scholarly journals The Formulation Policy on Corporate Criminal Liability System For The 1950 - 2017 Period and Its Harmonization in The Renewal of National Criminal Law

2018 ◽  
Vol 5 (2) ◽  
pp. 133
Author(s):  
Dwidja Priyatno ◽  
Kristian Kristian
Keyword(s):  
Research Method ◽  
Criminal Liability ◽  
Secondary Data ◽  
Criminal Code ◽  
Analysis Method ◽  
Legal Development ◽  
The Subject ◽  
Corporate Criminal Liability ◽  
Interpretation Method ◽  
Oriented Approach

The Criminal Code (KUHP) which currently applies does not recognize corporations as the subject of criminal acts. Therefore, the formulation/legislation policy concerning corporate criminal liability system in Indonesia is only regulated in various specific criminal laws (lex specialis). This research discusses the formulation/legislation policy regarding the corporate criminal liability system in 124 special criminal legislations outside the Criminal Code (KUHP) from 1950-2017. This research used a normative juridical research method as well as interpretation method with a policy-oriented approach. Types and sources of data used were secondary data in the form of primary, secondary, and tertiary legal materials. The collected data were then analyzed based on qualitative analysis method. The results of the research showed that the corporate criminal liability system in legal politics in Indonesia (especially in the formulation/legislation policy) still experiences disorientation and disharmonious. Besides, the national law development should follow every development and/or change of society that is developing in the direction of modernization and globalization and should be able to accommodate all society�s needs in various fields. This legal development should be continuously carried out (as a dynamic and an endless process) by "improving (making things better)" and "changing the law to be better and modern".Kitab Undang-Undang Hukum Pidana (KUHP) yang saat ini berlaku tidak mengakui korporasi sebagai subjek tindak pidana.Oleh karenanya, kebijakan formulasi/legislasi mengenai sistem pertanggungjawaban pidana korporasi di Indonesia hanya diatur dalam berbagai peraturan perundang-undangan pidana yang bersifat khusus (lex specialis). Penelitian ini akan membahas mengenai kebijakan formulasi/legislasi mengenai sistem pertanggungjawaban pidana korporasi dalam 124 (seratus dua puluh empat) peraturan perundang-undangan pidana khusus di luar Kitab Undang-Undang Hukum Pidana (KUHP) dari tahun 1950-2017. Penelitian ini menggunakan metode penelitian yuridis normatif dan metode interpretasi dengan pendekatan yang berorientasi pada kebijakan (policy oriented approach). Jenis dan sumber data yang dipergunakan adalah data sekunder yang berupa bahan hukum primer, bahan hukum sekunder dan bahan hukum tertier. Data yang telah terkumpul akan dianalisis berdasarkan metode analisis secara kualitatif. Hasil penelitian menunjukan bahwa sistem pertanggungjawaban pidana korporasi dalam politik hukum di Indonesia (khususnya pada kebijakan formulasi/legislasi) masih mengalami disorientasi dan disharmoni. Selain itu, pembangunan hukum nasional harus mengikuti setiap perkembangan dan/atau perubahan masyarakat yang sedang berkembang ke arah modernisasi dan globalisasi serta mampu menampung semua kebutuhan masyarakat di berbagai bidang. Pembangunan hukum seperti ini harus terus-menerus dilakukan (sebagai proses yang dinamis dan proses yang tidak pernah berakhir) dengan cara �menyempurnakan (membuat sesuatu yang lebih baik)� dan �mengubah agar hukum menjadi lebih baik dan modern�.

scholarly journals THE ROLE OF GENERAL ATTORNEY IN ERADICATION OF CORRUPTION BY CORPORATION

2019 ◽  
Vol 4 (2) ◽  
pp. 152
Author(s):  
Satya Marta Ruhiyat ◽  
Ismansyah Ismansyah ◽  
Nani Mulyati
Keyword(s):  
Qualitative Methodology ◽  
Criminal Liability ◽  
Criminal Code ◽  
The Public ◽  
Law Enforcement Officials ◽  
The Subject ◽  
Legal Subjects ◽  
Corporate Criminal Liability ◽  
Corporate Liability

Considerable efforts have been made to fight corruption, however it continues to occur in Indonesia. In the present time, corruptions do not only carry out by individuals but also by corporations. However, the Criminal Code and Criminal Procedure Code do not recognize and regulate corporations as the subject of criminal acts, so that law enforcement officials, especially prosecutors, have difficulty in charging corporations. This paper tries to answer question about the role of prosecutors in the eradication of corruption by corporation based on The General Attorney Regulation Number: PER-028/A/JA/10/2014 on guidelines for prosecuting corporation. The research method employed is normative juridical method, where the data is analyzed with qualitative methodology. The General Attorney Regulation on Corporate Legal Subjects explains more apparent criteria for actions that can be attributed to the corporation. The regulation combines several theories of corporate criminal liability not only heavily rely on vicarious criminal liability theory. It also provides direction about the separation of corporate liability and director’s liability. With this guideline, the public prosecutors have clearer direction to be able to charge the corporation so that it can restore the state finances that have been harmed by the corruption act.

scholarly journals Criminal Responsibility on Captain of Commersial Vessel by Act No 17 of 2008 on Voyage

2020 ◽  
Vol 3 (1) ◽  
pp. 63
Author(s):  
Subekhan Subekhan ◽  
Lathifah Hanim
Keyword(s):  
Criminal Responsibility ◽  
Criminal Liability ◽  
Descriptive Analysis ◽  
Secondary Data ◽  
Legal Certainty ◽  
Subject Field ◽  
Criminal Sanctions ◽  
Implementation Guidelines ◽  
The Subject ◽  
Corporate Criminal Liability

The cruise is one of the nation's transportation system that has a strategic importance and as a liaison and outreach throughout the territory of Indonesia's sovereignty and the potential beneficial role for society, both nationally and internationally. The problems of this study are: 1) Why the skipper commercial vessels should be responsible in case of Vesselwreck, 2) How does the skipper criminal liability due to accidents aboard commercial vessels according to Act No. 17 Of 2008 On Voyage? 3) Is it possible corporate criminal liability in accidents merchant vessel according to Act No. 17 Of 2008 On Voyage?Researchers used the method is legal normative juridical approach and specification in this study were included descriptive analysis.� Sources and types of data in this research is secondary data obtained from the study of literature. Data were analyzed qualitatively. The problems studied by the theory of legal certainty and criminal liability.Based on the results of research that skipper as a leader on the Vessel, is fully responsible for the safety of the Vessel, passengers and cargo during the voyage from the port of loading to the port of destination. Criminal sanctions needed to enforce these responsibilities, and sanctions that have been regulated in Act No. 17 Of 2008 on Voyage Article 244 paragraph (3) and (4), 20 Article 247 and Article 248 shall be punished with imprisonment beyond three (3) years or a fine of Rp 400.000.000.00, - (four hundred million). Obliged to take countermeasures, ask or give aid and spread the news of the Vesselwreck to others. If an accident occurs on board the skipper must be above board and record events such accidents in the logbook and reported to the harbor master. There are still many weaknesses of criminal responsibility in the corporation, among others: when the corporation is declared as a criminal, how the corporation is responsible, the types of sanctions what can be meted out to the corporation, not regulated penal substitute fines are not paid by the corporation and unregulated the offense to corporation. Because implementation guidelines in the draft penal Code there is renewal in the subject field of the offense and criminal liability system.Keywords: Commercial Vessels; Skipper; Criminal Liability.

scholarly journals Theoretical and Conceptual Reflection Regarding Corporate Criminal Responsibilities Influencing the Formulation of Laws

Lentera Hukum ◽  
2020 ◽  
Vol 7 (1) ◽  
pp. 17
Author(s):  
Fitriani Rahmadia
Keyword(s):  
Criminal Law ◽  
Corporate Responsibility ◽  
Corporate Crime ◽  
Criminal Liability ◽  
Criminal Code ◽  
Policy Formulation ◽  
Legal Subject ◽  
Criminal Sanctions ◽  
The Subject ◽  
Corporate Criminal Liability

