Criminal act : whether a corporation can become a criminal act subject?

Article

Criminal act : whether a corporation can become a criminal act subject?

Corporation as a business entity existing in community lives generates significant contribution to economic development, many developed countries have large corporation supporting the country's national development, through economic activities that absorb the labor sector and help the government prosper the economy of its people. However, in reality, corporations sometimes also commit various corporate crimes which have an impact on the state and society. When a corporation commits a criminal act, what is the criminal responsibility?

  1. What is Corporate Crime?

Criminal corporation is a criminal act committed by a person based on an employment, or based on other relationships, either individually or collectively acting for and on behalf of the corporation inside or outside the corporate environment. Based on Article 3 of the Supreme Court Regulation Number 13 of 2016 concerning Procedures for Handling Criminal Cases by Corporations ("Perma 13/2016") corporate criminal acts  defined as criminal acts committed by persons based on employment, or based on other relationships, either alone individually or collectively acting for and on behalf of the Corporation inside or outside the Corporation Environment.

 

  1. Who is the Subject of Corporate Crime?

Before further discussion related to criminal and corporate liability, we must first know who are the subjects who can be held accountable, especially in corporate crime. In accordance with Article 23 Paragraph 1 and 3 of Perma 13/2016 which reads:

  1. Judges may impose crimes against corporations or managers, or corporations and managers;
  2. Imposing a crime against a corporation and / or management as referred to in paragraph 1 does not close the possibility the imposition of punishment against other perpetrators who are proven to be involved in the said criminal act."

 

Based on the provisions above, in case of a criminal act committed by a corporation, the legal subjects who can be held liable for the crime are not only corporations, but also Managers or other parties, such as: shareholders who are proven to be involved in corporate crime. In principal, the corporation is a legal subject that does not physically exist and requires real human assistance to carry out the corporate actions.

 

It should also be noted that Law Number 40 of 2007 concerning Limited Liability Companies has divided the company's organs that can act for and on behalf of the corporation, namely consisting of directors and commissioners. Meanwhile, in Article 1 paragraph 10 Perma No. 13/2016 explains that "Management is a corporate organ that carries out corporate management in accordance with the articles of association or laws that are authorized to represent corporations, including those who have no authority to make decisions, but in reality may control or participate in influencing corporate policies or participating in deciding policies. in a corporation that qualifies as a criminal act. "

 

Thus, the management is the board of directors and commissioners who have been listed in the articles of association of a corporation. To see that the directors and commissioners can be held liable for criminal acts in the corporation, it is necessary to see the extent of the involvement of the directors or commissioners in criminal acts committed by corporations, where this can be seen in the existence of mens rea and actus reus committed by directors or commissioners.

 

  1. How is the Corporate Crime Responsibility?

The issue of corporate accountability as a criminal offender is not simple, considering that a corporation is a legal entity. This problem stems from the existence of the principle of no crime without error. Mens rea itself is an element that is difficult to prove from a corporation that is considered to have committed a criminal act considering that a corporation can only take action through the board of directors. A corporation can be considered as committing a criminal act based on the actions committed by the person who controls the management of the corporation. The juridical construction used to say that a corporation has committed a criminal act is when the criminal act is committed by a corporate manager or employee who is still within the scope of their authority and for the benefit of the corporation.

 

So far, corporate criminal responsibility is adjusted to the Law that regulates the types of criminal acts committed.To fill the existing legal void regarding criminal liability by corporations, the Supreme Court of the Republic of Indonesia issued Perma 13/2016 which can be a guideline and basis for law enforcers in handling accountability in criminal cases committed by corporations.

 

Based on the contents of Article 4 of Perma 13/2016, in imposing a crime against a corporation, Judge may consider the error of the corporation with the following parameters:

  1. Corporations may be held liable for crimes in accordance with the provisions on corporate crime in the law governing corporations;
  2. In imposing a crime against a corporation, Judge may consider the corporate error as referred to in paragraph (1), among others;

 

  1. The corporation may gain or benefit from the crime or the crime is committed for the benefit of the corporation;
  2. The corporation allows criminal acts to occur; or
  3. The corporation does not take the necessary steps to prevent a bigger impact and ensure compliance to applicable legal provisions in order to avoid criminal acts.

