruption Crimes while the arrangement of asset forfeiture resulting from corruption crimes by mechanism without criminalization to UNCAC is stipulated in Article 54 chapter (1) letter c UNCAC. The application of NCB Asset Forfeiture in Indonesia in addition to being implemented based on the Law on the Eradication of Corruption Crimes, the State Attorney must be able to prove there has been a real loss of state finances, financial losses of the country due to corruption crimes and there are guarantees from corruptors to facilitate the application of asset seizures resulting from corruption without criminalization. Keywords: Asset Forfeiture, Proceeds of Corruption, Without Criminalization, United Nations Convention Against Corruption.

Asset forfeiture is a solution to the problem asset forfeiture when a person cannot be criminally prosecuted on the grounds of death or cannot follow the criminal prosecution process as referred to in Article 77 and Article 83 of the Criminal Code of Indonesia. NCB Asset Forfeiture wants the seizure of assets resulting from corruption crimes without having to wait for a criminal verdict and is an alternative if a corruptor can’t criminally prosecuted. The regulation of asset seizure resulting from corruption by mechanism without criminalization in Indonesian law is stipulated in Article 32, Article 33, Article 34, and Article 38C of the Law of the Republic of Indonesia Number 20 of 2001 concerning Amendments to Law No. 31 of 1999 concerning the Eradication of Corruption Crimes while the arrangement of asset forfeiture resulting from corruption crimes by mechanism without criminalization to UNCAC is stipulated in Article 54 chapter (1) letter c UNCAC. The application of NCB Asset Forfeiture in Indonesia in addition to being implemented based on the Law on the Eradication of Corruption Crimes, the State Attorney must be able to prove there has been a real loss of state finances, financial losses of the country due to corruption crimes and there are guarantees from corruptors to facilitate the application of asset seizures resulting from corruption without criminalization.Keywords: Asset Forfeiture, Proceeds of Corruption, Without Criminalization, United Nations Convention Against Corruption.

What kind of legal history might account for the unique and continued practice of forfeiture in the United States? Law enforcement, as many recent writers have argued, has grown increasingly dependent on this fail-safe way to gain revenue, since civil asset forfeiture has few procedural safeguards. Unlike criminal forfeiture (in personam), civil forfeiture generally proceeds against the offending property (in rem), not against the person. A piece of property does not have the rights of a person; so, instead of proving crime beyond “a reasonable doubt,” suspicion equal to “probable cause” is enough. Your property is guilty until you prove it innocent. With civil forfeiture, owners do not have to be charged with a crime, let alone be convicted, to lose homes, cars, cash—or dogs. This effort to sharpen our understanding of dispossession is preeminently a legal project. It takes its meaning and garners its effects from the division between value and disregard, things and persons, human and nonhuman. In analyzing how legal reasoning has historically contributed to literal expropriation, I examine the generally invisible nexus of animality, human marginalization, and juridical authority.

Various alterations to the Irish legal system have been effected in a bid to counter organised crime, the most radical of which was the introduction of civil forfeiture in 1996. This article examines the forfeiture process carried out by the Criminal Assets Bureau and seeks to analyse it from a theoretical perspective. Civil forfeiture may be regarded as embodying a move away from due process towards crime control, given the avoidance of traditional protections in the criminal process by its location in the civil realm. Moreover, the process may be characterised as an ‘apersonal means of tackling crime’, in which emphasis is laid on the non-moral and regulatory aspects of the law. This article further contends that civil forfeiture represents an adaptation to reality in which the State reconfigures the legislative framework so as to facilitate more readily the suppression of organised crime.

