CORPORATE CRIMINAL LIABILITY IN INDONESIA AND THE APPLICATION

The history of corporate criminal liability was originally a concept adopted by the State which adheres to
the common law system. This concept began to develop since the industrial revolution. It’s first adopted
on 1842 in English Court, where the corporation had dropped from the lawsuit because of its failure to
meet court requirements.

In Indonesia, this concept does not fully applicable, the Indonesian Penal Code (“Kitab Undang-Undang
Hukum Pidana”) adheres to a system that corporations cannot commit crimes themselves and cannot
have guilty mind. Those who can carry out these actions are the management of the corporation in
which the acts are based on certain attitudes, whether in the form of negligence or intentionality, then
the management of the corporation must bear the criminal liability for the actions carried out even if
the act was committed for and on behalf of the corporation. In other words, the Indonesian Penal Code
does not subscribe to the notion that corporations can be liable for corporate criminal liability.

However, the concept in the Indonesian Penal Code is different from the other Law that adheres to
criminal provisions outside the Indonesian Penal Code, or also referred to in the Law governing specific
criminal acts. Several laws outside the Penal Code stipulate that corporations can also be prosecuted as
perpetrators of criminal acts in addition to the corporation's executors who carry out these acts for and
on behalf of the corporation.

In brief, Margono Reksodiputro explained that there are three corporate criminal liability systems
known in Indonesia are as follows1 :
1. The management as a makers and responsible
2. The corporation as a maker and the management as a responsible party;
3. The corporation as a maker and responsible.

The Management as makers and responsible

In the case of management as makers and responsible, the management held certain liabilities. The
responsibilities imposed are actually the responsibilities of corporation.2 In this system there are reasons
for the elimination of criminal acts for corporations who commit criminal acts. In exchange, the
management is threatened with crime. This system has actually been adopted by the Indonesian Penal
Code, for example in Article 59, Article 169, and Article 399 Indonesian Penal Code.

The corporation as the maker and the management as a responsible party

1
Mardjono Reksodiputro, Pertanggungjawaban Pidana Korporasi dalam Tindak Pidana Korporasi, (Semarang : FH
UNDIP, 1989), Page 9.
2
Muladi and Dwija Priyatno. Page 64.
In the case of corporations as a makers and management as a responsible party, this system indirectly
recognizes that corporations are capable of committing criminal acts. However, this system still
considers corporate criminal liability does not exist. This system views the management as the party
responsible for corporate activities while still within its authority according to the corporation's articles
of association. This means that the corporation's management must take responsibility not the
corporation, because criminal acts committed by the corporation are deemed to have been carried out
by their management.

This system can only be applied if there are rules determined by the law proposed by the court
conducted by and / or on behalf of the corporation. So, the one who has the responsibility to be
responsible is the management of the company. An example of a law adopting this system is Article 34
section (1) Law No. 2 of 1981 concerning Legal Metrology that stated :

(1) A crime or violation under this Law is threatened by punishment if it is carried out by a business
entity, then the claim and / or sentence are directed at:
a. management, if in the form of a legal entity;
b. active ally, if in the form of a community / association of people;
c. management, if in the form of a foundation;
d. representative or proxy in Indonesia, if the head quarter is domiciled outside the territory of the
Republic of Indonesia.

The corporation as a maker and corporation as a responsible

This system emerged against the background of current corporate developments. Where in certain
cases, the stipulation of management as a party that can be convicted is apparently not enough. In
economic offenses, it is not impossible that the fines imposed as punishment to management are
unbalanced compared to the profits received by the corporation. Conviction the management did not
provide sufficient guarantees that the corporation would not commit his crime again. Therefore in this
model the corporation as a maker and also as a responsible.