CHAPTER I CRIMINAL LAW A. Understanding Criminal Law

CHAPTER I
CRIMINAL LAW
A. Understanding Criminal Law
Before discussing more about the elements of a crime and the elements of criminal responsibility , Justt_Everr will discuss in advance about what the criminal law really is, and why someone who commits a crime should be criminally ? Course Justt_Everr begin by discussing the legal sense of the term and criminal . The discussion is expected to make the reader understand very well about the meaning of the term criminal law , making it easier for the reader to be able to understand and differentiate the elements of a crime and criminal responsibility .
Basically , the presence of criminal law in society is meant to provide a sense of security to individuals and groups in the community in carrying out daily activities . Sense of purpose in this is a sense of calm , without any fear of reprisals or acts that may harm among individuals in society . Losses referred not only related losses as we understand the term civil , but also includes losses to body and soul . Sport in that it covers the body that is also related to a person's life , the soul in this case include feeling or mental state .
The term criminal law is a translation of the Dutch term Strafrecht Galileo criminal means , and means recht law .
            According Wirjono Prodjodikoro that the criminal law is the term used since the Japanese occupation of Indonesia for Strafrecht understanding of the Dutch language , and to distinguish it from the term civil law to pengertianburgerlijkrecht or privaatrecht of the Dutch language . [ 1 ]
            Understanding of criminal law , put forward by many legal scholars , such as Soedartoyang means that : [ 2 ]
Criminal law contains rules mengikatkankepada legal actions that meet certain requirements such as a result of the criminal .
Selanjunya Soedarto stated that in line with the understanding of criminal law , it can not be separated from the Criminal Code contains two main points , namely :
1 ) Load depictions of acts punishable people , meaning that the Criminal Code contains requirements that must be met which allows the court to drop criminal . So here as if the nation states to the public and also to the law enforcement actions what is forbidden and who may be liable .
2 ) of the Criminal Code sets and announce what the reaction will be accepted by the people who do the prohibited act .
In modern criminal law is not merely a reaction to crime , but also what is called the action , which aims to protect the public from acts that harm. [ 3 ]
Satochid mammal , said : [ 4 ]
that criminal penalties are a number of rules that are part of the positive law contains prohibitions and imperatives set by the State or other competent authority to define criminal regulations , restrictions or requirements that the threat of criminal , and if these rights are violated arises state to prosecute , convict , criminal execute .
Furthermore Prof . Moelyatno , S.Hmengartikan that law pidanaadalah part of the whole law in force in a State , which held the basics and rules for : [ 5 ]
1 ) Determine the deeds which should not be done , which is prohibited , and accompanied by threats or criminal sanctions such as certain to any person who violates the ban.
2 ) Determine when and in what matters to them wherewith violate the prohibitions may be charged or convicted as has been threatened .
3 ) Determine how about the way the criminal can dilksanakan if someone is suspected of having violated the ban.
Furthermore Moeljatno explains the understanding of criminal law mentioned above, which is called in to - 1 ) is the familiar " criminal act " (criminal act) . Being called in to - 2 ) is the " criminal liability " (criminal liability or criminal responsibility ) . Called in to - 1 ) danke - 2 ) is a " material criminal law " ( substantive criminal law) , because the content of the criminal law itself . Called in to - 3 ) ​​is about how or procedure before a court to prosecute those suspected of committing criminal acts , therefore, criminal law (criminal procedure ) . Typically called the criminal law is a criminal law course material . [ 6 ]
According to Professor Simons , the criminal law can be divided into criminal law in the sense of objective or Strafrecht zin in objective and subjective in the sense of criminal law or the wiki Strafrecht zin .
Criminal law in the objective sense is the criminal law , or what is also referred to as positive law or ius poenale.Hukum Criminal subjective in the sense that , by Professor Simons has been formulated as :
" Geheel van het en geboden varboden , Welker overtrading door aan de andere openbare Staat of eenige rechtsgemeenschap een voor den overtreder bijzonder leed " straf " verbonden is , van de voorschriften , doorwelke de voorwarden worden voor dit rechtsgevolg aangewezen , en van de bepalingen , krachtens welke opgelegd en wordt de straf toegepast " .
Which means:
" Overall the prohibitions and imperatives , which for the infraction by the State or by any other general law society has been associated with suatupenderitaan which is a special form of a sentence , and the whole of the rules in which the terms of the legal consequences it has as well as a whole set of regulations governing the imposition and execution of the sentence itself " .

