scholarly journals MENGUJI KONSEP PERTANGGUNGJAWABAN PIDANA KORPORASI

Yuridika ◽  
2013 ◽  
Vol 28 (3) ◽  
Author(s):  
Adriano

An entity, either a legal or the non legal “entity’’ which all were discussed in the same outline of corporate crime responsibility. It was often, though, in several laws aside from the Penal Code of Indonesia (KUHP), both in Criminal Law and Administrative Law with criminal sanction,that corporate is defined as a collection of organized people and or wealth, either as a legal or the non legal entity. The definitions in those laws are really different from those of law experts, especially those of criminal law who basically identify corporate as a legal entity, however the same is not true for those of the non legal entity. Such differences of the legal and non legal entities would bring their own legal consequences, therefore they could not and would not be treated the same referring to corporate criminal responsibility.Keywords: corporate criminal responsibility, legal entity, non legal entity.

2016 ◽  
Vol 5 (1) ◽  
pp. 91
Author(s):  
Adriano Adriano

Disertasi ini membahas lebih dalam mengenai karakteristik korporasi yang berbadan hukum maupun yang tidak berbadan hukum, keduanya didiskusikan pada kerangka yang sama dari pertanggungjawaban pidana korporasi. Meskipun demikian, seringkali pada beberapa hukum atau peraturan selain KUHP, baik pada hukum pidana maupun hukum administratif dengan sanksi pidana, perusahaan digambarkan sebagai sekumpulan orang/kekayaan yang terorganisir baik yang berbadan hukum maupun yang tidak. Pengertian ini sangat jauh berbeda dari apa yang dinyatakan oleh para ahli hukum terutama pada hukum pidana yang biasanya menyatakan perusahaan sebagai badan hukum. Meskipun demikian, hal ini tidaklah sama bagi perusahaan yang tidak berbadan hukum. Perbedaan tersebut akan menyebabkan konsekuensi hukum tersendiri karena perusahaan tidak bisa dan tidak akan pernah diperlakukan sama terkait pertanggungjawaban pidana korporasi. This dissertation analyzed for real about characteristics of an entity, either a legal or the nonlegal "entity'' which all were discussed in the same outline of corporate crime responsibility. It was often, though, in several laws aside from the Penal Code of Indonesia (KUHP), both in Criminal Law and Administrative Law with criminal sanction, that corporate is defined as a collection of organized people and or wealth, either as a legal or the nonlegal entity. The definitions in those laws are really different from those of law experts, especially those of criminal law who basically identify corporate as a legal entity, however the same is not true for those of the nonlegal entity. Such differences of the legal and nonlegal entities would bring their own legal consequences, therefore they could not and would not be treated the same referring to corporate criminal responsibility. 


Author(s):  
Драган Јовашевић

Considering the fact that in the modern world that knows no borders between countries and even continents, legal entities commit serious criminal offenses in the field of commercial, financial, computer, environmental, and similar operations. At the end of the 20th century, a lot of countries introduced a system of criminal responsibility and punishability of legal entities. Since the legal entity has no consciousness or will, i.e. is unable to take physical movements that would cause the consequence of a crime, specific rules on responsibility and application of criminal sanctions have been prescribed for this type of perpetrators. In this way, a new branch of criminal law was constituted - commercial criminal law. This paper deals precisely with the basic characteristics of commercial criminal law.


2014 ◽  
Vol 12 ◽  
pp. 43-47
Author(s):  
Aleksandr Vyacheslavovich Fedorov ◽  

The article substantiates the author’s conclusion to the effect that the introduction of criminal liability of legal entities is a forecast tendency of Russian criminal law policy development, and exposes objective grounds for introducing such a liability. It points out that criminal responsibility of bodies corporate is established in many countries and required by international obligations of the Russian Federation. The article contains data on the charging of legal entities in the Russian Federation with an administrative offence of illegal gratuity on behalf of a legal entity (Article 19.28 of the Code of Administrative Offences) and formulates reasons pointing out the insufficient effectiveness of the existing institution of legal persons’ administrative liability for acts of that type.


10.12737/7249 ◽  
2014 ◽  
Vol 3 (1) ◽  
pp. 0-0
Author(s):  
Александр Федоров ◽  
Aleksandr Fedorov

The article substantiates the author’s conclusion to the effect that the introduction of criminal liability of legal entities is a forecast tendency of Russian criminal law policy development, and exposes objective grounds for introducing such a liability. It points out that criminal responsibility of bodies corporate is established in many countries and required by international obligations of the Russian Federation. The article contains data on the charging of legal entities in the Russian Federation with an administrative offence of illegal gratuity on behalf of a legal entity (Article 19.28 of the Code of Administrative Offences of the Russian Federation) and formulates reasons pointing out the insufficient effectiveness of the existing institution of legal persons’ administrative liability for acts of that type.


