scholarly journals CORPORATE LIABILITY FORMULATION POLICY ACCORDING TO ARTICLE 101 OF LAW NUMBER 31 OF 2004 JUNCTO LAW NUMBER 45 OF 2009 CONCERNING FISHERIES IN TERM OF CRIMINAL LEGAL REFORM IN INDONESIA

2021 ◽  
Vol 11 (2) ◽  
pp. 123-133
Author(s):  
Vivi Tri Kasih ◽  
Antory Royan Adyan ◽  
Herlambang Herlambang
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Law Reform ◽  
Management Structure ◽  
Criminal Sanctions ◽  
Illegal Fishing ◽  
Fisheries Law ◽  
Corporate Liability ◽  
The Brain

The corporation is the brain and source of funds for all illegal fishing activities and other crimes that occur along the chain of fishing business activities. According to Law Number 31 of 2004 in conjunction with Law Number 45 of 2009 concerning Fisheries, Article 101 states that: "In the case of a criminal acts as referred to in Article 84 paragraph (1), Article 85, Article 86, Article 87, Article 88, Article 89, Article 90, Article 91, Article 92, Article 93, Article 94, Article 95, and Article 96, the acts are committed by corporations; prosecution and criminal sanctions are imposed on their management and the fine is added by 1/3 (one third) of the sentence imposed." It is necessary to renew the Fisheries Law in order to provide an overview in determining the Corporate Liability Formulation Policy according to Article 101 of Law Number 31 of 2004 in conjunction with Law Number 45 of 2009 concerning Fisheries in the context of Criminal Law Reform in Indonesia. The type of this research was normative by using primary, secondary and tertiary sources of legal materials. From the results of research and discussion, it was revealed that Corporate Liability according to Article 101 of Law Number 31 of 2004 in conjunction with Law Number 45 of 2009 concerning Fisheries in Indonesia currently does not explain things about the meaning of the word "management", which parties in the management structure of a corporation that can be held accountable, or to what extent the authority possessed by parties in the management structure of a corporation can be subject to criminal responsibility. Therefore, the Corporate Liability Formulation Policy according to Article 101 of Law Number 31 of 2004 in conjunction with Law Number 45 of 2009 concerning Fisheries in the context of Criminal Law Reform in the future should be changed, this is important considering the formulation stage is the most strategic stage in the efforts to prevent and to control crime by including / expanding criminal liability, not only for the management but also for the corporation and its management.

scholarly journals Pembaruan Pilar Hukum Pidana Dalam RUU KUHP

2021 ◽  
Vol 10 (2) ◽  
pp. 291
Author(s):  
Faisal Faisal ◽  
Muhammad Rustamaji
Keyword(s):  
Criminal Law ◽  
Research Method ◽  
Research Study ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Criminal Code ◽  
Law Reform ◽  
Legal Research ◽  
Discussion Section ◽  
The Ideal

The basic idea underlying the reform of  the Criminal Code Bill has an impact on reforming the pillars of criminal law. The purpose of this research is to find out the new direction of criminal law policy regarding criminal acts, criminal responsibility and punishment. The research method uses normative legal research. The results of the research study in the discussion section are the reform of the pillars of criminal law, namely criminal acts, criminal liability, and punishment oriented to the basic idea of ??the value of balance. The reform of the pillars of criminal acts is aimed at broadening the meaning of the legality principle which provides space for living law as a source of law and also creates juridical terminology regarding criminal acts. The pillar of criminal responsibility accommodates the principle of no crime without error. The pillar of punishment is that the purpose of punishment is no longer synonymous with retaliation, but there are efforts to improve the behavior of the perpetrators of crime. The changes in the three pillars are influenced by the basic idea of ??balancing the values ??of Pancasila, namely the values ??of Divinity, Humanity, and Society. Recommendations in strengthening the direction of criminal law reform are needed in formulating criminal provisions outside the Draft Criminal Code that must be in accordance with the basic idea of ??balance which is the ideal of criminal law reform law. Ide dasar yang melandasi pembaruan RUU KUHP berdampak pada pembaruan pilar hukum pidana. Tujuan penelitian untuk mengetahui arah baru kebijakan politik hukum pidana mengenai tindak pidana, pertanggungjawaban pidana dan pemidanaan. Metode penelitian menggunakan penelitian hukum normatif. Hasil kajian penelitian dalam bagian pembahasan ialah pembaruan pilar hukum pidana yakni tindak pidana, pertanggungjawaban pidana, dan pemidanaan berorientasi pada ide dasar nilai keseimbangan. Pembaruan pilar tindak pidana tertuju pada perluasan makna asas legalitas yang memberikan ruang pada hukum yang hidup sebagai sumber hukum dan melahirkan pula terminologi yuridis mengenai tindak pidana. Pilar pertangungjawaban pidana mengakomodasi asas tiada pidana tanpa kesalahan. Pilar pemidanaan bahwa tujuan pemidanaan tidak lagi identik pembalasan akan tetapi ada upaya memperbaiki perilaku dari pelaku kejahatan. Perubahan ketiga pilar tersebut dipengaruhi oleh ide dasar keseimbangan nilai Pancasila yaitu nilai Ketuhanan, Kemanusiaan, dan Kemasyarakatan. Rekomendasi dalam memperkuat arah pembaruan hukum pidana diperlukan dalam merumuskan ketentuan pidana di luar RUU KUHP harus sesuai dengan ide dasar keseimbangan yang menjadi cita hukum pembaruan hukum pidana

