4.5 EVALUACIÓN DEL CONTROL INTERNO
4.5.1 MEDICIÓN DE RIESGOS INHERENTE Y DE CONTROL
From the elaboration on several Laws in Indonesia that regulate corporate criminal liability, the recognition of corporate criminal liability in Indonesian statutory can be categorized into three different categories, that is:318
1. The Laws that do not recognize corporations as a law subject, therefore corporations cannot be held criminally liable and become the subject of punishment;
2. The Laws which recognize criminal acts by corporations, but it is only the natural person within corporation who can be held criminal liable on behalf of the corporation; 3. The Laws which recognize that a corporation is criminal liable and the subject of
criminal punishment.
316 In 2009 first official academic paper and the code draft was released by the government. That draft was drafted
by a team which was chaired by Andi Hamzah. The academic paper of the KUHAP reform. Available at https://komiteKUHAP.files.wordpress.com/2012/08/naskah-akademik-ruu-hukum-acara-pidana.pdf. Accessed 1 March 2017
317 The draft of KUHAP available at http://ditjenpp.kemenkumham.go.id/files/doc/1008_RUU%20KUHAP.doc.
Accessed on 27 August 2016.
318 Mardjono Reksodiputro, Pertanggungjawaban Pidana Korporasi dalam Tindak Pidana Korporasi (the
Criminal Liability of Corporations in Corporate Crime), Presentation Paper in National Seminar on Corporate Crime, FH UNDIP, Semarang 23-24 November 1989, p. 9.
The KUHP exemplifies a law in the first category which has not recognized corporations as criminal law subjects in its stipulation. All Laws outside the KUHP that do not have special stipulations on corporate criminal liability will follow the position of the KUHP, as the general rule in criminal law.
The example for the second category is the stipulation on Banking Law. Article 46 Paragraph 2 Banking Law regulates that corporations could commit crimes in unlicensed collecting of funds from the public. However based on that article the prosecution and the punishment could only be imposed to the natural person, in this case to those who ordered such activities, or those who are responsible for the management of these acts, or against both parties.319 In addition EPM Law has also been included in this category. If we only read the
stipulation in Article 116, we can directly conclude that the corporations can be held criminally liable and become the subject of criminal punishment based on EPM Law. However, if we read further, the stipulation in Article 118 EPM Law, the criminal punishment for corporations in EPM Law can only be instituted for natural persons on behalf of corporations.320
Lastly, Anti-Corruption Law, Anti Money Laundering Law, Pornography Law, Traffic Law, and Narcotic Law are examples of several special criminal Laws outside the KUHP which stipulate the criminal liability of corporations based on the third category. Anti-Money Laundering Law, for example, stipulates how corporations can commit a crime and be held criminal liable and also how to punish corporations. On the other hand, Anti-Corruption Law also has the same stipulation as Pornography Law, but both do not stipulate what to do in if the corporation fails to pay the fine.
The three categories of the recognition of criminal liability of corporations in Indonesia are the proof that the Laws outside the KUHP have various approaches to deal with the criminal liability of corporations. Those various approaches are the result of the position of the KUHP
as the general law in criminal law, which has not recognized corporations as the subject of criminal law. This is also because the inconsistency of lawmakers to apply a single system of corporate criminal liability in legal drafting. Consequently, several problems then emerge from the present position on the recognition of corporate criminal liability.
The first problem is that all laws that recognize corporate criminal liability do not give complete stipulations to establish the criminal liability of corporations. The clear example can
319 Article 46 Banking Law.
be found in the Capital Market Law. That law only defines that the criminal provision in capital market could be imposed on both the legal person and the natural person without further stipulation. This stipulation will not lead to any problems if the KUHP and the KUHAP already have the system of criminal liability of corporations, but since KUHAP and KUHP do not recognize it, the corporate criminal liability stipulation in Capital Market Law is rendered inapplicable.
Secondly, the difference among the Laws in regulating corporate criminal liability hampers the ability of law enforcers to implement and develop corporate criminal liability in practice. The prosecutor should understand the different approaches to prosecute corporations based on the stipulation in certain Laws. In addition, the court will also face the same problems and cannot establish a decisive theory in the criminal liability of corporation. The differences in regulating corporate criminal liability among the Laws are shown in the table below.321
321 As comparison, the table will also provide the future regulation on corporate criminal liability in the KUHP
Table 2.3.
The Laws The Definition of Corporation The Special Stipulation on Criminal Sanction for Corporation
The Stipulation on The Way Corporation Can Be Criminally Liable
Stockpiling Law
Corporation with legal entity or non-legal entity 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
If the act is committed by one or more persons on behalf of corporation
Economic Crime Law
Corporation is a legal entity, company, union and foundation
If a legal entity, company, union, or foundation commits an offence the prosecution and the sentence can be instituted against and imposed on the legal entity, company, union, foundation and/or those who ordered such activities, or those who are responsible for the management of these acts.