As for the sanctions that can be imposed on the Corporation based on Article 25 paragraph (1) Perma 13/2016, namely:

  1. The judge imposes a criminal offense against the corporation in the form of a principal and / or additional punishment;
  2. The main punishment that can be imposed against the Corporation as referred to in paragraph (1) is a fine;
  3. Additional penalties are imposed on the Corporation in accordance with the provisions of laws and regulations.

 

Based on the explanation above, the main punishment that can be imposed is a fine. The question is, what are the minimum and maximum limits of fines, as well as what additional penalties can be imposed on the corporation? Of course, if we refer to Perma 13/2016, we have to look back at the provisions of criminal fines and additional penalties in a number of laws that regulate corporate criminalization. Meanwhile, additional penalties that can be imposed are adjusted to those regulated in other statutory regulations, namely Article 10 of the Criminal Code and the provisions of other types of crimes regulated in other laws as lex specialis of the Criminal Code which is legi generali.

 

From this, it can be seen that there are disparities in criminal sanctions that can be imposed on corporations. Of course, different types of criminal acts, different criminal sanctions. However, from various criminal acts regulated in each law, criminal sanctions can be taken whichever is the highest fine. However, it cannot be said that the entire responsibility of a director or employee is fully delegated to the corporation and because in general it must be discovered beforehand that the violation of certain laws and regulations by the corporation is then questioned who made the mistake or negligence to be held accountable. It should also be noted that every corporate crime is regulated in a limited or limited manner, which means that if the law does not regulate it cannot be subject to sanctions against the corporation.

 

  1. Several Forms of Corporate Crime

In Indonesia, there are several laws that regulate corporate criminal responsibility, such as the Crime of Money Laundering which is regulated in Law No. 9 of 2010 concerning the Prevention and Eradication of the Crime of Money Laundering to forest and land fires (karhutla) which is regulated through Environmental Crime (Law No. 23/1997 on Environmental Management). Then, there are several other laws that can be categorized as corporate crime, namely:

  1. Terrorism Funding Crime (Law No. 9 of 2013 concerning the Prevention and Eradication of Terrorism Financing Crimes);
  2. Corruption Crime (Law No. 31 of 1999 concerning Eradication of Corruption in conjunction with Law No. 20 of 2001);
  3. The Crime of Human Trafficking (Law No. 21 of 2007 concerning Eradication of the Crime of Human Trafficking);
  4. Unfair Business Competition Crime (Law No. 5 of 1999 concerning Prohibition of Monopolistic Practices and Unfair Business Competition);
  5. Customs Crime (Law No. 10 of 1995 concerning Customs as amended by Law No. 17 of 2006);
  6. ITE Crime (Law No. 11 of 2008 concerning Electronic Information and Transactions as amended by Law No. 19 of 2016);
  7. Oil and Gas Crime (Law No.22 of 2001 concerning Oil and Natural Gas);
  8. Forest Destruction Crime (Law No.18 of 2013 concerning Prevention and Eradication of Forest Destruction);
  9. Etc.

Based on several forms legistlation acts above, it should be noted that the mode of crime of corporate crime is usually carried out in a covert, organized manner and based on a certain expertise possessed by a person. Therefore it is difficult to determine who is the victim, who is the perpetrator of the crime, and how to prove the causal relationship directly between the act and the victim.

 

This Article is generally made for the pupose of ANR Law Firm publication only not be treated as legal advice for your legal problem. Shall you have any further questions ragrding this topic, you may contact the Advocate who authored this article at anrlawfirm@anr-lawfirm.com.

Author: Brain Ratur Tarigan, S.H.

 

1Mens Rea or guilty mind is one of factor from criminal responsibility, also known as wrong knowledge or intention;

2Actus Reus or guilty act is tort resulting perpetrator is responsible in crime if the mens rea factor is also proven.

Share this Post: