Professional Documents
Culture Documents
Corporate Criminal Liability - William Edward Sibarani PDF
Corporate Criminal Liability - William Edward Sibarani PDF
Email: hi.williamedwr@gmail.com
The growth of the business world in the 4.0 era. nowadays marks the
corporations and the public can be seen in the collaboration carried out by
future. One of the things that must be observed by the state is the presence
of a new form of a criminal act that comes in conjunction with the absence
with the current model of corporate culture as if by opening the path of the
corporation to get the maximum profit so that the victims are the people.
Strictly speaking, the Indonesian Penal Code does not recognize the
corporation as one of its legal subjects, but in the Netherlands, the position
which are a lex specialis of the provisions in the Criminal Code. The
3 https://kumparan.com/@kumparanbisnis/foto-pembayaran-perpanjang-sim-dengan-
gopay-1rkIAYW6pQs?utm_source=msnid&utm_medium=Aggregator, accessed on
August 27th of 2019, 14.43 WIB.
4 Schaffmeister, Hukum Pidana (Editor: J.E. Sahetapy), Yogyakarta: Liberty, 1995, pg. 423.
Page 2 out of 15
Corporate Criminal Liability: A Threat to Indonesia’s Business World?
William Edward Sibarani
society is, the more complex the need for regulations governing the life
Apart from that, it can not be denied that the presence of various types
from the taxation sector, creating jobs and encouraging the acceleration of
technology for people's lives. But the corporation is also a means to commit
various criminal acts (corporate crime) that bring harm to society and the
unfair business actions and also violate laws. Also, corporations supported
corporate crime.
and The Treatment of Offenders, it was stated explicitly about the dangers
5 Satijpto Rahardjo, Hukum, Masyarakat dan Pembangunan, Bandung: Alumni, 1980, pg.
3-4.
6 Considerations letter (a), Supreme Court Regulation Number 13 of 2016 regarding
Procedures for Handling Criminal Cases by Corporations
7 Eddy O.S., Hiariej, Prinsip-Prinsip Hukum Pidana, Yogyakarta: Cahaya Atma Pustaka,
Pelayanan Keadilan dan Pengabdian Hukum Lembaga Kriminologi Indonesia, 1994, pg.
103.
Page 3 out of 15
Corporate Criminal Liability: A Threat to Indonesia’s Business World?
William Edward Sibarani
interests of the state there must be no crime that is not dealt with. Then, the
state is also obliged to secure all national wealth according to the mandate
the issuance of the Corporate PERMA poses a high legal risk to the
subject that can bear rights and obligations, the next issue concerns the form
persoon who have souls and minds, proving whether or not there is an
Page 4 out of 15
Corporate Criminal Liability: A Threat to Indonesia’s Business World?
William Edward Sibarani
actions are human actions as well so that the top of the acts and minds are
humans. While other groups argue that, when the corporation receives
crime are both a challenge and a threat to the growth of the business world
However, how to find out the limits that corporate crime was committed to
is still complicated.
criminal acts.
10A Pinto QC dan M Evans, Corporate Criminal Liability, Edisi Kedua, Sweet & Maxwell,
2008, pg. 39.
11 Hasbullah F. Sjawie, Direksi Perseroan Terbatas serta Pertanggungjawaban Pidana
Page 5 out of 15
Corporate Criminal Liability: A Threat to Indonesia’s Business World?
William Edward Sibarani
in the court that the corporation has conducted its business operations in
accordance with the SOP (Standard Operating Procedure) but the crime can
not be avoided, the corporation can still be convicted. That way, a simple
potest), but to prove the corporation’s error (mens rea) can only be done by
Moreover, our positive law gives the authority to the judge to impose
management referred to in the Corporate PERMA also does not yet have a
management in a corporation.
Page 6 out of 15
Corporate Criminal Liability: A Threat to Indonesia’s Business World?
William Edward Sibarani
corporate criminal acts in the forestry sector because in the case of logging,
generally, those who commit crimes are field workers, not the high-level
theory).15 The point is, mistakes in the occurrence of a corporate criminal act
corporation. To determine corporate mistakes, you can also look at who acts
as the mind of the company.16 Based on this theory, precisely the job as a
very difficult to apply given the complexity of the chain of command from
who give orders to commit criminal acts or who act as leaders of these
Page 7 out of 15
Corporate Criminal Liability: A Threat to Indonesia’s Business World?
William Edward Sibarani
crimes.17 This regulation is more collective and gives a broader view of the
background of corporate crime. Not only the management, but if the field
perpetrators are proven to be the top of the mind from the occurrence of
to take action against corporations that commit criminal acts because of the
Business Judgment Rules and fiduciary duties that are right on target. In
criminal acts.18
incompliant actions;
17 Act 116 paragraph (1) Law Number 32 of 2009 regarding Environmental Protection
and Management
18 Barda Nawawi Arief, Bunga Rampai Kebijakan Hukum Pidana, Bandung: Citra Aditya
Page 8 out of 15
Corporate Criminal Liability: A Threat to Indonesia’s Business World?
William Edward Sibarani
occurred;
plain sight the corporation must be responsible for the crime even if the
if the corporation does not receive the benefit of the crime, but the crime is
carried out by the management, the application of the corporate culture model
deemed unable to prevent a crime, shortly after the start of the investigation
process and known to the public then at that time also the reputation of a
emerge that the management will always take shelter under the auspices of
industry and trade to meet the era of modernization of the world, the
Page 9 out of 15
Corporate Criminal Liability: A Threat to Indonesia’s Business World?
