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Criminal Law Session 1

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3/23/2015

Definition of criminal law

SESSION 1
• Definitions and Scope of Criminal law
• Legal sources of Indonesian criminal law
• Divisions of criminal law
Course: Criminal Law

Prof. Moeljatno


Criminal law is part of the entire laws practiced in particular country,
which provide principles and rules to:
1) to determine what kind of behavior which prohibited, not allowed to,
accompanied by punishment or sanction by using certain penal sanction
for those who violate the prohibitions  Criminal Act
2) to determine when and in what condition for those who have violated
the prohibitons can be inflicted with prescribed punishment  Criminal
Liability/ Criminal Responsibility
1) and 2) = Substantive Criminal Law
3) to determine by what means/ how the punishment would be inflicted if
someone violate the prohibitions  Criminal Procedure

Criminal Law Department, Faculty of Law
University of Indonesia
2011

Definition of criminal law
Prof. Pompe

• Criminal law is all legal rules which determine
what kind of conduct that should be punished,
and what kind punishments to be inflicted for
those conducts.

Definition of criminal law
Prof. Simons

• Criminal law is all obligations and prohibitions
provided by a country and treated by
punishment for the perpetrator, all rules
which determine requirements for the legal
implications and all rules to give punishment
and to implement the penal sanction.

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3/23/2015

Definition of criminal law

Division of criminal law

Prof. Van Hamel

• Criminal law is all principles and rules hold by
particular country in mantain legal order
(rechtsorde) by means of prohibit what in
conflict with law and to inflict the punishment
for anybody who violate the prohibitions.

• Ius Poenale
• Substantive law /
materiil criminal law
(criminal law)
• The criminal law which
is implemented
nationally (in all part of
a nation)

Criminal law science and other
sciences

The Criminal Law Science
• Part of legal science which particularly study
criminal law .
• According to Prof. Lemaire, the main object of
this science is positive law or the existing
criminal law in particular country .
• However, according to Prof. Simons, the
criminal law science not only study the
existing law (ius constitutum) but also the
future law (ius constituendum)

• Ius Poeniendi
• Formil criminal law
(criminal procedure
law)
• The Criminal law which
is implented in certain
local area (provinces
and municipality)








Criminology
Victimology
Criminalistic
Forensic
Psychiatry
Sociology of law

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Indonesian Penal Code and its history
• According to Andi
Hamzah
- VOC era
- Nederland Indie era
- Japanese occupation
era
- Independence era

• According to Utrecht
- VOC era
-Daendels era
-Raffles era
-Comisaris General era
-1848-1918
-1915 -now

Nederlands Indie era
• Dualism in criminal law
1. Decree of Dutch King 10/2/1866 (S.1866 no.55) -->
aplied for Europeans
2. Ordonnantie 6 May 1872 (S.1872) --> applied for
Indonesians and easterners (chinese, Japanese)
• Unification :
Wetboek van Strafrecht voor Nederlandsch - Indie
- The decree of the Dutch King 15/10/1915 implemented in
1/1/1918 accompanied by
- The decree of the Dutch King 4/5/1917 (S.1917 no. 497) :
regulate the transition from older criminal law to new
criminal law .

VOC era
• Statuten van Batavia
• The law of old Dutch
• Principles of Roman law
• Adat (customary) law
prevailed in other regions
• Such as: Pepakem Cirebon

Japanese Occupation era
• Wetboek van strafrect still
applied
• Osamu Serei (law) No. 1 /1942,
implemented on 7/3/1942
• The criminal procedure law has
more rules which changed

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Independence era
• UUD 1945, article II
on Transitional rules
“All existing state
bodies and
regulations still
applied as long as the
new ones not yet in
place according to this
constitution”

Legal sources of Indonesian
Criminal Law

• Law No.1 year 1946 : emphasized the criminal law that
prevailed in Indonesia
• Prevailed in Java and Madura (26/2/1946)
• Government Regulation No. 8 year 1946 : prevailed in
Sumatera
• Law No. 73 year 1958 : “ The Law which declared that Law
No. 1 year 1946 is prevail in all part of the Republic of
Indonesia and amend the penal code”

The Penal Code of Indonesia
• Book I : General Provisions (art 1 – 103)

• Indonesian Penal Code (and all
law and regulations which
amended the code)
• The law and regulations
concerning criminal law outside
the Penal Code
• The criminal provisions provided
in the non-penal law and
regulations

Art 103  The provisions of the first
eight chapters of this Book shall also
apply to facts on which punishment is
imposed by other statutory provisions,
unless determined otherwise by statutes
• Book II : Crimes (art 104 – 488)
• Book III : Misdemeanours (art 489 – 569)

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Several statues which amended the penal code
 Law No.1/1946 : implementation of the penal code,
alteration of several terms, elimination of several articles,
addition of several new articles in Chapter Bab IX - XVI
 Law No. 20/1946 : addition of the kind of penal sanction in
art 10 a KUHP --> pidana Tutupan (close detention)
 Emergency Law No. 8/1955 : remove art 527
 Law No. 73/1958 : declared that Law No. 1/1946 prevail in
all part of Indonesia, added articles 52a, 142a, 154a
 Emergency Law No. 1/1960 : added the punishment of
articles 188, 359, 360 into 5 years imprisonment or 1 year
light imprisonment

Criminal law statutes
outside the Penal Code
• Law No. 31/1999 and Law No. 20/2001 on
corruption eradication
• Law No.7/drt/1955 on Economic crimes
• Law No. 15/2003 on Terorism eradication
• Law No. 8/2010 on Prevention and
eradication of money laundering









Government Regulation in lieu of Law No. 16/1960 : added the value of
non- serious crimes in several articles 364, 373, 379, 384, 407 (1)
Goverment Regulation in liew of Law No. 18/1960 : the multiple of Fine
punishment 15 times
Law No. 1/PNPS/1965 : added art 156 a
Law No. 7/1974 : added punishment for gambling provided at art 303 into
10 & 25 million rupiah , art 542 (1) become a Crime (previously
misdemeanour), art 303 bis , the punishment increased into 4 years
imprisonment, Fine 10 million rupiah.
Law No. 4/1976 amendment and added of crime relating aviation : art 3,
art 4 [4], art 95a, 95b,95c, chapter XXIX A of the Penal Code
Law No. 20/2001 : remove articles relating to corruption (because they
have alreaddy provided in the specific law on corruption)

Examples of “non-criminal law statutes” which
contain criminal provisions












Law on environment
Law on Media
Law on national education system
Law on Banking
Law on Taxation
Law on Political Party
Law on General Election
Law on Imigration
Law on Capital Market
Law on Insurance
etc

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General criminal law & special criminal
law
General criminal law Special criminal law
Subject
(military or
non-military)

Non-military criminal statutes

Military criminal statute

In or outside
the Penal
code

The Penal code and statutes
which altered the Penal code

Law on economic crimes , Law
on corruption, military criminal
law, Law on tax crimes

Scope

All criminal law legislation which
applied in general (the Penal
code, law on economic crimes,
Law on corruption crimes, etc)

Criminal provisions provided in
the non-criminal law legislation

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