scholarly journals REFORMULATION OF THE CRIMINAL LIABILITY AS AN ACTOR OF ONLINE PROSTITUTION: A NORMATIVE STUDY

2017 ◽  
Vol 2 (2) ◽  
pp. 132-143
Author(s):  
Subaidah Ratna Juita
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Secondary Data ◽  
Law Reform ◽  
Normative Study ◽  
National Regulation ◽  
Library Research ◽  
Concrete Form ◽  
Legal Sense

One of the rational efforts used to tackle online prostitution activity is with the approach of criminal law through criminal law formulation as a concrete form of criminal responsibility to the perpetrators of online prostitution. There is no provision that regulates the criminal to the users of online prostitution services because of the maximum prevention of online prostitution itself. If there is no national regulation governing the matter, online prostitution users will feel secure and remain free to buy services for their satisfaction alone, while it is contrary to various aspects of norms in the ethical norms of society. Therefore a criminal law is required, related to criminal liability for users of online prostitution services. The method used is normative juridical, ie by examining or analyzing secondary data using basic materials, with legal sense as a set of rules or positive norms in the legislation system that regulates prostitution online, as well as using secondary legal materials, and tertiary. So this research is library research (library research), that is research to secondary data. Thus, the juridical-normative approach in the study is used to analyze issues relating to criminal law reform regarding criminal liability to online prostitution actor.

scholarly journals THE CRIMINAL RESPONSIBILITY BY CORPORATE

2021 ◽  
Vol 5 (1) ◽  
pp. 126
Author(s):  
Dwi Wahyono
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Analysis Method ◽  
Collection Method ◽  
Accountability System ◽  
Library Research ◽  
The Subject ◽  
Corporate Liability ◽  
Corporate Wrongdoing

Corporation is the subject of a criminal act. In Indonesia, the statutory regulations that initiated the placement of corporations as subjects of criminal acts and which can be directly accounted for are Act No. 7 the Emergency of 1955 concerning Investigation, Prosecution and Economic Criminal Justice, as subjects of criminal law corporations do not have an inner attitude. Meanwhile, to be criminally accountable, a men's rea/schuld is required. Crimes committed by corporations are very detrimental to society and the state. Meanwhile, the conventional accountability system which is individual, direct, and based on schuld, is difficult to apply to corporations. The purpose of writing is to analyze the corporate liability system to impose crimes against corporations, and obstacles to imposing crimes against corporations. The method used is the statute approach (legal approach) and the case approach (case approach), the analysis method uses qualitative analysis with interpretation, and the data collection method uses library research. It can be concluded that corporations can be held accountable by using a system of absolute and substitute liability, and the obstacle is the application of a conventional criminal liability system and the difficulty of proving corporate wrongdoing. It is suggested that there is a common perception between law enforcers about the criminality of corporations.

scholarly journals PERTANGGUNGJAWABAN PIDANA KORPORASI DALAM ILLEGAL FISHING DI INDONESIA

2018 ◽  
Vol 11 (2) ◽  
pp. 171
Author(s):  
Oksimana Darmawan
Keyword(s):  
Decision Maker ◽  
Criminal Liability ◽  
Court Decision ◽  
District Court ◽  
Legal Subject ◽  
Criminal Sanctions ◽  
Illegal Fishing ◽  
International Conventions ◽  
Fisheries Law ◽  
Corporate Criminal Liability

