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Overcriminalization in the Modern Criminal Justice System: A Threat to the Principles of Legality and Substantive Justice: Overcriminalization in the Modern Criminal Justice System: A Threat to the Principles of Legality and Substantive Justice Agus Kelana Putra; Kristiawanto Kristiawanto; Sineenart Suasoongnern
PENA LAW: International Journal of Law Vol. 4 No. 1 (2026): May
Publisher : Yayasan Pusat Cendekiawan Intelektual Nusantara

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.56107/penalaw.v4i1.285

Overcriminalization has become a systemic problem in modern legal systems, characterized by a tendency to use criminal law excessively to regulate various social behaviors. This study critically examines how the expansion of criminal law—both in scope and intensity—can threaten the principle of legality and undermine substantive justice. Using a normative qualitative approach, this study applies doctrinal and comparative legal analysis to three jurisdictions: Indonesia, the United States, and Germany. Primary sources include legislation and court decisions, while secondary data is obtained from academic literature and institutional reports. The findings reveal that overcriminalization often results in vague legal norms, disproportionate sanctions, and selective law enforcement—particularly affecting vulnerable groups. The study reveals that this trend has eroded legal certainty and turned criminal law into a political and moral tool. By integrating penal minimalism theory, justice theory, and legal positivism, this article offers normative parameters in the form of necessity, proportionality, and the principle of ultimum remedium to recalibrate the boundaries of legitimate criminalization. This research contributes to contemporary academic discourse by providing a structured analytical framework and concrete policy recommendations to strengthen the legitimacy and fairness of the modern criminal justice system.

Overcriminalization in the Modern Criminal Justice System: A Threat to the Principles of Legality and Substantive Justice: Overcriminalization in the Modern Criminal Justice System: A Threat to the Principles of Legality and Substantive Justice Agus Kelana Putra; Kristiawanto Kristiawanto; Sineenart Suasoongnern
PENA LAW: International Journal of Law Vol. 4 No. 1 (2026): May
Publisher : Yayasan Pusat Cendekiawan Intelektual Nusantara

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.56107/penalaw.v4i1.289

Overcriminalization has become a systemic problem in modern legal systems, characterized by a tendency to use criminal law excessively to regulate various social behaviors. This study critically examines how the expansion of criminal law—both in scope and intensity—can threaten the principle of legality and undermine substantive justice. Using a normative qualitative approach, this study applies doctrinal and comparative legal analysis to three jurisdictions: Indonesia, the United States, and Germany. Primary sources include legislation and court decisions, while secondary data is obtained from academic literature and institutional reports. The findings reveal that overcriminalization often results in vague legal norms, disproportionate sanctions, and selective law enforcement—particularly affecting vulnerable groups. The study reveals that this trend has eroded legal certainty and turned criminal law into a political and moral tool. By integrating penal minimalism theory, justice theory, and legal positivism, this article offers normative parameters in the form of necessity, proportionality, and the principle of ultimum remedium to recalibrate the boundaries of legitimate criminalization. This research contributes to contemporary academic discourse by providing a structured analytical framework and concrete policy recommendations to strengthen the legitimacy and fairness of the modern criminal justice system.

Legislation and the Constitutional Court: Reconciling Constitutional Justice and Democratic Accountability in Comparative Constitutional Law: Legislation and the Constitutional Court: Reconciling Constitutional Justice and Democratic Accountability in Comparative Constitutional Law Muhammad Rum Siolimbona; Hedwig Adianto Mau; Sineenart Suasoongnern
PENA LAW: International Journal of Law Vol. 3 No. 3 (2026): January
Publisher : Yayasan Pusat Cendekiawan Intelektual Nusantara

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.56107/penalaw.v4i1.294

The dynamic relationship between legislation and constitutional courts has become a key issue in modern constitutional law. Legislation, reflecting democratic legitimacy, often faces challenges when political majorities pass laws that may threaten constitutional rights and the rule of law principles. Conversely, constitutional courts act as guardians of constitutional supremacy, ensuring that laws align with fundamental constitutional values. This study uses a normative juridical and comparative approach, analyzing constitutional texts, legislation, and landmark judicial decisions from Indonesia, Germany, South Africa, and South Korea. Through content analysis, comparative legal methods, and hermeneutic interpretation, the research shows that constitutional courts worldwide do not just correct unconstitutional laws but also play a constructive role in fostering democratic accountability. The findings emphasize that the relationship between legislation and constitutional courts should not be seen as adversarial; rather, it is a dialectical and symbiotic interaction that promotes constitutional democracy. The novelty of this research lies in its global comparative perspective, moving beyond country-specific analyses and suggesting a conceptual framework for understanding how legislative legitimacy and constitutional justice reinforce each other. This study contributes both to theoretical debates in comparative constitutional law and offers practical recommendations for improving judicial review and legislative processes in democratic systems.

