Pengertian Korporasi
Korporasi, secara etimologis berasal
dari kata corporatie (Belanda), corporation (Inggris), corporation (Jerman) berasal dari kata corporatio dalam bahasa Latin. Seperti
halnya dengan kata-kata lain yang berakhiran ‘-tio’, maka corporatio sebagai kata benda (substantivum), berasal dari kata
kerja corporate yang banyak dipakai
orang pada zaman abad pertengahan atau sesudah itu. Corporate itu sendiri berasal dari kata corpus (Indonesia=badan), yang berarti memberikan badan atau
membadankan, dengan kata lain badan yang dijadikan orang.
Pengertian korporasi sebagai badan hukum
dalam Black’s Law Dictionary antara
lain :
“Corporation. An
artificial or legal created by or under the authority of the laws of a state or
nation, composed in some rare instances, of a single person an his successors,
being incumbents of a particular office, but ordinarily consisting of an
association of numerous individuals.”
Maksudnya, bahwa korporasi merupakan
sesuatu yang disahkan atau tiruan yang diciptakan oleh atau di bawah otoritas
hukum suatu negara atau bangsa, yang terdiri dalam hal beberapa kejadian,
tentang orang tunggal adalah seorang pengganti, menjadi pejabat kantor
tertentu, tetapi biasanya terdiri dari suatu asosiasi banyak individu.
Korporasi tidak memiliki tubuh jasmani,
maka korporasi hanya dapat bertindak melalui mereka yang dipekerjakan oleh
suatu korporasi atau bertindak sebagai kuasa dari korporasi tersebut. Dilihat
dari bentuk hukumnya, hukum pidana Indonesia memberikan pengertian korporasi
dalam arti yang luas. Dalam hukum pidana, korporasi meliputi badan hukum dan
bukan badan hukum. Bukan saja badan hukum seperti perseroan terbatas, yayasan,
koperasi atau perkumpulan yang telah disahkan sebagai badan hukum yang
digolongkan sebagai korporasi menurut hukum pidana, tetapi juga firma,
perseroan komanditer atau CV, dan persekutuan atau maatschap, yaitu badan usaha yang menurut hukum perdata bukan suatu
badan hukum.[1]
Jenis-jenis Korporasi
1. Korporasi Publik
Korporasi yang didirikan oleh pemerintah yang mempunyai tujuan untuk memenuhi tugas-tugas administrasi di bidang urusan publik. Contoh, pemerintah kabupaten atau kota.
2. Korporasi Privat
Korporasi yang didirikan untuk kepentingan privat/pribadi, yang dapat bergerak di bidang keuangan, industri, dan perdagangan. Korporasi privat ini sahamnya dapat dijual kepada masyarakat, maka ditambah dengan istilah go public.
3. Korporasi Publik Quasi
Korporasi yang melayani kepentingan umum (Public Service). Contoh, PT Kereta Api Indonesia, Perusahaan Listrik Negara, Pertamina, Perusahaan Air Minum.[2]
Pengertian Kejahatan
Korporasi
Kejahatan
diartikan sebagai suatu perbuataan yang oleh masyarakat dipandang sebagai
kegiatan yang tercela, dan terhadap pelakunya dikenakan hukuman (pidana).
Sedangkan korporasi adalah suatu badan hukum yang diciptakan oleh hukum itu
sendiri dan mempunyai hak dan kewajiban. Jadi, kejahatan korporasi adalah
kejahatan yang dilakukan oleh badan hukum yang dapat dikenakan sanksi. Dalam
literature sering dikatakan bahwa kejahatan korporasi ini merupakan salah satu
bentuk White Collar Crime.Dalam arti
luas kejahatn korporasi ini sering rancu dengan tindak pidana okupasi, sebab
kombinasi antara keduanya sering terjadi.[3]
Klasifikasi Kejahatan yang Berkaitan Dengan Korporasi
1.Crime for Corporation (Kejahatan Korporasi)
Pelanggaran hukum yang dilakukan oleh korporasi/pegawai korporasi bukan demi kepentingan pribadi pelaku, namun dalam usaha korporasi tersebut memperoleh keuntungan.