ABSTRAKIllegal fishing adalah kegiatan penangkapan ikan yang bertentangan dengan perundang-undangan suatu negara atau ketentuan internasional. Mengingat kerugian yang ditimbulkannya sangat besar dan sebagian besar pelakunya adalah korporasi, maka perlu dikaji bagaimana pertanggungjawaban pidana korporasi terhadap tindak pidana ini. Tulisan ini mengkaji bagaimana Putusan Nomor 01/PID.SUS/PRK/2015/PN.AMB terhadap kapal asing yang melakukan praktik illegal fishing di perairan Indonesia. Metode analisis yang diterapkan untuk menjawab permasalahan adalah dengan menggunakan metode yuridis kualitatif. Pelaku tindak pidana illegal fishing di wilayah perairan Indonesia secara umum adalah setiap orang yang diartikan perseorangan atau korporasi. Dalam hal pertanggunggjawaban pidana korporasi disebutkan dalam Pasal 101 Undang-Undang Nomor 31 Tahun 2004 tentang Perikanan jo. Undang-Undang Nomor 45 Tahun 2009 tentang Perubahan Atas Undang-Undang Nomor 31 Tahun 2004 tentang Perikanan, diketahui bahwa Indonesia masih menganut sistem pertanggungjawaban yang kedua, yaitu korporasi sebagai pembuat dan pengurus yang bertanggung jawab. Hal ini tampak tidak sebanding dengan efek dari kejahatan yang dilakukan. Oleh karena itu, perlu diadakan revisi terhadap undang-undang tersebut, sehingga korporasi sebagai pelaku kejahatan yang sesungguhnya dapat dimintai pertanggungjawaban dan dijatuhi sanksi pidana.Kata kunci: hukum laut dan perikanan, pertanggungjawaban pidana korporasi, illegal fishing. ABSTRACT Illegal fishing refers to activities which contravene a state’s fisheries law and regulations, or international conventions. Considering that the losses incurred are so massive and most of the perpetrators are corporations, the corporate criminal liability for this crime should be appraised. This paper examines how the Ambon District Court Decision Number 01/PID.SUS/PRK/2015/ PN.AMB responds to foreign vessels conducting illegal fishing in Indonesian waters. The problem was analyzed using qualitative juridical methods. The perpetrators of illegal fishing in Indonesian territorial waters in general are anyone as an individual or corporation. In corporate criminal liability, as stated in Article 101 of Law Number 31 of 2004 concerning Fisheries, Law Number 45 of 2009 concerning Amendments to Law Number 31 of 2004 concerning Fisheries, Indonesia still adheres to the second system of liability, in which the corporation as the responsible decision maker and board. This seems to be out of proportion to the effects of the crimes committed. Therefore, it is necessary to revise the law, so that corporation as the perpetrator can actually be held accountable and become a legal subject to criminal sanctions. Keywords: marine and fisheries law, corporate criminal liability, illegal fishing.

scholarly journals Formulation Policy Regarding the Smuggling of Lobster Seeds in Indonesia

Lentera Hukum ◽  
2020 ◽  
Vol 7 (1) ◽  
pp. 37
Author(s):  
Ayu Izza Elvany
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Criminal Liability ◽  
Legal Problem ◽  
Legal Research ◽  
Conceptual Approach ◽  
Criminal Offense ◽  
Penal Policy ◽  
Illegal Fishing ◽  
Corporate Criminal Liability

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.

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.

scholarly journals ‘The Very Foundations of Any System of Criminal Justice’: Criminal Responsibility in the Australian Model Criminal Code

2017 ◽  
Vol 6 (3) ◽  
pp. 8-24 ◽  
Author(s):  
Arlie Loughnan
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Code ◽  
Law Reform ◽  
Reform Process ◽  
Conceptual Level ◽  
Top Down ◽  
The Core ◽  
Reform Project

The Model Criminal Code (MCC) was intended to be a Code for all Australian jurisdictions. It represents a high point of faith in the value and possibility of systematising, rationalising and modernising criminal law. The core of the MCC is Chapter 2, the ‘general principles of criminal responsibility’, which outlines the ‘physical’ and ‘fault’ elements of criminal offences, and defines concepts such as recklessness. This paper assesses the MCC as a criminal law reform project and explores questions of how the MCC came into being, and why it took shape in certain ways at a particular point in time. The paper tackles these questions from two different perspectives—‘external’ and ‘internal’ (looking at the MCC from the ‘outside’ and the ‘inside’). I make two main arguments. First, I argue that, driven by a ‘top down’ law reform process, the MCC came into being at a time when changes in crime and criminal justice were occurring, and that it may be understood as an attempt to achieve stability in a time of change. Second, I argue that the significance of the principles of criminal responsibility, which formed the central pivot of the MCC, lies on the conceptual level—in relation to the language through which the criminal law is thought about, organised and reformed.

