Capitulo V. Programa de Intervención
5.8. Cronograma
Resultant from the position of the KUHP that only recognizes human beings or natural persons as able to commit a criminal act, if a criminal act occurs in relation to a corporation, liability shall be duly borne by the corporation’s management (natural person) and made to present on behalf of and in the name of the corporation. Meanwhile, those uninvolved in the criminal act that are part of the corporation’s management shall not be prosecuted.232
Despite the position of the KUHP, the Indonesian criminal legal system started to recognize criminal liability of corporations quite early, but through many regulations outside the KUHP, namely in special criminal Laws233 and other Laws containing criminal
sanctions.234 Two early Laws recognizing corporations as its criminal law subject are Laws
related to economic crimes in 1951 and 1955.235 Those recognition implies the Indonesia
pragmatic approach toward the recognition of the criminal liability of corporations. The law makers at that time viewed that the unlawful activities of corporations as an important actor in
229 Later in Chapter 4, the debate before the court related to the bill of indictment in several case laws will be
discussed.
230 Remmy Sjahdeini Sjahdeni. Ajaran Pemidanaan: Tindak Pidana Korporasi & seluk-beluknya. (The Doctrine
of Punishment: Corporate Criminal Liability and it Circumtances) (Jakarta: Kencana.2017), p. 280.
231Ibid.
232 See Article 59 KUHP.
233 The examples of certain criminal law acts are the Law on Crime of Money Laundering, The Law on Crime of
People Trafficking.
234 The examples of general acts containing criminal sanction inside are Capital Market Law, Banking Law. 235 The Laws are Stockpilling Law and Law on the Investigation, Prosecution and the Trial of Economic Crimes
economic activities, can cause more harmful and dangerous impact to society than conventional crimes. By making corporations criminally liable, it can ensure the effectivity of Laws to fight against economic crimes.236 After that, the recognition of the criminal liability of corporations within the Laws outside the KUHP becomes a common pattern in the Indonesian criminal legal system. However, in the perspective of Dwija Priyatno, the formulation policy of the system in establishing the criminal liability of corporations among the Laws in Indonesia has several weaknesses which are inconsistent, not harmonious and overlapping.237
Up to 2017 there were around 120 Laws recognizing corporations as its criminal law subject.238 That pattern is in line with the way Indonesia develops its criminal law system by enacting many new Laws outside the KUHP in spite of unifying it within the criminal code. Various Laws outside the KUHP recognizing corporations as its criminal law subject can be seen as an effort to create special law (lex specialis) that is different with the position of the KUHP (lex generalis).239Mardjono Reksodiputro argues that the acceptance of corporations as the subject of criminal punishment can be seen as an extension of criminal law subject since the criminal code only recognized natural persons as its subject.However, that acceptance is accompanied with a question about the way to determine the mental element (mens rea) of corporations. 240
They are various discussions among legal scholar in Indonesia about possible systems to establish the criminal liability of corporations. The systems that are discussed actually are the well-established system in the world such as strict liability, vicarious liability, identification theory, aggregation theory and combination of those theories.241 From the discussions of those
236 See the consideration paragraph of the Law on Stockpilling
237 See, Dwija Priyatno et al., Kebijakan Formulasi Sistem Pertanggungjaban Pidana Korporasi Dalam Peraturan
Perundangan-Undangan Khusus di Luar KUHP di Indonesia (Policy Formulation on Corporate Criminal Liability System in The Special Laws outside the KUHP in Indonesia). (Jakarta, Sinar Grafika, 2017), p.31.
238Ibid, p.29. 239Ibid, p.28.
240 Mardjono Reksodiputro, Kemajuan Pembangunan Ekonomi dan Kejahatan. Kumpulan Karangan Buku
Kesatu (Economic Development and Crime. Collection of Essays). (Jakarta, Pusat Keadilan dan Pengabdian Hukum Universitas Indonesia 1994), p.102.