In Indonesia, the development of the corporation as the subject to criminal acts takes place outside the Criminal Code, regulated in special legislation. While the Criminal Code itself still adheres to the subject of criminal acts in the form of people, the corporation (juridical person) appears as a subject that can commit a crime and should also be accountable in criminal law. However, this condition has not been realized concretely in our Criminal Code. The formulation policy regarding corporate criminal liability for victims of corporate crime that exists or is currently in force has not been able to realize the corporate criminal liability. Although there are sanctions that can be imposed on corporations, most of these provisions only protect potential victims and are not responsible for actual or real victims. In other words, the current formulation policy has not been able to ensnare and impose criminal sanctions on corporations who commit crimes, especially criminal sanctions which are oriented to the fulfillment or restoration of victims' rights in the form of compensation payments after the crime. This paper will discuss the position and the responsibility of the corporation as a subject of criminal law in Indonesia and analyze policy formulation of the Criminal Code and the draft of the Criminal Code that related to corporate responsibility as a legal subject. Keywords: Corporate Criminal Responsibilities, Criminal Law, Corporate Responsibility.

scholarly journals Concept Of Criminal Liability Of Notary Law In Deed Making Based On Perjury

Jurnal Akta ◽  
2020 ◽  
Vol 6 (4) ◽  
pp. 675
Author(s):  
Ailina Rahmanita Fauzi ◽  
Sri Endah Wahyuningsih
Keyword(s):  
Criminal Responsibility ◽  
Criminal Liability ◽  
Descriptive Analysis ◽  
Secondary Data ◽  
Field Studies ◽  
Criminal Code ◽  
Primary Data ◽  
Element Formulation ◽  
False Information ◽  
Civil Suit

Purpose research These are 1) To analyze the concept of criminal responsibility notary law in the deed that is based on false information. 2) To analyze the legal consequences of the deed notary Based on False Information.The method used by researchers is Empirical Juridical (socio legal research)and specification in this study were included descriptive analysis. Even the sources and types of data in this study are primary data obtained from field studies with an interview with a notary in Grobogan. And secondary data obtained from the study of literature. This study uses qualitative data analysis Based on the results of research that 1) Notaries can not be held criminal liability associated with the manufacture of the deed (partijnakten) based on false information, and can not meet the crime of counterfeiting element formulation in Article 266 paragraph (1) in conjunction with Article 55 paragraph (1) of the Criminal Code. 2) However, the notary can be held criminal liability against relaas deed or deed of officials (ambtelijke akten) if deliberate or careless notary make a fake deed to the detriment others. That made base on notary deed against false information does not in itself result in the deed null and void. The aggrieved party to the existence of the deed as it should file a civil suit to the court to cancel the deed.Keywords : Concept of Law; Criminal Responsibility; Notary; Deed; Specification False

scholarly journals RESPONSIBILITY OF CARRIER AGAINST THE OWNER OF GOODS DUE TO ACCIDENTS IN SEA TRANSPORTATION

2020 ◽  
Vol 1 (2) ◽  
Author(s):  
Rahmadsyah Rahmadsyah
Keyword(s):  
Research Method ◽  
Secondary Data ◽  
Analysis Method ◽  
Unexpected Events ◽  
Sea Transport ◽  
Shipping Company ◽  
Sea Transportation ◽  
Analytical Research ◽  
Data Source ◽  
Conducting Research

<p class="BodyAbstract">Sea transportation has an important role in the development of the community because the flow of goods and the traffic of people (passengers) by sea can run smoothly.  With the smooth traffic of goods and passengers, this certainly makes it easier for people to meet their needs. Sea transportation activities are inseparable from the risk of unexpected events, one of which is ship accident.  Based on this background the authors are interested in conducting research with the title "Responsibility of Carrier Against the Owner of Goods Due to Accidents in Sea Transportation, formulation of the problem: 1. How is the responsibility of the carrier to the owner of goods in the event of damage to goods due to accidents in sea transportation?, 2. How Compensation for compensation if there is a loss in transporting goods by sea?  In this paper the research method used is a normative juridical approach, descriptive analytical research specifications, the main data source uses secondary data, the data analysis method uses qualitative methods.  Research and discussion results are as follows: 1. Maintain the safety of the goods transported from the time of receipt until the time of delivery and has become the responsibility of the carrier if the goods are wholly or partly unable to be delivered or damaged The transporter is obliged to compensate for the loss of the goods being transported 2. If an accident occurs in sea transport recipient of goods does not receive the goods as stated in the agreement of the consensus of the recipient is obliged to make a claim letter to the shipping company within the specified time by explaining the loss suffered.</p>

