Legal Literacy - Law Number 1 of 2023 regarding the National Criminal Code (KUHP) provides new rules regarding corporate crime. Articles 45 to 49 of the National Criminal Code regulate corporations as subjects of criminal acts, who can be held criminally responsible, as well as the conditions and nature of that criminal responsibility. This article provides useful information for parties involved in corporate activities, such as entrepreneurs, corporate management, and legal parties.

Knowing the Criminal Code (KUHP)

Law Number 1 of 2023 Concerning the Criminal Code (KUHP) was ratified on January 2, 2023. The National Criminal Code was born as a reform of criminal law Indonesia with the aim of ending the validity of the Wetboek van Strafrecht (WvS), a legacy of the colonial era which tends to be portrayed as a “retributive view”. The National Criminal Code implements a dualistic theory, namely the separation of formulations between criminal acts and accountability criminal. There are various new regulatory substances, one of which is regarding a separate chapter on corporations in KUHP.

Corporations as Subjects of Criminal Acts

Article 45 of the National Criminal Code affirms corporations as subjects of criminal acts. In this case, what is meant by corporation is:
1. Legal entities (limited liability companies, cooperatives, foundations, BUMN/BUMD, legal entities or those equated with them);
2. Unincorporated associations (firm business entities, limited partnerships or those equated with them).

Criminal Acts by Corporations

The National Criminal Code only recognizes criminal acts by corporations (crime by corporation), namely criminal acts committed by:

  1. Management who have a functional position in the corporate organizational structure, namely people who have the authority to represent, make decisions, and implement supervision of the corporation, including positions as people who order criminal acts, participate in committing, move other people to commit criminal acts or assist in the criminal acts (Article 46);
  2. People who, based on a working relationship or based on other relationships, act for and on behalf of the corporation or act in the interests of the corporation (Article 46);
  3. Order giver in the corporation (Article 47);
  4. The controlling party of the corporation, anyone who has the power or authority as a policy maker of the corporation or has the authority to carry out the corporation's policies without having to obtain authorization from his superiors (Article 47);
  5. The beneficial owner of the corporation, who is outside the organizational structure but controls the corporation (Article 47).

Conditions for Corporate Liability

Article 48 of the National Criminal Code regulates the conditions for criminal liability for criminal acts by corporations, namely criminal liability can only be requested if:

  1. Included in the scope of business or activities as stipulated in the articles of association or other provisions applicable to the corporation;
  2. Benefiting the corporation unlawfully;
  3. Accepted as corporate policy;
  4. The corporation does not take the necessary steps to prevent, prevent greater impacts and ensure compliance with applicable legal provisions to avoid criminal acts; and/or
  5. The corporation allows criminal acts to occur.

Limitation of Corporate Liability

However, Article 49 of the National Criminal Code only imposes corporate liability on parties as regulated in Articles 46-47 of the National Criminal Code, namely administrators who have functional positions, order givers in the corporation, controlling parties of the corporation, and beneficial owners of the corporation. This provision excludes criminal liability for "people who, based on a working relationship or based on other relationships, act for and on behalf of the corporation or act in the interests of the corporation", for example, corporation employees or people employed by the corporation.

Nature of Corporate Liability

Criminal liability for criminal acts by corporations can be imposed on:

  1. Only the administrators (the corporation as the perpetrator and the administrators who are responsible);
  2. The corporation only (the corporation as the perpetrator and also as the one responsible);
  3. Administrators and the corporation. However, it is not explained regarding the conditions or criteria so that criminal and criminal liability can be requested cumulatively from the administrators and the corporation at the same time.

Justification and Excuse for Corporations

Article 50 of the National Criminal Code regulates that the justification and excuse submitted by administrators who have functional positions, order givers, controlling parties, and/or beneficial owners can also be submitted by the corporation as long as it is directly related to the criminal act charged to the corporation. The application of this provision must be selected selectively, what kind of justification and excuse from individuals is then relevant to also be seen as justification and excuse for the corporation.

*This article represents the personal opinion of the author and does not represent the views of the Indonesian Legal Literacy editorial team.