2.Criminal Corporation (Korporasi Kriminal)
Korposi yang sedari awal didirikan dengan tujuan untuk melakukan tindak kejahatan (mafia, yakuza, triad, kartel, dan lain-lain)
3.Crime Against Corporation (Kejahatan Terhadap Korporasi)[4]
Karakteristik Kejahatan Korporasi
1.Organisatoris
2.Terkait dengan Bisnis
3.Kurang Mendapat Perhatian
4.Kompleksitas
5.Penyebaran Tanggung Jawab (diffusion of responsibility)
6.Korban yang Meluas (diffusion of victimization)
7.Kesulitan Menentukan Pelaku dan Penuntutan
8.Sanksi yang Lunak (Lenient Sanction)
9.Hukum Bermuka Dua
10.Status Kejahatan Bermuka Dua[5]
Corporate
Criminal System in Indonesia
In the
Criminal Justice System, the criminal occupies central position. This is caused
by the decision in the criminal system will have far-reaching consequences,
both involving the direct perpetrators of criminal acts and society at large.
The more so if the criminal judgment is considered inappropriate, it will cause
a reaction which “controversial” because of freedom in this case nature is
relative depending on which view it (Muladi, 1992). Developments in the
formulation of sanctions (criminal) in some countries, especially Western
Europe already so advanced when compared to other types of criminal sanctions
stipulated in the Criminal Code of Indonesia (Priyatno, 2005). If studied more
in depth about the subject of criminal sanctions widespread criminal acts in
the form of a corporation, it is as if the criminal sanctions contained in the
Penal Code are powerless to accommodate a criminal offense committed by the
corporation. Although there are some relevant sanctions such as criminal
penalties and the judge's verdict could be applied to the corporation. This is
because the Indonesian Penal Code valid embraces the subject of a criminal
offense in the form of human. Criminal sanctions formulated in Article 10 in
accordance with the basic philosophy of the Criminal Code addressed only to
humans or person.
Differences
in the model type of criminal sanctions for people and corporations, according
to the authors is necessary, this is because the existing penal system as
stipulated in Article 10 of the Criminal Code, philosophically established on
the basis and addressed to the offender's person. But it is possible; the types
of criminal sanctions can be directed to the corporation, with no record of any
type of criminal sanction is appropriate and fit and could be applied to a
corporation (Sudarto, 1974). For example, in Article 10 of the Criminal Code
reads: Criminal consists of: (1) Criminal principal: Capital punishment,
imprisonment, confinement and fines. (2) Additional penalty: Revocation of
certain rights, deprivation of certain goods and decision of the judge.
For criminal
staple that can be imposed on the corporation is fine, but if the corporation
could not pay the fine, is not regulated. While for the additional penalty,
limited only confiscation of certain goods and the judge's verdict. For this
type of additional penalty of revocation of certain rights contained in the
Criminal Code mentioned above could not imposed on corporations because,
according to Article 34 paragraph (1) Criminal Code, the rights may be deprived
is the right hold office, the right enter the armed forces, the right elect and
be elected, right to become counsel, the right be the guardian, the right to
exercise power the father and so on. It cannot be addressed to the corporation
but only just addressed to a natural person.
Similar
provisions are also practiced in the Netherlands. To know more about the
composition of sanctions in WV. As the Netherlands, with the qualification of
the manufacturer “Adult”, namely: (1) Principle penalties: Imprisonment;
detention; community service; fine. (2) Additional penalties, Article 9,
paragraph 1b: Deprivation of specific rights, committal to a workhouse State;
forfeiture, publication of the judgment. (3) Measures: Confiscation and deprivation
of the unlawfully obtained gains of Article 36-f, committal to a psychiatric
hospital and placement on an entrustment order of Article 37-38 (Rayar and
Wadsworth, 2003).
