By: Rendy Airlangga

Preliminary

Corporations are organizations that have a very strategic role in bringing about change and economic growth. In relation to corporations as legal subjects, in the sense that legal subjects are everything that can obtain their rights and obligations. In the basic explanation, what can be said as a legal subject is a human/person or person. Humans are carriers of rights (subjects) and have rights and obligations to take legal action. In addition to humans as individuals who carry rights, there are also bodies (human groups) which by law obtain the status of “person” who have the same rights and obligations as humans called “Legal Entities”.

Thus, there are two types of persons/persons as legal subjects, namely naturlijk persoons, which are mens persoons, who are said to be individuals or private persons, and then rechtpersoons in the form of legal entities, for example PT. (Limited Companies), PN (State Companies), Foundations, Government Agencies and so on have rights and obligations in legal traffic, in its development the legal subjects are not only humans, but also legal entities or (legal persons). So legal entities are supporters of rights and obligations based on law that are not human, can sue or can be sued by other legal subjects before the court.

Corporations as Criminal Actors

Corporate crime seems to have become a bad thing for modern society, every day in various media reports about financial manipulation, accounting fraud, food fraud, cartels, bribery, toxic waste spills and environmental hazards, human rights violations committed by companies, insider trading ( insider trading), invasion of privacy, discrimination, violence by companies, and more recently regarding software manipulation. Today corporate crime has surpassed the level of bad influence of individual crimes.

At first this corporate crime has not been touched by law, because in criminal law the doctrine of “only humans can commit crimes” therefore only natural humans can be held criminally responsible. The doctrine of societas delinquere non potest, was first put forward by Pope Innocent IV (ruled the Vatican 1243-1254). Courts in the 17th century and legal thinkers at that time studied corporate responsibility by focusing on theories of corporate personality, there was no attempt to take a more pragmatic approach until the 20th century. British courts then used Identification theory and with this doctrine the company was only responsible for crimes committed by people who can qualify as part of the company’s “mind and desire control” or at least parties who have the authority to act on behalf of the company, thus the corporation can be held criminally responsible.

Corporate Criminal Liability and Corporate Management

In this system, it is still recognized that the corporate management acts as the maker, the corporate management is also responsible, therefore the corporate management is charged with certain obligations, in this system it is considered unfair because only the management can be held criminally responsible. The second is that the corporation as the actor and the manager is responsible, in this system the responsibility is still borne by the management, then the third system is the corporation as the maker and the responsible corporation, in this system the corporation as a legal subject has been considered to be able to commit a criminal act and therefore can be sued criminal liability, but in my opinion it cannot be when only corporations can be held criminally responsible, because if only corporations are asked for criminal responsibility, then corporate management will easily hide behind the corporation.

So the most appropriate as stated by Sutan Remy Sjahdeni is the Management and the Corporation as responsible. In the sense that when an environmental crime committed by a corporation causes a very bad impact on the community and even the environment, then criminal responsibility in that context lies with the management and the corporation as the second responsible actor, namely imprisonment and fines. as regulated in Law Number 32 of 2009 concerning Environmental Protection and Management.

Reference

  • Dr. Ari Yusuf Amir, SH.,M.H., Doktrin-doktrin Pidana Korporasi. Jogjakarta, Penerbit:Arruz Media
  • James Gobert, “Squaring the circle, the relationship between Individual and Organizational Fault”, dalam James Gobert and Ana-Maria Pascal (editors) European Developments in Corporate Criminal Liability (Routledge: Oxxon, 2011)

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