William Edward Sibarani
company.
who feel the direct impact are consumers in the narrow sense of
shareholders, a corporation that is caught in crime is not fit to buy its assets.
In fact, shortly after the start of the investigation process, it could be that
the value of a corporation's stock has fallen and no longer has competitive
value and capable sale value. The impact on the community is also clearly
harmful to the health of the people who use the product. Especially because
the occurrence of criminal acts in the production process for goods that
occur in the midst of society and have concrete impacts that can not be
20 Marshall B. Clinard dan Peter C. Yeager, Corporate Crime, New York: The Free Press,
1980, pg. 93.
21 Yehezkiel Kristian, “Urgensi Pertanggungjawaban Pidana Korporasi”, 44 th Jurnal
Page 10 out of 15
Corporate Criminal Liability: A Threat to Indonesia’s Business World?
William Edward Sibarani
whose workforce reaches thousands. Indonesian labor law does not only
not be proven as a collective error, the fate of the thousands of workers will
result in dismissal. As a result, all health facilities, wages and other social
increase in unemployment.
clearly loses the value of the benefits of natural resources which should be
an income in the taxation sector. 23 Not to mention the recovery effort which
until now has not been carried out by PT Lapindo Brantas, until the
mudflow. Also, other cases that did not directly harm the country such as
Page 11 out of 15
Corporate Criminal Liability: A Threat to Indonesia’s Business World?
William Edward Sibarani
owners who are afraid of the risk of investing their capital will reduce the
wages. The production that is not optimal, affects the price of goods on
demand and supplies that are not comparable. And, the latest impact is felt
by the government on the lack of revenue from the tax sector and the slow
principles. Placing the right person in the right position can minimize the
gap to prove the existence of intentions to not comply with the positive
Page 12 out of 15
Corporate Criminal Liability: A Threat to Indonesia’s Business World?
William Edward Sibarani
It is not impossible the worst possibilities described above just did not
eradicate crime and not a threat to the business world, all related parties
applicable regulations and follow the appeal given by the government. The
committing criminal acts. Because after all, legal policies in the economic
having to ignore the concerns of the state in the welfare of the lives of its
citizens.
Page 13 out of 15
Corporate Criminal Liability: A Threat to Indonesia’s Business World?
William Edward Sibarani
Citations
Books
A Pinto QC dan M Evans, Corporate Criminal Liability, Edisi Kedua, Sweet &
Maxwell, 2008.
Barda Nawawi Arief, Bunga Rampai Kebijakan Hukum Pidana, Bandung:
Citra Aditya Bhakti, 2002.
Eddy O.S., Hiariej, Prinsip-Prinsip Hukum Pidana, Yogyakarta: Cahaya Atma
Pustaka, 2014.
Hasbullah F. Sjawie, Direksi Perseroan Terbatas serta Pertanggungjawaban
Pidana Korporasi, Bandung: Citra Aditya Bhakti, 2013.
Mardjono Reksodiputro, Kemajuan Pembangunan Ekonomi dan Kejahatan,
Jakarta: Pusat Pelayanan Keadilan dan Pengabdian Hukum Lembaga
Kriminologi Indonesia, 1994.
Marshall B. Clinard dan Peter C. Yeager, Corporate Crime, New York: The
Free Press, 1980.
Muladi, Dwidja Priyatno, Pertanggungjawaban Pidana Korporasi, Jakarta:
Kencana Prenada, 2011.
Satijpto Rahardjo, Hukum, Masyarakat dan Pembangunan, Bandung: Alumni,
1980.
Schaffmeister, Hukum Pidana (Editor: J.E. Sahetapy), Yogyakarta: Liberty,
1995.
Sutan Remi Sjahdeini, Pertanggungjawaban Pidana Korporasi, Jakarta: Grafiti
Press, 2006.
Regulations
Law Number 41 of 1999 regarding Forestry
Law Number 32 0f 2009 regarding Environmental Protection and
Management
Supreme Court Regulations Number 13 of 2016 regarding Procedures for
Handling Criminal Cases by Corporations
Page 14 out of 15
Corporate Criminal Liability: A Threat to Indonesia’s Business World?
William Edward Sibarani
Journal
Anthony O Nwator, Corporate Criminal Responsibility: A Comparative
Analysis, Journal African Law: Volume 57, April 2013.
Budi Suhariyanto, “Pertanggungjawaban Pidana Korporasi Berdasarkan
Corporate Culture Model dan Implikasinya Bagi Kesejahteraan
Masyarakat”, Jurnal Rechtsvinding: Volume 6, Number 3, December
2017
Yehezkiel Kristian, “Urgensi Pertanggungjawaban Pidana Korporasi”, 44th
Jurnal Hukum dan Pembangunan, Number 4, October-December 2013.
Taun, “Pertanggungjawaban Pidana Korporasi dalam Tindak Pidana
Ketenagakerjaan”, Jurnal IUS Vol. VI. Number 2, August 13th of 2018.
Internet
https://money.kompas.com/read/2019/08/26/215829626/permudah-
pembiayaan-untuk-ukm-investree-dan-bri-perkuat-kolaborasi, accessed
on August 27th of 2019.
https://kumparan.com/@kumparanbisnis/foto-pembayaran-perpanjang-
sim-dengan-gopay-
1rkIAYW6pQs?utm_source=msnid&utm_medium=Aggregator,
accessed on August 27th of 2019.
Page 15 out of 15