Author(s):  
Pan Dunmei

Crime committed by a legal entity is an unavoidable social phenomenon in the process of modern socio-economic development in different countries of the world. The crime of a legal entity in modern Chinese criminal law is called a corporate crime. Since the establishment of the people's Republic of China until 1979, only the criminal liability of individuals has been recognized in the field of Chinese criminal law and criminal law theory. Corporate criminal responsibility in the People's Republic of China was established in a completely new historical context: with the development of the commodity economy and market economy in the new China, corporate crimes appeared in public life and gradually spread in the middle and second half of the 1980s, so that regulation through laws became a requirement for the Chinese society to function normally. In this social context, the Standing Committee of the All-China People's Congress has passed a number of laws that provide for corporate crimes. Before the Criminal Code of the People's Republic of China came into force of in 1997, corporate crimes already accounted for about one third of all offences stipulated in specific criminal and non-criminal laws, which lead to the final establishment of corporate criminal responsibility in the new Criminal Code of China. The author analyzes the problem of criminal liability for corporate crimes in the criminal law of the People's Republic of China from the standpoint of traditional theory, as well as predicts the appropriate trends in the future development of theoretical approaches to bringing legal entities to criminal responsibility in a risk society. According to the author, in a risk society, effective prevention of risks in the activities of legal entities is inseparable from the efforts of legal entities themselves, and criminal law, as one of the tools for risk distribution, is aimed primarily not at punishment, but at increasing the motivation of legal entities to achieve this.


Temida ◽  
2011 ◽  
Vol 14 (2) ◽  
pp. 61-76
Author(s):  
Natasa Tanjevic

Tortious acts of legal entities have unforeseen harmful consequences in all areas. In the greedy desire to gain profit, certain legal entities do not have any regard for the most important resources of individuals and society. Damage resulting from the commission of criminal acts is very high for the whole society, especially when it comes to crimes against the environment. In order to prevent and combat corporate crime in criminal law, an increasingly wider acceptance of criminal liability of legal entities was adopted. This paper discusses the basic characteristics of corporate crime, as well as the reasons for the introduction of the criminal responsibility of legal entities. In this regard, we analyzed the law provisions regarding the liability of legal entities for criminal offenses, and concluded that despite the criminal-political need to react with more serious sanctions to the offenses of legal entities, there are certain obstacles and problems that stand in the way of introducing this responsibility.


Author(s):  
Miodrag Bukarica

Court practice and illustrative examples of the legislator’s negligence in passing the appropriate laws and bylaws provisions point that, in Bosnia and Herzegovina, the most acceptable would be separation of the criminal acts of legal entities, according to the legislative model of the Republic of Macedonia. Namely, the Republic of Macedonia has not passed a special law on criminal responsibility of legal entities, since the provisions on criminal responsibility (lex specialis) are included as a special chapter of the criminal law and are applied primarily, while the general provisions of the criminal law are applied only in cases not stipulated by the special provisions. Thus in the Special Part of the Criminal Code, along with the legal description, within certain criminal acts it is emphasized that a legal entity may be held responsible for the particular criminal act. Given that, in Bosnia and Herzegovina it would also be possible to determine (separate) criminal acts of a legal entity. The advantage of such solution lies in the fact that it is very simple in the technical sense since, on the occasion of passing amendments and alterations of the special part of the criminal law, no additional interventions shall be required in the criminal law or in the substantial legislation.


