The Legal Policy of Corporation Legal Standing as Rechtpersoon at Indonesian Criminal Justice System | Maryano | The Southeast Asia Law Journal 2 PB

The Southeast Asia Law Journal Vol 2 No. 1 (2016)

ISSN : 2527-8088
Vol. 2| No. 1

The Legal Policy of Corporation Legal Standing as Rechtpersoon at
Indonesian Criminal Justice System
Maryano* Yuhelson*
**Universitas Jayabaya

Article Info
Keywords:
Corporate crime of law politics,
legal standing, subject crime of law.

Corresponding Author:
maryono@gmail.com

The Southeast Asia Law Journal
Volume 2 Nomor 1
Juli-Desember 2016

ISSN 2087-9415
pp. 1 - 15
©2016 SALJ. All rights reserved.
.

Abstract
Feature of corporation as activities-oriented for profit
can lead to potential violations law or corporate crime.
The criminal action corporations can arised because the
impact of corporate activities arising from business
contracts, product quality problems, failure of
information technology systems and negligence of the
administrative requirements for business licensing
compliance. In other words, the legal entity of crime was
often referred as corporate crime as violations
committed by businesses to profit more quickly and
maintains the company's reputation. The study
concluded, first, the political dimension of the criminal
law on corporation has general nature, that political
criminal law founded in Criminal Code Bill which are

oriented to the development of law by placing the
corporation as a criminal, and need a codification law
of Corporation. Second, The political criminal law also
has special nature, which is found in 16 laws examined,
in the contexts of criminal responsibility concepts and
application of pattern of criminalas well as models of
criminal sanctions can be imposed on perpetrators of
criminal acts of the corporation.

Corporations in all its forms make a

Introduction

concrete contribution to the economic

The development of life affects the keajegan

legal structure as one of the social sub-

growth of the state in order to improve the

system. There has been a shift in position

welfare of the people (Undang Undang No

between the legal subject of a legal entity

40 tengang perseroan terbatas, 2007), in

(corporation), which moves toward a role

accordance with the 1945, Constitution of

originally held by a legal subject person.

the Republic of Indonesia (Constitution of
the

1

Republic

of

Indonesia)

as

the

Maryono & Yuhelson/ The Legal Policy Of Corporation Legal Standing As Rechtspersoon At
Indonesian Criminal Justice
System… / …-…

Constitution or the supreme law (Attamimi,

accounting firms, and corporate legal

2005), has guaranteed legal entity other

entities, with management symbols.

than

the

person

as

the

subject

of

The existence of corporations can be seen

development as well as the object of

from two sides, namely the side of the

purpose the establishment of NKRI. The

establishment documents in the form of

Fourth Paragraph Preambule of the 1945

deed of incorporation containing the

Constitution implicitly asserts:

corporate

and

physical

corporation

corporate

articles.

Then to form a State Government of

corporation's

Indonesia that protects the entire nation of

Corporations have the same rights and

Indonesia and the entire blood of Indonesia

duties as natural persons, so they can carry

and to promote the general welfare, educate

out legal and economic activities just like

the life of the nation, and participate in

natural people. It can be said that

implementing the world order based on

corporations are essentially functional.

freedom, eternal peace and social justice,

In construction and criminal law, initially

then the Indonesian National Independence

the responsibility for corporate criminal

it is in an Indonesian State Constitution,

action, especially in the formulation of

which is formed in the composition of the

sanctions,

Republic of Indonesia with the sovereignty

becomes

the

burden

and

responsibility of the individual committee.

of the people (NKRI, 1945)

In general, the provisions of criminal law

In the traffic law, the state regulates,

materil more emphasize the legal sanction

protects, and participates in the life of the

arrangements on the members of the board

legal subject of the person as well as the

or commissioners, among others implied in

legal subject of the legal entity. Corporation

the formulation:

has been recognized, accepted, and lives in
the

practice

of

nation

and

In cases where the violation is criminalized

society.

