Liiketoimintarikoksen tuottaman hyödyn mittaaminen

Tutkimustuotos: OpinnäyteVäitöskirjaMonografia

Abstrakti

QUANTIFYING THE ILLEGAL PROCEEDS OF CORPORATE CRIME

The proceeds of crime shall be ordered forfeit to the State (Penal Code Chapter
10 Section 2 subsection 1). Crime shall not pay. Therefore, the offender or another person or entity that benefited from the offence must be ordered to forfeit the illegal proceeds. This doctoral thesis establishes a theoretically justified model on how the amount of the illegal proceeds should be quantified (the Theoretical Model). The doctoral thesis also demonstrates how the Theoretical Model functions in practice.

The thesis analyses forfeiture in the context of corporate crime. A corporate
offence is defined as an offence committed within legitimate business operations
or in a business environment, for example, in the securities market. Forfeiture
plays an important role as a consequence of a corporate offence, as the offence
type typically generates considerable economic benefit. An activity qualifying as
a corporate offence often produces both legal and illegal benefit. The Theoretical
Model adopted in the doctoral thesis separates legal and illegal benefit and, thus, enables limiting the forfeiture to the illegal benefit only.

The thesis is divided into three parts. The first part (Presentation of the Research Problem) sets out the regulatory basis of the Theoretical Model. Chapter
1 considers relevant regulation and the related main rules of interpretation. Chapter 2 analyses the nature of forfeiture as sanction by comparing forfeiture and punishment. The comparison is useful as, under the Finnish law, forfeiture cannot be used as a punishment. Chapter 3 establishes an interpretation method applied in the thesis. The provision on forfeiture entails an interpretative tension. On the other hand, forfeiture must not be used as a punishment (forfeiture must be limited to the benefit generated by an offence and not by other factors related to an offence), but, on the other hand, the crime cannot pay (forfeiture must cover all benefit an offence has generated, including indirect benefit). This tension between restrictive and expansive interpretation is managed in the thesis by forming two principles of interpretation: the prohibition of enrichment and the prohibition of punishment. The balance of the principles is relevant throughout the thesis, as it helps to calibrate the set of differing arguments applicable in a concrete situation.

The second part of the thesis is devoted to the construction of the Theoretical
Model. The model consists of four criteria: the causality requirement between an
offense and benefit (Chapter 5), deductibility of expenses resulting from an offence (Chapter 6), estimation of the amount of the illegal proceeds (Chapter 7)
and adjustment of forfeiture (Chapter 8). Amongst the criterion, the causality
requirement is the most essential, as the causation criteria defines the subject of
the forfeiture, i.e. the property a priori considered illegal proceeds to be ordered
forfeit. The doctoral thesis adopts a two-phase causality model. At the first
phase, the factual causality analyses empirically observable events. The aim is to
establish what has happened and which factor in the surrounding world has had
such a strong impact for the resulting event (here, illegal proceeds) that the factor can be considered a cause to the consequence. The latter phase analyses to what extent the factual causal connection established at the first phase is judicially relevant (the judicial relevance of the factual causality). At the second phase, the factual causal connection between the offence and the benefit is assessed against the objectives of the provision on forfeiture in order to establish whether the factual causal connection is relevant and, thus, whether the benefit qualifies as illegal proceeds under the Penal Code and, therefore, can be ordered forfeit.

The third part of the thesis contextualises the Theoretical Model to the connection of selected corporate offences, i.e. abuse of insider information (Chapter 10) and environmental offences (Chapter 11). The aforementioned offences are selected due to their distinct nature as corporate offences. Abuse of insider information is committed in the business environment, i.e. in the securities market, whereas the environmental offences are most often committed within legal business operations. The contextualisation demonstrates the functionality of the Theoretical Model in practice. The different operational environment of the offences also entails diverging mechanisms of profit generation, which enables an analysis on how the theoretical model works in context of different types of offences.

Through the Theoretical Model and its contextualisation, the doctoral thesis establishes that the forfeiture of proceeds of crime can and should be applied in
accordance with certain general principles that are neutral as to the type of offence in question however, taking into account the diverging mechanisms of
profit generation in different types of offences. The thesis guides the expedient
and efficient application of the forfeiture of criminal proceeds, as well as furthers the consistency of legal practice in this respect.
Alkuperäiskielisuomi
JulkaisupaikkaSastamala
Kustantaja
Painoksen ISBN978-951-855-347-5
TilaJulkaistu - 2015
OKM-julkaisutyyppiG4 Tohtorinväitöskirja (monografia)

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