Based on the
provisions Article 51 of the WVS Netherlands, stated that criminal and actions
shall be subject to the corporation also works for/could be applied. To find
out ideal policy on crime system in the draft Criminal Code in 2015, it turns
out the types of criminal punishment is still oriented towards the “people” and
not oriented to the criminalization of the “corporation” itself. According to
Arief (2003), briefly criminal system can be defined as the system
administration or criminal punishment.
System
administration/criminal penalties (penal system) it can be seen from the two
(2) corners. First seen from the point of functional or corner
work/function/process, the penal system can be defined as the entire system
(rule of law) for functional/operationalization/concrete criminal acts; or the
entire system (laws) that govern how criminal law is established or
operationalized in concrete terms, so that a person subject to sanctions (law)
criminal. So that a person subject to sanctions (law) criminal. So that a
person subject to sanctions (law) criminal. Thus, the criminal system is
identical to the system of criminal law enforcement that consists of a
sub-system of the Criminal Law Materiel/substance, sub-systems of the Penal
Code Formal and sub-systems Law Implementation of the Criminal, the third
sub-system that is an integral system of punishment, because criminal may not
be operated. Enforced concretely only by one sub-system. Definition of the
criminal system so it can be called a functional criminal system or the
criminal system in a broad sense. Both from the point-substantive norm (just
seen dart norms of substantive criminal law), criminal system could be
interpreted as the whole system of rules/norms of criminal law for the
provision of materials/imposition and execution of a criminal. Thus, the
overall legislation (statutory rules) that is in the Criminal Code and the Law
on Special outside the Criminal Code, are in fact one unified criminal system,
consisting of general rules (Book I Criminal Code) and special rule contained
in Book II Criminal Code and the Special Law beyond the Criminal Code (Nawawi,
2005).
The
discussion of the penal system for corporate criminal system is based on the
understanding of substantive criminal system contained in the Draft Bill 2015.
The criminal type in the Draft Criminal Code of 2015 set out in Article 66,
which reads as follows: (1) Basic Criminal consist of: Imprisonment, criminal
cover, criminal supervision, criminal fines and criminal social work. (2) The
order of crime referred to in item 1 determine the severity of the criminal.
Whereas
Article 68, regulating the additional penalty. Additional penalty consisting
of: Revocation of certain rights, deprivation of certain goods and or bill, the
judge's verdict, the payment of indemnity and fulfilment of customs
obligations. Additional penalty can be imposed together with the staple
criminal, as the staple criminal, a criminal stand-alone or can be dropped
together with the other additional penalty. Additional penalty in the form of
fulfilment of the obligations of local customs and/or obligations according to
the law the living or the revocation of the rights acquired corporation and
dropped although not listed in the formulation of criminal offenses. Additional
penalty for the trial and administration are the same with the additional penalty
for the criminal. Criminal additional form of revocation of certain rights, if
the convicted person is a corporation in certain circumstances has the effect
of deterrence more effective. Because the judge may impose. Criminal
disenfranchisement owned by a corporation although the formulation of criminal
threat was not specified (Article 68 paragraph 1 of the Draft Penal Code,
2015).
For this kind
of staple crime, according to the draft Penal Code in 2015 which can be levied
against the corporation was fined. Criminal fines for corporations is at most
the next higher category, except otherwise stipulated by the law (Article 82,
paragraph 4). Furthermore, based on the explanation of the Draft Penal Code in
2015, described the background of the emergence of these provisions is: Given
the staple criminal who can be imposed on a corporation is only fined, it fair
if the maximum threat of criminal penalties imposed on corporations are heavier
than the penalty of fines against individuals. To that end, has have been
selected how to determine the maximum penalty for a corporation commits an
offense that is next higher category. As a record maximum fine stipulated by
categories, namely: Category I Rp. 10,000,000.00 (ten million rupiah); category
II Rp. 50,000,000.00 (fifty million rupiah); Category III Rp. 150.000000,00
(one hundred and fifty million rupiah); Category IV Rp. 500,000,000.00 (five
hundred million rupiah); category V Rp. 2,000,000,000.00 (two billion rupiah);
category VI Rp. 15,000,000,000.00 (fifteen billion rupiah) (Article 82
paragraph 3 of the Draft Penal Code 2015). The next setting criminal penalties
for corporations to in Article 82, paragraph 5 is said to be: A maximum fine
for a corporation commits an offense punishable by imprisonment of 7 (seven)
years to 15 (fifteen) years is fine category V, the death penalty, life
imprisonment, or imprisonment for a period of 20 (twenty) years is fine
category VI.