against

Corporations are one component in people's

era

relating

to

board,

members

of

the

governing body or commissioners, the

lives that have an important role in the
modern

the

board, member of the governing body or

professional

commissioner who does not interfere with

economic actors appearing in the category

the offense is not punished. (Adi setyadi

of legal subjects. (BUMN.go.id, 2016) In

dan Rena Yulia, 2010)

other words, corporations intersect with the
performance

and

responsibilities

The fabric of criminal law construction seen

of

in the context of civil law is evident in the

professional groups, such as law firms,

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The Southeast Asia Law Journal Vol 2 No. 1 (2016)

case that corporations can be categorized as

activity of giving priority to the business

responsible parties and can therefore be

aspect. . (Quinney)

placed as subjects in criminal offenses. The

There are several modes performed and

Indonesian Criminal Code (KUHP) stipulates

tagged corporate activity that is indicated to

that a commissioner or commissioner of a

violate criminal provisions. First, the

limited liability company, an Indonesian

delivery

carrier airline or a cooperative association

or

misrepresentation

of

the

information in the financial statements

declared in a state of bankruptcy or ordered

which can be generally categorized as a

to be resolved by a court, is punishable by

violation of the criminal law related to the

imprisonment for a maximum of 1 (one)

corporation. (Arifin, 2005)

(four) months. (KUHP

Second,

398) In other formulations it is found that a

separating

shareholder

relationships with company management

commissioner or commissioner of a limited

which, according to the analysis of

liability company, an Indonesian carrier

management experts indicates that the fall

airline or a cooperative association declared

of large companies. This coexist with

in a state of bankruptcy or whose settlement

weakness in applying the principles of

is ordered by a court, shall be punishable by

Good Corporate Governance (GCG).

imprisonment of no more than 7 (seven)

The

years. (KUHP 399)

disadvantage

of

applying

GCG

principles causes distrust of the existence

Thus, the accountability of its origin in

of corporations as legal subjects and

relation to civil law, but in its development,

dichotomous questions of legal standing

the extension of the responsible corporate

between corporations as entities with

crime as an independent legal subject may be

independent ones, or must be related to the

subject to the burden of criminal liability.

board, when involved with a crime.
Handling corporate cases is not as easy as
In the economic field there is the term

identifying them as corporations have

fraud (fraud) that describes the situation

complex organizational structures, and are

more complex and diilematis, (asic.gov.au,

white collar crimes that are generally well-

2016) when associated with the flow of

organized, done by officials, professionals

funds (Theodorus, 2007). Complexity as it

or corporations themselves, making it

relates to the activities of the company

difficult to prove it. The corporate crime

indicated as part or purpose of a crime not

stems from the attractiveness between the

yet regulated in a detailed legal system

professional and business aspects in the

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Maryono & Yuhelson/ The Legal Policy Of Corporation Legal Standing As Rechtspersoon At
Indonesian Criminal Justice
System… / …-…

In the economic field there is the term

provisions of the law, because the evidence

fraud (fraud) that describes the situation

is one important factor in the judicial

more complex and dilematic, , (Naskah

process, which can determine the position

akademik ruu hukum acara pidana, 2008)

of the defendant whether it has met the

when associated with the flow of funds.

elements of a criminal act. (Bakhri, 2009)

(Undang Undang no 3, 2011) Complexity

Law

as it relates to the activities of the company

enforcement

humanized,

indicated as part or purpose of a crime not

in

should

also

be

accordance

with

the

principles of the rule of law. The process of

yet regulated in a detailed legal system.

disclosure of the condition of a corporation

Corporate fraud occurs because there are

from internal or external, especially the

weaknesses in the application of corporate

company's financial condition can not be

governance principles. (Undang undang no

done

6 tahun 2011) Fraud according to Black

Determination of suspect status is required

Law Dictionary is: (Black law Dictionary)

by the corporation as a legal entity to

carelessly.

(Yeager,

1980)

disclose information disclosure of bank

A knowing misrepresentation of the truth or

accounts of parties involved in a crime.

concealment of a material fact to induce

(Reksodiputro, 1993) On the other hand,

another to act to his or her detriment, is
usual a tort, but in some cases (csp, when

putting a corporation as a suspect raises a

the conduct is willful) it may be a crime.

high degree of difficulty. (Wiyono)

A

The corporation is in fact only a derivative

misrepresentation

made

recklessly

without belief in its truth to induce another

(alter

ego)

of

its

shareholders,

so

person to act, A tort arising from knowing

sometimes the company is only used as a

misrepresentation, concealment of material

venture of shareholders in limiting the risk
of loss arising from its involvement in the

fact, or reckless misrepresentation made to

company for personal gain or for any other

induce another to act to his or detriment.

