ICLaD

Indonesia Criminal Law Digest Issue No. 2/2016

This edition of ICLaD is special, because this edition is released at the same time with
the day that ICJR is turning into 9-year old. Throughout the 9 years of existence, ICJR is
still constantly striving to push law reform in Indonesia, both criminal law reform and
criminal justice system reform.

What was done by ICJR to reform law in Indonesia cannot be separated from numerous
cooperation which have been established by ICJR with its partners. This partnership
enables ICJR to keep growing and developing into one of the non-governmental
organizations in the law sector that earn an extraordinary place in the field of law
reform.

The road has been passed and ICJR is not going stop for the better Indonesia.

Jakarta, August 2016

Ifdhal Kasim
Editor-in-Chief
 Reconsidering Article 27 Paragraph (3) of Electronic Information and
Editor in Chief: Transaction Law in Court Decisions
Ifdhal Kasim
Author: Anggara

I. Introduction
English Editor
Ever since the internet was introduced in 1988, its development and growth ran very
Pirhot Nababan
fast. Specific to Indonesia, the internet is used by 88.1 million out of the 250 million
population, which makes Indonesia as the largest internet user in ASEAN region.

Contributors: Due to this rapid grwoth, policy-makers in Indonesia start looking at ways to regulate
the Internet, particularly by recriminalizing acts that are already included under the
Adiani Viviana Criminal Code (KUHP). Such is evident from the enactment of Law No. 11 of 2008 on
Electronic Information and Transactions (UU ITE). To be more specific, this legislation
Anggara stipulates provision regarding freedom of expression under Article 27 paragraph (3)
in conjunction with Article 45 paragraph (1). This provision is considered as
Erasmus A.T. Napitupulu duplication and prone to multiinterpretation (pasal karet) compared to a similar
provision under the existing KUHP.
Indriaswati D. Saptaningrum
After UU ITE was passed, criminal defamation cases involving internet users in
Robert Sidauruk
Indonesia are significantly increased. Due to the Indonesias challenging geographical
situation, there are difficulties to improve access to justice for the
Sriyana
suspects/defendants in these cases. In addition, the availability of advocates/lawyers
Supriyadi W. Eddyono who understand internet issues are not sufficient, especially those thaty may give
human rights approach in the respective case.
Syahrial M. Wiryawan

Wahyudi Djafar II. Article 27 Paragraph (3) UU ITE: The Setback of Criminal Policy

Wahyu Wagiman Within criminal policy, criminal law and punishment are the tools to control the
community using penal approach. Therefore, criminal policy is basically a policy to
Zainal Abidin
determine: (a) how far the prevailing criminal provisions are necessary to be changed
or updated; (b) what to do to prevent crime; (c) how to carry out the investigation,
prosecution, trials, and execution.

In the context of Indonesian criminal policy, criminalization and restrictions on freedom of expression through
various laws are not aligned and contradict the development of modern crime prevention in a democratic
society. Criminal sanction become a major instrument in limiting freedom of expression in Indonesia. This leads to
Indonesias status as Partly Free under the 2015 Freedom Houses report, sharing the same position with
Singapore, Malaysia, and Cambodia.

Under the current framework, criminal defamation is stipulated under Chapter XVI of KUHP and consists of seven
parts: defamation, libel, mild insult, insult to civil servants, libel complaint, false allegation, and defamation of the
dead. Moreover, KUHP also regulates specific forms of insult: insult to the President/Vice President, to the Head of
Friend State or representative of Foreign Countries in Indonesia, to the Government of Indonesia, to the certain
Group, to the General Public Bodies.