241 Various literature in corporate criminal liability in Indonesia discusses all those theories to explain the possible
system in establishing the criminal liability of corporations. See for example: Remmy Sjahdeni, Pertanggungjawaban Pidana Korporasi (Corporate Criminal Liability), (Jakarta: Grafiti Pers, 2006), Muladi, Dwija Prijatno. Pertanggungjawaban Pidana Korporasi. (Bandung: Sekolah Tinggi Bandung1991), Mahrus Ali,
Asas-Asas Hukum Pidana Korporasi (Corporate Criminal Liability Principles), (Depok, Raja Grafindo Persada,
various system, legal scholars try to explain the implementation of the theories and offer solution which system that can be implemented in Indonesia.242
Combination theory was introduce by Sjahdeini because in his perspective establishing the criminal liability of corporations based only with one theory is inadequate. Even though it is called combination theory, this theory is actually based on identification theory which derives the actus reus and mens rea of corporations based on the directing mind of corporations.243 He puts other criteria in order to make corporations criminally liable. The additional criteria are; the misconduct must give benefit to corporation and the misconduct committed within the scope of corporation is based on corporation charter. If the misconduct is committed by other than the directing mind of corporation, in order to make corporation criminally liable, that misconduct must be based on the order or the approval of the directing mind of corporation. The approval includes a failure to take reasonable care to prevent the conduct being performed.244 In the most of the discussion Indonesian legal scholars concluded that the principle of no criminal liability without culpability or blameworthiness (geen straf zonder schuld) still valid for corporations.245
Apart from the discussions among legal scholars, in order to understand the corporate criminal liability regime in Indonesian Laws, there are two important elements that should be determined. Firstly, it needs to determine whether the subject of a certain Law is only natural persons or including corporations.246 Then, if that Law recognizes corporations as its subject, the second question is concerned with how that Law stipulates the system in establishing the criminal liability of corporations.
The next paragraphs will use those two elements to discuss the different regulations on corporate criminal liability within several special criminal Laws and other Laws containing criminal sanctions. Not all Indonesian Laws that recognize corporate criminal liability will be discussed; but all Laws discussed will represent the various stipulations in recognizing corporate criminal liability among Indonesian Laws.
242 Remmy Sjahdeini even introduced his own system by combining several systems such as identification theory,
vicarious liability and aggregation theory to establish the criminal liability of corporations. He named his theory “combined theory” see Remmy Sjahdeni, (2006) Op.cit, p.118.
243 Remmy Sjahdeini (2017), p. 201. 244Ibid, p.199.
245 See Dwija Priyatno., Sistem Pertanggungjawaban Pidana Korporasi (Corporate Criminal Liability System).
(Depok, Kencana Prenadamedia Group,2017), p. 61
246 Article 1 of every Law in Indonesia usually stipulates general provisions on the definition of terminologies
used by the Law. In the Law, the recognition of corporation as the criminal law subject is by defining the word “setiap orang” (person) as both natural persons and legal persons.
1. The Former Emergency Law on Stockpiling
As mentioned above, the recognition and acceptance of corporate criminal liability outside the criminal code firstly occurred in 1951, only six years after the independence by a former regulation on the Stockpiling Law.247 That Law was the earliest Law recognizing corporations as its subject. Therefore, it is important to know the reason for the recognition of corporate criminal liability in that Law.
This acceptance reflected the fact that the recognition of the criminal liability of corporations within the Indonesian criminal legal system was very pragmatic. The unstable economic conditions of Indonesia as a new country, which involved an independence war, lead to many stockpiles in the society. That condition worsened when corporations were involved in the misconduct. The government therefore needed an effective measure to deal with corporations.248 Sanctioning corporations was an effective measure to fight against crimes that involved corporations at that time. Later in 1955, Indonesia used the same measure to deal with corporations in a broader scope by recognizing corporations as the subject in economic crime Law. After that, various Laws outside the KUHP adopted the principle of corporate criminal liability.
The recognition of corporate liability in the first article of the Stockpiling Law represented the first recognition of corporations both with civil legal status and non-civil legal status as the subject of the Law.249 The system to establish the criminal liability of corporations in the
Stockpiling Law is stipulated in Article 11, which stated that if an offence is committed by a corporation, the prosecution and the sentence can be instituted against and imposed on the corporation and/or the person. Paragraph 2 of Article 11 indicates whether a corporation has committed a certain offence or not. An act is a corporate act if the act is committed by one or more persons on behalf of corporation. However, this Law was not regulate further on how to establish the criminal liability of corporations. Consequently, it was difficult for law enforcers to implement this Law.250
247 The Law was Emergency Law Number 17 Year 1951 on Stockpiling Act, this Law has already been repealed
in 1962 by Government Regulation in lieu of Law Number 8 Year 1962.
