Legislative policy on the regulation of corporations as the subject of crimes

Pages1092-1111
Published date03 October 2016
DOIhttps://doi.org/10.1108/JFC-12-2015-0071
Date03 October 2016
AuthorSupriyadi
Subject MatterAccounting & Finance,Financial risk/company failure,Financial crime
Legislative policy on the
regulation of corporations
as the subject of crimes
Supriyadi
Faculty of Law, Universitas Gadjah Mada, Yogyakarta, Indonesia
Abstract
Purpose – The purpose of this paper is to examine the criteria of the provision on the corporation as
the subject of crimes regulated in criminal legislation outside Indonesian Penal Code (KUHP) in the past
ve years. The criteria will be used to explore the construction of corporate criminal responsibility.
Design/methodology/approach – The method of the research is normative-legal study using the
library research. The method of the examination is a qualitative-description. The data used are
secondary data, including legislations, books, journals and other materials.
Findings – It is found that in the past ve years, there are 25 criminal legislations outside KUHP which
have the provision on corporation as the subject of crimes. In those 25 legislations, only four legislations
which have the criteria of corporate criminal responsibility. In those legislation, it can be concluded that
the construction of corporate criminal responsibility is based on identication and aggregation theory.
Originality/value – This research is novel in Indonesia. This research examines the specic articles
of several legislations to deeply describe the corporate criminal responsibility.
Keywords Corporation, Criminal sanction, Criminal liability, Criminal offense
Paper type Research paper
1. Introduction
The existence of corporation as the subject of crimes is basically related to white collar
crime introduced by Edwin Hardin Sutherland in 1939. White collar crime is seen as the
root of corporate crimes. White collar crimes can be dened as the crime committed by
honoured persons and persons who have high level of social status in relation to their
positions or occupations (Muladi, 2002a, p. 159).
In its development, there are some denitions of white collar crime in several forms,
such as occupational crime, corporate crime and Criminal Corporation. Occupational
crime is a crime committed by individuals for their own interest related to their positions
and also a crime committed by employees which causes the loss of their employers.
Corporate crime is an illegal conduct of corporation in the violation of laws to reach
the purpose of the organization (Muladi, 2002a, p. 161). Criminal Corporation is the
corporation which is intentionally established and controlled to commit crimes, so the
position of the corporation is only a tool or mean to commit crimes (Ali, 2008).
If the history is traced, the corporation had never been admitted as the subject of
crimes in criminal law. That can be found in Indonesian Penal Code which is the main
regulation of criminal law. Indonesian Penal Code (KUHP) never placed the corporation
as the subject of crimes because the founder of the KUHP (1886) used the principle
“universitas delinquere non potest” which means a collective of persons or funds cannot
commit a crime (Muladi, 2002b, p. 157). The consequence is that The KUHP only
The current issue and full text archive of this journal is available on Emerald Insight at:
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JFC
23,4
1092
Journalof Financial Crime
Vol.23 No. 4, 2016
pp.1092-1111
©Emerald Group Publishing Limited
1359-0790
DOI 10.1108/JFC-12-2015-0071
recognizes a person in the denition of natural person as the subject of crimes, while a
person in the denition of corporation or judicial person is not recognized as the subject
of crimes in the KUHP.
The recognition of a person as the subject of crimes in the KUHP can actually be
concluded from the several provisions in the KUHP. It can be seen from the provisions of
crimes in KUHP which is always started by the element “whoever”. In the context of the
KUHP, “whoever” basically refers to”natural person”. Moreover, it can be seen from the
main punishments of KUHP regulated in Article 10 of the KUHP, which are capital
punishment, imprisonment, light imprisonment and nes, which those punishments
aim to be given for a natural person. Article 10 of the KUHP regulates about nes, but
that aims for natural person. It can be concluded that nes which cannot be paid by the
perpetrator can be replaced by the light imprisonment[1].
The recognition of the person as the subject of crimes can be concluded from Article
59 of the KUHP which states:
[…] in circumstances due to the violations, the punishment is given to the directors, staffs, and
commissioners, so the directors, staffs, and commissioners which are not involved in crimes,
cannot be punished (Moeljatno, 2007).
With regards to the formulation of Article 59 of the KUHP, it can be interpreted that if a
corporation is involved in a crime, the prosecution and punishment can only be given to
the organisatoris of the corporations. It is because who is considered to commit crimes is
only the organisatoris, not the corporation.
Regarding Article 59 of the KUHP, there is an opinion which states that Article 59 of
the KUHP shall be interpreted according to the principle or doctrine which states that
the corporation can commit a crime, although the criminal liability is given to organizers
of the corporation. That is because the exclusion may apply according to Article 59 of
the KUHP, only if the organisator can prove their innocence, while the involved directors
can be punished. Therefore, the concept where the KUHP may only recognize a human
as the subject of criminal law shall be amended (Reksodipoetro, 2007, p. 5).
Although the KUHP uses the principle which only recognizes a human as the subject,
KUHP actually provides the exception. In this context, the corporation may become the
subject of crimes, but the provision shall be regulated outside the KUHP. In the
Netherlands, the corporation as the subject has been implemented since 1950 by
establishing “Wet op de Economische Delicten”, which in Indonesia became the Law No 7 of
1955 on Investigation, Prosecution and Trial of Economic Crimes enacted on 15 May
1955, and it is known as the Law on Economic Crimes.
Article 59 of the KUHP is actually originated from Article 51 of the Dutch Penal Code.
In its development, Article 51 has been amended since 1970. Therefore, Article 51 of the
KUHP which stated that only humans may be the subject of crimes was amended to
state that crimes may be committed by human (natuurlijke personen) and corporation
(rechtspersonen)(
Reksodipoetro, 2007,p.5).
Provisions on the corporation as the subject of crimes can be found in several
legislations outside KUHP. The enactment of those legislation outside KUHP is related
to Article 103 of KUHP which states “Provisions on rst chapter to eight chapters of this
book (rst book) apply to all crimes inside or outside of KUHP, unless it is enacted
differently (Moeljatno, 2007). Based on the Article 103 of the KUHP, it can be concluded
that KUHP provides opportunity for other legislations to regulate criminal law.
1093
Policy on the
regulation of
corporations

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