Furthermore,
in the explanation of Article 82, paragraph 5 Draft Criminal Code, it is said
that: In terms of the formulation of a crime in a legislation does not specify
a penalty of a fine against the corporation, then apply the provisions of this
paragraph, the minimum penalty as specified in paragraph 6. Article 82
paragraphs 6 of the draft penal Code 2015 states: Fined at least for the
corporation referred to in paragraph 5 is fine Category IV, unless otherwise
provided by law. Additional penalty, on the revocation of rights, especially
for corporations, then deprived of all rights is obtained corporation (article
93 paragraph 2 of the Draft Penal Code 2015). Such as the right to perform
activities in certain sectors (the explanation of Article 93 paragraph 2). If
the revocation of rights imposed on corporations, then the judge is free to
determine the length of the revocation of such rights (Article 96 paragraph 2
of the Draft Penal Code 2015).
The types of
criminal sanctions proposed in the draft Criminal Code in 2015, basically
oriented on the "Offender" even though there are several types of
criminal victim-oriented as criminal supervision, criminal social work.
Although there are criminal compensation payment, which is actually one of the
victim-oriented criminal (victim oriented), but it is a pity not explicitly
mention may be subject to the corporation. Although the actual criminal charge
of payment of compensation shall be liable to the corporation (Article 101
paragraph 1 of the Draft Penal Code), but if we examine the next verse and
Article 101 that paragraph 2, which reads: If the obligation to pay
compensation as referred to in paragraph 1 is not implemented, shall substitute
imprisonment for criminal penalties.
Based on the
formulation of the article, then the rules of origin 101 Draft Penal Code in
2015, aimed against people and not for corporations. This is because, if the
obligation to pay damages not implemented, shall substitute imprisonment for
criminal penalties. This provision can only be imposed on the subject of
criminal acts in the form of people. So did staple types of criminal punishment
in the form of supervision, it also is not worn to the corporation. Supposed to
be this criminal corporation may be subject to the term "corporate
probation", which applies to corporations with accompanying conditions,
including restitution to the victim. The idea of "corporate
probation" is virtually identical to criminal conditional/supervision
(probation sentence suspended) for the common man. This is in accordance with
the opinion of Wagner (1999) which states that the probation order to a corporate
entity is similar to the probation order for individuals.
So the idea
of “corporate probation” is a logical consequence and extension of the subject
of crime, from “people” to “corporations”. Reasons criminal supervision could
not imposed on corporations, as stipulated in the draft Criminal Code of 2015,
in article 79 to article 81, if studied further, a criminal type, addressed to
people and not to corporations. Reasons legally can be seen in Article 79 Draft
Criminal Code in 2015, which reads: The defendant of committing criminal
offenses which the prescribed penalty imprisonment of 7 (seven) years, can be
sentenced supervision.