Criminal law measures to combat provocation of crimes and falsification of criminals

2021 ◽  
pp. 127
Author(s):  
Viktor N. Borkov
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Legal Status ◽  
Criminal Responsibility ◽  
Criminal Liability ◽  
Legal Aspects ◽  
Theory And Practice ◽  
Criminal Prosecution ◽  
Actual Problem ◽  
The Individual

The article examines the criminal-legal aspects of the actual problem of protecting the inviolability of the individual from the unacceptable activity of state representatives in the exercise of law enforcement functions. Topical issues for theory and practice of the legal nature of the provocation of crime and the falsification of criminals remain debatable. There are no unified approaches to the qualification of provocative and inflammatory actions and cases of "throwing" objects to citizens, for the turnover of which criminal responsibility arises, there is no theoretical justification for the criminal legal status of persons provoked to commit a crime. The article shows that the qualification of common cases of provocation of crimes and falsification of criminals according to the norms providing for liability for abuse of official authority, falsification of evidence or the results of operational investigative activities should be recognized as not accurate. At the same time, responsibility for these actions committed by subjects who are not officials, and without the participation of the latter, has not been established at all. The author proposes a draft criminal law provision providing for liability for inducing to commit a crime or its staging in order to illegally create grounds for criminal prosecution. The paper questions the approach according to which a person provoked by law enforcement officers to commit a crime is not subject to criminal liability regardless of the specifics of the encroachment.

Reconsidering criminal law-based liability for corporations and directors in South Africa

2019 ◽  
Vol 26 (4) ◽  
pp. 1085-1094
Author(s):  
Herbert Kawadza
Keyword(s):  
South Africa ◽  
South African ◽  
Criminal Law ◽  
Negative Impact ◽  
Criminal Liability ◽  
Annual Reports ◽  
Content Type ◽  
Criminal Sanctions ◽  
Fresh Perspective ◽  
African Context

Purpose It is recognised that the mere proscription of corporate offences is not adequate to deter misconduct or engender compliance. There is a need for the enforcement of the rules through robust culture-changing sanctions. The purpose of this paper is to demonstrate the inadequacies of criminal law liability in ensuring compliance with ethical corporate conduct in South Africa. Design/methodology/approach This paper is purely qualitative. For expository purposes, it draws from the Criminal Procedure Act, 51 of 1977 as well the corporate criminality enforcement trends and data from the National Prosecutions Agency’s annual reports to demonstrate that much as criminal liability is enshrined in a statute it has, however, not yielded the expected results. It situates the debate within the broader economic criminological scholarship. Findings This paper argues that even though the option of prosecuting corporations and directors is part of South African law, many corporate offences are not brought into the criminal justice system. Judging by its erratic imposition, criminal liability has failed to express the indignation and condemnation that are normally attached to criminal sanctions. Several reasons account for this. These include evidentiary, legal, technical and definitional complexities of some corporate offences, which lead to them being regarded as “unprosecutable crimes”. This has a negative impact on enforcement. Originality/value This paper is novel because it approaches the debate from a fresh perspective, economics and criminology. Not much scholarly attention has been devoted to analysing the efficacy of criminal sanctions in the South African context. This paper attempts to fill that gap.

scholarly journals Some Aspects of Criminal Liability for Sports Injuries

2014 ◽  
Vol 14 (2) ◽  
pp. 59-69
Author(s):  
Bronislava Coufalová ◽  
Jan Pinkava
Keyword(s):  
Criminal Law ◽  
Criminal Responsibility ◽  
Sports Injuries ◽  
Criminal Liability ◽  
Strict Adherence ◽  
The Rule Of Law ◽  
Internal Relations ◽  
Legitimate Interests ◽  
The Subject ◽  
Individual Sports

Abstract The essence of the problem of using criminal law to affect sports injuries caused in sport lies in the fact that the means of criminal law to interfere in sport or not. From this perspective, we talk about two theories: the theory of absolute immunity sports and the theory of strict adherence to the rule of law. These two concepts are supplemented by a number of theories that perspective as an autonomous system that contains its own rules of conduct that regulate internal relations in sports. In the event that disciplinary liability is not sufficient in this case, can be applied liable under civil and administrative law. In the most serious cases, the possibility of protecting the rights and legitimate interests in sport according to the norms of criminal law. The subject of this article is selected aspects of criminal responsibility in different sports, both individual and collective. From individual sports we mainly deal with skiing. The contact sports in this article will be football, hockey and rugby.

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