Published on International Journal of Law
Publication Date: June 1, 2019
Kumalasari Dewi, Rahayu Kusumaningsih & Andriarto Suseno
Merdeka University, Malang
Yos Sudarso University, Surabaya
Tri Tunggal University, Surabaya
Journal Full Text PDF: Corruption: How Arrangements in Positive Law?.
The development of civilization the world is getting a day seemed to run toward modernization. Developments always bring changes in every facet of life seem more real. Along with that, the forms of crime always follows the development of the era and transformed into other forms of increasingly sophisticated and diverse. Crime in the fields of technology and science always helped to follow. Crime today is no longer always use the old ways that have occurred over the years with the passage of the age of the earth. Can we see an example like, cybercrime (cybercrime), money laundering (money laundering), corruption and other criminal acts. Legislation which specifically regulates the existing corruption. Specificity legislation specific criminal offense, from the aspect of the norm, clearly regulate matters not regulated in the Criminal Code. Told special, because in the Law No. 20 of 2001 on Amendments to the Law No. 31 of 1999 on Corruption Eradication there are principles. Corruption is Special Crime as the legal basis nor the enactment deviate from the general provisions of Book I of the Criminal Code. Even in the procedural law (formal legal) regulations specific criminal offense may deviate from the Act No. 8 of 1981 on Criminal Proceedings, for example in the event of Corruption conducted of proof (Article 37 of Law No. 20 of 2001)
Keywords: Corruption, Criminal, Regulate, Criminal Code, Law.
Indeed, the phenomenon of corruption has been in the community for a long time, but recently attracted worldwide attention since the second world war ended. In Indonesia alone, the phenomenon of corruption has existed since Indonesia is not yet independent. One piece of evidence showing that the existing corruption in Indonesian society, namely the colonial era with their tradition of giving tribute by some segments of society to the local authorities.
Then after the second world war, came a new era, corruption turmoil is increasing in developing countries, the new countries gained independence. The problem of corruption is very dangerous because it can destroy the social network, which indirectly weaken national defense as well as the existence of a nation. Aron Reimon a sociologist believes that corruption can invite the turmoil of the revolution, a powerful tool for crediting a nation. It is not impossible distribution will arise if officials did not immediately solve the problem of corruption. (B. Simanjuntak, SH, 1981: 310)
In Indonesia alone corruption was so severe and acute. Have much idea of the corrupt practices that are exposed to the surface. In this country alone, corruption is like a malignant cancer that spreads to the public organ cells, spread to higher institutions such as the State’s legislative, executive and judicial branches to the SOE. Moreover, given at the end of the New Order era, corruption we encounter almost everywhere. Ranging from small to high-ranking officials.
However, legislation which specifically regulates the existing corruption. In Indonesia alone, the law on corruption had 4 (four) times changed. As for the legislation governing corruption, namely:
a. Law No. 24 of 1960 on the eradication of corruption,
b. Law No. 3 of 1971 on the eradication of corruption,
c. Law No. 31 of 1999 on combating corruption,
d. Law No. 20 of 2001 concerning amendments to the legislation to eradicate corruption.
1.2 On the causes of the acts of corruption in Indonesia, namely:
a. Lack of employee salaries or earnings compared with the increasing needs.
b. Indonesian cultural background that is the source or cause of widespread corruption.
c. Poor management and control are less effective.
1.3 Problem Identification and Formulation
In accordance with the description in the background of writing the above, the key problem in this paper can be identified as follows:
“What Is Corruption and How Arrangements in Positive Law in Indonesia as one of the Special Crime”.
As restrictions on the problem in this paper, can be formulated question – the question – the question of writing as follows:
a. What is the Corruption and the Law, what set of Corruption?
b. Why Corruption included in the Special Crimes?
c. How criminal liability lawsuit against Corruption by Law in Indonesia?
1.4 Writing purpose
The purpose of this paper is to:
a. Knowing what is Corruption.
b. Analyzing why Corruption included as Special Crime.
c. Knowing how to criminal sanctions and proceedings in the case Corruption.
1.5 Usefulness of Writing
The writing is essentially useless:
a. In terms of theory, this analysis adds to knowledge about the Special Crime in general and Corruption in particular and to train students analytical skills against the Criminal Act.
b. In practical terms, this analysis is to make students able to describe how the Corruption said as a Special Crime and students can examine more deeply about Corruption by positive law in Indonesia.