Jurnal Hukum ◽  
2016 ◽  
Vol 31 (1) ◽  
pp. 1592
Author(s):  
Hanafi Amrani

AbstrakArtikel ini membahas dua permasalahan pokok: pertama, kriteria yang digunakan oleh pembentuk undang-undang di bidang politik dalam menetapkan suatu perbuatan sebagai perbuatan pidana (kriminalisasi); dan kedua, fungsi sanksi pidana dalam undang-undang di bidang politik. Terkait dengan kriminalisasi, undang-undang di bidang politik yang termasuk ke dalam hukum administrasi, maka pertimbangan dari pembuat undang-undang tentu saja tidak sekedar kriminalisasi sebagaimana diatur dalam ketentuan hukum pidana dalam arti sebenarnya. Hal tersebut disebabkan adanya pertimbangan-pertimbangan tertentu. Pertama, perbuatan yang dilarang dalam hukum pidana administrasi lebih berorientasi pada perbuatan yang bersifat mala prohibita, sedangkan dalam ketentuan hukum pidana yang sesungguhnya berorientasi pada perbuatan yang bersifat mala in se. Kedua, sebagai konsekuensi dari adanya penggolongan dua kategori kejahatan tersebut, maka pertimbangan yang dijadikan acuan juga akan berbeda. Untuk yang pertama (mala prohibita), sanksi pidana itu dibutuhkan untuk menjamin ditegakkannya hukum administrasi tersebut. Dalam hal ini sanksi pidana berfungsi sebagai pengendali dan pengontrol tingkah laku individu untuk mencapai suatu keadaan yang diinginkan. Sedangkan untuk yang kedua (mala in se), fungsi hukum pidana dan sanksi pidana lebih berorientasi pada melindungi dan mempertahankan nilai-nilai moral yang tertanam di masyarakat tempat di mana hukum itu diberlakukan atau ditegakkan. Kata Kunci: Kebijakan, Kriminalisasi, Undang-Undang PolitikThis article discusses two main problems: firstly, the criteria used by the legislators in the field of politics in determining an act as a criminal act (criminalization); secondly, the function of criminal sanctions in legislation in the field of politics. Associated with criminalization, legislation in the field of politics that is included in administrative law, the consideration of the legislators of course not just criminalization as stipulated in the provisions of criminal law in the true sense. This is due to certain considerations. Firstly, the act which is forbidden in the administration of criminal law is more oriented to act is malum prohibitum offences, whereas in actual criminal law provisions in the act are mala in se offences. Secondly, as a consequence of the existence of two categories of classification of the crime, then consideration will also vary as a reference. For the first (mala prohibita), criminal sanctions are needed to ensure the enforcement of the administrative law. In this case the criminal sanction serves as controller and controlling the behavior of individuals to achieve a desired state. As for the second (mala in se), the function of criminal law and criminal sanctions is more oriented to protect and maintain the moral values that are embedded in a society where the law was enacted or enforced.


2018 ◽  
Vol 1 ◽  
pp. 46-56
Author(s):  
Aleksandr V. Fedorov ◽  
◽  
Mikhail V. Krichevtsev ◽  

The article reviews the history of development of French laws on criminal liability of legal entities. The authors note that the institution of criminal liability of legal entities (collective criminal liability) dates back to the ancient times and has been forming in the French territory for a long time. Initially, it was established in the acts on collective liability residents of certain territories, in particular, in the laws of the Salian Franks. This institution was inherited from the Franks by the law of the medieval France, and got transferred from the medieval period to the French criminal law of the modern period. The article reviews the laws of King Louis XIV as an example of establishment of collective criminal liability: the Criminal Ordinance of 1670 and the Ordinances on Combating Vagrancy and Goods Smuggling of 1706 and 1711. For the first time ever, one can study the Russian translation of the collective criminal liability provisions of the said laws. The authors state that although the legal traditions of collective liability establishment were interrupted by the transformations caused by the French Revolution of 1789 to 1794, criminal liability of legal entities remained in Article 428 of the French Penal Code of 1810 as a remnant of the past and was abolished only as late as in 1957. The publication draws attention to the fact that the criminal law codification process was not finished in France, and some laws stipulating criminal liability of legal entities were in effect in addition to the French Penal Code of 1810: the Law on the Separation of Church and State of December 9, 1905; the Law of January 14, 1933; the Law on Maritime Trade of July 19, 1934; the Ordinance on Criminal Prosecution of the Press Institutions Cooperating with Enemies during World War II of May 5, 1945. The authors describe the role of the Nuremberg Trials and the documents of the Council of Europe in the establishment of the French laws on criminal liability of legal entities, in particular, Resolution (77) 28 On the Contribution of Criminal Law to the Protection of the Environment, Recommendation No. R (81) 12 On Economic Crime, the Recommendation No. R (82) 15 On the Role of Criminal Law in Consumer Protection and Recommendation No. (88) 18 of the Committee of Ministers to Member States Concerning Liability of Enterprises Having Legal Personality for Offences Committed in the Exercise of Their Activities. The authors conclude that the introduction of the institution of criminal liability of legal entities is based on objective conditions and that research of the history of establishment of the laws on collective liability is of great importance for understanding of the modern legal regulation of the issues of criminal liability of legal entities.


2016 ◽  
Vol 1 (1) ◽  
pp. 127
Author(s):  
Pujiyono Pujiyono

Based on delinquiry non-potes doctrine, perpetrator and criminal responsibility are done by human (natuurlijk persoonen). Modernity can not be avoided by the development of corporation function. A research is needed to be conducted to answer questions whether criminal law is effective to overcome corporate crime and which corporation criminal responsibility model that can keep the balance of the protection of society and corporation interests through restorative justice approach. This study focuses on finding a win-win solution model of corporation criminal responsibility policy to keep the balance of the protection of society and corporation interests. This study used normative juridical method based on the secondary data,. The result of this research shows that criminal law with its retributive approach and its action which focus on the perpetrator is ineffective to handle corporate crime, because it ignores the victim To overcome those problems, corporation criminal responsibility model based on restorative justice approach in the form of “dual track system selective” is introduced.  Keywords: Criminal Responsibility, Corporation and Restorative Justice


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