Improvement of the institution of confiscation of property based on the experience of foreign countries

The article proposes the use of foreign experience in regulating rules on confiscation of property, taking into account the identified imperfection of relevant domestic legal regulations. The potential effectiveness of expanding the scope of criminal legal influence against legal entities is justified, including by extending the possibility of implementing such a criminal legal measure as confiscation of property. As a perspective, it is proposed to implement the objective direction of the concept of corporate guilt, according to which the organization is found guilty of an offense if it is found that it had the opportunity to comply with the rules and norms for the violation of which responsibility is provided, but it has not taken all the necessary measures to comply with them. The authors conclude that there is a need to reform the institution of confiscation in terms of changing approaches to the standard of proof of the legitimacy of the origin of assets if there are reasonable grounds to believe that the assets were acquired illegally. The specificity of property confiscation should be the redistribution of the burden of proving the legality of the origin of the asset to its title owner. If the latter does not have reasonable arguments confirming the legitimacy of the sources of property acquisition, it is subject to recourse to state income. The introduction of expanded confiscation as an effective means of anti-corruption measures is consistent with progressive world practice. The importance of directing the use of foreign experience to establish an open list of crimes, as a result of which confiscation can be applied, is argued. In this respect, domestic criminal law is not well defined. Using a list approach in determining the structure of acts entailing the confiscation of property, the Russian legislator made shortcomings, because of which some more characteristic and dangerous acts were not included in this list, while acts with low public danger and dubious “confiscation potential” were. Self-serving offenses (theft, robbery, larceny), which make up about half of registered crimes, were not indicated as acts that could lead to confiscation of property. The authors conclude that it is important to establish a universal approach when any proceeds from crime are subject to seizure, rather than a specific closed list of crimes whose legal consequence may be property confiscation.

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