In addition to KUHP, other laws are also regulating criminal contempt, including Law No. 32 of 2002 on
Broadcasting; Law No. 32 of 2004 on Regional Government; Law No. 42 of 2008 on Presidential Election; Law No. 8
of 2012 on General Election; Government Regulation in lieu of Law (Perppu) No. 1 of 2014 on Election of the
Governor, Mayor, and Regent; including UU ITE.
Specific to the UU ITE, this legislation always brings controversy since its creation, especially the criminalization
part. One of the most highlighted provisions is Article 27 paragraph (3). Based on the wording of the article, there
are some major drawbacks in the elements, namely:

Issues
Weak intent or deliberate
element in the formulation
No details of the key elements
The unclear elements of insult
and defamation
Potential violation of privacy
No clarity of complaint offense
(delik aduan) or not
Eliminating the classification of
insult and defamation
Eliminating justification
reasoning of the insult
Remarks
"animus injuriandi" is not required by Article 310 of KUIHP, but simply
requires the existence of awareness, knowledge, or understanding on the
perpetrators that his objective statement would result in and attack the
honor or reputation of a person.
Some important elements are not described, such as the meaning
of 'distribute', 'transmit' and also 'make accessibility'.
There is no clarity of insult or defamation, and therefore it must refer to
Articles 310 paragraph (2), 311 and 315 of KUHP, which is often
referred to as "genus crime" of criminal insult and defamation. This provision
must also be tested with element of crime, justification reasons, or common
doctrines
Legal basis to determine whether or not such acts as defamation or insult
require democratic and publicity elements. Democratic requirement does not
allow/justify convictions to the statements that are not spoken or written
publicly. Therefore, 'private correspondence' and 'private conversation' are
not a subject or object of punishment. While the publicity requirement
requires such offense must be in writing on printed and electronic media or
made verbally. nsult/defamation as an offense is always based on the
element of 'with the intent to be known by public'.
This article formulation is not clear whether it is a complaint offense or
not. Genus crime of this article, namely, Articles 310 par. (2), 311, and 315 of
KUHP are complaint offenses. The law enforcement officers can process the
perpetrators if there are complaints from the victim or the injured party.
Create confusion on the maximum limit sanctions of imprisonment or fines of
each class of insult (defamation, libel, slander, mild insult, the complaint of
slander and false presupposition).
Article 27 paragraph (3) seems to have no relation to Article 310 of KUHP,
thus it is not necessary to have justification reasoning, which is then became
the root of the problem.

IV. Court Decisions on Article 27 Paragraph (3) of UU ITE

From 2009 to 2015, ICJR recorded 20 cases brought before the court, in which the defendants are charged with the
Article 27 paragraph (3) of UU ITE. Out of these 20 cases, ICJR finds 7 court decisions that can be the basis to
defend cases on Article 27 paragraph (3) of UU ITE. These cases were successful, considering several key questions
regarding regular offense or complaint, distribution element, procedural and evidence law, element of "has a
charge of insult and/or defamation" and additional justification reason.

No Decision No. Defendant Court Instances

1 No. 1269/PID.B/2009/PN.TNG Prita Mulyasari Tangerang District Court
2 No. 1190 /PID.B/2010/ PN.TNG Drs. Diki Candra bin Didi Kustawa Tangerang District Court
3 No. 822 K/Pid .Sus/2010 Prita Mulyasari Tangerang District Court

4 No. 116/PID/2011/PT.DPS
5 No. 1832/Pid.B/2012/PN.Jkt.Sel
6 No. 390/Pid.B/ 2014/PN. Mks
7 No. 196/Pid.Sus/2014/PN.BTL
8 No. 292/Pid.B/2014/PN.Rbi
Herrybertus Johan Julius Calame, S.Pd
Muhammad Fajrika Mirza, SH alias Boy
bin A. Ganie Mustafa
Muhammad Arsyad, S.H.
Ervani Emy Handayani Binti Saiman
Ir. Khairudin M. Ali, M.Ap
Supreme Court
Singaraja District Court
Denpasar High Court
South Jakarta District Court
Makassar District Court
Bantul District Court
Raba Bima Court

V. Key Considerations of Court Decisions Regarding Use of Article 27 Paragraph (3) of UU ITE

5.1. Regarding the Status of Article 27 Paragraph (3) UU ITE as an Absolute Complaint Offense

One fundamental weakness of Article 27 paragraph (3) of UU ITE is whether or not this offense is an ordinary
offense or an absolute complaint offense. Pursuant to the Constitutional Court Decision No. 50/PUU-VI/ 2008 and
No. 2/PUU-VII/2009, it was concluded that the interpretation and implementation of Article 27 paragraph (3) of
UU ITE is congruent with the application and interpretation of Articles 310 and 311 of KUHP as an absolute
complaint offense as stipulated in Article 72 of the Criminal Code (see also the Supreme Court Decision No. 183
K/Pid/2010). As an absolute complaint offense, only those who become 'victims' of direct insult that may report
the offense, not other people. In addition, the Raba Bima District court also affirmed the importance of mentioning
the name naming along with the allegations. Otherwise, the statement does not have a charge of contempt as
stipulated in Article 27 paragraph (3) of UU ITE.

