Legal Literacy - Get a comprehensive guide to criminal acts. Learn about their elements, theoretical basis, and the differing views monistic and dualistic in legal practice.
The elements of a criminal act can be distinguished from two perspectives: theoretical and statutory. Theoretical refers to the opinions of legal experts, which are reflected in the wording of the formulation. Statutory refers to how the reality of a criminal act is formulated into a specific criminal act in the articles of existing laws and regulations. In criminal law, there are two views on the elements of a criminal act, namely:
Doctrine of the Elements of a Criminal Act: Monistic View
The monistic view is a view that sees the condition for the existence of a crime must include two things, namely nature and action. This view provides principles of understanding, that in the understanding of an act/crime already includes a prohibited act (criminal act) and criminal responsibility/fault (criminal responsibility).
According to D. Simons a criminal act is: An unlawful act that has been committed intentionally or unintentionally by a person who can be held accountable for their actions and which by law has been declared as an act that can be punished. With this limitation according to Simons, for the existence of a criminal act, the following elements must be fulfilled:
- A human act, whether in the sense of a positive act (doing) or a negative act (not doing);
- Threatened with punishment;
- Against the law;
- Committed with fault; and
- By a person capable of bearing responsibility
Strafbaarfeit, which literally means a criminal event, is defined by Simons, who holds a monistic view, as: “An act (handeling) that is threatened with punishment, which is unlawful, which can be related to fault, and which is committed by a person capable of bearing responsibility.
Andi Zainal Abidin stated that “the fault referred to by Simons includes dolus (intent) and culpalata (negligence, carelessness) and commented as follows: Simons mixes the elements of a criminal act which include the act and its unlawful nature, the act and criminal liability which includes intent, negligence and carelessness, and the ability to bear responsibility. Monists do not explicitly separate between the elements of a criminal act and the conditions for punishing the perpetrator. The condition for punishment is also included and becomes an element of the crime.
The Dualistic View
In contrast to the monistic view, which sees all the conditions for the existence of a crime as inherent in the criminal act, the dualistic view separates between the criminal act and criminal responsibility. According to the monistic view, the definition of a criminal act already includes both the criminal act and criminal responsibility, while according to the dualistic view, the criminal act only includes the criminal act, and criminal responsibility is not an element of the criminal act. Therefore, to declare an act as a criminal act, it is sufficient to have an act formulated by law that has an unlawful nature without any justification.
The limitations put forward regarding criminal acts by scholars who adhere to the dualistic view are as follows:
- According to Pompe, in positive law, strafbaarfeit is nothing more than a “feit (action), which is threatened with punishment in the provisions of the law, so that unlawfulness and fault are not absolute conditions for the existence of a criminal act”. Therefore, for a criminal act to occur, the following elements must be fulfilled:
- The existence of an act (by a human being);
- Fulfills the formulation in the law (this is a formal requirement, related to the validity of Article 1 paragraph (1) of the Criminal Code;
- Is unlawful (this is a material requirement, related to the adherence to the doctrine of material unlawfulness in its negative function).
- Moeljatno, who holds a dualistic view, translates strafbaarfeit as a criminal act and describes it as follows: “An act that is prohibited by a rule of law and the prohibition of which is accompanied by a threat (sanction) in the form of a specific punishment, for anyone who violates the prohibition”. Based on the definition of a criminal act given above, criminal responsibility is not included in the definition of a criminal act. However, Moeljatno also emphasized that: For there to be a punishment, it is not enough for a criminal act to have occurred, without questioning whether the person who committed the act is capable of bearing responsibility or not.
According to the dualistic view, the elements of a criminal act are those concerning the person, while the elements of criminal responsibility are the conditions for a person who commits a crime to be held criminally liable.
According to M. Sudradjat Bassar, a criminal act contains the following elements:
- Unlawful
- Detrimental to society
- Prohibited by criminal rules d. The perpetrator is threatened with punishment.
Meanwhile, according to E.Y. Kanter and S.R. Sianturi, a criminal act has five elements, namely:
- Subject;
- Fault;
- The unlawful nature of an act;
- An act prohibited or required by law and for which a violation is punishable by criminal sanctions; and
- Time, place, and circumstances (other objective elements).
The fundamental differences between the Monistic and Dualistic schools of thought can be seen in the following table:
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