Legal Literacy - The recodification of criminal law through Law No. 1 of 2023 (New Criminal Code) represents a paradigmatic leap from the colonial legal framework. The differences are not only partial, but also touch on the philosophy, principles, structure, and content of criminal law. The following are details of the substantial comparison:
A. Fundamental Changes to Principles and Philosophy
1. Shift in the Philosophy of Criminalization
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Criminal Code Old: Based on the philosophy of retributive justice (retaliation). The main focus is on imposing sanctions as a reward for crimes committed, with an emphasis on the deterrent effect through suffering (imprisonment, fines).
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New Criminal Code: Adopting a modern and multidimensional philosophy. Articles 51 and 52 explicitly formulate the objectives of criminal punishment which include:
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Corrective Justice: Fostering and socializing convicts to become better individuals.
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Restorative Justice: Restoring balance and resolving conflicts caused by criminal acts, by involving victims and perpetrators.
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Rehabilitative Justice: Restoring the condition of victims and reintegrating perpetrators into society.
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Prevention and protection of the public remain objectives, but retribution is no longer a primary priority.
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2. Reconstruction of the Principle of Legality
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Old Criminal Code: Strictly adheres to the formal legality principle in accordance with Article 1 paragraph (1): no act can be punished except by virtue of criminal rules in legislation that existed before the act was committed.
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New Criminal Code: Maintaining the formal legality principle (Article 1) but complementing it with recognition of the principle of material legality. Article 2 revolutionarily recognizes customary law that lives in society as a source of criminal law. An act can be criminalized based on local customary law as long as it does not conflict with Pancasila, the 1945 Constitution, Human Rights, and general legal principles recognized by civilized society.
B. Reform of the System and Types of Criminal Sanctions
3. Elimination of the Distinction Between Crimes and Violations
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Old Criminal Code: Classifying criminal acts into two books: Book II on Crimes (misdrijven) and Book III on Violations (overtredingen), which carries different legal implications (e.g., in terms of attempts and aiding and abetting).
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New Criminal Code: Abolishing this distinction. All criminal acts are now called "Criminal Acts." The severity of an act is distinguished based on the criminal sanctions threatened, no longer based on the formal classification.
4. The Death Penalty as an Alternative Sanction with a Probation Period
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Old Criminal Code: The death penalty is one of the principal penalties imposed definitively.
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New Criminal Code: Regulating the death penalty as a special penalty and always threatened as an alternative to life imprisonment or 20 years. Article 100 introduces a mechanism of a 10-year probationary period. If the convict demonstrates commendable attitude and behavior during the probationary period, the death penalty can be changed to life imprisonment by Presidential Decree.
5. Modernization of Fines
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Old Criminal Code: The nominal amount of fines is often no longer relevant to current economic conditions.
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New Criminal Code: Introducing a more rational fine system through Fine categories in Article 79. There are 8 categories of fines, from Category I (IDR 1,000,000) to Category VIII (IDR 50,000,000,000), allowing for adjustments without having to amend the law. If the fine is not paid, the substitute penalty is more flexible, and may take the form of supervisory measures, social work, or imprisonment.
6. Alternative Criminal Sanctions Other Than Imprisonment
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Old Criminal Code: Highly prison-oriented.
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New Criminal Code: Prioritizes alternatives to imprisonment to reduce negative impacts and overcrowding. Introduced supervisory penalties and social work penalties (Articles 65-75) which may be imposed as an alternative to short-term imprisonment or fines.
C. Expansion of the Subject and Object of Criminal Acts
7. Corporate Criminal Liability
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Old Criminal Code: Does not explicitly regulate criminal liability for corporations.
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New Criminal Code: Regulates comprehensively in Articles 45-50. Corporations are recognized as criminal law subjects who can commit criminal acts and be held accountable. Sanctions that may be imposed include principal penalties in the form of fines and additional penalties such as license revocation, asset forfeiture, and dissolution.
8. Criminal Acts Related to Information Technology (Cybercrime)
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Old Criminal Code: Does not regulate cyber offenses because it was drafted in the pre-digital era.
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New Criminal Code: Codifies several cybercrimes in the Chapter on Crimes against Electronic Systems. Although the ITE Law still applies as a lex specialis, the new Criminal Code strengthens the general legal framework for crimes such as illegal access, wiretapping, and data interference.
9. Criminal Acts Against the Environment and Animals
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Old Criminal Code: The protection of the environment and animals is very limited.
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New Criminal Code: Dedicating a special chapter to Environmental Crimes (e.g., environmental pollution) and Crimes Against Animals (e.g., animal abuse), which reflects increasing ecological awareness.
10. Indecent Acts (with important notes)
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Old Criminal Code: Regulating adultery (overspel) which is limited to relationships between a married person and another person.
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New Criminal Code: Expanding the scope.
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Adultery (Article 411): Includes sexual intercourse by a married person with someone who is not their husband/wife.
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Cohabitation (Article 412): Regulates sexual intercourse between a man and a woman who are not married (living together as husband and wife).
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IMPORTANT: Both of these articles are absolute complaints offenses. That is, legal proceedings can only be initiated if there is a complaint from the husband/wife for those who are married, or parents/children for those who are not married. This limits state intervention in private spaces.
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11. Insulting Public Authority and the President (Complaint Offense)
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Old Criminal Code: The article on insulting the president was once annulled by the Constitutional Court because it was considered to threaten freedom of expression.
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New Criminal Code: Reviving this offense in Article 218 (Insulting the President/Vice President), but with a fundamental change: this article is a complaint offense. The complaint must be made in writing by the President or Vice President themselves. Criticism or differing opinions are not included in the qualification of insult.
D. Harmonization and Special Regulations
12. Regulation of Special Criminal Acts (Corruption, Terrorism, Narcotics)
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Old Criminal Code: This crime is not regulated and is completely outside the Criminal Code.
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New Criminal Code: Including special chapters regarding this crime. The aim is to serve as a consolidation and harmonization in one codification. However, based on the transitional provisions, existing special laws (Anti-Corruption Law, Terrorism Law, Narcotics Law) remain in effect as lex specialis, especially for procedural law and more specific elements.
13. Restorative Justice and Handling of Children
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Old Criminal Code: Does not formally recognize the concept of diversion or restorative justice.
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New Criminal Code: Formally integrating the principle of restorative justice, especially in handling Children in Conflict with the Law. Articles 112-117 prioritize diversion (resolution outside the criminal justice system) and actions (non-criminal) that are rehabilitative and educative. The age limit for criminal responsibility is 12 years.
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