Criminal law in the subjective sense it has two meanings , namely :
a. The rights of the state and its power tools to punish , the rights they have acquired from the regulations that have been prescribed by the criminal law in an objective sense ;
b . The right of the state to associate violations of its rules by law .
Subjective in the sense of criminal law in the latter sense as above , also referred to as ius puniendi . [ 7 ]
                                                                 









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B. Criminal Law and Criminal Law Formal material
Criminal law based on the material being regulated material consisting of criminal law and criminal law criminal law formil.Tirtamidjaja explain material and formal criminal law as follows : [ 9 ]
a. Criminal law is a collection of material legal rules that define criminal offenses , establishes the requirements for criminal offenders to be punished , shows people can be punished and can establish criminal penalties for violations .
b . Formal criminal law is a set of legal rules that govern how criminal law maintains material for abuses of certain people , or in other words how to set the criminal law embodied material so as to obtain the judge's decision and set a way to carry out the judge's decision .
The doctrine also distinguishes criminal law material and formal criminal law , put forward by JM Van Bemmelen explain both of these as follows : [ 10 ]
Material consists of criminal law offenses referred to in succession , the general rule that can be applied to the act , and threatened criminal action against it . Formal criminal law criminal procedure govern the way how it should be done and determine the rules that must be observed on that occasion .





Table 1 : Comparison of Formal Object Criminal And Criminal materially



Furthermore , formal criminal law and criminal law material itself, still divided as illustrated in the following chart :



C. principle of Legality
1 . Meaning and Importance Principle of Legality
            Legality principle set out in Article 1 ( 1 ) of the Criminal Code , which reads " not an act that should be punished , but the power of the criminal provisions in the legislation that is before the deed. Legality principle ( the principle of legality ) the principle which determines that each criminal incident ( offense / crime ) should be arranged in advance by a rule of law or at least by an existing rule of law or the prevailing before the acts . Anyone who does a criminal offense punishable by law and must be accountable for his actions .
Applicability of the principle of legality as outlined above provide protection properties on criminal laws that protect the people against the exercise of powers of government indefinitely . It's called protecting function of the criminal law . In addition to protecting function , criminal law also has the instrumental function , ie within the limits prescribed by law , the exercise of power by the government explicitly allowed .
Anselm von Feuerbach , a German scholar of criminal law , in relation to both functions , formulate the principle of legality is steady in Latin , namely : [ 11 ]
Ø Nulla poena sine lege : no crime without a criminal provision under the law .
Ø Nulla poena sine crimine : no crime without a criminal act .
Ø Nullum crimen sine poena legali : no crime without a criminal act according to law .
The formulation also summarized in one sentence , that nullum delictum , nulla poena sine praevia lege poenali . That is, there is no criminal act , no crime , no provision of the law beforehand .
            From the above description can be concluded that the principle of legality in article 1, paragraph ( 1 ) of the Criminal Code contains three principal pengertianyakni :
a. There is no action that can be punished ( punished ) if such actions are not regulated in the legislation prior / advance , so there must be rules that govern the conduct before the act ;
b . To determine the existence of a criminal event ( offense / crime ) should not use the analogy , and
c . Criminal law regulations / legislation should not apply retroactively ;
2 . The principle objective of Legality
            According to the principle of legality Muladi held not for no particular reason . The principle of legality is held aiming for : [ 12 ]
a. Strengthening the rule of law ;
b . Create justice and fairness to the accused ;
c . Making deterent function of criminal sanctions ;
d . Prevent abuse of power , and
e . Strengthening the implementation of " the rule of law " .
Meanwhile , Ahmad Bahiej in his book Criminal Law , shed light on the consequences of the principle of legality Formal , namely : [ 13 ]
1 . A crime should be formulated / mentioned in the legislation . The consequence is :
a. Actions by individuals that are not listed in the law as a criminal offense can not be punished too .
b . There is a ban on analogy to make an act a crime.
2 . Legislation that must exist prior to the crime . The consequence is aturanpidana should not apply retroactively ( retroactive ) , it is based on the premise that :
a. Guarantees of individual freedom against arbitrary rulers .
b . Related to the theory of psychological coercion anselem Von Feuerbach , that the prospective criminals will be affected soul , motives for doing crime will be suppressed , if he knew that his actions would result in criminal prosecution against him .