Abstract:This essay contrasts two approaches to permissible self-defensive killing. The first is the forfeiture approach; the second is the elbow room for self-defense approach. The forfeiture approach comes in many versions — not all of which make prominent use of the word “forfeiture.” However, all versions presume that the permissibility of X killing Y (when X must kill Y in order to prevent herself from being unjustly killed) depends entirely on there being some feature of Y in virtue of which Y has become liable to be killed, that is, in virtue of which Y has forfeited or lost or been stripped of his right not to be killed. Different versions of the forfeiture approach advance different claims about what feature of Y will render Y liable to being killed by X. I criticize versions of this approach offered by Thomson, Otsuka, and McMahan and argue that the shared deep error is the presumption that the permissibility of X’s action turns entirely on some feature of Y. In focusing entirely on Y, the forfeiture approach fails to take seriously X’s right of self-defense. In contrast, the elbow room for self-defense approach starts with an explication of a plausible right of self-defense and maintains that a proper explication of Y’s right not to be killed must make moral elbow room from X’s exercise of this right. Within the elbow room approach, Y’s liability to being killed is based upon X’s right of self-defense rather than the permissibility of X’s killing Y being based upon Y’s forfeiture.

ABSTRACTThe work of the martyrologist John Foxe ensures that the burnings dominate modern accounts of the campaign waged again Protestantism in the reign of Mary I (1553–8). Drawing on other sources, this article examines forfeiture of property, a less noticed but more common penalty imposed upon Protestants. It describes the types of forfeiture that occurred and analyses their legal basis; it considers the impact of the penalty and highlights means of evasion. By examining forfeiture, the article extends and enhances the debate about the effectiveness of Marian religious policy and about the degree of support that the regime could command. Forfeiture, it is shown, could be a powerful form of coercion, but depended upon popular politics to be effective. Subsequent efforts in Elizabeth I's reign to obtain restitution substantiate the article's thesis that a deep-rooted belief in the rule of law constrained the penal religious policies of early modern England.

A principal’s claim for forfeiture of an agent’s commission following the latter’s default can be explained from both an equitable and common law perspective. In equity, the threshold for forfeiture is imprecise and reflects the vagaries of fiduciary obligations. At common law, forfeiture can be claimed in proceedings for money had and received. However, the principal’s claim may be subject to counter-restitution in respect of the agent’s services. It is argued that the common law provides an effective means of reconciling the parties’ interests and that an approach based on failure of consideration would provide a more coherent and principled outcome in equity.

This article critiques the Criminal Proceeds and Instruments Bill 2005 which introduces a civil forfeiture regime for the proceeds of serious criminal offending. By using a civil forfeiture regime, many of the protections normally granted to criminal defendants are not available, which makes successful action by the State easier. This article argues that the Bill's civil forfeiture regime risks seriously abrogating individuals' rights, including those arising from the requirement for proof beyond a reasonable doubt and the prohibitions on double jeopardy and retrospective punishment. The article concludes that the confiscation of criminals' assets should take place within the criminal justice system to ensure that there are proper protections for defendants.

<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>

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.

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.

The deprivation of the proceeds of crime has been a feature of criminal law for many years. The original rationale for the confiscation of criminal assets at international level was the fight against organised crime, a feature of society described by the European Court of Human Rights as a "scourge" so that the draconian powers which are a feature of confiscation regimes around the world have been approved in circumstances which otherwise might have caused governments considerable difficulties before the international human rights tribunals.[1] The primary objective of this article is to determine if the asset forfeiture measures employed in the South African criminal justice system are in need of any reform and/or augmentation in accordance with the "spirit, purport and object" of the South African Constitution.[2] This article attempts to answer three questions. Firstly, why is criminal asset forfeiture important to law enforcement? Secondly, in which circumstances can property be forfeited and what types of property are subject to forfeiture? Thirdly, how is forfeiture accomplished, and what are its constitutional ramifications?

