Equity and the Modern Forfeiture Rule

被引:0
作者
Hepburn, Samantha [1 ]
机构
[1] Deakin Law Sch, Burwood, Australia
来源
AUSTRALIAN LAW JOURNAL | 2020年 / 94卷 / 03期
关键词
PROPERTY; PUNISHMENT; SANCTIONS; HISTORY;
D O I
暂无
中图分类号
D9 [法律]; DF [法律];
学科分类号
0301 ;
摘要
The forfeiture rule is a private law response to the fundamental public policy principle that a killing should not generate a gain for the perpetrator. In its early stages, the rule applied automatically to the perpetrator of any killing and no differentiation was drawn between murder and manslaughter. Today, courts and the legislature have increasingly accepted that the context of a killing makes it difficult, unfair and often disproportionate to apply a presumptive rule. This article argues that in those states where legislative change has not been implemented, the suitability of the forfeiture rule to a manslaughter killing should be determined in the equitable jurisdiction of a civil court. The test in those states should be whether it would be contrary to the conscience of equity to allow a perpetrator to make a property gain. Equity is jurisdictionally equipped to embrace a multi-layered evaluation of the purpose and utility of the forfeiture rule and such an assessment is necessary where the moral culpability of a perpetrator is diminished.
引用
收藏
页码:186 / 201
页数:16
相关论文
共 85 条
  • [1] Abella Rosalie Silberman, 1989, MCGILL LJ, V34, P1021
  • [2] [Anonymous], OXFORD J LEGAL STUD
  • [3] [Anonymous], 1999, Melbourne University Law Review, V23, P1
  • [4] MODERN RATIONALES OF ESCHEAT
    AUTEN, DC
    [J]. UNIVERSITY OF PENNSYLVANIA LAW REVIEW, 1963, 112 (01) : 95 - 134
  • [5] Beatson J, 2002, LAW Q REV, V118, P35
  • [6] Blackstone William, 1765, COMMENTARIES BOOK, P251
  • [7] Boaden Richard, 1995, FORFEITURE RULE
  • [8] Briggs Michael, 1999, BUTTERWORTHS FAMILY, V3, P57
  • [9] Buckley R A, 1995, LAW Q REV, V111, p[196, 196]
  • [10] Buckley RA, 1995, LAW Q REV, V111, P199