تجزیه و تحلیل اقتصادی از حذف سود غیر قانونی

The purpose of the present paper is to explore both the motivation for confiscating illegal gain and also to look at some of its legal aspects and economic effects. It is argued that the removal of illegal gain may be able to play a significant complementary role, if only by closing the gap between the maximum punishment the law will allow and fines sufficient to represent a credible deterrent. The paper develops a deterrence model and applies it to confiscation powers introduced to help combat drug trafficking.

The removal of illegal gain is a sanction which has been widely adopted in many countries. Powers available to courts range from the confiscation of the proceeds from drug trafficking to the imposition on polluting firms of a requirement that they clean up polluted soil. The idea of the sanction in each case is that the offender should not be left with the profits he has made by committing a crime or a series of crimes. The purpose of the present paper is to explore both the motivation for confiscating illegal gain and also to look at some of its legal aspects and economic effects. We consider how it fits into the deterrence model of crime Becker 1968 and Garoupa 1997 and we also look at the way the sanction has developed in legal terms and how effective it has been. In the economic analysis of crime a key finding is that under normal assumptions an optimal enforcement policy will entail the use of monetary sanctions, usually in the form of maximal fines. There are, however, some significant circumstances (such as when the wrongdoer is judgment proof) in which fines may not lead to optimal deterrence. In this case authors such as Shavell (1985) have advocated the use of nonmonetary sanctions, most commonly imprisonment. But imposing a prison sanction is costly. As a result many modern statutes regulating trade, markets, environmental pollution, crime and so on provide for alternative types of sanctions which may be imposed at lower cost. Sometimes these measures take a direct, nonmonetary form such as the shut down of a company. Some legislatures also give the judge the possibility to order that the judgment should be published through mass media. But another direction taken by legislators searching for alternatives to conventional criminal sanctions has been the development of powers to confiscate or seize assets or, more generally, the removal of illegal gain. A flavor of the argument in favor of confiscation of illegal gain can be found in the following assertion by the Drug Enforcement Agency of the US Department of Justice: ‘Most Americans agree that criminals should not be allowed to benefit financially from their illegal acts. Federal Law provides that the profits and proceeds of designated crimes, as well as property used to facilitate certain crimes, are subject to forfeiture to the government. Asset forfeiture is one of law enforcement’s most effective weapons against drug trafficking because it takes the profit out of crime.’ To the economist this argument does not, on the face of it, look very compelling. Unless detection is virtually certain the prospect of confiscation of the proceeds from an offense may reduce, but will certainly not eliminate, its ex ante profitability. Our principal objective in this paper is to argue that there are certain circumstances, such as where there are limitations on the size or application of fines or where fines are costly to enforce, in which the removal of illegal gain may become an especially attractive and significant sanction. Using the narrower legal definition of fines, it is very common to find limits on the multiple by which a fine can exceed the social cost of an offense or the benefit derived by the criminal. Constitutional protections for citizens against oppressive punishments, or against punishments viewed as disproportionate to the crime, may be such that the probability of detection (and thus the cost of enforcement) has to be increased if deterrence is to be maintained. The removal of illegal gain may therefore be able to play a significant complementary role, if only by closing the gap between the maximum punishment the law will allow and fines sufficient to represent a credible deterrent. The paper is structured as follows. Section 2 develops a model demonstrating the role removal of illegal gain might play and how it can be fitted into the optimal deterrence approach. The first part of section 3 of the paper sketches briefly the use of the sanction of removal of illegal gain in legal practice and reviews its increasing popularity with legislators and courts. The second part of section 3 seeks to apply the findings of the model set out in section 2 to the legal developments outlined in the first part of section 3.Section 4 concludes.

The confiscation of illegal gain has become an increasingly popular sanction with legislators, particularly for ‘victimless’ crimes where the damage caused by crime is felt generally by the community rather than individually by specific victims. Using a deterrence model we have demonstrated that there are various characteristics of the sanction which can help explain this increasing popularity. We conjecture that in many quite plausible circumstances by employing a mix of sanctions, with harm-based fines (or other punishment) plus confiscation of illegal gain, courts will be able to get closer to efficient deterrence than they can when constrained to use punishments in isolation. The success of confiscation of illegal gain in practice seems to be greatest where courts are able to use civil rather than criminal procedures and this has prompted a number of countries to reform their law accordingly. But even these moves do not guarantee greater success because of the increasingly effective avoidance action taken by criminals. Despite an expanding drug trade and increased use of measures to prevent money laundering, many countries find that they are confiscating fewer assets rather than more as time goes by. This suggests that criminals are becoming more effective at concealing wealth and it represents a significant challenge to enforcement authorities. If enforcement agencies are to make effective use of the removal of illegal gain to fill the gap left by conventional criminal sanctions they will have to develop their forensic accounting skills accordingly. In this paper we have been concerned with the idea of sanctions for crimes based on the illegal gain to offenders. There is a clear parallel between these criminal sanctions and the remedies available to injured parties in various areas of civil law. ‘Disgorgement’ doctrines, which allow plaintiffs to recover the gains made by parties who have infringed private rights, are based on the same kind of idea as confiscation powers in criminal law. Infringement of intellectual property rights is one example and certain sorts of breach of contract another. There is clearly scope to extend some of the arguments developed in this paper to these areas of civil law. Criminal 1998, Huettner et al 1996 and O’Neill 1988