248 See the consideration paragraph of the Law on Stockpilling.
249 The terminology used in this law is badan hukum which literary means corporation with civil legal status but
the Law broadens the meaning of badan hukum both with civil legal status and without civil legal status. See
Article 1e of the Stockpiling Law.
The Stockpiling Law also regulated procedural law related to corporations in Article 12. One of directors of the corporation should become the representative of the corporation in a criminal process, who could also be appointed by the prosecutor.251 Letters of summons related to the case should be submitted to the office address of corporations or to the residence of the director who becomes the representative of the corporation.252 The Stockpiling Law did not
contain any further regulations toward corporations, especially concerning procedural law to bring a corporation before the court. Moreover, at that time, the Indonesian criminal procedural law was still based on HIR, which also stayed far away from recognizing corporate criminal liability. The system of corporate criminal liability did not develop further based on this law, since legislators applied the law for a brief period before the Law was annulled in 1962.253
2. The Emergency Law on the Investigation, Prosecution and the Trial of Economic Crimes After the first recognition of corporate criminal liability in 1951, the next essential stage occurred in 1955 when a newly independent Indonesia faced an economic crisis due to the decreasing world economy. Given the poor economic conditions, the Indonesian Government reacted by establishing the Emergency Law Number 7/Drt/1955 concerning the Investigation, Prosecution and Trial for Economic Crimes (hereinafter referred to as Economic Crime Law).
254 This Law aimed at unifying the rules governing the investigation, the prosecution, and the
punishment for economic crimes. This Law applied only to the enforcement of economic offences, which are a group of regulatory offences, usually but not always, of an economic nature, that the legislators label as such. Historically, Indonesian Economic Crime Law was based on the Netherlands Economic Offences Act. Legislators at that time believed that Indonesian economic conditions after the war were similar to the Netherlands during the enactment of the Dutch Economic Offence Act in 1950.255 The stipulation in Article 15 of Indonesian Economic Crime Law was similar to Article 15 of the Dutch Economic Offences Act (Wet op de Economische Delicten 1950), as both Laws regulate that corporations could commit economic crimes. Therefore corporations could be prosecuted and punished.
In Article 15, corporations are defined as the legal entity, company, union and foundation. To establish the criminal liability of corporations, Subsection 2 of Article 15 outlines some factors a criminal court should consider when determining whether a corporation has
251 Article 12 Paragraph 1 Emergency Law Number 1 Year 1951. 252 Article 12 Paragraph 2 Emergency Law Number 1 Year 1951.
253 Annulled by Government Regulation in Lieu of Law Number 8 Year 1962.
254 Andi Hamzah, Hukum Pidana Ekonomi (Economic Criminal Law), (Jakarta: Erlangga, 1973), p. 5. 255Ibid, p. 7.
committed a certain economic offence. Subsection 2 of Article 15 mentions that an economic offence would be held against a corporation, if, for instance, the offence was committed by a natural person who acted within the scope of the corporation based on employment or other relationships, regardless of whether the offence was committed individually or collectively.
This Law was recently deemed an inapplicable regulation, meaning that almost the entire group of regulatory offences in Article 1e of the Economic Crime Law was repealed with new regulations that were no longer considered a part of Economic Crime Law. Consequently, the Indonesian law enforcers rarely refer to this regulation since there have been many new specific Laws related to economic activities. However, shortly after independence, the recognition of corporate criminal liability within the Economic Crime Law and the Stockpiling Law reflected the decision of Indonesian legislators to accept corporations as criminal law subject. The enactment of both Laws aimed to deal with the economic crimes that involved corporations as important actors. Sanctioning corporations were an effective measure to deal with crime in the economic sphere. Since then corporations were widely accepted as the subject in criminal offences in most of the Laws outside the KUHP. That acceptance is a logical consequence from the preservation of position of the KUHP which does not recognize corporations as its subject.
