Substantive status of non-conviction-based confiscation in the new Economic Crime Law

Abstract

The purpose of this Article is to analyse the legal nature of the confiscation without prior conviction established in article 41 of Law 21.595 on economic crimes, with a view to determining whether or not it has a punitive nature and what are the main differences between this regulatory statute and that contemplated in Law 21.577, on criminal associations, which amends the Criminal Code and introduces new general rules on confiscation and new specific rules on confiscation, applicable only to criminal and criminal associations. For this purpose, a dogmatic method is used, taking into account not only the text of the new laws of our legal system, but also the reflections of national and foreign doctrine on this new figure, especially from Spain and Germany. In this sense, the main result of this article consists of having established the punitive nature of the institute in the light of both substantive and procedural reasons.