COMPARISON OF

CRIMINAL LAW

Dr. Sabungan Sibarani , SH, MH.

P R E F A C E

By saying grace the presence of God Almighty, I can finish this book with

the title "COMPARISON OF CRIMINAL LAW as a contribution to scientific

studies for almamater and the academic community.

This compiled book consists of 16 chapters. Compilation of this book

conducted through the collection and assessment of library data from various

literature including lecture material when the author took part in the lecture some

time ago, so that the material covered is expected to meet the standards as

determined in the national syllabus that is applied.

Of course the composition of the book, the author expressed his

appreciation for my gratitude to: Prof. Andi Hamzah and Prof. Dr. Barda Nawawi

Arief, SH, who has given encouragement to the author to continue to make

scientific books about law to contribute to the development of science in the field

of law in general.

Not forgetting the composition of this book, the author conveyed many

thanks to my dear children, namely Sumiati, Daniel and my beloved wife Merion

Hutabalian who with patience and patience to accompany the author when he

loved the sorrow and always prayed for the writer to succeed in career and success

in all field occupied.

Finally, as the saying goes, "there is no ivory that is not cracked", it is a

certainty that this book is still far from a perfect category, because penulils

menginsyafi consciously there are still many shortcomings seen from the

grammar, systematics and material. For all of these, greetings and constructive

input will always be received by the author in a roomy manner and with both

hands open for improvement in the preparation and subsequent improvement.

Hopefully this book is useful.

`

Jakarta, April 2019

Dr. Sabungan Sibarani, SH, MH, MM.

TABLE OF CONTENTS

PREFACE

CHAPTER I INTRODUCTION

A. History Development

B. Term Understanding Comparison Law

C. Comparison Law As Something Method Research /

Science

D. Method Comparison Law: Method Functional

E. Family Law Or Family Law

F. Usability Law Comparison Law

G. History Short Comparison Law

H. Division Family Law (Legal famillies) in the World

I. Benefits Learn Comparison Law

J. Aim Tap a finger Comparison Law International

K. Method Compare Law Criminal Code (KUHP)

Some countries

CHAPTER II. ENGLISH CRIMINAL LAW

A. Introduction

B. Source Law Criminal English

C. General Principles of Law

Criminal in England

D. Action Criminal English

CHAPTER III . NETHERLANDS

A. Difference Since Initially ( on Moment Applicability WvSI

1918)

B. Difference Then ( now i ni)

CHAPTER I V. KUHP RUSSIAN FEDERATION

A. General

B. Participation

C. Criminal

CHAPTER V. J ERMAN AND AUSTRIA

A. German

B. Austria

CHAPTER VI. PEOPLE'S REPUBLIC OF CHINA

CHAPTER VI I. PORTUGAL

CHAPTER XIII . DENMARK

CHAPTER I X SWEDEN AND ARGENTINA

CHAPTER X THE REPUBLIC OF KOREA

CHAPTER XI JAPAN

CHAPTER XII MALAYSIA

CHAPTER X III DESIGN OF THE BELGIUM KUHP

CHAPTER X IV SOME NOTES ABOUT JUSTICE

PIANA T ERPADU IN NEDERLAND, GERMANY,

SCOTLAND, ENGLAND AND BELGIUM

CHAPTER XV. GREENLAND

CHAPTER XVI. SOME CRIMINAL LAW PROBLEMS ARE REVIEWED

FROM SOME OF THE FOREIGN KUHP

A. Problem Principle Legality

B. Problem Error

C. Problem Trial

D. Problem R ecidive

E. Problem Crime And Punishment

BIBLIOGRAPHY

AUTHOR PROFILE

CHAPTER I PRELIMINARY

A. Developmental History

According to Rene David, comparative law is a science that is as old as the science of law itself, however development as a new science in the past centuries. Similarly, Adolf F. Schnitzer argues, that only in the 19th century comparative law i t u evolved as a special branch of the science of law.

Developments in the 19th century were mainly in Europe (especially

J Erman, Francis, Great Britain), and A m erika. At first interest in comparative legal studies was individual, as was

done by Montesquieu (France); Mansfield (UK), and von Feuerbach, Thibaut and Cans (in Germany). Then develop in the form of institutionalization. In France, for example: in 1832 there was a Comparative Law in the College de France; and in 1946 the Institute of Law Comparations was established at the University sity of Paris.

