Tipos del Clima Organizacional

In general, the legal sources in substantive criminal law in Indonesia are based on three sources: the KUHP as the general rule in substantive criminal law (lex generalis); numerous criminal Laws on specific crimes outside the KUHP203; and various Laws which have criminal provisions within their stipulations.204 _{The KUHP consists of three books: general provisions,}

felonies and misdemeanours.205 Using Article 103 of the KUHP, the general provisions within the first book can be applied to criminal law regulations outside the KUHP, unless the laws outside KUHP determine otherwise.

The KUHP only recognizes human beings as natural person as able to commit a criminal act, when there is a criminal act related to a corporation, Article 59 of the KUHP (similar to former Article 51 of the DCC) states that liability will be duly borne by the corporation’s management so made to present on behalf of and in the name of the corporation. However, management staff that are not involved in the criminal act will not be prosecuted.206 That article becomes the foundation of the KUHP and special Laws that do not recognize corporations as its subject that would only sanction the natural person for the crimes that are committed within the sphere of corporations. This poses the question, when special Laws recognize the corporation as its subject, can those Laws refer to the general stipulation within the first KUHP

book since that code does not recognize corporations as its subject?

The answer for that question is the Laws which recognize corporations as its subject can refer to general stipulations within the KUHP. The arguments for that answer are as follow. Firstly, Article 103 of the KUHP stipulates that the provisions of the first eight chapters within the first book of the KUHP also applies to offences punishable under other Laws or bylaws, unless otherwise provided by Law. Since special Laws recognize that corporations can commit crimes, that article can serve as the legal basis for using the general provisions when sanctioning corporations, even though the KUHP does not recognize the corporation as its subject. Secondly, the Indonesian courts have also accepted within case laws that corporations can commit a continuing act based on the Article 64 paragraph 1 KUHP about continuing acts

203 _{The examples of criminal Laws outside KUHP are such as Corruption Law, Anti Money Laundering Law and}

Anti Human Trafficking Law.

204 _{Most of Indonesian Laws have criminal provision within its stipulation to ensure the law enforcement of those}

Laws such as Law on Capital Market, Law on Banking, etc.

205 _{Unofficial translation of KUHP in English can be accessed on:}

http://www.humanrights.asia/countries/indonesia/laws/legislation/PenalCode.pdf, accessed on 12 May 2017.

206 _{Article 59 of the KUHP stipulates “In cases where by reason of misdemeanour punishment is imposed upon}

directors, member of a board of management or commissioners, no punishment shall be pronounced against the director or commissioner who evidently does not take any part in the commission of the misdemeanour.”

(voortgezette handelingen). The courts have also ruled that corporations can participate in crimes with other perpetrators, both the natural person and the legal person, based on Article 55 of the KUHP on participation in crime.207 In conclusion, even though the KUHP does not recognize corporations as its subject, sanctioning corporations based on special Laws, using the general stipulation within the first book of KUHP, has a solid legal foundation.

Book one of the KUHP consists of nine Chapters and 103 Articles. Eight chapters cover: the scope of application; the types of criminal sanctions and measures; exclusion, mitigation and enhancement of punishment; attempt; participation; conjunction of punishable acts; filing and withdrawing complaints in crimes to be prosecuted only upon complaint; and the lapse of the right to prosecute and the punishment theoretically can be implemented to corporations because this book regulates the basic principle in criminal law as long as it is suitable with the characteristic of legal persons.

Basic principles in Indonesian criminal law, such as the legality principle (art.1 KUHP), the territoriality principle (art.2 and 3 KUHP), the passive nationality principle (art.4 and 8

KUHP), the active nationality or personality principle (art.5 KUHP) and the universality principle, are applicable for corporations similar to the natural person as well as the stipulations in participation in crime (art.55) and the crime of attempt (art.53 KUHP).

Since Indonesia inherited the criminal code from the Netherlands, general system in establishing criminal liability, in this case for natural person, is quite similar. Despite KUHP which is actually a translation from the WvSNI, basic literatures in Indonesian criminal law studies which are strongly influenced by the Dutch literatures especially before 1945, make the similarity even stronger.208 The legality principle (Article 1 of the KUHP) becomes the foundation that no act shall be punished unless by virtue of a prior statutory provision. The statutory provision of an offence always contains the constituent elements of the offence. Therefore, before a person can be held criminally responsible for committing criminal offence, all those elements must be summed up and must be proven by the facts presented by the prosecutor before a court. It must be proven that the person acted voluntarily with a wrongful state of mind and in the absence of any justification or excuse for his/her conduct.209 _{Where a}

207 _{See the discussion on the Kalista Alam case and the Cakrawala Nusa Dimensi case in Chapter 3. The Courts}

in both cases accepted that continuing act and participation can be committed by corporations.

208 _{Later in Chapter 4 it will be discussed the strong connection between Indonesia and the Netherlands in criminal}

law system which then become the reason why this study using the Netherlands experience as a lesson learned.