reason. (Definition of alter ego, 2016)
In this context, there is a problem of
corporate criminal law. The problems that

Theory of the State of Law or State by Law

arise are the limits of corporate error and

is a popular theory and is very general as

accountability related to a criminal act,

the main theory in the study of law and

especially in the field of economic crime.

state. This theory has grown since the days

(Priyatno, 2010) It is necessary to conduct a

of the ancient Greeks to modern times

proof process in accordance with the

today. (asshidiqie, 2008) Pure legal theory
or positive law theory comes from the legal

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The Southeast Asia Law Journal Vol 2 No. 1 (2016)

thought of the legal positivism madhhab

The method of approach in normative

which depicts the legalistic dimension of

research is usually used statutory approach

legalistic

and

(approach statute) and conceptual approach

conceptually, on a simple level to understand

(conceptual approach) which is an integral

"criminal offenses" should be seen in the

part

Criminal Code (Criminal Code). However,

descriptive approach. The main source of

the term or definition of a criminal offense is

normative research is the library as the usual

formally defined or its definition can not be

place of secondary data resides and is found.

found in the Criminal Code itself as a legal

The data is in the form of legal materials,

document or law that became the main

both primary legal materials, secondary legal

reference for the term of a crime. To gain

materials, as well as tertiary legal materials.

clarity on the definition, understanding, or

Primary Legal Material is a legal material

description of the term criminal offense, it is

consisting of legal rules sorted by hierarchy

more likely to refer to the substance of legal

of legislation starting from the Preamble and

jurisprudence as developed by experts or

Body of the 1945 Constitution, TAP MPR

experts in the field of Law Science.

RI. Legal material obtained from textbooks,

law.

Theoretically

legal

of

normative

journals,

analytical-juridical

scholars'

opinions,

and

Research Method

symposia by experts

The dissertation research is classified into

related to the discussion about Establishment

legal normative-dogmatic research (legal

of Legislation. Tertiary Law Material is a

reseach), (Soekanto, 1986) because it is

legal

basically more emphasis on secondary data

meaningful explanation of primary and

of library data to study and study the

secondary legal material such as legal

principles of positive law, comparative law,

dictionary, encyclopedia and others. The

and elements or factors, related factors. In

method

addition, relating to the object of research is

normative methods, namely research by

also required primary data obtained directly

describing the condition and facts about the

from the field, meaning that in research

object of research. The facts of this Law are

there are elements of sociological-empirical

analyzed by various laws, theories and

legal

doctrines or expert opinions aimed at finding

research

(socio

legal

research).

material

of

that

analysis

gives

used

meaning

or

qualitative

the

answers to the issues to be discussed further.

Normative Juridical Method supported by

The approach is more abstract-theoretical,

the Empirical Jurisdiction.

meaning that all data is compiled and then

Therefore,

the

method

used

is

analyzed based on the categorization of

5

Maryono & Yuhelson/ The Legal Policy Of Corporation Legal Standing As Rechtspersoon At
Indonesian Criminal Justice
System… / …-…

problems or findings using a contextual

process; 2) The law so enacted; 3) The

mindset. The collection of secondary data

whole body of enacted laws.

in the library is done by sorting the existing

In the context of national development

legal lithography and grouping it according

planning, the overall ideological policy of

to the subject of the study. Because in

the criminal law should include the renewal

approach that supported by normative

of the Material Criminal Law, the Formal

juridical, can be done by field study to

Criminal Law and the criminal law. Efforts

obtain primary data through interview.

to renew its nature are included in the area

Result and Discussion

of Penal Policy which is part of the law

Political Dimension of Criminal Law in

enforcement policy and social policy.

Legal

Criminal Law reform should be conducted

Standing

of

Corporation

as

with a policy approach, so that the reform

Subject of Criminal Law

of the Penal Code should also be oriented

The criminal law of the corporation as a

towards a value approach.

subject of criminal law is an integral part of
the politics of national law. National legal

Therefore, it can be concluded that the

politics is the act of choice of the various

picture of the political dimension of law in

alternative choices of state policy makers in

the form of an effort to reform Criminal

the field of law as a future law enforcement

Law is part of the policy which includes:

effort (ius constituendum). National legal

Policy to renew legal substance in order to

politics in practice is reflected in a national

effect law enforcement; Policies to combat

legislation program that includes legal

or combat crime in the context of

planning, legal drafting, legal executing

community protection; Policies to address

and legal review.