scholarly journals ANALISIS PUTUSAN NOMOR 559/PID.B/2017/PN.BYW. PENGADILAN NEGERI BANYUWANGI TENTANG PENYEBARAN AJARAN KOMUNISME/MARXISME-LENINISME SECARA MELAWAN HUKUM BERDASARKAN PASAL 107A KUHP

2019 ◽  
Vol 2 (2) ◽  
pp. 1108
Author(s):  
Andreas Purba ◽  
Firman Wijaya
Keyword(s):  
Research Method ◽  
Criminal Liability ◽  
Criminal Code ◽  
Basic Element ◽  
District Court ◽  
Prison Sentence ◽  
Legal Research ◽  
State Security ◽  
Individual Accountability

Budi Pego was charged with violating Article 107a of Law Number 27 of 1999 concerning Amendment to the Criminal Law Code relating to crimes against State security, because of. Because of these accusations, Budi Pego was charged with a 10-month prison sentence in the Banyuwangi District Court. The problem faced is how criminal liability on the perpetrators of the spread of the teachings of communism in terms of Article 107A of the Criminal Code (case study of decision No. 559 / Pid.B / 2017 / PN.Byw)? The research method used is normative legal research. The results showed that criminal liability on the perpetrators of the spread of the teachings of communism in terms of Article 107A of the Criminal Code in Decision No. 559 / Pid.B / 2017 / PN.Byw. it is inappropriate if this criminal liability model is applied to criminal liability to individuals. Considering that individual accountability still requires actions and mistakes as a basic element of accountability. That is, without any deeds and mistakes, there is no criminal liability. Regarding the Budi Pego case, the policy of criminalizing the ideology of Communism/Marxism-Leninism was decriminalized. If this cannot be done, then the legislators need to revise Law No. 27 of 1999 with the concept of eliminating articles containing formal offenses and replacing them with the formulation of material offenses and in the formulation of the weight of sanctions.

scholarly journals CORPORATE CRIMINAL LIABILITY IN INDONESIA ON THE PERSPECTIVE OF COMPARISON

2017 ◽  
Vol 2 (2) ◽  
pp. 144-154
Author(s):  
Muchammad Chasani
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Justice System ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Criminal Offense ◽  
Criminal Legislation ◽  
Corporate Criminal Liability ◽  
Responsibility System

The regulation of corporate criminal liability in Indonesia's criminal justice system is basically a new and still debatable issue. It is said that because in the Criminal Code is not recognized and regulated explicitly about the corporation as a subject of criminal law. This is a natural thing since the WvS Criminal Code still adheres to the principle of "societas delinquere non potest" or "non-potest university delinquere", that is, a legal entity can not commit a crime. Thus, if in a society there is a criminal offense, then the criminal act is deemed to be done by the board of the corporation concerned. Regarding the corporate criminal responsibility system in Indonesia, in the corruption law Article 20 paragraph (1), if the corporation committed a criminal act of corruption, then those responsible for the criminal act shall be the corporation only, the management only, or the corporation and its management. Thus, it can be said that the regulation of corporate criminal liability in the legal system in Indonesia is expressly only regulated in special criminal legislation, because the Criminal Code of WvS still adheres to the principle of "societas delinquere nonpotest" so it is not possible to enforce corporate criminal liability in it.

