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Definition of criminal law

SESSION 1
Definitions and Scope of Criminal law
Legal sources of Indonesian criminal law
Divisions of criminal law
Course: Criminal Law

Prof. Moeljatno

Criminal law is part of the entire laws practiced in particular country,

which provide principles and rules to:
1) to determine what kind of behavior which prohibited, not allowed to,
accompanied by punishment or sanction by using certain penal sanction
for those who violate the prohibitions Criminal Act
2) to determine when and in what condition for those who have violated
the prohibitons can be inflicted with prescribed punishment Criminal
Liability/ Criminal Responsibility
1) and 2) = Substantive Criminal Law
3) to determine by what means/ how the punishment would be inflicted if
someone violate the prohibitions Criminal Procedure

Criminal Law Department, Faculty of Law

University of Indonesia
2011

Definition of criminal law

Prof. Pompe

Criminal law is all legal rules which determine

what kind of conduct that should be punished,
and what kind punishments to be inflicted for
those conducts.

Definition of criminal law

Prof. Simons

Criminal law is all obligations and prohibitions

provided by a country and treated by
punishment for the perpetrator, all rules
which determine requirements for the legal
implications and all rules to give punishment
and to implement the penal sanction.

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Definition of criminal law

Division of criminal law

Prof. Van Hamel

Criminal law is all principles and rules hold by

particular country in mantain legal order
(rechtsorde) by means of prohibit what in
conflict with law and to inflict the punishment
for anybody who violate the prohibitions.

Ius Poenale
Substantive law /
materiil criminal law
(criminal law)
The criminal law which
is implemented
nationally (in all part of
a nation)

Criminal law science and other

sciences

The Criminal Law Science

Part of legal science which particularly study
criminal law .
According to Prof. Lemaire, the main object of
this science is positive law or the existing
criminal law in particular country .
However, according to Prof. Simons, the
criminal law science not only study the
existing law (ius constitutum) but also the
future law (ius constituendum)

Ius Poeniendi
Formil criminal law
(criminal procedure
law)
The Criminal law which
is implented in certain
local area (provinces
and municipality)

Criminology
Victimology
Criminalistic
Forensic
Psychiatry
Sociology of law

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Indonesian Penal Code and its history

According to Andi
Hamzah
- VOC era
- Nederland Indie era
- Japanese occupation
era
- Independence era

According to Utrecht
- VOC era
-Daendels era
-Raffles era
-Comisaris General era
-1848-1918
-1915 -now

Nederlands Indie era

Dualism in criminal law
1. Decree of Dutch King 10/2/1866 (S.1866 no.55) -->
aplied for Europeans
2. Ordonnantie 6 May 1872 (S.1872) --> applied for
Indonesians and easterners (chinese, Japanese)
Unification :
Wetboek van Strafrecht voor Nederlandsch - Indie
- The decree of the Dutch King 15/10/1915 implemented in
1/1/1918 accompanied by
- The decree of the Dutch King 4/5/1917 (S.1917 no. 497) :
regulate the transition from older criminal law to new
criminal law .

VOC era
Statuten van Batavia
The law of old Dutch
Principles of Roman law
Adat (customary) law
prevailed in other regions
Such as: Pepakem Cirebon

Japanese Occupation era

Wetboek van strafrect still
applied
Osamu Serei (law) No. 1 /1942,
implemented on 7/3/1942
The criminal procedure law has
more rules which changed

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Independence era
UUD 1945, article II
on Transitional rules
All existing state
bodies and
regulations still
applied as long as the
new ones not yet in
place according to this
constitution

Legal sources of Indonesian

Criminal Law

Law No.1 year 1946 : emphasized the criminal law that

prevailed in Indonesia
Prevailed in Java and Madura (26/2/1946)
Government Regulation No. 8 year 1946 : prevailed in
Sumatera
Law No. 73 year 1958 : The Law which declared that Law
No. 1 year 1946 is prevail in all part of the Republic of
Indonesia and amend the penal code

The Penal Code of Indonesia

Book I : General Provisions (art 1 103)

Indonesian Penal Code (and all

law and regulations which
amended the code)
The law and regulations
concerning criminal law outside
the Penal Code
The criminal provisions provided
in the non-penal law and
regulations

Art 103 The provisions of the first

eight chapters of this Book shall also
apply to facts on which punishment is
imposed by other statutory provisions,
unless determined otherwise by statutes
Book II : Crimes (art 104 488)
Book III : Misdemeanours (art 489 569)

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Several statues which amended the penal code

Law No.1/1946 : implementation of the penal code,
alteration of several terms, elimination of several articles,
addition of several new articles in Chapter Bab IX - XVI
Law No. 20/1946 : addition of the kind of penal sanction in
art 10 a KUHP --> pidana Tutupan (close detention)
Emergency Law No. 8/1955 : remove art 527
Law No. 73/1958 : declared that Law No. 1/1946 prevail in
all part of Indonesia, added articles 52a, 142a, 154a
Emergency Law No. 1/1960 : added the punishment of
articles 188, 359, 360 into 5 years imprisonment or 1 year
light imprisonment

Criminal law statutes

outside the Penal Code
Law No. 31/1999 and Law No. 20/2001 on
corruption eradication
Law No.7/drt/1955 on Economic crimes
Law No. 15/2003 on Terorism eradication
Law No. 8/2010 on Prevention and
eradication of money laundering

Government Regulation in lieu of Law No. 16/1960 : added the value of

non- serious crimes in several articles 364, 373, 379, 384, 407 (1)
Goverment Regulation in liew of Law No. 18/1960 : the multiple of Fine
punishment 15 times
Law No. 1/PNPS/1965 : added art 156 a
Law No. 7/1974 : added punishment for gambling provided at art 303 into
10 & 25 million rupiah , art 542 (1) become a Crime (previously
misdemeanour), art 303 bis , the punishment increased into 4 years
imprisonment, Fine 10 million rupiah.
Law No. 4/1976 amendment and added of crime relating aviation : art 3,
art 4 [4], art 95a, 95b,95c, chapter XXIX A of the Penal Code
Law No. 20/2001 : remove articles relating to corruption (because they
have alreaddy provided in the specific law on corruption)

Examples of non-criminal law statutes which

contain criminal provisions

Law on environment
Law on Media
Law on national education system
Law on Banking
Law on Taxation
Law on Political Party
Law on General Election
Law on Imigration
Law on Capital Market
Law on Insurance
etc

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General criminal law & special criminal

law
General criminal law Special criminal law
Subject
(military or
non-military)

Non-military criminal statutes

Military criminal statute

In or outside
the Penal
code

The Penal code and statutes

which altered the Penal code

Law on economic crimes , Law

on corruption, military criminal
law, Law on tax crimes

Scope

All criminal law legislation which

applied in general (the Penal
code, law on economic crimes,
Law on corruption crimes, etc)

Criminal provisions provided in

the non-criminal law legislation