5.2. Regarding the Criminal Procedure and Evidence Law (Digital Evidence as "Proof")

In general, there are three classifications of electronic evidence forms (digital evidence) namely electronic
documents congruent as mailing documents, electronic signatures equivalent to handwritten signatures, and
aligning the electronic mail with regular postal mail. These documents need further validation, similar to
traditional physical evidence.

Evidence in Indonesian legal framework is stipulated under procedural law, either civil or criminal. Article 184
paragraph (1) of the Criminal Procedural Code (KUHAP) stipulated five types of evidence: (1) witness statement, (2)
experts statement, (3) letter (documentary), (4) directive and (5) defendant statement. Although none of the
procedural law provisions state the position of the electronic evidence (digital evidence), but KUHAP has
established the foundation to recognize electronic evidence under Articles 41, 184 paragraph (1) letter c, and 187
letter (d).

The Supreme Court responded to the presence of electronic evidence after the enactment of the KUHAP, namely
Supreme Court Letter No. 39/ TU/88/102/Pid, dated 14 January 1988. The Letter states that microfilm or
microfiche can be used as legal evidence in a criminal case court. These types of document, however, must be
authenticated/validated from the case registration and trial proceeding. After the Reformasi era, many laws and
regulations adopt electronic evidence to become part of the legal evidence in court. In UU ITE, the electronic
evidence is not only part of the documentary (letter) and directive evidence as stipulated in KUHAP, but also a new
evidence other than evidence that already exist. With the current framework, electronic evidence in Indonesia can
be categorized into three types at the same time: documentary evidence, directive evidence, also as stand-alone
evidence.
The most important thing to understand is the
acknowledgement of electronic evidence before the
Court, because electronic evidence can be
manipulated by a third party and raise questions and
debate on who is the owner of such electronic
evidence. There are five types of electronic
evidence: websites, communication in social media,
e-mails, text messages, and documents stored in the
computer that have a unique challenge to make such
electronic evidence be admitted as evidence in
court. Basically, electronic evidence is only as
supporting evidence which needs to be confirmed
through other evidence. Electronic evidence also has
a lower position than the witness statement
evidence in court.
Theoretically, evidence is valid if the procedures to
collect such evidence carried out according to the
law and by the competent authority. Related to
electronic evidence (digital evidence), UU ITE
categorizes that retreiving evidence by violating the
law and carried out by the incompetent authority is
a crime according to Article 30 of UU ITE. Proof of
conversation in the form of photocopies that was
taken in an unlawful manner and without any order
from the competent authority, cannot be put
forward as valid evidence in court.
Validation of electronic evidence (digital evidence) in
criminal justice process should comply with
requirements under Article 6 of UU ITE, in which
electronic evidence is considered valid if: (1)
accessible, (2) presented, (3) its entirety secured,
and (4) can be accounted as a whole to explain a
situation. These conditions are cumulative and
imperative to classify on whether an evidence
presented before the court is appropriate.
Of the abovementioned 20 cases, ICJR noted two
cases that carefully consider the electronic evidence
and its validation, mainly related to the offense
element of "every person". This is evident in the case
of Muhammad Fajrika Firza a.k.a Boy bin A. Ganie
Mustafa, who was alleged as the manager of
@fajriska Twitter account that deemed to defame
Marwan Effendi. In its consideration, the South
Jakarta District Court confirmed ownership of the
account by conducting an examination and carefully
looking at all witness statements presented in court,
where all witnesses did not know and see whether
such Twitter account really belongs to the
defendant.
Then, in Muhammad Arsyad case at the Makassar
District Court, with similar legal issues, there is
difference in the validation outlined by the
Court. Evidence presented is a personal status print
out of PIN number 215A000AA, created by
Muh. Zulhamdi Alam. Therefore the Makassar