3 . Exceptions Principle of Legality
The principle of legality ( Article 1, paragraph ( 1 ) of the Criminal Code ) has a special exemption to their existence, ie set out in Article 1 paragraph ( 2 ) of the Criminal Code which the article reads like this " if the law changes after the deed was done then to suspect / defendant subject to conditions favorable for him . Of the provisions of Article 1, paragraph ( 2 ) of the Criminal Code treats this as an exception to the provisions favorable to the defendant . According to Jonkers understanding here is not only beneficial to the criminal than the act , but also includes the prosecution to the accused .
There are various theories concerning the problem perundanga regulatory changes and regulations referred to in this case . Which is as follows :
1 . The formal theory pioneered by Simons , argues that the new law changes occurred when the editorial criminal law is changed . Changes in legislation other than the Criminal Code , although not related to criminal uu change legislation referred to in Article 1 paragraph ( 2 ) of this.
2 . Limited material theory pioneered by Van Geuns argued inter alia that the changes in the law mean the law should be interpreted changes conviction of lawmaker undang.perubahan because of the age or the circumstances can not be considered a change in the criminal law .
3 . Theory of infinite material that refers to the decision of the Hoge Raad dated 5 December 1921 suggests that change is the law includes all statutes in a broad sense and change legislation that includes the legal sense of lawmakers and changes due to changing times ( circumstances for a certain time ) .

CHAPTER II
DEFINITIONS AND SCOPE TINDAKPIDANA
A. Definition of Crime
Understanding of crime in the Book of the Law of Criminal Law ( Penal Code ) known as Strafbaarfeit and in the literature on criminal law often uses the term offense , while lawmakers formulate a statute uses the term criminal act or criminal act or criminal offense .
Crime is a term that contains a basic understanding of the science of law , as that term is formed by consciousness in giving certain characteristics in the event of criminal law . Criminal offense has the abstract notion of concrete events in the field of criminal law , so the offense should be given the meaning of a scientific nature and clearly determined to be separate with the terms used in the day-to- day life of the community .
Foreign experts use istiah Criminal Law Crime Criminal acts or events or Criminal , the term :
1 . STRAFBAAR Feit is a criminal act ;
2 . HANDLUNG STRAFBARE translated Criminal acts , which are used by the German Criminal Law scholar , and
3 . CRIMINAL ACT Criminal Acts translated by the term .
Offense which in Dutch is called Strafbaarfeit , consists of three words , namely straf , baar and feit.Yang masng one has a meaning :
Ø Galileo defined as criminal and legal ,
Ø Baar sbagai can and should be interpreted ,
Ø Feit interpreted as acts , events , violations and acts .
So the term Strafbaarfeit are events that can be imprisoned or actions that can dipidana.Sedangkan offense in a foreign language is called delict which means an act that the perpetrator can be punished ( criminal ) .
Andi Hamzah in his book Principles of Criminal Law provides the definition of the offense , namely : [ 14 ]
Offense is " an act or acts prohibited and punishable by by law ( criminal ) . "

Further Strafbaarfeit Moeljatno interpret as follows : [ 15 ]
Strafbaarfeit it actually is " a human behavior punishable by legislation . "

While Jonkers formulate that : [ 16 ]
Strafbaarfeit as diartikannya criminal incident as " an act which is against the law ( wederrechttelijk ) associated with intentional or mistakes made by people who can be accounted for . "

Strafbaarfeitjuga interpreted by Pompe , as quoted from a book by Lamintang , as : [ 17 ]
A violation of the norm ( disruption of legal order ) that intentionally or unintentionally have been done by an offender , the sentencing where the offender is necessary for the maintenance of law and order .