209 _{Sudarto, Hukum Pidana 1 (Criminal Law 1), (Semarang, Badan Penyediaan Bahan-Bahan Kuliah FH UNDIP,}

constituent element is missing in the charge, a discharge (lepas/ontslag van rechtsvervolging,

Indonesia uses both terminologies) must follow.210 In contrast, where the public prosecutor cannot prove by evidence that the charge is matched by the facts, an acquittal (bebas/vrijspraak) must follow.211

A guilty mind is an important factor to convict the accused that has been proved as to have committed the criminal act. A person is considered as to have a guilty mind if that one is able to understand and appreciate the wrongfulness of the conduct.212 _{As well as the Netherlands,}

there is no criminal liability without culpability or blameworthiness (Geen straf zonder schuld).

In culpability, Indonesia also recognizes two form of culpability which are intent (sengaja/opzet) and negligence (alpa/culpa). Intent consists of acting willingly, knowingly and also acting in the awareness of a high degree of probability. Intent in form of dolus eventualis

(kesengajaan sebagai kemungkinan) which is the case when the offender willingly and knowingly accepts a considerable risk that a certain result may ensues has also been applied in Indonesia. There are two forms of negligence in Indonesia which are kealpaan yang disadari

(conscious negligence/bewuste culpa) and kealpaan yang tidak disadari (unconscious negligence/onbewuste culpa). Conscious negligence is established when the offender is aware of significant and unjustifiable risk will arise from the act, but think on unreasonable basis that the risk will not occur. On the other hand, unconscious negligence happens when the offender was not aware of the risk, but should have been aware of the outcome.213

Additionally, based on the KUHP, the statutory grounds for justification are necessity (daya paksa)214, self-defence (pembelaan darurat)215, public duty (menjalankan perintah undang-undang)216 and obeying the official order of a competent authority (melaksanakan perintah jabatan)217_{. The grounds for excuse are insanity (tidak mampu bertanggung jawab)}218_,

duress (daya paksa)219, excessive self-defence (pelampauan batas pembelaan darurat)220 and obeying an order issued without authority (melaksanakan perintah jabatan tanpa wenang)221_.

210 _{See Article 191 par.2 KUHAP.} 211 _{See Article 191 par.1 KUHAP.}

212 _{Moeljatno, Asas-asas Hukum Pidana (Principles of Criminal Law), ( Jakarta, Rineka Cipta, 2000) p.157} 213_{Ibid, p.201-201.}

214_{See art. 48 KUHP.} 215 _{See art. 49(1) KUHP.} 216 _{See art. 50 KUHP.} 217 _{See art. 51 KUHP.} 218 _{See art. 44 KUHP.} 219 _{See art. 48 KUHP.} 220_{See art. 49 (2) KUHP.} 221_{See art. 51 (2) KUHP.}

There are two additional defences derived from case law in the Netherlands, which are the absence of substantive unlawfulness and the absence of all blameworthiness due to ignorance (mistake of fact or mistake of law).222 The Indonesian criminal legal system has also recognized those additional defences. The first is the absence of substantive unlawfulness (tidak adanya unsur sifat melawan hokum materiil) as justification defence and the second is the absence of all blameworthiness due to ignorance (tidak adanya kesalahan sama sekali /AVAS).

All of these parts of the KUHP also apply for corporations when their liability is established outside the KUHP in special laws. Not everything can be applied in the same way, of course. Theoretically, corporations have an equal position with the natural person in justification and excuse, for instance. However, corporations cannot use insanity as it is fit for the natural person only.

The KUHP divides punishments into primary sanctions and secondary sanctions as described in the table below.223

222_{P. J. P. Tak, Op.Cit. p. 73.}

223 _{See Article 10 to Article 43 of the KUHP.}

Table 2.1.

Main Punishments Additional Punishments

Punishments Descriptions Punishments Descriptions

Capital Punishment

Deprivation of certain rights

1. Rights to hold offices or specific offices 2. Rights to serve with the armed forces 3. Rights to vote or be voted for in

elections held by the virtue of general regulations

4. Rights to be a counsellor or a legal manager and to be a guardian, co- guardian, curator, co-curator over other children than one’s own

5. The paternal authority, guardianship, curatorship of one’s own children 6. Rights to exercise specific profession. Life

imprisonment

forfeiture of specific property

Property is subject of forfeiture if: 1. The property is the proceed of crime 2. Criminal activity is facilitated by the

224 _{See Indonesian Supreme Court Regulation Number 2 Year 2012 on the Adjustment of Definition of Petty}

Crime and the Amount of Fines in Criminal Code. Imprisonment The minimum

imprisonment for felony is one day and the general maximum is 15 years and 20 years for special maximum publication of judicial verdict Light imprisonment

The minimum light imprisonment for misdemeanor is one day for general maximum is one year and one year and four month for special maximum Fine There has been

several adjustments to the amount of fine in the KUHP. The last adjustment is the multiplication by 1000 times the fine in the KUHP.

224 Isolation (pidana tutupan) added in 1946 by the Law Number 2 of the Year 1946 on Hukuman Tutupan The special imprisonment for offenders with respected motives, such as political prisoners

Based on that table, the fine is the only primary sanction that is suitable to the characteristics of corporations. Forfeiture of specific property and publication of judicial verdicts are the secondary sanctions that corporations can receive. Several articles stipulate the grounds of justification and excuse. The missing regulation is how to execute primary sanctions to corporations when a corporation fails to pay the fine. The KUHP stipulates that if a convict fail to pay a fine, light imprisonment will substitute it, which is impossible to be imposed to corporations.