The provision
which reads: “Punishable by imprisonment”, indicates that the subject of
criminal supervision aimed against criminal acts such as people and not
corporations, cause imprisonment can only be imposed on people/humans. To
support or reinforce that criminal supervision aimed against people, can be
seen in Article 80 paragraph 1 of the Draft Criminal Code in 2015, which reads:
Criminal supervision can be meted out to the defendant considering the personal
circumstances and actions. The provision which reads: “Considering the personal
circumstances”, it shows that having a personal situation are individuals. This
is confirmed also in particular Article 80 paragraph 3 sub C, which is set on
one proviso, namely supervision criminal punishment the convicted person should
do something or not doing certain acts, without reducing freedom of religious
and political freedom. By the provisions that reads “without prejudice to the
freedom of religious and political freedom”, it indicates clearly that such
provision is directed only to the people and not corporations, because
corporations do not have the right form of freedom of religion and politics,
and who has such rights is a natural person, or the subject of human law. Other
types of sanctions in the draft Criminal Code in 2015 which could otherwise be
subject to the corporation, however not addressed to the corporation is the staple
types of criminal punishment in the form of social work. Type criminal charge
of Criminal Social Work, requirements are that: If imprisonment the imposed of
not more than six (6) months or fine of not more than fines category I (Article
88 paragraph 1 of the Draft Penal Code, 2015); in social work criminal
punishment as referred to in paragraph 1, shall be considered the following
matters: Recognition the defendant on criminal acts committed; age
employability the defendant according to legislations in force; approval after
the defendant explained about the purpose and all matters relating to criminal
social work; social history of the defendant; safety protection of the
defendant; religious and political beliefs of the defendant; and the ability of
the defendant to pay a fine (Article 88 paragraph 2 of the Draft Penal Code
2015).
If observed
the above Terms, inter alia if imprisonment the imposed no more than (6) six
months, is one of the requirements of the criminal punishment of community
service, and imprisonment itself can only be imposed on the person/man, age
employability (expressly show that aimed against human beings) and so on, then
this type of criminal charge of criminal social work which is set in the draft
criminal Code in 2015, geared towards those that are not addressed to the
corporation, even though can theoretically be imposed on the corporation.
Nonetheless
the formulation of the draft Penal Code in 2015, have made progress in the
formulation of criminal sanctions specifically targeted against the corporation
when compared with the current Criminal Code still valid. Even the expansion of
criminal offenses subject to corporation can be generalized. It is, in
accordance with the provisions of article 213 Draft Penal Code 2015, which states:
“Every person is an individual, including the Corporation”.[6]
Model
Alternative Sanctions Corporation
The draft
Criminal Code in 2015, it did not distinguish between types of criminal
sanction arrangements between the types of sanctions are targeted against
persons and corporations. That is the model type of criminal sanctions targeted
against persons and corporations united in one package setting the types of
crime. According to the authors, this condition can be called as one of the
models setting the type of criminal sanctions for the corporation. Such a model
adopted in most countries that codify criminal law (including the Netherlands).
Other models, as an alternative to the model are the need for differentiation
types of criminal sanctions for people and corporations.
Based on the
description above, the known models of type setting criminal sanctions, imposed
against the corporation. The first model, the model type settings criminal
sanctions aimed at both the person and the corporation no difference, in the
first model is the basic philosophy of the imposition of the sentence is at the
point of emphasis to the human/person; for example, the Criminal Code, W.v. S
Netherlands, the draft Criminal Code 2015 (a constitute lush referendums ideal
policies), legislation such as the Criminal Code specifically outside the law
for economic crime, the Law on Narcotics and so on). The second model, the
model type settings criminal sanctions distinguish strictly criminal sanctions
for people and for the corporation, the basic philosophy of the criminal
punishment even though people and corporations as subjects of law, but they are
different both in nature and theoretically (Muladi and Priyatno, 2015).
For it is
necessary to find criteria on the basis or reason for these distinctions, in
particular in order to determine the criteria or categories of principal and
additional criminal punishment aimed at the corporate or legal entity. Search
criteria as a basis for determining the model type of criminal sanctions aimed
at corporations, if the criteria for corporate criminal type model is different
from the criteria for the types of crime (both models), as alternative models.