In England, in 1846, a Legal Education Committee (under the supervision of (House of Common) proposed that institutes in the UK be formed by institutes on comparative law.This proposal was closely related to the development of the British Empire which faced various foreign legal systems in colonized countries (eg Hindu law in India) .The proposal was only realized in 1869 with the establishment of a Historical and Comparative Jurisprudence body / institution in Oxford with the assistance of Sir Henry Maine.Famous figure from Cambridge University was Prof. Gutteridge who taught Hindu Law, Law Islam, and Roman Law According to Gutceridge, father of pioneers from Comparative Law is Montesquieu because he was the first to realize that "the rule of law" should not be seen as something abstract, but must be seen as a historical background of the environment in which the law functions. "

Since the beginning of the 20th century the comparison of law has developed very rapidly. This can not be separated from world development in the 19th century and the beginning of the 20th century, especially in Europe. At that time the case of international conferences in the Hague on international law treaties that produced in the field of transportation

railway, the right chip t a, industrial property rights and etc. These jobs are possible and prepared by comparative legal studies. Therefore, this study is considered so important that it is interesting to conclude that legal comparison is a stand-alone science. In connection with that Rene David stated that the current study of comparative law has been recognized as a part very important need of the science of law and legal education.

In its development now, comparative law does not have its own object, but studies social relations that have become the object of study of existing branches of law. So it is more a scientific method / research in understanding the object of law.

B. Terms and Definition of Legal Comparison

There are "various foreign terms regarding this comparison of laws, including: Comparative-law, Comparative jurisprudence, foreigen law

(English term); droit compare (French term), rechtsvergilijking (Dutch term) and Rechtsvergleichung or vergleichende rechlehre (German term).

There are applicants who distinguish between Comparative Low and Foreign Law, namely: - Comparative Law:

Studying various foreign legal systems by using them to compare them.

- Foreign law

Studying foreign law with the intention of merely knowing the legal system of assin g itself without actually intending to compare it with other legal systems.

In the Black Law Dictionary argued that comparative jurisprudence

is the study of the principles of jurisprudence by comparative various systems hu k um.

W. Ewald argues that the comparison of law is essentially a philosophical activity. Comparison of law is a study or comparative study of intellectual conceptions that exist behind the principal legal institutions / institutions of one or several foreign legal systems.

Prof. Jaakko Husa distinguishes between macro-comparative law and micro comparative law. Comparison of macro law, focuses more on broad / broad problems or themes such as systematic problems, classification and classification of legal systems. Whereas the comparison of micro law, is related to legal rules, cases and institutions that are specific / actual. From the various meanings above it is very clear, that the comparison of law is very important and necessary in understanding law. RHS Tour ( The Dialectic of General Jurisprudence and Comparative Law', 1977, in Esin Orucu, Critical Comparative Law ) suggests, that general law and comparative law are two different sides of the same currency, general law without comparison is empty and formal, on the contrary the comparison of law without general law is blind and cannot discriminate. C. Comparison of Laws as a Research / Scientific Method

Rudolf D. Schlessinger in his book (comparative law, 1959) suggests, among others: - Comparative law is a method of investigation with the aim of obtaining

deeper knowledge about certain legal materials. - Comparative law is not a device p e, hundreds and principles of law,

not a branch of the law. - Comparative law is a technique or way of working on the elements of

actual foreign law in a legal matter.

Starting from that sense, it is fitting used term "law comparative" and not "comparative law" as stated by Dr. G. Guitens-Bourgois as follows:

"Comparative law is a comparative method applied to the science of law. Comparative law is not law, but merely a method of study, a method to research something, a way of working, which is the ratio. If the law is made up of a set of rules, it is clear that" the law comparison "(vergelijkende recht) does not exist. Methods for compare hold that the law rules of the various legal systems do not result in formulations of rules that stand alone: there is no rule of law comparison." Comparison law as a method implies, that it is an approach to

better understand an object or problem. Therefore, the term comparative legal method is often used.

Comparison of law as a method was also stated by Dr. Sunaryati Hartono and Prof. Dr. van Apeldoorn such as land law, labor law or procedural law, but now is a method of investigation a method for discussing something legal issues in any field.