If the offence is committed by natural persons who acted within the scope of the corporation, based on employment or other relationships, regardless the offence was committed individually or collectively
Corruption Law
Corporation as organized collection of people and/or wealth both in form of legal entity or non-legal entity
1. The lawsuit and the sentence can be instituted against and imposed on the corporation and/or its board of directors
2. The main sentence that can be commuted to a corporation is only the fine, with the understanding that the maximum fine is increased by one-thirds
Corporations commit the criminal act of corruption if the act is committed by people who are, based on work and other relations, act in the corporate environment, both personally and collectively
Money Launder- ing Law
1. Corporation as organized collection of people and/or wealth both in form of legal entity or non-legal entity
2. This law also makes the definition of the corporation control personnel which means anyone who possesses the power and authority to determine the corporation’s policy or the authority to implement the corporation’s policy in question without requiring authorization from their superior
1. The sentence shall be subject to the Corporation and/ or Corporation Control Personnel. 2. Primary sentence to the corporation, shall be the
fine sentence for no more than Rp100.000.000.000, 00.
3. If the corporation is unable to pay fine sentence, such fine sentence shall be substituted with the confiscation of corporation’s assets or Corporation Control Personnel’s Assets whose value is equal to the fine sentence verdict of which is imposed.
4. If the selling of the confiscated corporation’s assets is insufficient, the imprisonment sentence in lieu of a fine sentence shall be
Sentence shall be subject to the corporation if the criminal action of Money Laundering:
a. is committed or ordered by the Corporation Control Personnel;
b. is committed in the framework of the objectives and purposes of the corporation;
c. is committed in according with the function of perpetrator or the person who give the order; and
Table 2.3.
The Laws The Definition of Corporation The Special Stipulation on Criminal Sanction for Corporation
The Stipulation on The Way Corporation Can Be Criminally Liable
imposed to the Corporation Control Personnel with considering the paid fine.
EPM Law “Person” in EPM Law is a natural person or business entity which has legal personality or without legal personality
1. Criminal sanction is imposed on:
a. The director of the corporation represents the Business Entity in this case and/or
b. The Persons who gives an order to carry out the criminal act concerned or who act as leaders in the carrying out of it in this case the fine will be increased by one third
If an Environmental crime is committed by, for, or in the name of a business entity by persons, both based on employment and other relations, who act in the sphere of the business entity
Fishery Law
Corporation is a group of well-organized persons and/or assets both in the form of legal entity or non- legal entity
When a corporation commits crimes on Fishery Law, prosecution and sanction will be imposed on its directors and the fine will be increased by one third
Not specifically regulated
Capital Market Law
A person in EPM Law should be read as a natural person, a company, a partnership, an association, or any organized group
Not specifically regulated Not specifically regulated
Banking Law
Corporation is a legal entity in the form of limited liability company, association, foundation, or cooperative
The charges against corporation shall be imposed on those who ordered such activities, or those who are responsible for the management of these acts, or against both
Not specifically regulated
Narcotic Law
Any organized group of people and/or assets both in form of legal entities or non-legal entities
If Narcotic Crime is committed by a corporation, other than imprisonment and penalty against the management, the corporation shall be charged penalty with 3 (three) times addition from penalty.
Not specifically regulated
Porno- graphy Law
Any person is defined as a natural person or corporation which has legal personality or without legal personality
If the criminal act of pornography 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
The criminal act of pornography is taken to be 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
Table 2.3.
The Laws The Definition of Corporation The Special Stipulation on Criminal Sanction for Corporation
The Stipulation on The Way Corporation Can Be Criminally Liable
Traffic Law
Corporation in Traffic Law are: 1. Public transportation company 2. Road organizers
1. In the event a criminal act is committed by a public transportation company, the criminal responsibility shall be imposed on such public transportation company or its managing boards
2. If a criminal act is committed by a public transportation company, then in addition to punishment imposed on its managing board, it shall also be imposed a penalty at the maximum of 3 (three) times than such penalty
Not specifically regulated
The KUHP Draft
The organized collection of people and/or wealth, whether as legal person in the form of:
- Limited Liability Company - (Perseroan Terbatas), - Foundation (Yayasan), - Association (Perkumpulan), - Cooperation (Koperasi),
- Public/State Owned Enterprise (Badan Usaha Milik Publik),
- Province/City Owned Enterprises (Badan Usaha Milik Daerah),
- Village Owned Enterprises (Badan Usaha Milik Desa)
- or similar entities, or business entities in form of Firm (Firma), Limited Partnership (persekutuan komanditer (CV)), or similar entities
Subjects of criminal sanction are: 1. Corporation, and/or 2. Board of director,
3. The person who gives the order or 4. The Corporate Controller
Criminal sanctions: 1. Primary sanction, 2. Secondary sanction, 3. Treatment
The acts of corporation are determined from:
The act of persons who hold a functional position in the corporation’s organizational structure’s management who act; For or on behalf of corporation, or For the interest of corporation. Based on employment or other relationships, regardless whether the offence is committed individually or collectively.
