scholarly journals THE CRIMINAL LAW POLICY FORMULATION IN LAW NUMBER 22 OF 2009 CONCERNING TRAFFIC AND TRANSPORTATION

2016 ◽  
Vol 1 (1) ◽  
Author(s):  
Marisa Kurnianingsih

Abstract This paper focuses on the criminal law formulation policy related to criminal Law No. 22 of 2009 concerning Traffic and transportation. The policy formulation certainly need to be tied in every stage of the making, the implementation and accomplishment in order to create a sustain system.  The formulation policy or the stage of making the law is a fundamental policy in criminal law policy because formulation policy is determinant of to whether a law could be applied in society. The issues discussed in this paper are: (1) How the formulation policy of criminal law in Law Number 22 Year 2009 regarding Traffic and transportation? (2) How the formulation policy of criminal law in the Law of Traffic and Transportation in the future? Firstly, the formulation policy of Law Number 22 Year 2009 regarding Traffic and Transportation will be discussed with three main discussion of criminal law which are criminal offense, criminal liability, and crime. Secondly, for the formulation policy of criminal law in the Law concerning traffic and transportation in the future the writer employs the concept of Penal Code 2012 as consideration to attain a formulation that could improve the current formulation. Such formulations are as followed:(a) qualifying offense should be retained but must be consistent with the legislators in the inclusion of criminal penalty so legal result will be clear. (b) In the arrangement of criminal penalty the criminal objective and guideline is needed. Keywords: policy formulation, criminal law, and Traffic

2020 ◽  
Vol 5 (1) ◽  
pp. 1-14
Author(s):  
Muhammad Thaufik Hidayat ◽  
Anis Widyawati

The purpose of this study is to explain and describe how the formulation policy of weekend detention in Indonesia's positive law and how the formulation policy of weekend detention in the Indonesian criminal law reform in the future  (ius constituendum). This research uses normative juridical method of research which is legal research conducted by examining the library material in the form of secondary data such as law or library material as well as other documents that support and data retrieval technique used is library research techniques and analysis of data used is interactive analysis model. The results showed that (1) criminal formulation policy the weekend detention in Indonesia's positive law of the arrangement in the correctional Institution is not regulated about the policy of weekend detention. However, in Indonesian positive law formulation has an assimilation program which is one of the programs in the actual criminal implementation almost resembles a weekend detention system. (2) The policy formulation of the weekend detention in the renewal of Indonesian criminal law (penal policy) can be done by the study of the law comparative countries such as France, Portugal, Vanuatu, Queensland and New South Wales that have implemented a relatively advanced prison system that is the weekend detention. The formulation of weekend detention that is expected to be valid in Indonesia in the future is to develop it firmly in the draft Penal code and paste it in article 65 the Draft Penal code or if the government is about to arrange codification in the law of criminal implementation, the weekend detention is entered in one of the types of criminal sanctions.


