How to cite:
Mohammad Fajarudin. (2021). Corporate Criminal Liability Arrangements
In The Ius Constituendum. Journal Eduvest. 1(7): 585-595
E-ISSN:
2775-3727
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https://greenvest.co.id/
Eduvest – Journal of Universal Studies
Volume 1 Number 7, July 2021
p- ISSN 2775-3735- e-ISSN 2775-3727
CORPORATE CRIMINAL LIABILITY ARRANGEMENTS IN THE
IUS CONSTITUENDUM
ARTICLE INFO ABSTRACT
Received:
June, 29
th
2021
Revised:
July, 9
th
2021
Approved:
July, 15
th
2021
The development of science and technology and globalization
were already unstoppable today, not only have a beneficial
impact, but also often have a negative impact for example by the
"globalization of crime" and the development of quality (modus
of operation) and the quantity of criminal acts. Offenses rife
nowadays with regard to the corporate existence of the
corporation is a criminal offense that could result in serious and
widespread impact, damage the joints of the nation and
threatens the stability of the State. Therefore, the law should take
back its role in order to create justice and welfare and in handling
needed ways remarkable that one of them is to make the
corporation as a subject of criminal law that is considered to be
committing a crime and can be criminally).
KEYWORDS
Criminal Law, Corporate Criminal Offense, Criminal Liability
Corporation
This work is licensed under a Creative Commons
Attribution-ShareAlike 4.0 International
INTRODUCTION
The development of crime is in line with the rapid growth of corporations in the field
of economic activity, what is called corporate crime (Muslim, 2021). Corporate crime is an
extraordinary crime. Even the impact is not only in the form of a momentary loss, but has
an impact in a very long time (KUSMIRAN, 2018). Therefore, Soesanto argues that the
idea of punishing corporations through criminal policies is getting stronger and more
important (Priyatno, 2017).
Recognition of the corporation as a subject of criminal law means that the
corporation can be accounted for. This also means that both among academics and
practitioners, this particular crime called corporate crime is considered a crime for which
the perpetrator (the corporation) can be accounted for in criminal law (Krismen, 2014).
In the Criminal Code as the parent material criminal law does not regulate the
Mohammad Fajarudin
Corporate Criminal Liability Arrangements In The Ius Constituendum 586
corporation as a subject of criminal law. In Indonesia, the position of corporations as
subjects of criminal law is currently only recognized in the laws governing criminal acts
outside the Criminal Code (Disemadi & Jaya, 2019). This is because the Indonesian
Criminal Code still adheres to the societas delinquere non-potest view so that it has not
accommodated the position of corporations as subjects of criminal law (Wijaya, 2018). To
prevent the spread of corporate crime, the national legal system since 1951 has included
corporations as the subject of criminal acts. It did not stop there, in 1955 the position of the
corporation was reaffirmed as the subject of criminal acts in economic crimes so that they
could be held criminally responsible (Satria, 2016).
The provisions in the law that stipulate that corporations can be held criminally
responsible have stimulated other laws that also position corporations as the subject of
offenses, including Law Number 20 of 2001 concerning Eradication of Criminal Acts of
Corruption, Law Number 8 of 2010 concerning Prevention and Eradication of the Crime
of Money Laundering, and Law Number 32 of 2009 concerning Environmental
Management and Protection.
If you look at the formulation of norms in the three laws, it can be seen that there are
different arrangements between one law and another regarding corporations as the subject
of criminal acts, in Article 20 paragraph (1) of Law Number 20 of 2001 concerning
Eradication of Crimes. Corruption Crimes states that in the event that a criminal act of
corruption is committed by or on behalf of a corporation, criminal prosecution and
sanctions may be imposed on the corporation and or its management. The same thing is
also regulated in Article 6 paragraph (1) of Law Number 8 of 2010 concerning the
Prevention and Eradication of the Crime of Money Laundering, that in the event that a
criminal act of Money Laundering is committed by a Corporation, the sanction is imposed
on the Corporation and/or the Corporate Controlling Personnel (Arifin & Choirinnisa,
2019).
