Dualistic View

In contrast to the monistic view, which sees all the requirements for punishment as inherent in criminal acts, the dualistic view separates criminal acts and criminal responsibility. According to the monistic view, both criminal act and criminal responsibility are included in the definition of criminal offence, while according to the dualistic view, criminal offence only includes criminal act, and criminal responsibility is not an element of criminal offence. Therefore, to declare an act as a criminal offence, it is sufficient to have an act formulated by the law that has an unlawful nature without any justification.

The limitations put forward on criminal offences by scholars who adhere to the dualistic view are as follows:

  1. According to Pompe, in positive law strafbaarfeit is nothing but "feit (action), which is punishable in the provisions of the law, so that the nature of lawlessness and guilt is not an absolute requirement for the existence of a criminal offence". Therefore, for an act/criminal offence to occur, the following elements must be fulfilled:
    • The existence of (human) action;
    • Fulfilling the formulation in the law (this is a formal requirement, related to the applicability of Article 1 paragraph (1) of the Criminal Code;
    • Unlawful (this is a material requirement, related to the following of the doctrine of material unlawfulness in its negative function).
  2. Moeljatno, who holds a dualistic view, translates strafbaarfeit with criminal act and describes it as follows: "Actions prohibited by a rule of law and which prohibitions are accompanied by threats (sanctions) in the form of certain punishments, for those who violate the prohibition". Based on the definition/understanding of criminal act given above, the definition of criminal act does not include criminal responsibility. However, Moeljatno also emphasised that: For the existence of punishment, it is not enough just to have committed a criminal offence, without questioning whether the person who committed the act is capable of being responsible or not.

According to the dualistic view, the element of criminal offence is an element that affects the person, while the element of criminal responsibility is a condition for the punishment of a person who commits a crime.

According to M. Sudradjat Bassar, a criminal offence contains the following elements:

  1. Against the law  
  2. Harm to society
  3. Prohibited by criminal law d. The perpetrator is punishable by a criminal offence.

Meanwhile, according to E.Y. Kanter and S.R. Sianturi, the criminal offence has five elements, namely:

  1. Subjec;
  2. Error;
  3. Unlawfulness of an act;
  4. An act prohibited or required by law and the offence of which is punishable; and
  5. Time, place, and circumstances (other objective elements.

The basic differences between the Monistic and Dualistic schools can be seen in the following table:

[ninja_tables id="9855"]