Mechanism For Asset Forfeiture In The Money Loundering Criminal Law And Asset Forfeiture Bill (Law Comparison With The United States)

Abstract

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.