2. LITERATURE REVIEW
2.1 Understanding Corruption
Corruption is derived from the Latin word “corruptio”Or” Corruptus “which appeared in English and French” Corruption “, in Dutch” Korruptie “, and Indonesian” corruption “(Dr. Andi Hamzah, SH 1985:143). Corruption literally means wicked or rotten (John M. Echols and Hassan Shadily, 1977:149), while AIN Kramer ST translates as rotten, damaged, or can be fed.
Noting Law No. 31 of 1999 and Act No. 20 of 2001, the Corruption can be viewed from two aspects, namely:
a. Active corruption
Unlawfully enrich themselves or the corporation, which could harm the state finance or economy of the state (Article 2 of Law No. 31 of 1999)
The intention of enriching himself or another person or corporation menylahgunakan authority, opportunity or means available to him because of the position or positions that harm keuangna country or the country’s economy (Article 3 of Law No. 31 of 1999), Etc
b. Passive corruption
Civil servants or State administrators who receive gifts or promises for doing or not doing something in jabatannnya contrary to its obligations (Article 5 (2) of Law No. 20 of 2001).
Judges or advocates who receive gifts or promises to influence the decision of cases in deliverables for trial or to influence the advice or opinion given relating to his case were submitted to the court for diaili (Article 6 paragraph (2) of Law No. 20 of 2001), Etc
2.2 Elements of corruption, is as follows:
a. Objective element;
Enrich yourself, another person or a corporation;
Could harm the state finance and economy of the country.
b. Objective element: Unlawfully.
2.3 Under the law that interpreted corruption:
a. Anyone who acts unlawfully enrich themselves or another person or entity that is directly detrimental to the State finances and economy of the country and the economy of the country or unknown should be presumed to him that such actions are detrimental to the finances of State (Article 2 of Law No. 20 of 2001);
b. Whoever with the intention of enriching himself or another person or entity is abusing authority, opportunity or means available to him because of the position or positions are directly detrimental to the State or the State’s economy (Article 3 of Law No. 20 of 2001).
c. Whoever committed the crime stipulated in Article 209, 210, 387, 388, 415, 416, 417, 418, 419, 420, 425, 435 of the Criminal Code.
Corruptor (the corrupt), Baharuddin Lopa cites the opinion of David M. Chalmers, decipher the meaning of the term corruption in various fields, namely related to the problem of bribery, related to manipulation in economics, and related to areas of common interest. (Evi Hartanti, SH, 2005:9)
2.4 Performers Corruption
Under Article 2 through Article 17 and Article 21 to Article 24 of Law No. 31 of 1999 on Corruption Eradication, Perpetrators of the crime is every person, which means that individuals and corporations. Law No. 3 of 1971 offenders Corruption is the perseorang only. Performers Corruption under the Criminal Code is “Anyone” meaning people perseorang (private or public servants).
Corporations are groups of people and or assets in the form of legal entity organized or not. Legal Entity in Indonesia:
Limited Liability Company (PT)
Indonesische Maatchapij op Andelen (IMA)
b. Individual people
c. Government employees
Definition of civil servants (officials) in the PSAL 1, paragraph (2) of Law No. 31 of 1999 include:
1. Civil servants (Law No. 8 of 1974)
a. Government employees
b. Armed Forces of the Republic of Indonesia.
2. Article 92 of the Criminal Code
a. People who are chosen in elections.
b. People who are appointed as members of the Constituent.
c. Governing Council members.
d. Board of Representatives.
e. Waterschap Board Member.
f. Head of the Indonesian People First
g. Head of the Foreign East Group.
b. Probate judge
c. administrative judge
d. Chairman or Member of the Religious Court
e. All Members of the Indonesian National Army
3. People who receive salaries or wages of keuagan countries.
4. People who receive a salary from the corporation that receives financial assistance from the state or county.
5. People who receive a salary or wages of the corporation who use capital or state or community facilities.
2.5 The principle – the principle of the Act for the Eradication of Corruption
According to Law No. 31 Year 1999 there were some principles that distinguish it from other crimes law, namely:
1. The culprit is that everyone, including individuals and corporations (legal entities and associations of people).
2. Criminal nature and alternative komulasi
Komulasi means, within the provisions of the article includes the word “…. and ….” while alternative includes the word “…. or ….”.