District Court considered with two-way
validation: First, by presenting two or more people
who are friends in BBM contact with the accused PIN
number to prove that the owner of the PIN BBM
number is really the owner of that property;
Second, if there are no witnesses who testified, then
examination should be done through digital
forensics by informatics expert to ensure the owner
of BBM account and PIN numbers, as well as
determine determine whether a series of written
words is indeed coming from the accused phone
with such BBM and PIN numbers.
5.3. Regarding the Justification Reasoning
Another fundamental weakness of Article 27
paragraph (3) of UU ITE is regarding the chapter
name of KUHP that is used to formulate an offense.
Consequently, there is no insult classification model
similar to KUHP and it makes the lack of justification
reasoning as recognized in Article 310 paragraph (3)
of KUHP. In addition, law enforcers could freely
interpret as to when the provision can and cannot be
used, and at the same time determine or estimate
the maximum penalties of imprisonment and/or
fines for each class of insult by themselvesthough
it is limited by the maximum criminal sanctions
under Article 45 paragraph (1) of UU ITE.
Furthermore, justification reasoning under Article 27
paragraph (3) UU ITE is not clearly defined. In
practice, the Court generally refers to the
justification reasoning from Article 310 paragraph (3)
of KUHP, that is, on the formulation of "intentionally
and without right" or formulation of "without
right". Without right element is the reason on
whether a person may or may not be convicted.
Justification reasoning is established in the
construction of Article 310 of KUHP that is in the
public interest or as necessary defense.
In the case of insult using a website, the Tangerang
District Court emphasizes the source of formulation
is Chapter XVI Book II of KUHP based on defamation
(Article 310 of KUHP), in which the reason for
unlawful acts was dismissed (Article 310 paragraph
(3) of KUHP). If it was conducted for the public
interest or because it was necessary to defend
himself, the defendant has the right to distribute,
transmit, make accessible electronic information
even though it contains an insult. Although in
general the Court refers to the justification
reasoning in Article 310 paragraph (3) of KUHP, but
in practice, the court also recognizes other reasons
such as the truth of the statement and the
statement that caused by emotion of a
circumstance, as well as the statement in order to
obey the prevailing law, wherein these reasons had
caused the defendant was not convicted.
VI. Conclusion
The abovementioned various court decisions
showed that the formulation of a crime under Article
27 (3) of UU ITE requires many references to the
panel of judges to interpret the elements correctly.
However, there are several considerations from the
decisions as lesson to deal with Article 27 paragraph
(3) of UU ITE:
First, Article 27 paragraph (3) of UU ITE is an
absolute complaint offense, the interpretation of the
norm is based on the Constitutional Court Decision
ICLaD is licensed under a Creative Commons Attribution 4.0
International License
No. 50/PUU-VI/2008, and therefore it cannot be
separated from its genus: Articles 310 and 311 of
KUHP.
Second, as an absolute complaint offense, only
'victim' of direct insult may report such offense.
Third, regarding validation of electronic evidence,
the panel of judges need to consider the ownership
of social media accounts by confirming through
examination and all witnesses statements in
court. If there are no witnesses who testified, an
informatics expert must conduct digital forensic
examination.
Fourth, regarding validity of the evidence as key
evidence to the existence of a crime, the court
decided based on Article 5 paragraph (4) in
conjunction with article 6 of UU ITE.
Fifth, regarding justification reasoning, the Court
must conduct an assessment of "without right"
element, that if there are critics and for public
interest, then there is no element of insult or
defamation.
Corporate Liability under the Draft Bill on Criminal Code

Author: Aulia Ali Reza

Introduction

The origins of the term corporation or corporate can be traced to the Latin language "corporatio", a
noun originated from the Latin verb corporare, which is derived from "corpus" or body/entity. In other
words,a corporation or a company is a body or an entity that created under a law. It has physical
structure and personality.