2018 ◽  
Vol 2 (3) ◽  
pp. 147-160
Author(s):  
Lucky Endrawati

Hukum pidana adat terdapat kaedah-kaedah yang mencerminkan nilai-niIai moral yang tinggi yang berlaku secara universal bagi seluruh masyarakat di Indonesia. Dengan demikian dapatlah disimpulkan bahwa hukum pidana adat telah mencerminkan nikai-nilai dalam pendekatan hukum progresif. Oleh karena itu, hukum pidana adat adalah mutlak perlu mendapatkan tempat bagi pembentukan KUHP Nasional di masa yang akan datang sebagai salah satu upaya pembaharuan hukum. Namun kiranya perlu dipertimbangkan bahwa didalam memberikan tempat kepada hukum pidana adat bagi pembentukan KUHP Nasional tersebut hendaknya dicari kaedah-kaedah yang hanya berlaku secara universal bagi seluruh masyarakat. Kaedah-kaedah tersebut kemudian dikodifikasikan dalam KUHP Nasional, sehingga ia akan menjadi kaedah-kaedah KUHP Nasional semata-mata, bukan sebagai kaedah hukum pidana adat lagi. Dalam hal ini berarti bahwa kedudukan hukum pidana adat telah digantikan hukum pidana nasional, namun yang tetap dijiwai perasaan hukum yang hidup didalam seluruh masyarakat di Indonesia. Adapun konsep transplatasi sanksi bagi pelanggar hukum pidana setempat, sebaiknya pengadilan memilih menjatukan tindakan (maatregel) yang dipertimbangkan dapat memberikan beban bagi si pelanggar, namun sebaliknya dapat memberikan manfaat langsung bagi rnasyankat setempat. Hal ini bertujuan mengembalikan keseimbangan yang ada didalam masyarakat yang bersangkutan. Hal yang kiranya perlu mendapat perhatian didalam menjatuhkan sanksi kepada si pelanggar hukum pidana setempat adalah : 1. Beratnya sanksi yang berupa tindakan tersebut disesuaikan berat ringannya pelanggaran yang dilakukan. 2. Beratnya sanksi juga disesuaikan dengan tingkat kemampuan si pelanggar yaitu sejauh mana ia dapat melaksanakan sanksi itu. 3. Apabila pelanggaran hukum pidana adat setempat tersebut ternyata terdapat pidananya didalam KUHP NasionaI, maka yang barus dipergunakan banyalah kaedah dan sanksi yang dirumuskan didalam KUHP Nasional. Customary criminal law has methods that reflect high moral values that apply universally to all people in Indonesia. Thus it can be concluded that customary criminal law reflects values in a progressive legal approach. Therefore, customary criminal law is absolutely necessary to get a place for the formation of the National Criminal Code in the future as an effort to reform the law. However, it is important to consider that in providing a place for customary criminal law for the establishment of the National Penal Code, methods should be sought that are universally applicable to all people. These methods are then codified in the National Criminal Code, so that they will become the National Criminal Code solely, not as a customary criminal law method anymore. In this case it means that the position of customary criminal law has been replaced by national criminal law, but that is still imbued with a feeling of law that lives in all people in Indonesia. As for the concept of transplanting sanctions for local criminal law offenders, the court should choose to unite actions (maatregel) which are considered to be a burden on the offender, but instead can provide direct benefits to the local community. This aims to restore the existing balance in the community concerned. Things that need attention in imposing sanctions on local criminal offenders are: 1. The severity of sanctions in the form of such actions is adjusted for the severity of the violations committed. 2. The severity of the sanction is also adjusted to the level of the offender's ability, namely the extent to which he can implement the sanction. 3. If the violation of the local customary criminal law turns out to have a criminal offense in the National Criminal Code, then only a number of methods and sanctions should be used which are formulated in the National Criminal Code. 


2013 ◽  
Vol 1 (1) ◽  
Author(s):  
Septa Candra

Concept of Criminal Liability in the Future of National Criminal Law. Separating criminal offense and libility would create a more comprehensive and systematic order towards penal code. This dualistic view implied that the formulation of criminal law only contain actus reus as an objective elements, while mens rea becomes the elements of criminal offense. The view also affect the liability concept. Based on this conception, the future national criminal law would be based on the actions and the doers (daad-dader-strafrecht). DOI: 10.15408/jch.v1i1.2979


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.