3. The existence of minimum and maximum criminal
4. Attempt, abetment of corruption shall be punished the same as the perpetrator.
5. Each person outside the territory of Indonesia to provide assistance, opportunity, means, and information for the TPK together with perpetrators convicted.
6. Criminal addition to additional penalty stipulated in the Penal Code (Article 18 of Law No. 31 of 1999).
7. People who deliberately do not provide information or give incorrect information may be liable (Article 22).
2.6 Type Corruption
Kind of corruption according to Law No. 31 Year 1999 jo. UU no. 20 of 2001, namely:
1. Financial losses of the state (Article 2 and 3)
3. Embezzlement in office
6. Conflicts of interest in procurement (Article 12 I)
7. Gratuities (Article 12B jo. Article 12C)
Other types of criminal offenses related to corruption according to Law No. 31 Year 1999 jo. UU no. 20 of 2001, consisting of:
1. Impede the process of investigation of corruption cases (Article 21).
2. Not to testify or give false information (Article 22 jo. Article 28)
3. Banks that do not give the suspect’s account information (Article 22 jo. Article 29).
4. Witnesses or experts who provide information or give false information (Article 22 jo. Article 35).
5. The person holding the office secret does not provide information or give false information (Article 22 jo. Article 36).
6. Witnesses who disclose the identity of the complainant (Article 24 jo. Article 31).
2.7 Scope of Applicability
Article 16 of Law No. 31 of 1999 on Corruption Eradication reach everyone who outside Indonesia to provide assistance, opportunity, means and information to the Corruption. The culprit may be subject to the offenses referred to in article 2, 3, and 5 to article 14 of Law No. 31 of 1999.
2.8 The Corruption Eradication Commission (KPK)
Under the provisions of Article 43 of Law 31, No. 31 of 1999 on Corruption Eradication, as amended by Act No. 20 of 2001, a specialized agency of the so-called Anti-Corruption Commission which has the authority to coordinate and supervise, including investigation, investigation, and prosecution.
Authority of the Commission in the investigation, investigation, and prosecution of corruption offenses include:
1. Law enforcement officers, State administrators, and others in connection with TPK committed by law enforcement officials or State administrators.
2. Attention plaguing the society
3. Concerning the state losses of at least Rp. 1,000,000,000.00 (one billion) (Article 11 of Law No. 30 of 2002).
2.9 Duties and Powers
The Commission has a duty (Article 43 paragraph (2) Act – Act No. 31 of 1999) as follows:
1. Coordination and supervision
3. conduct investigations
Corruption Eradication Commission authority:
1. Coordinating the investigation, investigation, and prosecution of corruption.
2. Establish a reporting system in TPK eradication activities.
3. Request information about TPK eradication activities to the relevant agencies.
4. Implement a hearing or discovery by institutions authorized to eradicate TPK.
5. Ask relevant agencies report on the prevention of Corruption (Article 7 of Law No. 30 of 2002).
6. Another authority (Article 12, 13, 14 of Law No. 30 of 2002).
2.10 Corruption as a Special Crime
Specificity legislation specific criminal offense, from the aspect of the norm, clearly regulate matters not regulated in the Criminal Code. Told special, because in the Law No. 20 of 2001 on Amendments to the Law No. 31 of 1999 on Corruption Eradication there are principles or things – things that deviate from the general provisions in Book I of the Criminal Code.
3. CASE STUDY
3.1 Corruption Case
State institution and has been appointed chairman of the committee/ responsible person procurement projects in 2005 in the agency. At the end of the fiscal year, S as one of the inspectors of institutions authorized to audit has been commissioned to conduct an audit of financial accountability over the procurement process conducted by the W.
During an investigation, the S found a number of indications of irregularities in the procurement process that resulted in losses of State. W knows it, then tried to approach S by offering Rp. 300 million and expressed its intention to S so that the findings deviation indication was omitted from the report of examination results.
3.2 Analysis of Corruption Case
The case described above were then analyzed by breaking down into elements of Corruption Article 5) 1) a of Law No. 31 Year 1999 jo. UU no. 20 of 2001 as follows:
1. Each person
2. Giving anything or promise anything
3. To an official or State administrators
4. With the intention that do or not do something in his post so contrary to his duty.
3.3 Elements of Criminal Acts 1: Each person
1. Acts committed facts and events found:
– W an official at a state institution.