Different arrangements are also seen in Law Number 32 of 2009 concerning
Environmental Management and Protection Article 116 paragraph (1) has its own character
in formulating corporate criminal liability. If an environmental crime is committed on
behalf of a business entity, the punishment will be imposed on the business entity and/or
the person who gave the order to commit the crime (Siregar & Zul, 2015). Strictly speaking,
the three laws above each have a different formulation in regulating corporations as the
subject of criminal acts.
So if you pay attention to the formulation of the law above, it appears that between
laws do not have the same concept in placing corporations as the subject of criminal acts,
there are inconsistencies or inconsistencies. This will have an impact on its implementation
by law enforcement officials, because it can create legal uncertainty. This raises the
question of why there are inconsistencies in the regulation of corporate criminal liability?
And how is the accountability arrangement?
This study aims to determine the regulation of corporate criminal liability in the ius
constituendum or future law in Indonesia.
RESEARCH METHODS
In this study using normative legal research methods using a regulatory approach
and a legal concept approach. The normative legal research method is the method used by
researching existing library materials.
The legal materials studied are primary and secondary legal materials. Primary
legal materials are sourced from regulations, while secondary legal materials are sourced
from books, texts, literature and legal journals relating to corporate criminal liability.
Eduvest – Journal of Universal Studies
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587 http://eduvest.greenvest.co.id
RESULTS AND DISCUSSION
1. Inconsistency of Corporate Criminal Liability Arrangements
Corporation is a term commonly used by criminal law and criminology experts to
refer to what in other fields of law (especially in the field of civil law) is called a legal
entity (recht persoon). Satjipto Rahardjo in (Antow, 2019) provides a definition that a
corporation is an entity created by law. The body he created consists of a "corpus", namely
its physical structure and into it the law includes the element of "animus" which makes the
body have a personality.
According to Simpson, corporate crime is "corporate crime is a type of white-collar
crime". Simpson, then quotes John Braithwaite, who defines corporate crime as "conduct
of a corporation, or employees acting on behalf of a corporation, which is proscribed and
punishable by law." Clinard and Yeager, provide an understanding that "a corporate crime
is any act committed by a corporation that is punished by the state, regadless of whether it
is punished under administrative, civil, or criminal law".
Initially, the subject of criminal law was only a natural person, while a
corporation/recht person was not recognized as a subject of criminal law. This is due to the
implementation of the Universtas delinquere non pottest principle (Setyono, 2018).
Recognition of corporations as legal subjects in criminal law began in 1635, when
the British legal system recognized that corporations could be criminally responsible for
minor crimes (Weissman & Weissman, 2007).
Corporate responsibility in criminal law actually does not emerge through in-depth
research from experts, but is actually a result of legal formalism. The doctrine of corporate
criminal liability has developed in the absence of a theory that justifies it. Acceptance of
corporations as legal subjects like humans cannot be separated from the role of the court.
Judges in the common law system make an analogy to human legal subjects, so that
corporations also have a legal identity and control over wealth from the management who
created them.
The Criminal Code, which is the parent of every criminal law, does not actually
regulate corporations as subjects of criminal law. The formulation of the articles that use
the phrase "whoever....", "Everyone....", etc. shows that the Criminal Code only recognizes
natural persons or natural persons (humans) as subjects of criminal law, while corporations
or legal entities are not recognized as subjects of criminal law in the Criminal Code. There
is a provision as stipulated in Article 59 which states that: "In terms of determining the
punishment for a violation, then against the management, members of one of the
management or commissioners, the punishment is not imposed on the management or
commissioners, if it is evident that the violation has occurred outside their responsibility".
This provision only applies to criminal acts of violation, but clearly it can be
concluded that the Criminal Code does not recognize corporations as subject to criminal
sanctions. To prevent the spread of corporate crime, the national legal system since 1951
has introduced corporations as the subject of criminal acts. It did not stop there, in 1955 it
was reaffirmed the position of the corporation as the subject of criminal acts in economic
crimes so that they could be held criminally responsible.