Trial and Error—A Critique of the New German Draft Code for a Genuine Corporate Criminal Liability

2015 ◽  
Vol 16 (4) ◽  
pp. 871-886
Author(s):  
Markus Rübenstahl ◽  
Christian Brauns
Keyword(s):  
Due Process ◽  
Criminal Liability ◽  
Criminal Code ◽  
Federal State ◽  
Trial And Error ◽  
Criminal Offenses ◽  
Specific Proposal ◽  
Draft Bill ◽  
Corporate Criminal Liability ◽  
Over The Top

The following article aims to analyze the first German draft bill concerning a corporate criminal code. The draft bill, recently introduced by the federal state of Nordrhein-Westfalen, led to a transformation of a theoretical academic discussion towards a specific proposal on potential future legislation. Firstly, the article introduces underlying reasons for the draft based on deficiencies of the current legislation. Current regulations solely provide corporate administrative responsibility for criminal offenses committed by a corporation's management (involving huge fines). Subsequently, the article reviews the content of the draft, specifically the multiplicity of proposed criminal and other penalties. The authors intend to demonstrate that the draft is often too vague or—especially with regard to penalties—simply over the top. The applicable sanctions – which may be combined- would lead to a more draconic punishment than in any other comparable legal system. Furthermore, regarding the principles of due process and strict legality the proposed procedural rules of the draft are not satisfying. After all, the proposed procedural measures to safeguard the proceedings and the rules on representation and defense counsel are deficient.

Accountability of Canadian Mining Corporations for Their Overseas Conduct: Can Extraterritorial Corporate Criminal Prosecution Come to the Rescue?

2017 ◽  
Vol 54 ◽  
pp. 227-275 ◽  
Author(s):  
CHILENYE NWAPI
Keyword(s):  
Developing Countries ◽  
Criminal Liability ◽  
Legal Framework ◽  
Criminal Code ◽  
Criminal Prosecution ◽  
Environmental Rights ◽  
Canadian Government ◽  
Justice Process ◽  
Corporate Criminal Liability ◽  
Accountability Gap

AbstractThis article is set against the backdrop of the inability of Canadian courts to hear civil cases brought by victims of the operations of Canadian mining corporations in developing countries where accountability mechanisms are weak. The article examines the legal framework for extraterritorial criminal prosecution in Canada with a view to seeing how corporate criminal prosecution could fill the accountability gap and contribute to the promotion of the accountability of Canadian mining corporations involved in human and environmental rights abuses in developing countries. The article argues that extraterritorial criminal prosecution holds prospects for success in Canada, if only the Canadian government is willing to utilize it. The real and substantial link test, the Crimes against Humanity and War Crimes Act, and several sections of the Criminal Code provide sufficient jurisdictional bases for such prosecution. The amendments to the doctrine of corporate criminal liability that were made in Canada in 2003 bolster the criminal jurisdictional strength of Canadian courts. Lastly, there are no compelling international comity concerns to discourage the Canadian government from utilizing the criminal justice process to contribute to the global fight against corporate impunity in human and environmental rights abuses. This article seeks to contribute to the knowledge of the powers at the disposal of the Canadian government to do so.

scholarly journals The Criminal Enforcement Of The Fraud Mode Of Multiple Money (Case study Decision No.61 / Pid.B / 2019 / PN.Blora)

2020 ◽  
Vol 3 (1) ◽  
pp. 237
Author(s):  
Sumaryono Sumaryono ◽  
Sri Kusriyah Kusriyah
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Research Method ◽  
Field Research ◽  
Secondary Data ◽  
Criminal Code ◽  
Primary Data ◽  
Public Prosecutor ◽  
The Public

Fraudulent criminal acts that have been regulated in the Criminal Code (KUHP) with various modes, one of which is fraud by shamans with a multiplied money mode has made law enforcers increasingly have to rack their brains to be able to prove it. This study aims to examine and analyze law enforcement by the judge in decision No.61 / Pid.B / 2019 / PN.Blora with consideration of the criminal elements. The research method used is a sociological juridical approach. The specifications of the study were conducted using descriptive analytical methods. The data used for this study are primary and secondary data. The data consists of primary data and secondary data using field research methods, interviews, and literature studies. Based on the research it was concluded that the case ruling number 61 / Pid.B / 2019 / PN Bla with a fraud case with shamanism practices in the mode of duplicating the judge's money considering that the Defendants have been indicted by the Public Prosecutor with alternative indictments, so the Panel of Judges paid attention to the facts The aforementioned law decides on the first alternative indictment as regulated in Article 378 of the Criminal Code Jo Article 55 paragraph (1) of the 1st Criminal Code by considering the elements of that article.Keywords: Criminal Law Enforcement; Fraud; Multiple Money.

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