Pena Justisia: Media Komunikasi dan Kajian Hukum
Vol. 22 No. 1 (2023): Pena Justisia

Transformation Of The Principle Of Material Legality In Corruption Offenses: A Critical Review Of The Living Law Article In The National Criminal Code: Transformation Of The Principle Of Material Legality In Corruption Offenses: A Critical Review Of The Living Law Article In The National Criminal Code

Slamet Haryadi (Fakultas Hukum, Universitas Muhammadiyah Kotabumi)



Article Info

Publish Date
20 Apr 2023

Abstract

This study examines the transformation of the principle of material legality in the context of corruption-related criminal acts following the enactment of the National Criminal Code (KUHP) through Law Number 1 of 2023. Article 2, paragraph (1), of the National Criminal Code, which recognizes living Law as a source of criminal Law, creates a fundamental normative tension with the principle of formal legality, which has been the main pillar in enforcing criminal Law against corruption. This study uses a normative legal research method, a statutory approach, a philosophical approach, and a theoretical approach. The results of the study indicate that integrating living Law into the national criminal law system creates a dualistic paradigm that could lead to legal uncertainty in the handling of corruption cases. Although the recognition of living Law is intended to accommodate the values of substantive justice of indigenous peoples, its application in the realm of corruption crimes must be strictly limited so as not to conflict with the principles of lex scripta, lex certa, and lex stricta. The synthesis offered is a normative-teleological limitation on the application of living Law, prioritizing legal certainty without sacrificing substantive justice

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Journal Info

Abbrev

hk

Publisher

Subject

Law, Crime, Criminology & Criminal Justice

Description

Pena Justisia aims to provide a forum for lecturers and researchers to publish the original articles about Law Science. Focus of Pena Justisia is publishing the manuscript of outcome study, and conceptual ideas which specific in the sector of Law science. We are interested in topics which relate ...