Purpose The purpose of this paper is to examine the broad concept of forfeiture, its legal positions in the UK and Malaysia, and to highlight the implications of such forfeiture systems and legislations. Design/methodology/approach This paper uses a doctrinal legal analysis and secondary data, which analyses primary sources, the POCA (2002) and the AMLATFA 2001, and secondary sources including case law, articles in academic journals, books and online databases. Findings The authors contend that the civil forfeiture system and law have far-reaching implications, affecting not only law enforcement agencies, but also on property owners, the courts and bona fide third parties. Also, civil forfeiture law as contained in AMLATFA 2001 represents one of the most serious encroachments on private property rights. Not only that, such a legal rule has made property, and not the owner, guilty until proven innocent. Originality/value This paper could be a useful source of information for practitioners, academicians and students. It could also be a beneficial guide for policymakers for any possible future amendments to the law.

Civil forfeiture is playing an increasingly prominent role in the fight against organised crime. While this tool is attractive to law enforcement agencies, it does give rise to concerns under Art 6 of the ECHR. Such proceedings ought to attract the full range of enhanced procedural protections inherent in the criminal process. Even if the Strasbourg Court decides otherwise, there is an argument that the presumption of innocence ought to apply where civil forfeiture proceedings are instituted against a person subsequent to that person being acquitted in criminal proceedings. The Strasbourg jurisprudence, though, is permeated by confusion and inconsistency, which does not inspire confidence that the rights of the individual will be protected. The final section of this paper, then, considers whether civil forfeiture represents a proportionate response in the fight against organised crime. Ultimately, though, given lack of information on such crime, we cannot provide an answer either way – what can be said, though, is that civil forfeiture has had a significant impact on the rights of the individual.

Dalam kasus-kasus tindak pidana terkhusus pada Tindak Pidana Pencucian Uang ada berbagai macam bentuk hasil kejahatan, tidak hanya potensi kerugian secara privat, namun lebih dari itu juga menyentuh pada ranah publik, baik yang bersifat materiil maupun immateriil. Dari sekian banyak kasus yang terjadi, nyatanya pengembalian kerugian keuangan negara akibat Tindak Pidana Pencucian Uang saat ini masih belum efektif dan efisien. Adanya ketimpangan ini, kemudian menghadirkan sebuah gagasan mengenai upaya optimalisasi asset recovery milik negara melalui in rem asset forfeiture. Namun, adanya gagasan penerapan in rem asset forfeiture ini menimbulkan pendapat pro dan kontra dalam masyarakat. Dalam artikel ini, penulis akan menganalisa melalui 2 (dua) pokok permasalahan, yakni bagaimana upaya penghidupan in rem asset forfeiture dalam Rancangan Undang-undang Perampasan Aset dan bagaimana pula in rem asset forfeiture yang berada dalam bandul property rights dan asset recovery. Dari analisa dan kajian yang telah dilakukan oleh penulis, dapat diambil sebuah kesimpulan bahwa bandul dari penerapan Perampasan Aset secara in rem bukan condong pada asset recovery ataupun property rights, namun berada pada titik impas kedua aspek tersebut secara balance.

This article seeks to trace the evolution of equity’s jurisdiction to relieve against the forfeiture of leases from the early 17th century cases through to the present day. Although the celebrated case of Sanders v Pope, decided in 1806, marked a trend towards a more flexible (discretionary) approach to equitable relief, this was to be short lived following Lord Eldon’s judgment in Hill v Barclay in 1811 declining to grant relief against forfeiture of a lease for a wilful breach of covenant not involving the failure to pay rent even where the same was capable of adequate compensation. This remained the position until 1973, when the House of Lords in Shiloh Spinners Ltd v Harding took the opportunity to review the whole question of the scope of equity’s jurisdiction to relieve against forfeiture. What emerged was a principled approach to the grant of equitable relief which was not limited to the two orthodox heads of relief: (a) where the right to forfeit was inserted by way of security for the payment of rent nd (b) where the breach had been occasioned by fraud, accident, mistake or surprise. The Shiloh ruling paved the way for the granting of relief for breaches of other covenants in the same way as that in the case of rent, namely, to prevent a forfeiture where the landlord may be adequately compensated and receive proper undertakings as to future performance, so that the forfeiture clause is merely security to achieve these results.

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.