Within the current Indonesia legal system, the position of a corporation as a subject to the criminal law
can be found on many laws and regulations, except the existing Criminal Code (KUHP). However, the
2015 version of the Draft Bill on Criminal Code (RKUHP) accommodates corporation as a subject to the
criminal law. Nevertheless, a thorough and in-depth elaboration on this matter must be taken into
further discussion, due to fundamental difference between a corporation and a natural person
(natuurlijk person) as a subject to the criminal law. Consequently, this discussion will touch several basic
concepts such as determination of fault, criminal actor, corporate criminal liability, and many other
issues.

Regarding the determination of fault, the interpretation of this concept as an essential element of
criminal liability is originally aimed at human (natural person), and not aimed at a corporation as a legal
person (recht persoon). It is evident from the broader interpretation. Such problematic interpretation
can be seen from intentional crime (dolus) or merely a negligence (culpa).

In addition, determining a criminal actor is also another problem. Even though a corporation itself can
be categorized as a legal personand therefore subject to liabilityall of its actions are conducted by
the board of directors, which represents the corporation as a legal person. Due to this fact, members of
the board of directors will be liable for the actions that have been taken, instead of the corporation
itself. Consequently, only members of the board of directors that can be criminalized and punished.

History of Corporation as a Subject to Criminal Law

The early history of corporation establishment is still unclear. However, it is fair to say that this
establishment was aimed to fulfill certain interests that cannot be satisfied by natural persons. With the
historical development, corporation was further affected by technological progress that brought great
influence in industrial activities, including changes of organization structure, human resources, assets,
capitals, and expansion of overseas business activities. Due to this development, the industrial sector
required a legal framework that may protect the interests of the employers and the society as well. Such
protection was realized in 1855 using a limitation of corporate liability, and it was shown by using the
word limited at the end of every corporations name.
France, a country that indirectly impacting
Indonesian legal systemdue to French
colonization to the Netherlandsincluded
corporation as a legal subject under the Code de
Commerce and Code de La Marine. This concept
was further adopted by the Dutch legal system
under the Wetboek van Koopenhandel. As a
consequence, the development of this concept
also affected Indonesia, which by that time was
the Dutchs overseas colony territories under
the name Nederland Indies.
There are three phases of development in
which corporation is treated as a subject to the
criminal law. Firstly, determining that actions on
behalf of a corporation, only apply to natural
person. In other words, any action conducted
under the corporations name is considered to
be executed by the members of the board of
directors as legal persons (naturlijk person),
because they have the duties to manage the
corporation (zorgplicht). This concept was
taken into place due to the doctrine known as
societas non potest or university delinquere non
potest. When the Dutch government
passed Wetboek van Straftrecht in 1881 and
adopted the aforementioned principle, it
influenced the Indonesian Criminal Code, and
therefore limits the liablity to natural persons
when it comes to corporation.
The second phase was the acknowledgement
that a corporation can actually commit a crime
(dader). However, the liability (prosecutions
and convictions) was still aimed at the board of
directors. Lastly, the corporate criminal liability,
which started to rose after World War II. During
this phase, it was possible to claim and ask for
liability against a corporation.
Impact of "No Punishment Without Law"
Principle to the Corporate Liability
The principle of "no punishment without law" is
an essential element under the criminal
law. Nevertheless, this important principle is
not explicitly incorporated under KUHP, unlike
the legality principle that is stipulated under
Article 1 paragraph (1). In essence, this principle
forbids criminal conviction against a person
when there is no provisions under a law, even
though the respective individual had committed
a certain action categorized as crime. The 2015
version of RKUHP mentioned the principle of
"No Punishment Without Law" under Article 38
paragraph (1), stating: "No one who commits a
crime is convicted without fault".
Regardless, the problem remains on the
implementation of such principle to a
corporation, as this is heavily related to the
attitude (intent or negligence) of human as a
natural person. The element of intent or
negligence arises because of the elements of
psychological and physical which are only found
in human as a natural person. Therefore, a