The act of the person who gives order of the misconduct or the act of corporate controller outside the structure of corporation as the act of corporation if the corporation get an illegal benefit from the misconduct or the misconduct has a correlation with the activities of corporation and accepted as the policy of corporation
The criminal liability of corporation is determined from:
The misconducts that are committed for and/or on behalf of corporation if:
The acts are committed within the scope or the activities of corporation as stipulated within the articles of association or other provisions applicable to the corporation concerned.
The acts are committed outside the scope of business activities of corporation which give benefit to the corporations or for the interest of corporations.
Thirdly, within the various stipulations on corporate criminal liability outside the general criminal code that lead to problems of law enforcement, Indonesia responds slowly when dealing with problems. The absence of regulations under the Laws that aim to fulfil the gap among regulations reflects this. Law enforcement offices often issue technical regulations to provide guidance and advice to their officers to deal with their judicial function. Long after the first recognition in 1951, the General Prosecutor Office just released the guidance for prosecutors only in 2001, which applied to the corruption crime by corporation. Then in 2014 the General Prosecutor Office finally issued the general guidance to prosecute corporations. On the other hand, the Indonesian Supreme Court has just issued similar guidance for judges at the end of 2016. The reason behind the enactment of the guidance and the stipulations within the guidance will be discussed later in Chapter 3 by elaborating the implementation of corporate criminal liability in Indonesia. However, the year of the enactment of the guidance both the General Prosecutor Office guidance in 2014 and the guidance from the Supreme Court in 2016 demonstrates the dynamic progress of the development of the criminal liability of corporations in Indonesia within the last 4 years.
2.7. Conclusion
The Indonesian criminal legal system adapts to new developments in criminal law is through regulating the new Laws outside its criminal code rather than stipulate it within the criminal code. Consequentially, there are so many special criminal Laws outside the criminal code. The various Laws creates various stipulations, including the stipulation on corporate criminal liability. In general, there are three different forms of stipulating among the Laws on corporate criminal liability. Firstly, the Laws that recognize a corporation as the criminal law subject but do not further regulate how to implement the system of the criminal liability of corporations. Secondly, the Laws that recognize a corporation as the subject and have detailed stipulations on the system of criminal liability of corporation. Thirdly, the Laws that recognize a corporation as the subject but do not have detailed stipulation on the system of criminal liability of corporation.
The absence of stipulations on corporate criminal liability within the general criminal law both in the Criminal Code and the Code of Criminal Procedure creates difficulties for the legal enforcers when trying to prosecute corporations. Legal enforcers should have a comprehensive understanding on all systems of the criminal liability of corporations among the Laws that recognize corporations as its criminal punishment subject. As a system, there is a missing link between the special Laws (lex specialis) and the general Law (lex generalis). The
implementation of the Laws that recognize the criminal liability of corporations will find difficulties when the system of corporate criminal liability is not comprehensively regulated. To deal with that problem, the amendment of the general criminal law both the Criminal Code and the Code of Criminal Procedure should be prioritized by recognizing and stipulating a comprehensive system of corporate criminal liability.
In addition, to improve the system of criminal liability of corporations within the Law, the minimum stipulation should recognize that both by natural persons and legal persons can commit criminal offences along with the clear definition of “corporation”. Secondly, in case a corporation commits an offence, it should be clear who can be prosecuted and punished322 and who can represent corporations before the court. The additional stipulation can be regulated as well, such as who can be considered as “the mind” of corporations and when an act of the mind of corporations can be considered as the act of corporations. The detailed stipulation concerning how to establish the criminal liability of corporations is important in the Indonesian criminal legal system, because it will give a sufficient legal basis to prosecute corporations. The numerous ways the court implements the criminal liability of corporations in several cases, which Chapter 3 will discuss, will answer the questions about the reasons for detailing the stipulations on corporate criminal liability, also on procedural law.
322 Usually the parties that can be prosecuted and punished are the corporation and/ or the natural person who has
Chapter 3
The Law Enforcement of the Corporate Criminal Liability in the
Indonesian Criminal Legal System
3.1. Introduction
The criminal law enforcement within a country’s legal system cannot be separated from the involvement of the law enforcement authorities. In their hands, the investigations, the prosecutions, the trials and the sentencing of the criminal offenders are conducted in response to behavioural misconduct. The discussion of the general development of corporate criminal liability around the globe as discussed in Chapter 1 shows that, as a new concept in criminal law, the criminal liability of corporations has unique characteristics compared to the criminal liability of natural persons. Therefore, the establishment of corporate criminal liability often incurs challenging problems both in substantive and procedural law, since the basis of criminal law only deals with the natural persons as the subject of criminal law. The problems related to establishing corporate criminal liability have also emerged in Indonesia. As already discussed in Chapter 2, the Indonesian criminal legal system has recognized corporations as the subject of the criminal law since 1950s, but the recognition of the criminal liability of corporations is still regulated within the Laws outside the criminal code (KUHP) and the Criminal Procedure Code (KUHAP). Based on those Laws, many offences in the Indonesian criminal legal system could be committed both by the natural persons and corporations, except the offences regulated in the KUHP. It seems clear that the Indonesian criminal legal system already has the legal