– W is chairman of the committee / responsible person procurement projects at the agency.
2. Evidence that supports:
– Description of the defendant W.
– KTP W.
– SK as chairman of the committee
3.3 Elements of Criminal Acts 2: Giving anything or promise anything.
1. Acts committed facts and events found:
– W members Rp. 300 million to the S.
– S Investigators report to plan the provision of money by W.
2. Evidence supports 2 are:
– Description of the defendant W and testimony of witnesses S
– Description of the investigating officers who make arrests
– Evidence in the form of instructions:
a. Results recording by investigators about recording the events giving money from the defendant to the witness W S
b. USD cash. 300 million.
3.4 Criminal elements 3: To an official or State administrators
1. Acts committed facts and events found.
2. S is a civil servant in one State agency that serves as a financial examiner Country
3. SK S as civil servants.
4. Task letter S to carry out checks on institutions W.
5. Information from superiors S.
3.5 Elements of Criminal Acts 4: With the intention that do or not do something in his post so contrary to his duty.
1. The fact that such events do san found:
– Giving money by W to S intended to S in making the examination reports do not include the finding that there were indications of irregularities in the procurement of goods.
– W knowing that it was contrary to the obligations of S as the Examiner.
2. Evidence that supports:
– Description of the defendant W and information sari Witness S.
– Description of team members S.
– Information from superiors S.
– Letters such as the Financial Audit Reports.
The fourth element of Corruption in Article 5, paragraph (1) letter a of Law No. 31 Year 1999 jo. UU no. 20 of 2001 are met. A whole series of actions have been carried out by W is a corruption under Article 5, paragraph (1) letter a of Law No. 31 Year 1999 jo. UU no. 20 of 2001 that W is required to subject to imprisonment.
Act – Act No. 20 of 2001 on the Amendment of the Act – Act No. 31 of 1999 on the Corruption Eradication Special Crimes, because there is a principle or things – things that deviate from the general provisions in Book I of the Criminal Code. However, legislation which specifically regulates the existing corruption. In Indonesia alone, the law on corruption had 4 (four) times changed. As for the legislation governing corruption, namely:
1. Act number 24 of 1960 on the eradication of corruption,
2. Law No. 3 of 1971 on the eradication of corruption,
3. Law No. 31 of 1999 on combating corruption,
4. Act number 20 of 2001 concerning amendments to the Act eradication of corruption.
Conclusion The author can be described as follows :
1. Corruption by Law No. 31 of 1999 on Corruption Eradication Jo Law No. 20 of 2001 on Corruption
– Article 2: Everyone is against the law acts to enrich themselves or another person or a corporation that can be detrimental to the State finances or economy of the State.
– Article 3: Everyone with the intention of enriching himself or another person or corporation, abuse of authority, opportunity or means available to him because of the position or positions that can be detrimental to the State Finance or the State’s economy.
2. Corruption is said Special Crime as the legal basis nor the enactment deviate from the general provisions of Book I of the Criminal Code. Even in the procedural law (formal legal) regulations specific criminal offense may deviate from the Act No. 8 of 1981 on Criminal Proceedings, for example in the event of Corruption conducted of proof (Article 37 of Law No. 20 of 2001). Specificity legislation specific criminal offense, from the aspect of the norm, clearly regulate matters not regulated in the Criminal Code. The subject of the crime of corruption expanded because it not only includes an individual but also a legal entity (corporation). While the issue of sentencing, judging from the pattern of the pattern formulation or the threat of sanctions, can also deviate from the provisions of the Criminal Code, for example, in the Corruption Criminal sanctions at least 4 years.
3. In Act No. 31 of 1999 on Corruption Eradication Jo. Law No. 20 of 2001 on the Eradication of Corruption, criminal liability in the case of the Corruption namely:
1) Corporations are groups of people and or properties either a legal entity or non-legal entity.
2) Servants are included:
a. Civil servants referred to in the Act on Employment.
b. Pegawai country as referred to in the Code of Criminal Law.
c. People who receive a salary or wage from state or regional finances.
d. People who receive a salary or wages of a corporation that receives financial assistance from the state or region; or
e. People who receive a salary or wage from another corporation that uses capital or facilities from the state or society.
3) Each person is an individual or a corporation