Criteria
could be seen from the definition/understanding of the corporation. If the
corporation is restricted only limited understanding as a legal entity only,
then there are restrictions or exceptions, to the corporation committing
criminal offenses in cases which by its nature cannot be carried by a
corporation, for example, bigamy, rape, perjury. In Case that the only crime
may be imposed is not possible subject to the corporation, such as imprisonment
or the death penalty, in a case of murder and treason, which the only form of
criminal threat for life or capital punishment. When viewed, and the above
description, the corporation as the subject of a criminal offense is different
with humans. It is caused by nature; there are some limitations of a crime that
can be committed by corporation, when compared with the criminal offenses
committed by humans.
Criteria
views of the benefits of punishment against the corporation. Some critics of
corporate responsibility already doubts about whether the corporation itself
can be prevented with a criminal. But a premature evaluation, giving another
conclusion that corporations are likely to receive very little fines compared
to the size/amount of corporation, income, or profit expected to be obtained
from the offense committed. Therefore, it is difficult to assert that the
corporation does not have to be convicted and that they do not need to be
prevented.
A problem
worthy of note that the crime for corporations tend imposed on the person/party
which is not guilty, not only on shareholders, but also to employees,
creditors, communities, and also for consumers which may indemnify the
corporation if the fines seen as a business expense. This problem suggests a
desire to minimize the punishment for the corporation. Some proposals, for
example, the use of reasonable fines (fine inequity) withheld/withdrawn in
common stock will prevent corporate bankruptcies and negate the loss for not
shareholders, while pressing corporations to link the change control
management. The same thing, criminal charge of corporate oversight (corporate
probation) has been recommended as a means for public intervention. The other
thing that recommended is the use of sanctions publicity and sanctions in the
form of community service/social work.
This proposal
suggests that the issue of corporate accountability can be and should be broken
up or separated from the optimal form of corporate punishment. By contrast,
corporate accountability facilitates the criminal prosecution against the
individual defendants (Nawawi, 2005). The criteria on the size of the criminal
sanction when to be directed to the corporation. If these criteria are not
fulfilled, then the corporation should not be criminalized.
According
Clinard and Yeager (2002), which have to meet the following criteria: The
degree of loss to the public; the level of complicity by high corporate; the
duration of the violation; the frequency of the violation by the corporation;
evidence of intent to violate; evidence of extortion, as in bribery cases; the
degree of notoriety engendered by the media; precedent in law; the history of
serious, violation by the corporation; deterrence potential; the degree of
cooperation evinced, by the corporation.
Based on some
of the above criteria, then theoretically types of criminal sanctions to
corporations can be dealt with separately and apart from the criminal sanctions
package that had been there (the first model). This is an alternative to a
model-type setting for corporate criminal sanctions, which the writer suggested
as a second model. For example that the first model was adopted in the
legislation, like the contained in the law No. 15 of 2002 no. Law No. 25 of
2003 on Money Laundering Crime. According to Article 5 paragraph (2), said: In
addition to a fine as referred to in paragraph 1 against the corporation may
also be imposed additional penalty of revocation of business licenses and/or
corporate dissolution followed by liquidation. Act mentioned above have been
withdrawn and replaced by Act No. 8 of 2010, but Article 7, paragraph 2, still
contains the same provisions, and entered in the category of additional
criminal.
If we analyse
these provisions, it should be criminal revocation of business licenses and
exposition of the corporation followed by liquidation or dissolution and the
banning of the corporation, were not included in the category of the type of
additional penalty, if we embrace the types of criminal sanctions for corporate
models of both, and should fit into the type principal criminal, assuming
different criteria of corporate crime by the principal for the criminal.
According to the authors of criminal form of revocation of business and
corporate dissolution followed by liquidation or dissolution of the fund or
banning corporate, identical to the type of capital punishment, when addressed
to the "people" according to alternative models for sanctions in
second models.
