Offense of Negligence (Culpa)

Interestingly, our transition to a dualistic doctrine has not been entirely pure. There is a fairly striking "double standard" or inconsistency in the National Criminal Code. If for intentional crimes we use a dualistic approach (separating intent), for crimes of negligence or carelessness (culpa), we are actually returning to the old monistic style.

Take for example Article 311 of the National Criminal Code regarding the causes of fire, explosion, or flood. Here, the element of "negligence" is explicitly included again in the formulation of the article. This structure is identical to Article 188 of the Old Criminal Code. This means that, when it comes to negligence, the National Criminal Code does not truly carry out doctrinal modernization; it remains faithful to the monistic logic inherited from the Dutch that unites actions and fault in one article formulation.

This is where the greatest risk lies. The separation between actions in Book 2 and intent in Book 1 creates the potential for "dangerous pragmatism" among law enforcement officials. There is a real concern that lazy or less thorough investigators may only focus on the text of the article in Book 2 and ignore Article 36 in Book 1.

The risk? Officials may assume that because the word "intentionally" does not exist in the article on murder, they no longer need to prove the perpetrator's state of mind. They could be trapped in only proving the physical act. This is a black hole in law enforcement that must be watched out for.

"If the investigator does not read Article 36, it is as if the element of intent does not need to be proven... Even though the law mandates that it must be proven."

The provision of Article 36 paragraph (2) is not merely a formality; it is a legal mandate that mens rea must be proven materially at every level of examination.

Conclusion, More Modern or More Complex Law? The National Criminal Code attempts to make an intellectual leap by simplifying the formulation of articles doctrinally. However, this "simplification" on paper actually demands a higher intellectual capacity from our law enforcement officials. The success of this dualistic system depends greatly on the extent to which the police, prosecutors, and judges are able to comprehensively connect the dots between Book 1 and Book 2.

Will this separation between act and intent make justice easier to achieve, or will it instead open up endless legal debates due to the complexity of proving it? Our justice in the future will no longer be determined solely by what is written in the article, but by the sharpness of conscience and intelligence of officials in uncovering the intent that is now "hidden" behind the text of the law.