corporation can be considered to have no fault.
Van Bemmelen, additionally, believed that that
common knowledge between members of the
board of directors may be regarded as the
intention of the respective corporation. Jan
Remmelink also shared similar opinion, stating
that the lack of action from a corporation, or
any action there is, will be represented by
natural person. In this regard, a corporation can
still have fault from its board of directors who
perform their duties. Hence the principle of "No
Punishment Without Law" still applies to a
corporation.
The Theory of Corporate Liablity
There are several theories in regards to the
studies of corporate liability. Some of these
theories are even disregarded the element of
fault; in otherwords, the principle of "No
Punishment Without Law " is not strictly
applied. The discussion of these issues are
limited to four theories: the identification
theory, strict liability, vicarious
liability, and functional perpetration
(functioneel daderschap). The first three were
coming from Anglo-Saxon countries and relied
on actus reus and mens rea. Meanwhile, the
last theory was coming from Continental
European countries, specifically from the
Netherlands. Theories such as vicarious
liability and strict liability are actually existed
within the civil law practice. These theories are
furhter used in criminal liablity and punishment
against corporations.
a. Identification Theory Doctrine
The identification doctrine is often referred to
as the alter ego theory, which is based on the
position of a particular person, such as high-
level managers whom represent the "directing
mind" and "will" of a corporation. Under this
theory, the "mens rea" element is not directly
found on corporation, but on certain individual
as the "directing mind" of a corporation, or in
other words the ego, center, and/or vital for themselves.
organ of a corporation. There are three
requirements to implement this theory: (a) the
respective person has the duties or authorities;
(b) the action is not a fraudulent act against the
corporation; and (c) carried out to benefit the
corporation.
It is evident that this doctrine is aimed at the
board of directors or high level manager, due to
their authority to act for and on behalf of the
corporation. Therefore, this doctrine is
sometimes considered as a legal barrier to
potential liability, as it does not adress the
crimes committed by lower level employees.
Furthermore, this doctrine is problematic to be
implemented towards the current form of
corporation, due to the modern characteristics,
which separates certain position from liablity
and prevents a single individual to have a broad
authority. Thus, such separation makes
corporation a more complex entity, and it is
difficult to determine which actions performed
by high level managers are actually
representing the corporation, as there are many
other employees involved.
b. Strict Liability Doctrine
Strict liability doctrine is adopted from the civil
law and often used on the tort law. In criminal
law, strict liability overrides mens rea, as clearly
defined by the Black's Law Dictionary: "a crime
that does not require a mens rea element, such
as traffic offenses and illegal sales of
Intoxicating liquor."
Pursuant to the Black's Law Dictionary
definition, this doctrine determines a liability
with sufficient proof that the offender
committed a prohibited action or actus reus,
without having to proof mens rea. It is based
on the res ipsa loquitur" or facts already speak
Under the 2015 version of RKUHP, the strict
liability is imposed for specific offenses, as
stipulated in Article 39 paragraph (1) and its
elucidation. Pursuant to this provision, a person
can be punsihed solely due to the fulfillment of
a criminal offense elements, regardless of their
faults.
 c. Vicarious Liability Doctrine
Similar to strict liability doctrine, vicarious
liability doctrine is also adopted from the civil
law system, which relates to the tort law.
Referring again to the Black's Law Dictionary,
this doctrine is defined as as the subordination
of relations between employers and employees
or principle with the agent.
This doctrine solved several issues regarding
corporate liability, because the implementation
of this doctrine allows punishment to lower-
level employees, unlike the identification
theory, which was only aimed at high-level
executives and managers. This doctrine is also
beneficial in terms of prevention, which
according to Low, employers are liable for their
employees actions, and therefore the
employers need to monitor and prevent
criminal acts.
Under the vicarious liability doctrine, a
corporation can be held liable for acts
committed by employees that conduct their
duty based on an employment
relationship. Implementation can only be done
if the Law explicitly allows it.
d. Functional Perpetrator Doctrine
(Functioneel Daderschap)
The last theory related to corporate liability is
the functional perpetrator, which was evolving
from Continental European countries. This
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justice system with strong human rights protection character.