2021 ◽  
pp. 100-110
Author(s):  
Tetiana NIKIFOROVA

The grounds and conditions for the application of restrictive measures applied to persons, who have committed domestic violence, are provided in Art. 911 of the Criminal Code of Ukraine. It is established that in the science of criminal law there is a unanimous position that the basis for the application of restrictive measures under Art. 911 of the Criminal Code is the commission by a person of a crime related to domestic violence, and the conditions are: 1) sentencing a person not related to imprisonment; 2) release of a person from criminal liability on the grounds provided by the Criminal Code; 3) release of a person from punishment on the grounds provided by the Criminal Code. These conditions are alternative. The content of the concept of «crime related to domestic violence» is analyzed and it is established that it should be understood more broadly than the act provided for in Art. 1261 of the Criminal Code «Domestic Violence». It is proposed to add to Art. 911 of the Criminal Code a note explaining the meaning of the term «criminal offense related to domestic violence», where it is necessary to note that this concept is broader than the crime under Art. 1261 of the Criminal Code. The content of each of the conditions of application of restrictive measures is analyzed. It has been established that in the application of restrictive measures during the imposition of non-custodial sentences in practice there are problems with the interpretation of the relevant concept. It is proposed to clarify the meaning of the concept of «punishment not related to imprisonment» in Art. 911 of the Criminal Code. It is also established that the application of restrictive measures in releasing a person from criminal liability is a declarative norm and is subject to exclusion from the conditions of application of restrictive measures due to the incompatibility of the latter with the nature of exemption from criminal liability. The legislation clearly regulates the procedure for applying restrictive measures to persons released from serving a probation sentence. A number of problems that arise during the control over the behaviour of persons to whom restrictive measures have been applied by the probation authorities have also been identified. The solution to these problems is possible by harmonizing the provisions of the Criminal Code and the Law of Ukraine «On Probation», as well as other regulations governing the activities of probation bodies. It is proposed to refer the application of restrictive measures to supervisory probation, which will lead to a number of changes to the articles of the Law of Ukraine «On Probation» in terms of regulation of supervisory probation, to refer to probation subjects persons subject to restrictive measures, and to exclude the fact that it is assigned to a person released from serving a probation sentence, and in the regulations governing the development and implementation of probation programs to provide for their application to persons to whom restrictive measures have been applied. It is concluded that the probation body should be endowed with a coordinating function to implement all restrictive measures and it is necessary at the level of bylaws to establish a clear procedure for interaction of the probation body with the National Police, local state administrations and local governments to control the behaviour of individuals, which the appropriate restrictive measure is applied.


Jurnal MINUTA ◽  
2019 ◽  
Vol 1 (1) ◽  
pp. 20-27
Author(s):  
Arif Hidayat

Notary in making an authentic deed must be able to account for the deed if it turns out that in the future problems arise from the authentic deed both in terms of criminal law, civil law or State administration. The problems arising from the deed made by the Notary need to be questioned whether it is the result of an error from the Notary or the error of the viewer who does not provide information in accordance with the actual reality to the Notary. Such negligence or error can occur because the Notary in question is lacking or does not understand the construction or legal actions desired by the viewer so that the deed made is contrary to the provisions of the law. Such negligence or error can also be deliberately carried out by the concerned Notary. This study focuses on Law Number 30 Year 2004 as amended by Law Number 2 of 2014 concerning Notary Position wherein this study discusses the Notary who is unable to carry out his position so he has the right to submit written leave request and at the same time accompanied by the appointment of a substitute notary. After a while, a lawsuit from a party that feels aggrieved results from the deed made by Si X as a Substitute Notary. The results of this study concluded that a notary who leaves as a substituted notary has responsibility for the deed made by his successor notary even though he is on leave from his position where the responsibility is in the form of civil liability, if the substitute notary commits an error within the scope of authority given by a notary to a substitute notary. So in that case the notary is also liable for losses suffered by the parties due to the deed made by the substitute notary. Because the notary who is replaced is the owner of the office, if the notary of origin will file leave then he will appoint an employee from his own office as a substitute notary. Criminal responsibility, in the case of a criminal offense, a notary who is replaced is not responsible, for example in the case of tax evasion. Criminal liability can only be imposed on a substitute notary if he makes a mistake outside his authority as a substitute notary. Then the notary whose leave cannot be held accountable. The substitute notary is also entitled to get the same protection and legal guarantees because every citizen has the same rights before the law.


2019 ◽  
Vol 116 ◽  
pp. 41-58
Author(s):  
Rajnhardt Kokot

REMARKS ON CRIMINAL LIABILITY FOR CONTINUOUS CRIME IN VIEW OF THE DRAFT AMENDMENT TO THE PENAL CODE OF 25 JANUARY 2019The study contains an analysis and evaluation of some legal solutions proposed in the draft amendment to criminal law of 25 January 2019, especially regarding the sentence, both statutory and judicial. Attention was paid to changes that constitute the most vivid manifestations of the tendency clearly outlined in the draft — expressed explicitly in the assumptions of the postulated changes — towards increasing the repressive norms of the Penal Code of 1997. This is carried out on three main levels — 1 increasing the severity of sanctions for individual, selected types of crimes, 2 extending the application of the extraordinary institution to tighten the penalties and 3 changes to the court directive on the sentence. The study focuses on changes concerning the foundations and rules of the extraordinary progression of punishment, in particular on the modification referring to criminal liability for an offense committed in the conditions of a continuous act covered by the formula of Article 12 § 1 of the Penal Code. In this case, the project provides for mandatory toughening of the penalty by raising the lower liability threshold by half, and the upper one by two. In this regard, both the arguments of the position approving such a solution and the views of the part of the criminal law doctrine which fully accepts the law adopted in the Penal Code of 1997 and which are binding in this respect are presented.