State Loss Assessment in Transnational Corruption: Strengthening International Cooperation and Asset Recovery: State Loss Assessment in Transnational Corruption: Strengthening International Cooperation and Asset Recovery Muhammad Dzul Ikram; Kristiawanto Kristiawanto; Sineenart Suasoongnern
PENA LAW: International Journal of Law Vol. 3 No. 3 (2026): January
Publisher : Yayasan Pusat Cendekiawan Intelektual Nusantara

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.56107/penalaw.v4i1.298

Transnational corruption erodes state sovereignty and damages global financial integrity, with annual losses estimated at USD 20–40 billion, yet less than five percent are recovered. Although frameworks like the United Nations Convention against Corruption (UNCAC) promote cooperation, the lack of harmonized standards for assessing state losses weakens asset recovery efforts. Most studies focus on asset tracing and procedural barriers, while the importance of loss assessment in legitimizing claims remains underexplored. This study adopts a qualitative normative–empirical approach through case studies in Indonesia, Malaysia, Nigeria, Brazil, and Ukraine, supported by legal analysis and expert interviews. Results reveal methodological differences: some jurisdictions depend on forensic accounting for direct financial losses, while others consider broader economic impacts, such as lost investments and reputational damage. Adopting comprehensive methods gained stronger legitimacy and higher recovery rates, although on average, only 35–40 percent of claimed assets were returned. The research reframes state loss assessment as central to asset recovery in the context of transnational corruption. By integrating deterrence theory and the transnational legal process framework, it highlights the need for harmonized standards that combine legal, economic, and forensic perspectives. The findings fill a critical gap in scholarship and provide practical guidance for policymakers to strengthen international cooperation and asset recovery mechanisms.

The Transformation of State-Owned Enterprise Monopolies and Healthy Market Competition in Bulding Harmonization of Business Competition Law Budi Joyo Santoso; Adnan Hamid; Sineenart Suasoongnern
Journal Evidence Of Law Vol. 4 No. 3 (2025): Journal Evidence Of Law (Desember)
Publisher : CV. Era Digital Nusantara

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59066/jel.v4i3.1608

The 1945 Constitution, Article 33(2), establishes the state as the controller of important branches of production for the welfare of the people, but its implementation has continued to shift in line with political regime dynamics, from the command economy model of independence to the corporatization of state-owned enterprises (SOEs) under the New Order and the post-1998 crisis reforms that emphasized healthy competition. The latest debate has emerged from Law No. 1/2025 on SOEs, which grants the President discretionary monopoly powers through Government Regulations without competition impact assessments by the Competition Commission (KPPU), while Law No. 5/1999 requires SOE monopolies to be regulated by law and supervised by the KPPU. The main issue is the normative disharmony between executive monopoly rights and independent oversight mechanisms, which creates legal uncertainty, potential inefficiency, and rent-seeking risks. This study employs a normative-analytical legal approach with literature review and analysis of primary, secondary, and tertiary legal documents, integrating the statute approach and conceptual approach to unravel the relationship between the constitutional framework, monopoly policy, and the principle of fair competition. The findings indicate that Article 86M of Law 1/2025 expands executive discretion without adequate checks and balances, while Law 5/1999 provides a strict oversight framework through the KPPU. The discussion emphasizes the urgency of regulatory harmonization through systematic revision of Article 86M, including mandatory consultation with the KPPU, a sunset clause, and a competition impact assessment, as well as strengthening the independence and advisory role of the KPPU. The implementation of Good Corporate Governance, objective criteria for “national interest,” and periodic evaluation mechanisms will ensure that state-owned enterprise monopolies function in accordance with the objectives of the welfare state without undermining the competitive environment. A phased implementation model over 10 years recommends normative, institutional, operational, and democratic arrangements to achieve a balance between state intervention and sustainable market mechanisms.

Effevtiveness of Regulations for Collecting Income Tax From E-Commerce Transactions Through Social Media Tax Fairness For MSMES Sumartono Sumartono; Adnan Hamid; Mashlihati Nur Hidayati; Sineenart Suasoongnern
Journal Evidence Of Law Vol. 4 No. 3 (2025): Journal Evidence Of Law (Desember)
Publisher : CV. Era Digital Nusantara

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.59066/jel.v4i3.1708

The information technology revolution has changed the face of global trade, including in Indonesia. Rapid advances in digital technology have had a significant impact on the national trading system, where buying and selling activities are no longer limited to conventional trade but have developed into electronic-based trade transactions. This study analyzes the effectiveness of regulations on the collection of income tax from e-commerce transactions via social media on tax fairness for MSMEs in Indonesia. The evolution of e-commerce tax regulations shows a gradual development from the 2021 HPP Law to PMK 37/2025, but there are still significant legal gaps in the regulation of transactions via social media platforms such as Instagram, Facebook, and WhatsApp Business. Using a normative legal research method with a legislative and conceptual approach, this study applies Soerjono Soekanto’s theory of legal effectiveness and John Rawls’ theory of justice as analytical tools. The findings indicate that PMK 37/2025 is ineffective in reaching social media transactions due to the informal characteristics of these platforms that enable transactions without formal registration, payments through personal transfers, and communication via private chats. This regulatory gap creates distributive injustice that disadvantages traditional MSMEs, who are bound by strict tax obligations while competitors on social media can avoid tax burdens. Soekanto’s theoretical analysis shows the regulation fails to meet the implementability criteria for the social media segment, while Rawls’ theory identifies violations of equality and reasonableness principles that create unfair competition. The study concludes that comprehensive regulation combining technological automation with procedural simplification is necessary to achieve equitable competitive conditions for all business actors.

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