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All Journal JURNAL MERCATORIA Legal Standing : Jurnal Ilmu Hukum
Ardhan, Adery
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Languange, Linguistic, Communication & Media Law, Crime, Criminology & Criminal Justice

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The Relevance of The Principle of No Criminal Punishment Without Fault (Geen Straf Zonder Schuld) in Corporate Criminal Liability in Indonesia Kurdi, Kurdi; Ardhan, Adery; Dadek, Teuku Ahmad
JURNAL MERCATORIA Vol. 18 No. 2 (2025): JURNAL MERCATORIA DESEMBER
Publisher : Universitas Medan Area

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31289/mercatoria.v18i2.16610

Abstract

The principle of Geen Straf Zonder Schuld faces a paradox when applied to corporations, which, as a legal fiction, have no mens rea. However, the profound impact of corporate crime demands an effective mechanism for criminal accountability. This normative juridical research examines the relevance of the principle of Guilt in Indonesian corporate criminal Law through legislative, conceptual, and case-based approaches. The first findings show that, before the New Criminal Code, the application of the principle of Guilt was pragmatic through the Theory of Identification, which attributed the corporation's mens rea to the management or directing mind. This approach is supported by PERMA No. 13 of 2016 and is evident in decisions such as PT GJW and PT CND. The second finding shows the evolution of the doctrine in two directions: (a) the exclusion of the principle of culld through strict Liability in various lex specialis, especially the Law on Environmental Protection and Management; and (b) the transformation of the meaning of debt through the Corporate Culture Model, which views blame as the failure of the system or organizational culture to prevent crime. The culmination is the codification of the Corporate Culture Model in the New Criminal Code (Law No. 1 of 2023), which marks a shift from treating mistakes as lending errors to treating them as authentic corporate mistakes.
TRANSFORMASI PENEGAKAN DUE PROCESS OF LAW DALAM TAHAPAN PENYIDIKAN DI INDONESIA: ANTARA PERLINDUNGAN HAK TERSANGKA DAN EFEKTIVITAS PENEGAKAN HUKUM Kurdi; Ardhan, Adery; Dadek, Teuku Ahmad
Legal Standing : Jurnal Ilmu Hukum Vol. 10 No. 1 (2026): Legal Standing
Publisher : Universitas Muhammadiyah Ponorogo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.24269/ls.v10i1.12833

Abstract

This study analyzes the transformation of due process of law at the investigation stage in Indonesia, which has become an arena of conflict between the protection of suspects' rights and the effectiveness of law enforcement. Normatively, the Criminal Procedure Code (KUHAP) adopts the Due Process Model that guarantees human rights. However, in practice, it is still dominated by the repressive Crime Control Model, creating a gap between das sollen and das sein. Using a legal-normative research method, this study examines the normative guarantees of suspects' rights and the effectiveness of their oversight mechanisms. The results of the study show that the implementation of fundamental rights, such as the right to legal assistance (Articles 54/56 KUHAP), is still very minimal , which correlates directly with the persistence of torture practices to obtain confessions. Internal (Propam) and external (Ombudsman) oversight mechanisms have proven to be “suboptimal” in preventing maladministration. The most significant transformation has come from judicial oversight through Constitutional Court Decision No. 21/PUU-XII/2014, which expands the scope of pretrial hearings to examine the determination of suspects, searches, and seizures. This decision enforces accountability for evidence from the outset of the investigation. This study concludes that strengthening due process requires legislative reform (the Criminal Procedure Code Bill) to institutionalize the Commissioner Judge as a proactive judicial supervisor.
Co-Authors Dadek, Teuku Ahmad Kurdi Kurdi Kurdi