social problems and humanitarian problems

The

national

legislation

program

in order to achieve and support the national

is

goals of social defenses and social welfare;

essentially a national planning program in

and Efforts to review and re-assess the

the field of legislation. Lexically, the word

basic ideas, basic ideas, philosophical,

program or program is defined as List of

socio-political and socio-cultural values

items, events, etc or plan of what is to be

that

done. Meanwhile, the term legislation is

underlie

criminal

policies

and

enforcement policies of the Penal Code.

defined in many meanings, namely: 1) The
process of making or enacting a positive

Criminal Law Politics means holding

law in written form cording to the same

elections to achieve the best results of

type of formal procedure, by a branch of

criminal legislation in the sense of meeting

government constituted to perform this
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The Southeast Asia Law Journal Vol 2 No. 1 (2016)

the requirements of justice and efficiency.

law is materially apparent in its material

The Politics of Criminal Law means the

plan, among others: that, in the case of a

effort to realize the rules of criminal

criminal act of corruption committed by or

legislation

the

on behalf of a corporation, and criminal

circumstances and the situation at a time and

detention may be committed against the

for the future. Based on the scope of the

corporation and / or its board and that the

Criminal Law Poi- sion and the Criminal Law

criminal act of corruption is committed by

policy line, it is determined how far the

the corporation if the offense is committed

applicable criminal provisions need to be

by persons, whether based on employment

amended or updated, what can be done to

or other relationship, acting within the

prevent the occurrence of crimes, the

corporate environment either alone or

manner

investigations,

jointly. Politically legal, the laws and

prosecutions, judiciary and enforcement of

regulations in the type of Supreme Court

the Penal Code must be implemented .

regulations are intended as integrative

in

in

accordance

which

with

guidelines

Understanding the political of Criminal

of

corporate

criminal

law

enforcement system.

Law as stated above can be concluded that

Enforcement of Corporate Criminal
Law and Boundaries as Benchmark for
Processing of Corporations as Subject of
Criminal Law

Criminal Politics is an attempt to determine
which way of coming Criminal Law
Politics will come to see and adjust the

The most common, the difficulty of criminal

state of law enforcement at this time.

law enforcement for the subject of corporate

Politics of criminal law is basically based

law is the psychological aspect. Therefore,

on the life of a changing society, in which

the limits of the benchmark are important to

there are values. There are several factors

be examined from the point of view of the

that cause change in the broad sense that is:

psychological nature of the corpotation. For

There are human thoughts, through reason

example, in the case of giving testimony

and mind given to God, will always evolve

before the court or before the court, the

from time to time. This condition that

corporation

causes man to always use his thinking in all

can

not

directly

provide

information without explanation from the

aspects of life; The change, influenced by

management. This becomes complex if the

the demands or needs of humans.

corporation's management is also a party

Officially and formally, the law has not been

categorized as a suspect. The corporation is

published since it is still under discussion,

in fact only a derivative (alter ego) of its

but the political dimension of the criminal

shareholders, so sometimes the company is

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Maryono & Yuhelson/ The Legal Policy Of Corporation Legal Standing As Rechtspersoon At
Indonesian Criminal Justice
System… / …-…

only used as a venture of shareholders in

accountability of an act to the offender or

limiting he risk of loss arising from its

the maker.

involvement in the company for personal

Thus, referring to a description explaining

gain or for any other reason.

the

side

of

corporate

criminal

law

According to criminal law theory, one

enforcement as described above, it is clear

characteristic of criminal law is the so-called

that the discussion of boundary aspects as a

mens rea, which serves as a general condition

benchmark to determine that a corporation

to be met by a crime. This is what

as a subject of criminal law may be

distinguishes it from civil law. In mens rea

processed in criminal law enforcement is

must be covered by the nature of unlawful

very important in view of the applicability

(wederrechtelijkheid), errors (Schuld), and

of criminal law formal for corporations.

the ability of responsible according to

As mentioned briefly in the background

criminal law (toerekingingsvatbaar heid).

section of research in Chapter I, the limits of

According to the study and analysis of the

corporate criminal law enforcement on the

researcher, it is this element or factor that

technical level of law enforcement relate to

causes the difficulty of law enforcers to this

norms in procedural law, especially after a

day, in enforcing the criminal law against the

corporation is determined as a suspect.