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theory was first proposed Roling in his notes
under the Hoge Raad decision, dated 31
January and 21 February 1950. Referring to
Article 15 of the Wet Economische Delicten, a
corporation is able to commit offenses other
than economic crimes.
Meanwhile, Ter Heide concluded that if this
theory is implemented, then a corporation can
also be imprisoned and consequently placing
corporations in the whole criminal law
system. Furthermore, Ter Heide believed that a
corporation as the subject to criminal law can
also be found guilty. The fault comes from
systematic actions carried out by the respective
corporation.
Meanwhile, according to Bemmelen and
Remmelink, common knowledge between the
majority of the members of the board of
directors can be considered as the intention of
the corporation. Remmelink states that
functional perpetrator is the basis to charge
corporation with liability, in which the offenses
are coming from the socioeconomic
atmosphere and involve the issue on how those
activities should be implemented and
directed/aimed at specific functional
groups. Thus, functional offenses are
considered more suitable to be applied against
corporate.
Corporation as a Subject to Criminal Law in
Indonesia
a. Model of Corporate Criminal
Accountability in Indonesia
In regards to corporate liablity, Indonesia
adopts three models, as Mardjono
Reksodiputro in his paper, who proposed the
following:
1. Board of directors as the actor and the
corporation that will be held liable
2. Corporation as the actor, while the
board of directors will be held liable
3. Corporation as the actor as well as the
party that will be held liable .
In the first model, the board of directors is
imposed with certain obligations, although such
obligations are actually imposed to the
corporation. If the board does not meet these
obligations, they may be punished. This concept
is stipulated under Article 169 of KUHP, which
emphasized that criminal act and liablity will be
the burden of the board, instead of the
corporation. Under Articles 398 and 399 of
KUHP, which stipulate the bankruptcy of a
corporation, conviction is also imposed to the
board of directors.
Furthermore, under the second model, a
corporation as the legal subject is already
acknowledged to be able to commit a crime.
However, the liability is still imposed to the
board of directors. According to Mardjono
Reksodiputro, KUHP specifically adopted this
model under Article 59, which stated that a
corporation can commit a crime, while the
liability is imposed to the board of directors,
unless the member of the board of directors
can prove that s/he was not involved.
Moreover, the third model fully recognized
corporation as a legal subject, as the actor and
the party that will be held liable. The early
legislation that adopted this model is Law on
Goods Hoarding in 1951, which was followed by
Article 15 of the Economic Crime Law of 1955.
According to Sutan Remy S., the three models
lead to four possible systems for corporate
liablity as follows:
1. Board of Directors as the actor, and will
bear the criminal liability
2. Corporation as the actor, but the board
of directors that will bear the criminal
liability
3. Corporation as the actor and also bear
the criminal liability
4. Corporation and the board of directors
are both considered as the actors and
will bear the criminal liability.
b. Laws and Regulations Stipulating
Corporationg as the Subject to Criminal
Law
As mentioned earlier, the first legislation that
stipulated corporation as the subject to criminal
law was the Law on Hoarding Goods in 1951,
and it was followed by the Law No. 7 of 1955
Drt on Economic Crime. According to Muladi,
since 1955 until now there are more than 60
laws that include corporate liability, and the
following paragraphs summarize the provisions
provided thereunder.
Criminal Code (KUHP)
Under Chapter I Article 59 of KUHAP,
corporation is not considered as a legal subject
to the criminal law. If the board of directors
committed a crime, the member of the board of
directors will bear the liability. This will not
applicable if the member of board is not
involved in such crime, even though such action
was carried out for and on behalf of the
corporation.
Other articles related to corporation are Articles
169, 398, and 399. Under Article 169, KUHP
stipulated punishment for the associations that
established to committ a crime or offense and
forbidden gathering. Meanwhile, Articles 398
and 399 regulate the crime committed by the
board of directors or commissioners related to
the bankruptcy of a corporate. Against such
crime, there is no liability against a corporation.
Law (Drt) No. 7 of 1955 on Investigation,
Prosecution, and Trial of Economy Crime
This law adopted the provisions that previously
incorporated under the Wet op de Economische
Delicten in the Netherlands in 1950. Article 15
of te Law stipulates that action carried out by or
on behalf of a legal entity, corporation,
association, or foundation, then prosecution
and criminal sanctions will be imposed to these
entities.