It turns out that the presence of a law that regulates corporations can be held
criminally responsible has stimulated other laws that also position corporations as the
subject of criminal acts, including Law Number 20 of 2001 concerning Eradication of
Criminal Acts of Corruption, Law Number 8 of 2010 concerning the Prevention and
Eradication of the Crime of Money Laundering, and Law Number 32 of 2009 concerning
the Management and Protection of the Environment.
Mohammad Fajarudin
589 http://eduvest.greenvest.co.id
From the formulation of norms in the three laws, it can be seen that there are different
arrangements or inconsistencies between one law and another regarding corporations as the
subject of criminal acts. In relation to the different arrangements or inconsistencies in the
regulation of corporate criminal liability in the laws and regulations in Indonesia, this will
be described below.
Table 1 Formulation/designation of corporations as subjects of criminal acts
No
Law
the subject of “Corporation”
1
Law on Corruption
Crimes (Law No13 of
1999)
In the chapter that regulates criminal acts
the term is used: in the event that it is
committed by or on behalf of a
corporation
The definition of corporation is explained
in Articles 1 to 1
2
Money Laundering Act
(Law No. 15 of 2002 in
conjunction with Law
No. 25 of 2003 was
changed to Law No. 8
of 2010
Old Law (Law No. 15 of 2002)
In the chapter that regulates criminal acts
the term is used: if the criminal act is
committed by the management and/or the
management's proxy on behalf of the
corporation
The definition of corporation is explained
in Articles 1 to 2
New Law (Law No. 8 of 2010)
In the chapter that regulates criminal acts,
the term is used in terms of the crime
being committed by a corporation
In the provisions of Article 1 the
following definitions are given:
Everyone is an individual or a corporation
Corporation is an organized collection of
people and/or assets, whether they are
legal entities or not
3
Environmental Law
(Law No. 23 of 1997
which was replaced by
Law No. 32 of 1999
Law 23/1997:
If done by or a.n. a legal entity, company,
union, foundation, or other organization
(Article 46 (1))
Law 32/1999
The term corporation is only mentioned in
general descriptions
In the criminal provisions chapter the
term business entity is used (Articles 116
and 119): if an environmental crime is
committed by, for, or on behalf of a
business entity)
▪ In the general provisions of Article 1
sub 32: every person is an individual
or a business entity, whether a legal
entity or not a legal entity
Eduvest – Journal of Universal Studies
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Table 2 Rules of corporate punishment
No
Law
Corporate Financing Rules
1
Law on
Corruption
Crimes
(Law No13 of
1999)
Article 20:
(1) In the event that it is carried out by or a.n. corporations,
and criminal prosecution of
- Corporations, and or
- administrator
(2) TPK is committed by a corporation if it is committed by
people:
Based on employment relationship (other relationships)
- Act within the corporate environment;
- Either alone or together
(3) Demands to be represented by management
(4) Management can be represented by other people
(5) The judge may order the administrator:
- Facing himself in court and
- Taken to court
(6) Summons and letters are delivered to the management's
residence or to his office
(7) The principal penalty is only a fine with a maximum
plus 1/3
Note
Paragraphs (3) – (6) above are procedural law
2
Money
Laundering Act
(Law No. 15 of
2002 in
conjunction with
Law No. 25 of
2003 was
changed to
Law No. 8 of
2010
Old Law (Law 15/2002 jo. Law 25/2003)
Article 4 Regulation on Types of Corporate Crimes (PJP):
(1) If it is carried out by the management and/or
management on behalf of the corporation, the punishment
imposed on:
- Managers and/or administrators
- As well as corporations
(2) PJP management which is limited by management has a
functional position in the organizational structure of the
corporation.
(3) Corporations can be fought against money laundering
offenses committed by management on behalf of the
corporation if the activities are not included in the scope
specified in the articles of association or other provisions
that apply to corporate corporations.
