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 the Criminal Code that if the act of taking someone else's property is done with the permission of the entitled party, then it cannot be subject to the article a quo.

In addition, the inclusion of the element of “against the law” places a greater burden of proof on the Public Prosecutor. When this element is not proven, then by law the defendant must be acquitted. If the judge has doubts about the proof of this element, according to the principle of in dubio pro reo, then the defendant must also be acquitted. However, if the judge has doubts about the proof of the element of “against the law”, the judge can also rely on the principle of in dubio pro lege fori.

On the other hand, there are also articles that do not clearly state the element of “against the law.” This is because the actions listed are so evil in the assumption of society that they do not need to be clearly stated in the formulation of the offense.

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:

  1. The defendant's actions provide benefits for the legal interests that the lawmakers want to protect,
  2. The defendant's actions protect higher law, namely the benefit for the broad and general public interest, and
  3. 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.