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All About Criminal Law Part 5: Unlawfulness

Heksa Archie Putra Nugraha

Contributor

28 Jan 2024 · 11:00 28 January 2024 11:00 WIB 4 minutes reading time: 4 minutes 5 read

This article discusses the element of unlawfulness in criminal law. Let's examine the explanation.

All About Criminal Law Part 5: Unlawfulness

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Table of Contents

The Element of “Against the Law” in the Criminal Code
Article 372 of the Criminal Code
Article 362 of the Criminal Code
The Concept of Illegality

Section 2/2: The Concept of Illegality

The Concept of Illegality

Basically, the concept of illegality can be divided into two, namely formal illegality and material illegality. Formal illegality means that an act matches the formulation of a prohibition norm contained in the law. On the other hand, material illegality is broader because it also includes being contrary to the norms of morality and propriety that exist in society.

Regarding the nature of illegality material is further divided into two, namely in positive function and in negative function. The nature of law material in a positive function means affirming or stating that an action is considered a criminal offense because of material law even though it is not regulated as a criminal act in the law. Regarding the nature of material law, this conflicts with the principle of legality in Article 1 paragraph (1) of the Criminal Code.

However, there is still room for the nature of material law in a negative function, namely negating or eliminating the element of illegality in an offense. This is permitted as long as the state is not harmed, the public interest is served, and the defendant does not benefit. According to Komariah Sapardjaja, the application of the above material illegality must pay attention to:

The defendant's actions provide benefits for the legal interests that the lawmakers want to protect,
The defendant's actions protect higher law, namely the benefit for the broad and general public interest, and
The defendant's actions contain greater value for the interests of society than for himself. What is meant here is that the defendant does not get any benefit from the actions taken for the sake of society.

In addition to the above division, the concept of illegality can also be viewed in two ways, namely objective illegality which is roughly the same as formal illegality and subjective illegality which is related to intent or mens rea. To assess whether there is intent from the perpetrator, the concept of culpability based on the principle of geen straf zonder schuld. Culpability itself is divided into intent and negligence.