subject of corporate law, the element of mens
Putting a corporation as a suspect creates a

rea is difficult in its size in corporations.

high level of difficulty. Technically there are
also

legal issues

that are

not easily

The criminal law perspective has developed

understood,

into a broad meaning. In the sense of

formulating the identity of the suspect in the

modern, criminal law must be seen and can

Minutes of Examination (BAP) by the

be called the existence or the elements of

investigator and formulating the identity of

criminal law, namely the existence of the

the defendant in the indictment by the public

subject of the perpetrator / maker, the

prosecutor. It is stated so, because explicitly-

element

be

normative Article 143 paragraph (2) letter a

accounted for his actions, the relationship

of the Criminal Procedure Code, determines

or the psychic link between maker and deed

the formal conditions containing the full

(often called intentional or error in the

name, place of birth, age or date of birth, sex,

narrow sense), there is no element of

nationality,

criminal abolition that can eliminate the

occupation of the suspect. By analogue the

of

error,

elements

can

such

as

residence,

the

difficulty

religion

of

and

above formal terms refers to the identity of

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The Southeast Asia Law Journal Vol 2 No. 1 (2016)

natural persons who are natural persons

to disclose information disclosure of the

(naturlijk person) as subjects of criminal

bank account of the parties involved in the

law.

crime.

For corporations there is no provision that

In other words, when a corporation has

can be referred to analogously. Such a

been established as a suspect of a criminal

situation will lead to the stagnant process of

offense, there are difficulties. Among other

criminal law enforcement with corporate

things related to the financial condition of a

actors, since the weakness of formulating

corporation in the context of criminal

the identity in the indictment may be

proceedings can not be expressed openly,

overturned by the judge.

because it involves the internal side of the
corporation. It requires a prerequisite,

Therefore, regarding the formal requirement

namely that against the corporation as a

of identity in the Indictment for corporation

legal entity, the determination of the status

as a subject of criminal law is not fulfilled as

of the suspect is required.

stipulated in the Criminal Procedure Code.
Whereas the mistake in formulating the

Judged from the point of view of law

identity of the defendant in the Indictment

enforcement officers, there is a general lack

resulted in the indictment being revoked by

of

the Judge. In this case the formal legal

members of the law enforcement apparatus,

obstacles in criminal law enforcement for

which should be understood as they are not

corporations that commit criminal offenses

equipped

occur. Because if it is applied, the law of the

corporations. Consequently, in carrying out

indictment is not strong enough and the judge

criminal law enforcement tasks against

is authorized to cancel it.

corporations

mastery of

with

corporate

special

many

law

aspects by

education

on

enforcement

officers only equip themselves with the

Specifically, at the stage or level of proof, the

right to discretion, without having the

disclosure process of the condition of a

ability in the corporate field so often ignore

corporation from the internal and external

the norms, principles, and all the provisions

side, especially the financial condition of the

governing the corporation in legal traffic, to

company can not be done carelessly. In this

process a crime related to the existence of a

case the principle of openness can not be

corporation. That is, it actually contains

implemented the stage of corroboration law

weaknesses because the true discretion that

enforcement corporation. In relation thereto,

exists in the realm of state administrative

the determination of the suspect's status is

law tends to be easy to be guilty for when

required by the corporation as a legal entity

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Maryono & Yuhelson/ The Legal Policy Of Corporation Legal Standing As Rechtspersoon At
Indonesian Criminal Justice
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prosecuted

by

law

administration

the law. Likewise, the presumption of

enforcement officers, of the state tends to

innocence principle must be applied by law

be easily guilty in the interests of law

enforcement because it may be a violation

enforcement officials.

of the law by the corporation that is an
unconscious omission. On the contrary, it is

In the technical perspective of procedural

also considered very unfair if the mistakes

law, it is likely that it is easier to process

of one individual corporate management

individual verification than the corporation
due

to

several

factors.