The Simons are still in the same book formulate strafbaarfeitadalah : [ 18 ]
An unlawful act was done intentionally by someone who can be held accountable for his actions and that by law has been declared as a punishable act .
The term offense ( delict ) in Dutch is called starfbaarfeeit where after being translated into Indonesian , by some legal scholars interpreted so divergent automatically sense berbeda.Agar more details , Justt_Everr grouped in 5 groups of terms that are commonly used by some scholars law as follows :
1st : " criminal event " used by Andi Zainal Abidin Farid (1962 : 32 ) , Rush Efendi (1981 : 46 ) , Utrecht ( Sianturi 1986: 206 ) and others-others ;
2nd : " criminal act " used by Moejanto (1983 : 54 ) and others ;
3rd : " Deeds are allowed in the law " used by HJVan Schravendijk ( Sianturi 1986: 206 ) and others ;
4th : " Offence " is used by Wirjono Projodikoro (1986 : 55 ) , Susilo (1979 : 26 ) and SR Sianturi (1986 : 204 ) and others ;
5th : " Glare " is used by Andi Zainal Abidin Farid (1981 : 146 and Satochid Karta State (undated : 74 ) and others.
Legal scholars mentioned above, the use of each term together with the reasons and considerations , respectively . Moelijanto reasoned that the use of the term " criminal act " because the word " act " is commonly used in everyday conversation such as the obscene acts , the evil, and said tort. [ 19 ] Furthermore Moeljantomenegaskan that refers to the act of doing and the result , and said deed means made ​​by someone who can be imprisoned is an extension of the term is a translation of starfbaarfeit . [ 20 ]
More details Moeljanto stated as follows : [ 21 ]
1 . If utrecht , is commonly used legal terms , then the law means : berecht , tried that did not necessarily relate to Starf , convicted of any civil matters diberech , then I choose to be tried strafbaar translation is a criminal term as an abbreviation of " the can be imprisoned " .
2 . Words mean act made ​​by someone else pointed that perform well on the result , while saying that the incident did not appoint is " handling" or " gedraging " a person may or may not animal or natural acts and words mean the new measures and the behavior or behavior behavior .
HJ Van Schravendiik interpret the offense as an act that should be punished , while encouraging the adoption of Utrecht over the term of criminal events , because according to him include the term criminal acts ( andelen ) or positive doen or rather ( or vise nabetan or doen met , negative / or consequences ) . [ 22 ]
S.R. Sianturi use as a criminal offense he explained Sianturi provide the formulation as follows : [ 23 ]
Crime is an act on , place , time , and circumstances that are prohibited ( or required ) and threatened with by the criminal law is against the law , as well as the mistakes done by someone ( who is responsible ) .
Sianturiberpendapat that follow the term is an abbreviation of the word " action " means the person named as penindak action . What actions do all the people , but in many ways an action can only be performed by certain people , for example, according to the group work and group according to sex . Sianturi explained that according to sex groups such as women or men, while according to the work of such groups as laborers , servants and so forth , so the status / classification of the elements listed Sianturiharuslah penindak by "anyone " . [ 24 ]
The use of the term " crime " was commented upon by Moeljatno as follows : [ 25 ]
Although the action is shorter than the word " act " but " act " does not refer to abstract things like deeds , but only declare a state of concrete as well as events with a difference that follow is the behavior , mannerisms , gestures , body posture someone , better known in the behavior , actions and acting and later in life " action " therefore acts as a word is not so in the know , the legislation uses the term criminal offense both in the articles themselves and the explanation is almost always in use the word " deed " .
            Andi Zainal Abidin argued essentially the most appropriate term is " offense " is derived from the Latin " delictum delicta " as : [ 26 ]
1 . Is universal , everyone in the world knew him ;
2 . Is economical for short ;
3 . Not cause awkwardness as " criminal event " , " criminal act " ( not an event that in a criminal act , but the author ) , and
4 . Broad sense to include offenses also manifested by the corporate people do not know the Indonesian economy under criminal law .
Of some of the terms used by scholars such as translation offense ( Strafbaarfeit ) according Justt_Everr not binding . For a term which one to be used as long as it does not alter the meaning strafbaarfeit , it is perfectly natural hanging from its use , such as using the term Wirjono Prodojikoro criminal incidents in his Indonesian Criminal Code molds to 1962 V , while for more than twenty years he using the term " criminal offense " .
Likewise with Satocid mammal which in his lecture series at the University of Indonesia and AHM / PTHM , advocating term because the term criminal act (the act ) includes the notion of doing or doing , ( active handting ) and / or do not do , not do , do not do a action ( passive handeling ) . [ 27 ]
The term is meant act according Satochid do , do ( actieve handeling ) does not include understanding cause / not doing , term events do not show the action only human . While criminal translation staarbaarfeit that after discussing the description of understanding the offense , in the end the choice fell on the term offense .
Not only that translates Satocid and Wirjono offense ( Starbaarfeit ) as mentioned above , but Andi Zainal Abidin also for approximately twenty explore the meaning Starbaarfeit . After discussing the description of the understanding of the offense , which in the end the choice fell on the term offense .
As expressed by an expert in criminal law is Moeljatno who argued that the definition of criminal offenses which he terms the criminal act is : [ 28 ]
" The act of breaking a rule that prohibited by law , which bans the threat ( penalty ) in the form of certain criminal for anyone who violates the ban "
In connection with this criminal sense Bambang Purnomo , found the formula of a crime will be more complete if structured as follows :
 " That criminal act is an act that by a rule of criminal law is prohibited and punishable by for anyone who violates the ban. "
As for the formulation containing the phrase " rule of criminal law " is intended to meet the state law in Indonesia that is still familiar with the laws of life is written and unwritten law . Bambang Purnomo also argue about the conclusions of the criminal acts that otherwise just shows the nature of the prohibited acts punishable .
According Pompe that there are two (2 ) kinds of offenses related definitions are: [ 29 ]
Theoretical definition of the violation of norms ( rules and jurisprudence ) , which was held by mistake offenders , and the criminal should be given to maintain the rule of law and to save the general welfare .
Definition of the law is an event defined by the Act contains deeds ( handeling ) and neglect ( nalaten ) ; does nothing ; passive act , usually performed in a state that is part of an event .
Meanwhile, according to E.Y. Kanter and S.R. Sianturi that the offense has 5 ( five ) elements, namely : [ 30 ]
a. the subject ;
b . error ;
c . Unlawful nature of the act ;
d . An act which is forbidden or required by the Act and the offense shall be punished by , and
e . Time , place , and circumstances ( other objective elements ) .
The intent and purpose of the term criminal acts , criminal acts , and legal events and so it is to divert the language of foreign terms stafbaar feit yet unclear whether the addition of the term language shift sratfbaar feit intended to divert the meaning and understanding , also because most of the unclear legal experts explain and detailed understanding of the term , or merely shift the language , it is the subject of differences of opinion , but it is also amongst the people is also the term criminal misconduct morma show understanding with the reaction received by the judge's ruling that sentenced .
Offense is also interpreted as a basic staple in criminal sentencing on those who have committed criminal acts on the basis of one's liability for the actions that have been done , but before it was banned and diancamnya about an act that is about pidanya act itself , which is based on the principle of legality ( Principle of legality ) principle which determines that no prohibited act and threatened with punishment if it is not determined in advance in legislation , it is usually better known in Latin as Nullum delictum nulla poena sine praevia lege (no offense , no punishment without first rule ) , as has been discussed in the previous sub - chapter .
Crime is the basic part of a fault committed against a person in committing a crime . So for any errors with the relationship between the state of his actions that lead to censure must be intentional or kelapaan . It is said that the intent ( dolus ) and negligence ( culpa ) are forms of error while the error terms of understanding ( schuld ) which can lead to a crime is because a person has committed an act that is against the law so that the ` actions that he bertanggungjawabkan must for any offense he had done to be tried and proven correct when the occurrence of a crime that he did, then so can a criminal sentenced in accordance with article that set .

