SESSION 1. Definitions and Scope of Criminal law Legal sources of Indonesian criminal law Divisions of criminal law. Course: Criminal Law
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1 SESSION 1 Definitions and Scope of Criminal law Legal sources of Indonesian criminal law Divisions of criminal law Course: Criminal Law Criminal Law Department, Faculty of Law University of Indonesia 2011
2 Definition of criminal law Prof. Moeljatno Criminal law is part of the entire laws practiced in particular country, which provide principles and rules to: 1) to determine what kind of behavior which prohibited, not allowed to, accompanied by punishment or sanction by using certain penal sanction for those who violate the prohibitions Criminal Act 2) to determine when and in what condition for those who have violated the prohibitons can be inflicted with prescribed punishment Criminal Liability/ Criminal Responsibility 1) and 2) = Substantive Criminal Law 3) to determine by what means/ how the punishment would be inflicted if someone violate the prohibitions Criminal Procedure
3 Definition of criminal law Prof. Pompe Criminal law is all legal rules which determine what kind of conduct that should be punished, and what kind punishments to be inflicted for those conducts.
4 Definition of criminal law Prof. Simons Criminal law is all obligations and prohibitions provided by a country and treated by punishment for the perpetrator, all rules which determine requirements for the legal implications and all rules to give punishment and to implement the penal sanction.
5 Definition of criminal law Prof. Van Hamel Criminal law is all principles and rules hold by particular country in mantain legal order (rechtsorde) by means of prohibit what in conflict with law and to inflict the punishment for anybody who violate the prohibitions.
6 Division of criminal law Ius Poenale Substantive law / materiil criminal law (criminal law) The criminal law which is implemented nationally (in all part of a nation) Ius Poeniendi Formil criminal law (criminal procedure law) The Criminal law which is implented in certain local area (provinces and municipality)
7 The Criminal Law Science Part of legal science which particularly study criminal law. According to Prof. Lemaire, the main object of this science is positive law or the existing criminal law in particular country. However, according to Prof. Simons, the criminal law science not only study the existing law (ius constitutum) but also the future law (ius constituendum)
8 Criminal law science and other Criminology Victimology Criminalistic Forensic Psychiatry Sociology of law sciences
9 Indonesian Penal Code and its history According to Andi Hamzah - VOC era - Nederland Indie era - Japanese occupation era - Independence era According to Utrecht - VOC era -Daendels era -Raffles era -Comisaris General era now
10 VOC era Statuten van Batavia The law of old Dutch Principles of Roman law Adat (customary) law prevailed in other regions Such as: Pepakem Cirebon
11 Nederlands Indie era Dualism in criminal law 1. Decree of Dutch King 10/2/1866 (S.1866 no.55) --> aplied for Europeans 2. Ordonnantie 6 May 1872 (S.1872) --> applied for Indonesians and easterners (chinese, Japanese) Unification : Wetboek van Strafrecht voor Nederlandsch - Indie - The decree of the Dutch King 15/10/1915 implemented in 1/1/1918 accompanied by - The decree of the Dutch King 4/5/1917 (S.1917 no. 497) : regulate the transition from older criminal law to new criminal law.
12 Japanese Occupation era Wetboek van strafrect still applied Osamu Serei (law) No. 1 /1942, implemented on 7/3/1942 The criminal procedure law has The criminal procedure law has more rules which changed
13 Independence era UUD 1945, article II on Transitional rules All existing state bodies and regulations still applied as long as the new ones not yet in place according to this constitution
14 Law No.1 year 1946 : emphasized the criminal law that prevailed in Indonesia Prevailed in Java and Madura (26/2/1946) Government Regulation No. 8 year 1946 : prevailed in Sumatera Law No. 73 year 1958 : The Law which declared that Law No. 1 year 1946 is prevail in all part of the Republic of Indonesia and amend the penal code
15 Legal sources of Indonesian Criminal Law Indonesian Penal Code (and all law and regulations which amended the code) The law and regulations concerning criminal law outside the Penal Code The criminal provisions provided in the non-penal law and regulations
16 The Penal Code of Indonesia Book I : General Provisions (art 1 103) Art 103 The provisions of the first eight chapters of this Book shall also apply to facts on which punishment is imposed by other statutory provisions, unless determined otherwise by statutes Book II : Crimes (art ) Book III : Misdemeanours (art )
17 Several statues which amended the penal code Law No.1/1946 : implementation of the penal code, alteration of several terms, elimination of several articles, addition of several new articles in Chapter Bab IX - XVI Law No. 20/1946 : addition of the kind of penal sanction in art 10 a KUHP --> pidana Tutupan (close detention) Emergency Law No. 8/1955 : remove art 527 Law No. 73/1958 : declared that Law No. 1/1946 prevail in all part of Indonesia, added articles 52a, 142a, 154a Emergency Law No. 1/1960 : added the punishment of articles 188, 359, 360 into 5 years imprisonment or 1 year light imprisonment
18 Government Regulation in lieu of Law No. 16/1960 : added the value of non- serious crimes in several articles 364, 373, 379, 384, 407 (1) Goverment Regulation in liew of Law No. 18/1960 : the multiple of Fine punishment 15 times Law No. 1/PNPS/1965 : added art 156 a Law No. 7/1974 : added punishment for gambling provided at art 303 into 10 & 25 million rupiah, art 542 (1) become a Crime (previously misdemeanour), art 303 bis, the punishment increased into 4 years imprisonment, Fine 10 million rupiah. Law No. 4/1976 amendment and added of crime relating aviation : art 3, art 4 [4], art 95a, 95b,95c, chapter XXIX A of the Penal Code Law No. 20/2001 : remove articles relating to corruption (because they have alreaddy provided in the specific law on corruption)
19 Criminal law statutes outside the Penal Code Law No. 31/1999 and Law No. 20/2001 on corruption eradication Law No.7/drt/1955 on Economic crimes Law No. 15/2003 on Terorism eradication Law No. 8/2010 on Prevention and eradication of money laundering
20 Examples of non-criminal law statutes which contain criminal provisions Law on environment Law on Media Law on national education system Law on Banking Law on Taxation Law on Political Party Law on General Election Law on Imigration Law on Capital Market Law on Insurance etc
21 General criminal law & special criminal law General criminal law Special criminal law Subject (military or non-military) In or outside the Penal code Scope Non-military criminal statutes The Penal code and statutes which altered the Penal code All criminal law legislation which applied in general (the Penal code, law on economic crimes, Law on corruption crimes, etc) Military criminal statute Law on economic crimes, Law on corruption, military criminal law, Law on tax crimes Criminal provisions provided in the non-criminal law legislation
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