(4) The judge may order the administrator to appear in
person in court and order that the administrator be brought
under trial
(5) In the case of a criminal act committed by a corporation,
the summons to appear and receive the summons shall be
delivered to the management at the management's residence
or at the management's office.
New Law (Law 8/2010):
Article 6: Penalties are applied to corporations and/or
corporate management
Article 7: Criminal penalties for corporations are in the
form of fines and additional penalties in the form of:
(1) Announcement of judge's decision;
(2) Freezing of part or all of corporate business activities
(3) Revocation of business license
(4) Dissolution and/or prohibition of the corporation
Mohammad Fajarudin
Corporate Criminal Liability Arrangements In The Ius Constituendum 590
(5) Confiscation of corporate assets for the State and/or
(6) State takeover of corporations
Article 9: In the event that the corporation is unable to pay
the criminal fine:
(1) Replaced with the confiscation of assets belonging to
the corporation or corporate controlling personnel (the
value of which is the same as the penalty for the fine that
will be imposed).
(2) In the event that the assets of the corporation are insufficient,
the penalty of imprisonment for a fine that must be imposed on the
control granted takes into account the fine that has been paid.
3
Environmental
Law (Law No.
23 of 1997
which was
ratified by Law
No. 32 of 1999
Law No. 23 of 1997
Article 46 (1) regulates who can be fought for
Article 46 (2) regulates when legal entities can be
compared: but the formulation is somewhat confused with
article 46 (1)
Types of sanctions: criminal and disciplinary action.
UU no. 32 Year 2009
The criminal liability of business entities (corporations) is
regulated in Articles 116-119, which basically:
Those who can be sentenced are (Article 116):
a. Business entity and/or
b. The person who gave the order to commit the crime or
c. The person who acts as a leader in the crime.
Criminal sanctions against sub b (commander) or sub c
(leader) without regard to criminal acts committed
individually or jointly (Article 116 (2))
Criminal threats against sub b and sub c in the form of
imprisonment and a fine that is increased by one third
(Article 117)
Criminal sanctions for sub-a (business entities) are
represented by administrators whose offices represent
inside and outside the court in accordance with the laws and
regulations as functional actors (article 118)
Business entities (sub a) may be subject to additional
penalties or disciplinary actions in the form of (Article 119):
a. Deprivation of profits derived from criminal acts
b. Closure of all or part of the place of business and/or
activity
c. Repair due to crime
d. The obligation to do what is neglected without rights
and/or
e. Placement of the company under the supervision of a maximum
of three years
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Table 3 Model/system of corporate criminal liability
No
Law
Corporate criminal liability model
1
Law on Corruption Crimes
(Law No. 31 of 1999)
The model of criminal responsibility in this Law is
the Corporate Manager as the Maker and also the
Responsible One. This is regulated in Article 20. In
the event that a criminal act of corruption is
committed on behalf of a corporation, prosecution
and criminal prosecution can be carried out against
the corporation and or its management.
2
Money Laundering Law
(Law No. 15 of 2002 in
conjunction with Law No.
25 of 2003 was changed to
Law No. 8 of 2010)
The criminal liability model in this law consists of
two models.
Corporation As Maker And Responsible.
This is regulated in Article 6 paragraph (1) in the
event that the money laundering crime as referred
to in Article 3, Article 4 and Article 5 is carried out
by a corporation, the punishment shall be imposed
on the corporation and/or the personnel controlling
the corporation.
Corporations as responsible makers and
administrators. This is regulated in Article
6 paragraph (1), which stipulates that
criminal responsibility can also be
imposed on the management, namely
"Corporate Controlling Personnel".
3
Environmental Law (Law
No. 23 of 1997 which was
replaced by Law No. 32 of
1999)
There are two models of criminal responsibility in
this Law.
Corporation as Maker and Responsible. This is
regulated in Article 116 paragraph (1) if an
environmental crime is committed by, for, or on
behalf of a business entity, criminal charges and
criminal sanctions are imposed on: a. business
entity, and/or b. the person who gives the order to
commit the crime or the person who commits the
crime as the leader of the activities in the crime.
