Historic analogs of civil confiscation of unexplained wealth – the case of Bulgaria
| Pages | 561-571 |
| DOI | https://doi.org/10.1108/JFC-08-2019-0108 |
| Date | 28 January 2020 |
| Published date | 28 January 2020 |
| Author | Todor Kolarov |
| Subject Matter | Financial risk/company failure,Accounting & Finance |
Historic analogs of civil
confiscation of unexplained
wealth –the case of Bulgaria
Todor Kolarov
Department of Law, New Bulgarian University, Sofia, Bulgaria and
Department of Political and European Studies, American University in Bulgaria,
Blagoevgrad, Bulgaria
Abstract
Purpose –Using Bulgarian legislation on civil confiscation and analysing the nature of the substantive
authority to confiscate unexplained wealth, as well as evaluating research in commonand continental law,
this paperaims to seek historic parallels for non-punitivecivil confiscation of unexplained wealth.
Design/methodology/approach –The design of this paper is centred on determining whether the
substantiveauthority of the state to confiscate unexplained wealth has a Roman law equivalent.Conducting a
review of key elements of the substantive authority for the action in Bulgaria, the research examines the
validityof the hypothesisthat the right to confiscate has a Roman law equivalent.
Findings –The research supportsthe position that the substantive authority to seek civil confiscationrelief
in Bulgaria has its origin in the overarching principleof unjustified enrichment in Roman law. Considering
needed adjustments related to thedeveloped demarcation between public and private law in contemporary
law, the action to confiscate unexplained wealth in civil proceedings in the case study jurisdiction has its
equivalentin the Roman condictio furtiva.
Originality/value –This paper sheds light on the theoretical basis for civil asset confiscation of
unexplained wealth in one continental law jurisdiction, thus contributing to the on-going debate on the
compatibilityof civil confiscation of unexplained wealthwith the continental law tradition.
Keywords Civil confiscation of unexplained wealth, Bulgaria, “EQUUM et bonum”,
CONDICTIO furtiva
Paper type Research paper
Introduction
Unexplained wealth fuels serious offences such as organised crime and corruption or
constitutes proceeds of such criminality. Such crimes may prove impossible to
prosecute, thus making the approach centred on the proceeds adequate. In recent years,
in its efforts to ensure the protection of the legal order by denying unexplained
enrichment to illegitimate receivers, both nation states and international organisations
consider civil confiscation of unexplained wealth as an effective instrument in ensuring
the protection of the legal order.
In spite of its positive features, civil confiscation is yet to be widely accepted in
many national legal systems. Considered an invention of the common law tradition, the
debate over its compatibility with the continental law system surfaces repeatedly.
Constitutional challenges in common law and civil law jurisdictions are recurrent. One
point in these debates concerns the substantive authority behind the confiscation
procedure –whether it is governed by the principles of unjustified enrichment or tort
law or whether there is another substantive basis for the authority, without an
equivalent in Roman law.
Civil
confiscation of
unexplained
wealth
561
Journalof Financial Crime
Vol.27 No. 2, 2020
pp. 561-571
© Emerald Publishing Limited
1359-0790
DOI 10.1108/JFC-08-2019-0108
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