Conditions of Action Considered Unlawful

An act is considered to have violated the law and can be subject to criminal sanctions, it must fulfill two elements, namely the actus reus element (physical element) and the mens rea (mental element) element. The actus reus element is the essence of the crime itself or the act committed, while the mens rea element is the inner attitude of the perpetrator at the time of committing the act.

In criminal law, the outward act is known as actus reus, while the mental condition or heart attitude of the perpetrator is called mens rea. So actus reus is an external element, while mens rea is a fault element or a mental element.

A person can be punished not enough just because that person has committed an act that is against the law or is against the law. Thus, even though his actions meet the formulation of offenses in the laws and regulations and are not justified (an objective breach of a penal provision), they do not meet the requirements for imposing a criminal sentence. This is because it must be seen the inner attitude (intention or purpose) of the perpetrator of the act when committing an act that is contrary to the law or is against the law.

In some countries, a person’s actions and inner attitudes are united and become a condition for the existence of a criminal act. Zainal Abidin Farid is of the opinion that the actus reus element, namely the act must take precedence. After it is known that there has been a criminal act according to the formulation of the law, then it is investigated about the inner attitude of the perpetrator or the element of mens rea. Thus, the element of a criminal act must take precedence, then if it is proven then consider the guilt of the defendant which is an element of criminal responsibility.

Utrecht views Mens Rea as the inner attitude of the perpetrator of a criminal act. In contrast to actus reus which involves acts that are against the law (unlawful act), mens rea includes elements of the maker of a crime, namely an inner attitude which is called the subjective element of a crime or the psychological state of the maker.


An offense is referred to as a subjective element if the elements are proven, it means that the responsibility of the perpetrator of the offense is proven. The elements are the ability to be responsible, mistakes in the broadest sense, the absence of forgiving reasons, all of which give birth to schuld-haftigkeit uber den tater, namely the thing that can be punished for the perpetrator of the offense.

The difference between the elements of an unlawful act or criminal act and the liability of the offender does not mean that the two are unrelated. It must be remembered that onrechtmatigheid or breaking the law as a provision arises from a norm whose violation is declared as punishable. In the formulation of an act that can be punished, the element of intentionality can be considered as included because according to the provisions it is indeed required.

Acts against the law are considered as an element of every criminal act, this is based on the opinion of the Satochid Kartanegara doctrine that distinguishes it in two forms, namely:

  1. Wederrechtelijk formil yaitu apabila sesuatu perbuatan dilarang dan diancam dengan hukuman oleh undang-undang.
  2. Wederrechtelijk materiil yaitu sesuatu perbuatan mungkin wederrechtelijk walaupun tidak dengan tegas dilarang dan diancam dengan hukuman oleh undang-undang.

Thus the formal wederrechte-lijk rely on the law, while the material wederrechtelijk does not rely on the law, but on general principles contained in the legal field, or what is called algemene beginselen.

Meanwhile, some legal experts give the following meaning: Simons stated that as a basis for criminal liability is an error contained in the soul of the perpetrator in relation to his behavior which can be punished and based on his psychology because of his behavior.

Thus, for the existence of errors on the perpetrators must be achieved and determined in advance several things concerning the perpetrators, namely; Ability to be responsible (toerekenings-vatbaarheid), Psychological relationship (psychologische betrekking) between the perpetrator and the consequences caused by Dolus or Culpa.

Meanwhile, Utrecht states that criminal liability or error according to criminal law (schuld in ruimte zin) consists of three elements, namely: The ability to be responsible (toerekeningsvatbaarheid) of the maker A psychological attitude of the maker related to his behavior, namely intentional behavior (intentional factors), and behavior careless or negligent (element of negligence) or culpa (schuld in enge zin). There are no reasons that eliminate the criminal liability of the maker (anasir toerekeningsvatbaarheid).


So from the description above, it can be said that if there is a relationship between the mind of the perpetrator and the consequences that arise because of his actions or there is an external relationship which is a causal relationship between the actions of the perpetrator and the prohibited consequences, then a criminal penalty can be imposed on the perpetrator for the action. the crime.

Source :

Syukur, Kunkun Abdul. “PEMBUKTIAN UNSUR NIAT DIKAITKAN DENGAN UNSUR MENS REA DALAM TINDAK PIDANA KORUPSI.” Jurnal Ilmiah Galuh Justisi 3.2 (2015): 218-228.