The Element of "Unlawfulness" in the Criminal Code
Legal Literacy - The formulation of a crime must contain what is prohibited, both formal crimes with prohibited acts and material crimes with prohibited consequences. However, all types of crimes must contain an element of unlawfulness. The element of "unlawfulness" can be stated explicitly or not, depending on the elements of each article.
Examples of crimes that positively contain the element of "unlawfulness" in the Criminal Code Criminal Law (hereinafter referred to as "KUHP"), include:
Article 372 of the Criminal Code
“Anyone who intentionally and unlawfully possesses something that is wholly or partly the property of another person, but which is in his power not because of a crime, shall be threatened with embezzlement, with a maximum imprisonment of four years or a maximum fine of Rp900 thousand.”
Article 362 of the Criminal Code
“Anyone who takes something, wholly or partly the property of another person, with the intention of owning it unlawfully, shall be threatened with theft, with a maximum imprisonment of five years or a maximum fine of Rp900 thousand.”
With regard to articles that clearly include the element of "unlawfulness", this can be interpreted as permissible if done according to law. Take for example Article 362 of the Criminal Code where if the act of taking another person's property is with the permission of the entitled party, then it cannot be subject to a quo.
In addition, the inclusion of the element "against the law" places a greater burden of proof on the Public Prosecutor. When this element is not proven, then by law the defendant must be acquitted. If the judge has doubts about the proof of this element, according to the principle in dubio pro reo, then the defendant must also be acquitted. However, if the judge has doubts about the proof of the element "against the law," the judge may also rely on the principle in dubio pro lege fori.
On the other hand, there are also articles that do not clearly state the element of "against the law." This is because the actions listed are so evil in the assumptions of society that they do not need to be clearly stated in the formulation of the offense.
The Concept of Unlawfulness
Basically, the concept of unlawfulness can be divided into two, namely formal unlawfulness and material unlawfulness. Formal unlawfulness means that an act matches the formulation of a prohibition norm contained in the law. On the other hand, material unlawfulness is broader because it also includes being contrary to the norms of morality and propriety that exist in society.
Regarding the nature of unlawful material is further divided into two, namely in positive function and in negative function. The nature of law material in a positive function means positivizing or stating that an action is considered an offense because of material law even though it is not regulated as a criminal act in the law. Regarding the nature of material law that is in conflict with the principle of legality in Article 1 paragraph (1) of the Criminal Code.
However, there is still room for the nature of material law in a negative function, which is to negate or eliminate the unlawful nature of an offense. This is permitted as long as the state is not harmed, the public interest is served, and the defendant does not benefit. According to Komariah Sapardjaja, the application of the nature of material law above must pay attention to:
- The defendant's actions that provide benefits for the legal interests to be protected by the lawmakers,
- The defendant's actions protect higher law, namely usefulness for broad interests and the general public, and
- The defendant's actions contain greater value for the interests of society than for himself. What is meant here is that the defendant does not get any benefit from the actions taken for the sake of society.
In addition to the above division, the concept of unlawful can also be viewed in two ways, namely objective unlawful which is roughly the same as formal unlawful and subjective unlawful which relates to intent or mens rea. To assess the perpetrator's intent, the concept of culpability based on the principle of geen straf zonder schuldis used. Culpability itself is divided into intent and negligence.
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