Corporations as responsible makers and
administrators. This is regulated in Article
116 paragraph (1), which stipulates that
criminal responsibility can also be
imposed on the management, namely "the
person who gave the order to commit the
crime or the person who acts as a leader in
the activity". This arrangement is also
contained in Article 116 paragraph (2) "If
the environmental crime referred to in
paragraph (1) is committed by a person
based on an employment relationship or
based on another relationship acting
within the scope of work of a business
entity, criminal sanctions are imposed on
the giver of the order or the leader in the
crime without regard to the crime is
committed individually or together.
From tables 1, 2 and 3, both regarding the formulation of the mention of corporations
as the subject of criminal acts, the rules for corporate punishment and the model/system of
Mohammad Fajarudin
Corporate Criminal Liability Arrangements In The Ius Constituendum 592
criminal responsibility against the three laws cannot be denied that there have been
inconsistencies in the regulation of corporate criminal liability. In principle, Law Number
20 of 2001 concerning Eradication of the Crime of Corruption, Law Number 32 of 2009
concerning Protection and Management of the Environment and Law Number 8 of 2010
concerning Prevention and Eradication of the Crime of Money Laundering are special laws
and at the same time as a lex specialist on the Criminal Code so that special provisions are
allowed and deviate from the Criminal Code, besides that there are several factors that
cause inconsistencies between the three legal products, namely:
1. Formation is carried out by different institutions and often at different times;
2. Officials authorized to form laws and regulations change, either because they are
limited by the term of office, transfer of duties or replacement;
3. The sectoral approach to the formation of laws and regulations is stronger than the
systems approach
4. Weak coordination in the process of forming laws and regulations involving
various agencies and legal disciplines;
5. Public access to participate in the process of forming laws and regulations is still
limited;
6. There are no definite, standard and standard methods and methods that bind all
institutions authorized to make laws and regulations.
The various problems above are inseparable from the existence of external and
internal factors from the inconsistencies that are happening now, this philosophically,
sociologically, and politically has resulted in the formation of laws and regulations
sometimes being intervened by the legal politics of legislators in accordance with the
interpretation of the current conditions. -directly, including in this case business interests.
Gustav Radbruch made a fundamental contribution to the theory of legal certainty,
with three basic legal ideas, namely justice, expediency and legal certainty (Jovanov, n.d.).
Legal certainty is the state of a regulation made and promulgated in a clear, definite and
logical manner, what is clearly meant is that there is no vagueness of norms or doubts,
while logical is to become a system of norms with other norms so that they do not clash or
cause conflicting norms. Legal certainty provides for clear, permanent, consistent and
consequent legal enforcement, the implementation of which is not influenced by subjective
circumstances. Legal certainty in a country is the existence of laws that have been
determined and truly apply as law, the decisions of judges are constant, and result in people
who do not doubt the applicable law (Frank, 1963).
With the application of the Lex Specialis Derogat Legi General principle of the
Corruption Crime Act, the Money Laundering Law and the Environmental Law on the
Criminal Code, it is an effort of the legislators to provide legal certainty and guidelines for
law enforcement officials and the public so that it provides benefits in its implementation
In the end, legal subjects feel they are treated fairly.
2. Regulation of Corporate Criminal Liability in the Ius Constituendum or Future
Laws in Indonesia
In order to be criminally responsible for corporations, there are four main issues that
need to be considered, namely (1), the problem of formulating prohibited acts; (2), the
problem of determining corporate guilt; (3) the problem of determining sanctions against
corporations; and (4) the nature of corporate liability.
The regulation of corporations as the subject of criminal acts must be clear and firm
by including authentically in the general provisions of the Criminal Code which is currently
being updated so that provisions outside the Criminal Code must follow.