256
3. The Law on Eradication of the Criminal Acts of Corruption
Law Number 31 Year 1999 as amended by Law Number 20 Year 2001 on Eradication of the Criminal Act of Corruption (hereinafter referred to as Corruption Law) contains the former stipulations in Chapter XXVII of the KUHP on Crimes Committed by Officials, as a part of corruption crime.257 The Corruption Law is one of the many examples of how Indonesia developed its criminal legal system by revoking certain articles within the KUHP and setting the articles in Laws outside the KUHP. First Corruption Law was enacted in 1971 by the enactment of former Corruption Law Number 3 Year 1971.258 However, in this Law, corporations were not recognized as the criminal law subject. Corporations have just been recognized as the criminal law subject by the new Corruption Law in 1999. In its consideration,
256 In the perspective of Mardjono, the recognition of the criminal liability of corporations outside the criminal
code is an effort to extent the criminal law subject since the criminal code only recognize natural persons as its subject. See subchapter 2.3.
257 This Law replaced the Corruption Law Number 3 Number 1971 which also contained the former stipulations
in KUHP.
258 Several articles related to bribery by public official were revoked from the KUHP in 1971 by the former
Corruption Law Number 3 Year 1971. The 1971 Corruption Law is then replaced by the Law Number 31 Year 1999 as amended by Law Number 20 Year 2001 on Eradication of the Criminal Act of Corruption.
Corruption Law mentions that the former Corruption Law was not suitable with the new development of corruption crime. Therefore, a new Corruption Law was needed. Based on general elucidation of Corruption Law, sanctioning corporation is important to ensure the effectivity to prevent and eradicate corruption crime.259
As special criminal law, the Corruption Law recognizes the criminal liability of corporations. The recognition begins with the definition of corporations in Corruption Law as an organized collection of people and/or wealth both in the form of legal entity or non-legal entity.260 After recognizing and defining corporations as the subject in Corruption Law, the
Law further stipulates how to prosecute corporations which are stipulated in Article 20. 1) In the event that the criminal act of corruption is committed by or on behalf of a
corporation, the lawsuit and the sentence can be instituted against and imposed on the corporation and/or its board of directors.
2) The criminal act of corruption is taken to be committed by a corporation in the event that the act is committed by people who are, based on work and other relations, act within the scope of corporation, both personally and collectively.
3) In the event that the lawsuit is imposed on the corporation, the corporation is represented by the board.
4) The board representing the corporation as referred to in number 3 above, can be represented by another person.
5) The judge can order that the board of the corporation should be summoned to the court
and he can also order that the board be brought to the court.
6) In the event that the lawsuit is imposed on the corporation, the court then submits the letter of summons to the residence of the board or the office of the board.
7) The main sentence which can be imposed to a corporation is only the fine, with the understanding that the maximum fine is increased by one-thirds.
8) The special additional sentences that can be imposed on the corporation are:261
a. Whole or partial closing of company for a maximum period of one year,
b. Confiscation of goods used for or obtained from a corruption act,
c. Compensation to the state for a maximum up to the wealth obtained from the
corruption act. 262
259 See the consideration of Corruption Law point c and the general elucidation of the Corruption Law. 260 Art. 1 para 1 Corruption Law.
261 Article 18 Corruption Law.
262 Complete English version of Corruption Act can be seen in http://assetrecovery.org/kc/node/b83089eb-a342-
Drawing from the points mentioned above, the stipulations on corporate criminal liability in Corruption Law provide a sufficient basis to prosecute a corporation in corruption offences. The Corruption Law states that the corporation is the subject of criminal offences, provides several criteria to establish the criminal liability of corporations and stipulates the procedural law to prosecute corporations. In addition, that law also regulates several additional sanctions. The Corruption Law regulates that the criteria to determine that criminal act of corruption is committed by a corporation if the act is committed by people who are, based on work and other relations, act in the corporate environment, both personally and collectively. The Law has given a basis for the judges in determining the criminal act of corporations but those criteria opens multi interpretations, such as the meaning of criteria “other relations” and “an act within the scope of corporation”.263
In procedural law, the Corruption Law open the possibility for the board of directors as the representative of corporations represented by another person in criminal trial.264 However, that Law does not further determine who can be the representative of the board of directors. To conclude, Regulation on the criminal liability of corporations within the Corruption Law still requires other detailed regulations due to the lack of corporate liability regulations in the