First,

must be borne by another individual

the

corporate

determination of the existence of a criminal

administrator

or

innocent

corporation. Individuals who are proven to

act by the corporation (corporate crime) as

be guilty of a corporation must be

part of a white collar crime can not be seen

personally responsible.

with ordinary eyewear such as against
common crime. This is because: (1)

Based on the theory of criminal law, one of

corporate infringement is not as heavy and

the main principles in criminal law is the

threatening as murder, robbery and others;

principle of legality, stating that there is no

(2) occur in the office environment, not in

offense or punishable action (punishable)

the streets; (3) the victim's relationship with

without first having a criminal-threatening

the perpetrator is indirect; and (4) often

rule (Nullum delictum, noella poena sine

involve complex technological and financial

praevia

problems, not easily detected by victims or

interpretation of a contrario, if a

law enforcement agencies. Secondly, there is

perpetrator's

difficulty in determining corporate mistakes

wederrechtelijkid but proven deeds formele

(mens rea), because there is a complex

not wederrechtelijkheid on the grounds of

relationship in organizational crime, which is

the absence of regulations that have

interrelated between the executive director,

criminal sanctions that regulate his actions,

the manager on the parent company side, and

then actually against the perpetrators can

the divisions of the company (subsidiaries)

not be punished

on the other side.

lega

poenali).

act

is

Through

a

the

material

In terms of determining the limits as a

In addition, proper matters should be

guideline

considered

social,

enforcement, in accordance with criminal

economic, and cultural aspects. It has

law enforcement system, according to the

become

researcher's point of view, law enforcement

as

humanitarian,

an adage

that

there

is no

unlawfulness which is in accordance with

for

corporate

criminal

law

officers can rely on general criminal law

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The Southeast Asia Law Journal Vol 2 No. 1 (2016)

construction by using several general

Based on the results of the description and

criminal sections in the Criminal Code,

discussion in the chapters in advance,

including Article 372 KUHP embezzlement),

especially the description in chapter IV, it

Article 378 of the Penal Code (KUHP),

can be drawn some conclusions.

Article 263 of the Penal Code and Article

The political dimension of criminal law on

266 of the Criminal Code (including false

the legal standing of a corporate legal entity

information in authentic deeds) to resolve

as a legal subject in a criminal offense may

many criminal cases involving corporations.

be general and special. General character

As mentioned above in the text of this

related to generalist legal matter. general

dissertation, in this case, the limits of the
benchmark

are

general

criminal

criminal law which is the content of the

law

Criminal Code (KUHP) which is currently

instruments as lex generalis.

still in the draft of Law No. 1 of 1946.

Meanwhile, remembering on the basis of

The general dimensions of criminal politics

individual subjects, suffering to prove the

of corporations formally include choice of

errors of corporations, the law enforcement

forms, types and ways . The dimension of

authorities

chief of

form is to affirm that the development of the

corporate officer (President Director) a

penal law against the corporation, selected by

representative of the corporation that is

written law, is in accordance with the nature

responsible for corporate crime. Only then,

and characteristics of the criminal law itself.

it can it entrap vice directors, Branch

The legal type of legislation focuses on the

Heads,

Supervisors,

choice of the level of legislation, which is by

ordinary employees, and any corporate

means of the will of revision of the Criminal

officer

Code whose planning and concept has been

often make

Division

are

Heads,

supervised

the

the

President

Director. Thus it appears, that seen from a

carried out since 1963, and to date it is still

subjective point, involved various person in

listed in the list of national legislation

terms of criminal or corrosion criminal.

programs. Materially, the general political

Therefore, it can be asserted that the limits

dimension of corporate criminal law includes

of the benchmark must refer to the legal

the choice of the choice of a continental

construction of the articles of criminal law

European legal system, the choice of the

of participation as provided in Article 55

punishment model, and the determination of

and Article 56 of the Criminal Code.

the pattern and types of applicable criminal
sanctions.

Conclusions

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Indonesian Criminal Justice
System… / …-…

Meanwhile, the special political dimension of

administrative, and criminal law, which

the penal law against corporations, beyond

can not be separated from one another.

the substance of the Criminal Code, reflects

Therefore, in the enforcement of criminal

more about the choice of specific legal

law against the subject of corporate law is

objectives (lex specialists) and the choice of

characterized by problems related to these

criminal law formulation in certain fields (eg,

legal aspects. The administrative law

corruption, immigration and the environment

aspect is a factor in the middle, in the

life). The political dimension of criminal law

sense of a shift from the field of civil law

in the context of an application-oriented

to the field of criminal law in the context

specialist theories of legal entities, especially

of the

organ theory and theory of legal reality.

mediated by administrative law.