Law No. 41 of 1999 on Forestry (Forestry Law)
Corporate liability can be found under Article 78
paragraph (14) of the Forestry Law. Under this
provision, a corporation will be considered as
the actor, but the board of director remains as
the party that will be held liable.
Law No. 32 of 2009 on the Environment
Protection and Management (Environmental
Law)
The Environmental Law recognizes corporation
as a subject under Article 1 point 32, by
expanding the definition of "everyone" (setiap
orang), which includes a corporation. As a
result, a corporation is considered as the actor
and can be held liable. The corporate liability is
further stipulated under Articles 116 paragraph
(1) and (2)
Moreover, Article 118 of the Environmental Law
stated business entity as the functional
perpetrator, which is further elaborated under
the elucidation that "functional perpetrator in
this article is a corporation and legal entity.
Law No. 8 of 2010 on Prevention and
Combating of Money Laundering (Money
Laundering Law)
The Money Laundering Law is another
legislation that recognizes a corporation as the
subject to criminal law. Article 1 point 9 of the
Money Laundering Law expanding the
definition of everyone, by including a
corporation. Further, Article 1 point 10 of the
Money Laundering Law stated that a
corporation is defined as a "group of organized
persons and/or properties, either as legal entity
or non-legal entity".
Article 6 of the Money Laundering Law further
states that corporation is not limited to legal
entity, but also to group or other associations.
In conclusion, under this law, a corporation is
considered as the actor can be held liable.
Article 6 paragraph (2) of the Money Laundering
Law regulates criminal prosecution against a
corporation if the money laundering crime:
1. Conducted or ordered by the Corporate
Controller Personnel
2. Conducted in order to fulfill the
objective and purpose of the Corporate
3. Carried out in accordance with the
duties and functions of the actors or the
order, and
4. Conducted with the purpose of
benefitting the Corporate.
 Corporation under the 2015 Draft of RKUHP
(RKUHP 2015)
Article 48 of the RKUHP 2015 states
that: "corporation is a subject to criminal
offense", which means that corporation is
explicitly recognized as a subject to the criminal
law. The RKUHP 2015 defines corporation as
legal entity or non-legal, which is further
elaborated under Article 189. With this
definition, corporation also include CV, firma,
and other incorporation.
The RKUHP 2015 includes the types of crimes
that can be committed by a corporation. Article
49 of the RKUHP 2015 has the same nuance
with the Environmental Law in formulating
criminal offenses committed by a corporation,
in which a corporation is always considered to
committ a crime by the representation of
individuals. However, a question is in place in
regards to the formulation of "person with
functional position", on whether or not this
concepts shares the same definition with
"functional actors" under the Environmental
Law.
The formulation of "functional position" under
RKUHP 2015 is more focused on the person
who represents the corporation. Therefore, the
corporation is not the functional perpetrator in
this article. In addition, the formulation of
"..was identified from board faults who have
functional position .." indicates that Article 49
of the RKUHP 2015 identifies actions and faults
from a corporation as directing mind (the
identification theory).
About ICLaD
Indonesia Criminal Law Digest (ICLaD) is a new feature from Institute for Criminal Justice Reform (ICJR). ICLaD is presented by
the ICJR as one of the instrument and communication medium to inform the recent development on criminal law and criminal
justice system reforms in Indonesia.
The implementation of identification theory
creates particular criticism, in which this
doctrine is considered as legal barrier to held
corporation liable, as this doctrine only aimed
at directors or high level managers, who have
the authority to act for and on behalf of the
corporate.
On the contrary, if the functional perpetrator
theory is used, imposing liability is not only
limited to persons with certain positions, but
also people who have relationship with the
corporation, members of the board of directors,
or the any person acting for the corporation.
Conclusion
The various provisions under many laws and
regulations regarding corporate liabilityother
than KUHPhas caused legal uncertainty, due
to the differences of one regulation to
another. The RKUHP 2015 may harmonize all
the provisions, however, the concept adopted
in the recent draft still has shortcomings, due to
the implementation of identification theory as
the basis for criminal liability. This doctrine
requires action performed by someone with a
high position within a corporation to be held
liable for a crime. In contrast, the
Environmental Law implements functional
perpetrator doctrine, in which the liablity can
be broaden. Therefore, the doctrine that will be
used for the corporate liability provisions must
consider that will fit the practical
implementation.