The Element of “Against the Law” in the Criminal Code

Legal Literacy - The formulation of a criminal offense must contain the matter of what is prohibited, both formal offenses with prohibited acts and material offenses with prohibited consequences. However, all types of offenses must contain an element of illegality. The element of “against the law” can be stated explicitly or not, depending on the elements of each article.

Examples of offenses that positively contain the element of “against the law” in the Criminal Code Criminal Law (hereinafter referred to as the “Criminal Code”), include:

Article 372 of the Criminal Code

“Anyone who intentionally and against the law possesses something that is wholly or partly the property of another person, but which is in his power not because of a crime, is threatened with embezzlement, with a maximum imprisonment of four years or a maximum fine of Rp900 thousand.”

Article 362 of the Criminal Code

“Anyone who takes something, wholly or partly the property of another person, with the intention of owning it unlawfully, is threatened with theft, with a maximum imprisonment of five years or a maximum fine of Rp900 thousand.”

Regarding articles that clearly include the element of “against the law”, this can be interpreted to mean that if it is done according to the law, it is permitted. Take the example Article 362 of…