Thus, there is no political doubt in the

subject

of corporation law,

2. As it is known, the problems that arise are

criminal law to determine and confirm that

the

the corporation may commit criminal acts (as

accountability related to a criminal act,

a

therefore

basically in the field of economic crime.

construed as a subject of criminal law in the

Related to this, on the law enforcement

enforcement of criminal law in Indonesia, or

level there is a sense of unease with the

in a criminal justice system ). In addition, the

tendency to free the perpetrators of the

special political dimension of corporate

violation under the pretext of not knowing

criminal law has accommodated the concept

any law prohibiting the actions taken.

of

of

When a corporation has been designated

punishment, and the system of sanctions for

as a suspect of a criminal offense, there

corporations.

are difficulties. The financial condition of

criminal

criminal

offender)

liability,

and

the

is

model

limits

of

corporate

error

and

a corporation in the context of criminal

1. The practice or law enforcement process

proceedings can not be expressed openly

of the corporation as the legal subject of a

because it involves the internal side of the

criminal offense has not proceeded as it

corporation. Against a corporation as a

should in accordance with the principles

legal

of fast, clear, cheap law enforcement.

entity

to

disclose

information

disclosure of a bank account of a party

There are things that led to the slow pace

involved in a crime, a suspect status is

of law enforcement practices against

required.

corporations as perpetrators of criminal

3. Technically, the law also has problems

acts. The Criminal Law perspective on

that are not easily understood, such as the

corporations covers aspects of civil,

12

The Southeast Asia Law Journal Vol 2 No. 1 (2016)

difficulty of formulating the identity of

generally oriented to the development of law

the

of

by placing corporation as a perpetrator of a

Investigation (BAP) by the investigator

crime then it is necessary to codify the Law

and formulating the identity of the

of the Corporation. Secondly: criminal law

defendant in the indictment by the

politics is also of a special nature, that is

public prosecutor. It is stated so, because

found scattered in the 16 Laws examined in

explicitly-normative

143

the context of the concept of criminal

paragraph (2) letter a of the Criminal

responsibility and the application of criminal

Procedure Code, determines the formal

penalties and models of criminal sanctions

conditions containing the full name, place

that can be imposed on the perpetrators of

of birth, age or date of birth, sex,

corporate

nationality,

residence,

religion

and

immediately formulate a single concept of

occupation

of

suspect.

For

corporate criminal law subject that has been

suspect

in

the

Minutes

Article

the

referred

to

analogously.

it

is

necessary

to

spread in several laws.

corporations there is no provision that can
be

crime.

Such

Recommendation

circumstances will lead to the cessation of
criminal

law

enforcement

1. In the political perspective of Indonesian

with

law, both the politics of law in general,

corporations, since the weakness of

and especially the politics of criminal

formulating identities in the indictment

law, need to be increased again the

may be overturned by a judge. Likewise,

commitment of all parties to the

in the subsequent criminal proceedings,

alignment to the development of law.

the corporation can not directly give
testimony

before

the

court

The legal political formulation must be

without

explicit and intact and firm, contained in

explanation from the management. It will

similar core documents MPR Decree.

be more complex if the corporate officer

Although the State Policy Guidelines

is also a party categorized as a suspect.

(GHBN) are no longer recognized in the
So from the problem problematic as the

structure of the Indonesian national legal

authors describe above get the results of

system, it is necessary to document the

research and concluded in two cases namely,

place where national political law is

First: the political dimension of criminal law

poured

against the corporation there is a general

into

high-ranking

legal

documents. Nowadays the most possible

nature, namely the criminal law politics

and its existence is recognized again

found in the Criminal Code which is

based on Law Number 12 Year 2011 is

13

Maryono & Yuhelson/ The Legal Policy Of Corporation Legal Standing As Rechtspersoon At
Indonesian Criminal Justice
System… / …-…

MPR Decree. If it can be agreed, the

especially on corporate crime. In fulfilling

amendment to Law Number 17 Year

the technical requirements of the law in

2007 on the National Long Term

handling cases, it is necessary to issue a

Development Plan will be made, by

separate legislation regulating further the

making changes to the legal political

identity of the perpetrators of criminal acts

formula (legal policy) independently.

which must be included either in the

The concept of political politics in the

Official Report of Inspection (BAP) by

RPJPN, more likely to be placed in the

the police, as well as the Indictment by the

paradigm of legal relations with politics

Public

more political determinant. This is

necessary to conduct activities of short

apparent because

educational nature, training, or technical

the

law is still

Prosecutor.