2016 ◽  
Vol 9 (6) ◽  
pp. 61
Author(s):  
Samira Soltani ◽  
Ahmad Ramazani

One of the innovations of Islamic Penal Code in 2013 was to accept criminal liability of legal entities. By accepting criminal liability of legal entities, the way to punish them is arisen. As a legal person cannot commit any crime, any punishments are not applicable to them. Accordingly, Article 20 of this Law enumerated a list of penalties applicable to legal persons and it was tried to use penalties in accordance with the legal entities to deal with them. Punishments such as dissolution, confiscation, cash fine, announcement of the judgment, Diyeh, social and economic exclusion; such as a ban on business activities, prohibition of the public invitation to raise capital and ban from drawing business documents listed in Article 20 and Article 14, are a set of punishments which relatively different from usual punishment for individuals. These penalties are relative diversity, but what is objectionable is that the details and conditions of implementation of each of these punishments are not clear. If legislator described the details exactly or provided the condition to require the adoption of The Executive Bylaw of the punishment, it would be better. Given that all the points and issues about penalties for legal persons are not stated in this law as well as ambiguities in the law for a comprehensive definition of legal person, the way to implement main and supplementary punishments, In this study it was tried to evaluate and criticize the legal entities penalties including main and supplementary ones and their grading.


Justicia ◽  
2014 ◽  
Vol 19 (26) ◽  
Author(s):  
Consuelo Amparo Henao Toro ◽  
Ingrid Regina Petro Gonz ◽  
Felipe Andrés Mar

El presente artículo analiza la Justicia Penal Militar colombiana, su origen y evolución desde la vigencia del Decreto 2550 de 1988, según el cual los miembros de la Fuerza Pública podían ejercer simultáneamente las funciones de comando con las funciones de jurisdicción, toda vez que quien juzgaba no se encontraba técnicamente habilitado para desarrollar esa función por carecer de formación jurídica profesional y debía depender de terceras personas para emitir sus fallos, situación que contrariaba los principios de independencia e imparcialidad. Posteriormente, con la creación de la Ley 522 de 1999, actual Código Penal Militar, esas funciones fueron separadas y prohibidas, lo que amerita analizar estos principios a la luz de esta normativa penal militar.   AbstractThis article analyzes the Penal Military Colombian Justice system, its origin and evolution from the enforcement of Decree 2550 of 1988 according to which members of the security forces could exercise the functions of command simultaneously with the functions of jurisdiction, since he was deemed not technically qualified to perform that function due to lack of professional legal training and had to rely on third parties to issue their decisions, a situation that went against the principles of independence and impartiality. Later, with the creation of the Law 522 of 1999 current Military Penal Code, these functions were separated and thus deserving prohibited discuss these principles in light of the military criminal law.


Lentera Hukum ◽  
2020 ◽  
Vol 7 (1) ◽  
pp. 37
Author(s):  
Ayu Izza Elvany

This paper analyzes how formulation policy of lobster seeds smuggling regulated in Indonesian law to optimize the effectiveness of illegal fishing enforcement, considering penal policy is the basis of criminal law operationalization. This research uses both statute approach and conceptual approach as legal research methods to analyze the issued legal problem. Fishery law in Indonesia regulated in Law No. 45 of 2009 amending Law No. 31 of 2004 concerning Fishery, especially Articles 88 and 16 paragraph (1) which cover the formulation policy of lobster seeds smuggling enforcement. This study will be analyzed into three aspects which are the conduct (the criminal offense), criminal liability, and sentencing system. The result shows that law enforcement regarding the smuggling of lobster seeds in Indonesia is ineffective due to the nonexistence of corporate criminal liability in the fishery law and its sentencing system is lack of both the specific minimum penalty regulation and the penal measures as criminal punishment. However, the draft of the fishery law has already set corporate criminal liability; hence it also regulates the penal measures, in the form of secondary sanctions. Nevertheless, instead of enacting the specific minimum penalty, the draft only determined the maximum penalty as well. Keywords: Formulation Policy, Fishery Law, Lobster Seeds Smuggling.


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