Eduvest – Journal of Universal Studies
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Regarding the reform of criminal law regarding the prevention of corporate crime, it
should be noted that the Draft New Criminal Code (KUHP Concept) in the general
explanation of Book I states that: Given the progress made in the economic and trade fields,
the subject of criminal law can no longer be limited to natural humans (natural person) but
also includes a legal person (juridical person) commonly called a corporation (Braithwaite,
2002). By adhering to the understanding that corporations are legal subjects, it means that
corporations as a form of business entity must still allow for the responsibility to be shared
by the corporation and the management or management alone."
Thus, considering this, it is necessary to reform criminal law policies, especially
those related to the prevention of corporate crime by making the corporation a subject of
criminal law that can be held accountable. In addition to reviewing the applicable positive
criminal law regulations, researchers also examine the concept of the new Criminal Code
(RUU-KUHP) which is the ius constituendum. This Draft Criminal Code has been drafted
(with various amendments) since 1964 and the last draft of the 2015 Criminal Code has
been drafted. In the 2015 Criminal Code concept, if previously, the Criminal Code did not
recognize corporations as a subject of criminal law, then the R-KUHP is different. In
Article 48 of the R-KUHP it is clearly stated that: a corporation is the subject of a criminal
act.
Thus, the corporation as a subject of criminal law has been explicitly recognized in
the 2015 revised R-KUHP. As for the definition of a corporation, the R-KUHP defines a
corporation as defined in criminal law in general, namely both legal entities and non-legal
entities. This definition is expressly regulated in Article 189 of the R-KUHP, namely: an
organized collection of people and/or assets, whether they are legal entities or not. The
definition of corporation in the R-KUHP is much broader than the definition of corporation
in civil law.
If it relates to the model of corporate criminal responsibility as stated by Mardjono
Reksodiputro, the R-KUHP adopts two models of corporate criminal responsibility. The
first is the corporation as the maker and the corporation is responsible. This is contained in
the provisions of Article 50 of the R-KUHP which states that if a criminal act is committed
by a corporation, then criminal liability is imposed on the corporation. The second is the
corporation as a responsible maker and manager. This is contained in the same provision,
namely Article 50 which states "if a criminal act is committed by a corporation, criminal
liability is imposed on ... and/or its management."
With the adoption of the two models of criminal responsibility, there are three
possibilities for the application of criminal liability that occurs as stated by Sutan Remy S.
First, the corporation as the maker and the corporation is responsible. The second is the
corporation as the maker and responsible manager, and the third is the corporation as the
maker and manager and the responsible corporation.
The interesting thing about corporate regulation in the R-KUHP is the regulation
regarding what kinds of criminal acts are considered to be committed by corporations.
Article 49 of the R-KUHP stipulates that: a criminal act is committed by a corporation if it
is carried out by people who have functional positions in the organizational structure of the
corporation acting for and on behalf of the corporation or in the interests of the corporation,
based on work relationships or based on other relationships, within the scope of business.
the corporation, either individually or jointly.”
This provision seems at first glance almost similar to the provisions of the PPLH
Law in formulating criminal acts committed by corporations. In his book, Remmelink says
that corporations can always be said to do or not act through or be represented by
individuals.
Mohammad Fajarudin
Corporate Criminal Liability Arrangements In The Ius Constituendum 594
CONCLUSION
From the results of the discussion, it can be concluded that the inconsistency of
corporate criminal arrangements in the legislation is due to the position of the corporation
as a subject of criminal law that is currently only recognized in the Act that regulates
criminal acts outside the Criminal Code. This law is a special law and at the same time a
lex specialist on the Criminal Code so that special provisions are allowed and deviate from
the Criminal Code.
The regulation of corporate criminal liability in the laws and regulations in Indonesia
that will come that the arrangement in accordance with the legal facts of corporate
regulation is more desirable as in the corporate setting in the law on environmental
management and protection, because it looks more complete, because: The Environmental
Management Law has a clear formulation on the subject of corporate criminal acts, there
is already a formulation about when a corporate crime occurs, namely when someone acts
in a corporate environment both in employment and other relationships, and there is already
a formulation on who can be held criminally responsible.
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