B. Types of Crime
In discussing criminal law , will be found a variety of criminal acts that occur in society . Crime can be distinguished on the basis of certain principles , which is as follows :
a) According to the Criminal Code system , distinguished between kejahatanyang published in books II and III pelanggaranyang contained in the book .
Distinction between kejatan reason is the type of offense and the offense is lighter than the crime . It can be seen from the penalty of no violation punishable by imprisonment , but in the form of imprisonment and fines , while the crime is more dominated by the threat of imprisonment .
Another criterion that distinguishes between crimes and violations that constitute crimes offenses in violation of the law and also creates interest in a concrete danger , while the offense was only dangerous in abstracto alone . Quantitatively distinguish Law makers felony and misdemeanor offenses as follows :
1 ) Article 5 of the Criminal Code only applies to acts that constitute a crime in Indonesia. If an Indonesian who commit offenses abroad are classed as infringement offenses in Indonesia, then in view need not be prosecuted .
2 ) Experiment and helped conduct offense not punishable offense .
3 ) On conviction or punishment against minors depending on whether the crime or offense .
b ) By way of formulating it , distinguished between formal criminal acts and criminal material .
Formal criminal act is a criminal offense that is formulated in such a way that it gives the sense that the core prohibition formulated it is doing a particular act . Formulation does not require a formal criminal acts and / or do not require the production of a certain result of actions as a condition for the completion of a crime, but solely on his actions . For example, the theft of Article 362 for the completion of the completion of the works hung theft took .
By contrast material in the formulation of crime , prohibition is a core cause the prohibited result . Therefore , anyone who raises a result of that is accounted prohibited and punishable . So also for the completion of the criminal offense materially , does not depend on the extent to which form of deed is done , but it entirely depends on the condition caused by the onset of the forbidden . For example, a form has been completed slashed in the murder , but the killing was not happening if it was not on the deed or not cause loss of life due to the victim , all that happened was attempted murder . Regarding this distinction , will be discussed further in the next sub - chapter .
c ) Based on the shape error , distinguished between deliberate crime ( dolus ) and crime unintentionally ( culpa ) .
Offence is an offense deliberately to do with the formulation containing deliberate or intentional. While the act was not deliberate criminal acts in the formulation containing culpa .
d ) Based on the kinds of actions , can be distinguished between crimes active / positive can also be referred to the commission of criminal acts and criminal acts passive / negative , also called the omission a crime .
Active crime is the crime that his actions in the form of active actions , active actions are actions required to realize the movement of the limbs of those who do .