Therefore,

it

is

regarded as a field whose position is not

courses of criminal

higher than politics, even the law is only

procedure

placed as part and parallel to the field of

development of the political concept of

bureaucracy. Especially, the politics of

criminal law at the level of law

criminal law against corporations in the

enforcement related to the aspects of

broader sense (lex generalis) as set forth

criminal, civil and state administration

in the draft of the Criminal Code, then

law, it is necessary to conduct a research

there should be further discussion

that functions and recommends a clear

between

separation between the three aspects of

various

parties,

especially

between the government premises of the

law.

Therefore,

the

the law.

House, so that criminal law politics
Reference

against corporations in the Criminal
Code can be immediately materialized.

1945, N. U. (1945). Naskah UUD.

In the case of a special corporate

Adi setyadi dan Rena Yulia. (2010).
Hukum Pidana Ekonomi. (G.
Ilmu,
Ed.)
Yogyakarta,
Indonesia: Graha Ilmu.

criminal law politics (lex specialist), it is
necessary to formulate a single concept

Arifin. (2005). Peran Akuntan dalam
menegakan prinsip GCG pada
perusahaan
d
indonesia.
Universitas Diponegoro, (p. 8).
Semarang.

of corporate criminal law subject that
has been spread out in several laws.
2. To be more assertive in practice, it is
necessary to provide briefing to all law

asic.gov.au. (2016, February 16).

enforcement officers about the ins and

asshidiqie, J. (2008). Pokok Hukum Tata
negara
Indonesia
Pasca

outs of general corporate law, and

14

The Southeast Asia Law Journal Vol 2 No. 1 (2016)

Reformasi (Vol. 2). Jakarta: PT.
Bhuana Ilmu Populer.

(1993).

Attamimi, M. F. (2005). Ilmu hukum dan
perundang-undangan (Vol. 1).
Jakarta, Indonesia: UI.

Tindak Pidana Korporasi dan
Pertanggungjawabanya
perubahan wajah pelaku
kejahatan di Indonesia. Jakarta.

Undang Undang no 3 (Transfer dana dalam
pasal 87 menentukan lain bahwa
jika tindak pidana sebagaimana
dimaksud dalam pasal 80 sampai
dengan 85 dilakukan oleh
korporasi pertanggung jawaban
pidana dikenakan
terhadap korporasi dan
pengurusnya 2011).

Bakhri, S. (2009). Hukum pembuktian
dalam praktik peradilan pidana .
Yogyakarta: Total Media.
Black law Dictionary. (n.d.).
BUMN.go.id. (2016, February 9). Retrieved
from www.bumn.go.id
Definition of alter ego. (2016, February 16).
Retrieved from Uslegal.com.

Undang Undang No 40 tengang perseroan
terbatas. (2007).

KUHP 389.

Undang undang no 6 tahun 2011.

KUHP 398.
KUHP 399.

Undang Undang tentang transfer dana, 3
(2011).

KUHP 789.

Wiyono.

M, T. (n.d.). Akuntansi Forensik dan Audit
Investigatif. In Theodorus.
Jakarta: Universitas Indonesua.

Yeager, M. B. (1980). Corporate Crime.
New York: The free press.

Naskah akademik ruu hukum acara pidana.
(2008). Retrieved from
wordpress.com.
NKRI, N. U. (1945). Naskah UUD NKRI.
Priyatno, M. d. (2010). Pertanggung
jawaban pidana korporasi.
Jakarta: Fajar pratama offset.
Quinney. (n.d.). Persekongkolan
Perusahaan.

(n.d.). Pembahasan Undang
Undang Pemberantasan Tindak
Pidana Korupsi. Jakarta: Sinar
Grafika.

jahat

Reksodiputro, M. (1993). Tindak pidana
korporasi
dan
pertanggungjawabannya
perubahan
wajah
pelaku
kejahatan di Indonesia. Dies
natalis kepolisian ke 47. Jakarta.
Soekanto, S. (1986). Pengantar Penelitian
Hukum. Jakarta: Universitas
Indonesia.
Theodorus. (2007). Akuntasi Forensik dan
Audit Investigatif. Jakarta,
Indonesia:
Universitas
Indonesia.

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