By : Febry Indra Gunawan Sitorus

Preliminary

The crime of embezzlement and fraud are two criminal acts (delict) whose norm formulation is different from each other in the Indonesian criminal law system. However, before going there, it is better to understand what a crime really means.

In the development of Indonesian criminal law, there is no explanation of what is meant by a criminal act both in the Criminal Code and outside the Criminal Code. Therefore, one of the most possible references to find out what is meant by a criminal act is the opinion of experts, so it is very difficult to get a uniform definition due to the different viewpoints and backgrounds of the experts. The definition of a crime is very important to understand in order to know the elements contained therein.

The term crime or often referred to as an offense in Dutch is called Strafbaar feit. In the laws and regulations, there are even differences in the use of the term, namely in the 1950 UUDS used the term criminal event, Law no. 1/Drt/1951 used the term criminal act, Emergency Law no. 2 of 1951 used the term punishable acts, Law no. 16/Drt/1951 used a term that is threatened by law, Law no. 7/Drt/1953, Law no. 7/Drt/1955, Law no. 8 of 1981, the Anti-Corruption Law used the term criminal act.

It should be noted that the term criminal act (strafbaar feit) is different from the action/deed (gedraging/handeling). The first element of a criminal act is an action (gedraging). In other words, straafbar feit is a person’s behavior (menselijke handling) which is threatened with criminal, which is against the law, which is related to mistakes and which is carried out by people who are capable of being responsible. So that it can be clearly formulated that a criminal act is an act that is prohibited by a prohibition law which is accompanied by threats (sanctions) in the form of certain crimes, for anyone who violates the prohibition. Such a view is often referred to as a dualistic view because it clearly distinguishes between a criminal act and a criminal responsibility or criminal liability. Some examples of these criminal acts/crimes are: embezzlement and fraud which will be discussed further about the difference.

Embezzlement

The criminal act of embezzlement in the Criminal Code is formulated starting in Article 372 to Article 377. For the criminal act of embezzlement, it is usually regulated in Article 372 which the formulation of the article says “Whoever intentionally owns against the rights of an item which is wholly or partly belongs to another person and that item. is not in his hands because of a crime, is punished for embezzlement, with a maximum imprisonment of four years or a maximum fine of Rp. 900,-“

The formulation of the norm of Article 372 regarding the crime of embezzlement has several elements (bestiten) that must be proven, including:

  1. Whoever, meaning the address of this article is any person, refers to a person or individual person in a physical (biological) connotation, in other words refers to human responsibility as a person (natuurlijk persoon). In an effort to prove criminal acts today, along with the development of society, the element “whoever/everyone” does not necessarily refer to an individual (natuurlijk persoon). Outside the Criminal Code, it is already known about corporate criminal liability, meaning that anyone in today’s criminal acts (outside the Criminal Code) can refer to a corporation as a legal entity (recht persoon). However, keep in mind that the Criminal Code adheres to the principle of “sociates delinquere non potest” where a legal entity or corporation is deemed unable to commit a crime.
  2. Deliberately, it means that the perpetrator wills and knows what is done or done (dolus intent opzet).
  3. Owning, means the holder of the goods who controls or acts as the owner of the goods, contrary to the law that binds him as the holder of the goods. Seen as possessing for example: selling, eating, throwing away, mortgaging, spending money, etc
  4. Obtained not by crime, meaning that the acquisition of goods that are in the possession of the perpetrator is not by crime/against the law. For example, for example: borrowing, depositing, etc

For example, the crime of embezzlement is that A borrows B’s bicycle, then without B’s permission and knowledge, A sells the bicycle to C. In this case, it is clear that the elements required in the crime of embezzlement are perfectly fulfilled.

Fraud

The criminal act of fraud in the Criminal Code is formulated starting in Article 378 to Article 395. For ordinary fraud crimes, it is regulated in Article 378 which the formulation of the article says “Anyone with the intention of benefiting himself or another person by violating his rights, either by using a false name or other circumstances. falsely, either by reason and deceit, or by composing false words, induces people to give something, makes a debt or writes off a debt, is punished for fraud, with a maximum imprisonment of four years.

The formulation of the norm of article 378 regarding the criminal act of fraud has several elements (bestilent) that must be proven including:

  1. Whoever, meaning the address of this article is any person, refers to a person or individual person in a physical (biological) connotation, in other words refers to human responsibility as a person (natuurlijk persoon). In an effort to prove criminal acts today, along with the development of society, the element “whoever/everyone” does not necessarily refer to an individual (natuurlijk persoon). Outside the Criminal Code, it is already known about corporate criminal liability, meaning that anyone in today’s criminal acts (outside the Criminal Code) can refer to a corporation as a legal entity (recht persoon). However, keep in mind that the Criminal Code adheres to the principle of “sociates delinquere non potest” where a legal entity or corporation is deemed unable to commit a crime.
  2. By intent, it means that his actions are desired and his actions are known by the perpetrator.
  3. Benefiting yourself or others, means benefiting yourself without rights
  4. Using fake names or fake circumstances
  5. By reason and deceit, with the word lying, it means with all power and effort and effort to deceive by using false names or false circumstances.
  6. Persuade, meaning that there is an attempt to deceive the victim with any persuasion/seduction to give something, create debts or write off debts.

Examples of criminal acts of fraud: A intends to sell his bicycle. Knowing A’s intention to sell his car, B with all his efforts and seduction tricked A into giving the bicycle to B with the lure that B would sell the bicycle to C. But in practice B did not sell the bicycle to C. but the bike is gone.

Difference

There are some basic differences between the crime of fraud and embezzlement. In terms of object and purpose, the crime of fraud is broader than the crime of embezzlement. Objects that can be categorized as embezzlement are limited to goods or money, but the object of fraud also includes giving debts, meaning actions that are in nature causing debts or writing off receivables.

In addition, the difference between fraud and embezzlement lies in the way the goods are transferred from the victim to the perpetrator. In the case of embezzlement, that the process of transferring possession of the property from the victim to the perpetrator is not against the law/by trickery and deception, but is legal. Whereas in the case of fraud, the transfer of the object from the victim to the perpetrator is by deception or in other words accompanied by the presence of evil intentions from the perpetrator. The emergence of malicious intent (mens rea) in the case of fraud occurs during the process of transferring goods, or in other words the transfer of goods is obtained as a result of actus reus preceded by mens rea.

Indeed, in practice it is sometimes rather difficult to distinguish between fraud and embezzlement, because the proof process requires proving when the perpetrator’s evil intentions were born, whether the object was obtained by fighting the rights/caused by the deceit of the perpetrator.