Model stelsel
criminal sanctions may be imposed against the corporation as the subject of a
criminal act, as an alternative model options that had not been getting good
setting with after listening to the description above, the model that
distinguishes the type of criminal sanctions for people and corporations (both
models). Selection of the model chosen setting is a policy issue, one important
stage in the policy formulation stage which is the stage of law enforcement
agencies in abstract by lawmakers. Prevention and control of crime with penal
is a “penal policy” or “penal law enforcement policy” that
functionalization/operationalization of several stages: (1) Formulation
(legislative policy/legislation; (2) Applications (policy judicial/judicial);
(3) Execution (executive policy/administrative).
Stage of
formulations can be called a policy/legislation. A policy is a plan or program
of legislators about what to do in the face of certain problems and how to do
or accomplish something that has been planned or programmed it (Nawawi, 1994).
Particularly relevant to the prospect of setting the type of corporate crime
against the corporation can be said to be the ideal policy. The policy could
affect law enforcement problem concerns the subject of corporate crime (Dwidja,
2004). To support the latter model (second model) which is an option on the
model type of criminal sanctions for the corporation, can presumably a
comparison of the results of the “International Meeting of Experts on the use
of Criminal Sanction in the Protections of Environment” held in Portland,
Oregon, USA. On March 19 to 23, 1994, stating that it may be subject to the
corporation, namely: Monetary sanction of them to replace the economic benefits
(recoups any economic benefit) obtained as a result of the crime; recover, all
or part of the cost of the investigation/inquiry and make improvements
(reparation) any losses incurred; fine.
Additional
penalty in the form of: A ban on acts/activities that can lead to continuation
or recurrence of the crime; command to terminate or not to continue activities
(temporarily or earlier) revocation prevalent activity, the dissolution of the
business; appropriation of wealth (property assets) and the results of the
crime by giving protection of the rights of the third party is bona fide;
remove or disqualify a convicted person/corporation from government contracts,
fiscal benefits or subsidies; ruled solving cancel disqualify managers and
officers from office; ordered the convicted person/corporation acts to fix or
to avoid damages to the environment; requires convicted comply with the
requirements stipulated conditions the court to prevent the convict repeat his
actions; govern the publication of facts relating to a court decision; ordered
the t convict to tell people who are harmed by his actions; ordered the
convicted person (if an organization) to inform the public of all countries
where it operates, the organization, the branches, to the directors, officers,
managers or employees, the overall responsibility or sanction imposed on him;
ordered the convicted person to perform services or social work (community
service).
In the
countries Anglo Saxon as the UK, the problem of Criminalization Corporation has
developed in such a way as in the UK. Wells (1996) in his book entitled
Corporation and Criminal Responsibility, stating that the penalty for a
corporation is divided into two: Financial Sanction is the type of penalty,
which is deemed appropriate and can be dropped to the corporation. But in
practice also raises the problem that if it cannot be paid by a corporation,
then it will be replaced with criminal deprivation of liberty, restrictions in
the payment of fines is limited or taken from the assets the corporation
itself. But it can meet the financial sanctions in the form of sanctions, and
then it will obviously affect the appearance and reputation of the corporation
which is indispensable in business life. Non-Financial Sanction may include:
Probation; adverse publicity; community service; direct 'compensation orders;
punitive injunctions.
Although does
not expressly support the second model, the opinion Muladi (2002) actually
leads to setting the type of criminal sanctions directed against both corporate
models. He stated that all criminal sanctions and measures can basically be
imposed on corporations, except the death penalty and imprisonment. In this
regard it should be noted that in the United States known as the so-called
“corporate death penalty” is liable to a closure of the Entire Corporation and
“corporate imprisonment”, which implies the existence of other restrictions
against corporate measures in the attempt. The types of criminal sanctions can
be imposed on the corporation as has been described above is an option in the preparation
of legislation concerning the corporation as the subject of a criminal act, as
well as support a second model type settings criminal sanctions directed
against the corporation in Indonesia. The types of criminal sanctions can be
imposed on the corporation as has been described above is an option in the
preparation of legislation concerning the corporation as the subject of a
criminal act, as well as support a second model type settings criminal
sanctions directed against the corporation in Indonesia.[7]
Referensi