If we want to discuss issues that lie in the fields of civil law, or criminal law, or constitutional law, ... matt we don't need to first discuss general issues in comparative law which are the basis of the whole legal and scientific system that law. " "The object of law is law as a symptom of society. Law does not only explain what is the scope of the law itself, but also explain the relationship between the symptoms of the law with other social symptoms. To achieve that goal, the sociological method is used , history, and comparison of laws.

- sociological methods are intended to examine the relationship between law and other social symptoms;

- historical method, to examine the development of law, and; - comparative legal methods, to compare legal order from various

societies. " In connection with what Apeldoorn stated above, Prof. Dr. Soerjono

Soekanto stated, that the three methods are interrelated and can only be distinguished but cannot be separated:

- Sociological methods cannot be applied without a historical method, because the relationship between the law and other social symptoms is the result of a development (from ancient times); legal comparison methods also should not be ignored because the law is a symptom of the world.

- Historical methods also need help from the sociological method, because they need to be examined for certain factors that influence the development of law.

- The comparison method will not limit itself to per descriptive

comparison; but also data is needed about the functioning or effectiveness of the law so that a sociological method is needed. Se method is also needed history to find out the progress of the law being compared. Furthermore, it was stated by Soerjono Soekanto, that the three methods thus complement each other in developing legal research. A scientist in the field of law who succeeded in applying the three methods, conducted a very useful study and approached completeness.

In connection with what was stated by Soerjono Soekanto above, it

can be further emphasized that the normative method or juridical approach also requires an empirical (sociological), historical and comparative approach. The four methods or approaches are very important, because the tendency of contemporary legal research can no longer use only one method or just one approach. Confirmed by Dr. Sunaryati Hartono, that in order to examine the social phenomenon often takes a combination of various methods of research, although always become starting point and is dominated by a single discipline.

Closely the relationship between legal comparisons and equals

From the law and sociology of law, it can also be seen from the opinions of the following scholars. 1. Van der Velden

Comparison of laws is difficult to distinguish from legal history. Distinguishing legal comparisons from legal sociology is even more difficult.

2. Sir Frederic Pollock (1903) There is no difference between legal history and comparative law, both of which mean a general history of law.

3. Josep Kuhler The term history of universal law is the same as comparison of law.

4. Max Rheinstein In his book Finfuhrung in die rechtsvergleichung (introduction to comparative law) he argued that his book could also be used as an introduction to legal sociology. He stressed that if the comparison of the law is not only trying or intending to better understand its own law, but seeking clarity about the social function of the law in general. then it is actually a legal sociology which is part of legal science, especially legal science about legal reality which is part of social science.

Therefore, Kessel E. Yntema stated that:

"Comparative law is just another name for" legal science and an integral part of a broader field of thought; from social science. Because, like other branches of science he has a universal, humanistic view: he views, despite the different techniques that the

problem of justice is basically the same according to time and place in the whole world. " (Comparative law is another name for legal science and integral science, social studies, like other branches of science), it has a universal humanistic outlook: it may be that, while techniques may vary, the problem of justice are basically the same in time and space throughout the world). Brother paint a mixed picture should be noted, that although equally

part of the science of law, but there is an opinion, that comparative law is not equal to the sociology of law. Opinion between advanced by GI Sauveplaanne:

"Functional methods add to the comparison of the law \ a sociological dimension. This does not mean that the comparison of laws is the same as legal sociology. Comparison of law is not only in the field of empirical research, but also strives to achieve its objectives in the legal field. to a comparison and critical assessment of the material found. " From some of the opinions of the scholars mentioned above, an

illustration is obtained that: a. comparison of law is not a branch of law, not a set of rules; b. legal comparison is a branch of law; and

c. legal comparison is a research method. Regarding legal comparison as a research method, Prof. Dr.

Soerjono Soekanto asserted, that normative law comparing law is a method. Further explained:

- In law and practice law of comparison method often applied. However, in research conducted by legal experts who did not study other social sciences, the comparison method was carried out without systematic or certain patterns.

- Therefore, legal research using the comparison method is usually legal sociology research, legal anthropology, legal psychology and so on which is empirical legal research.

- Although there is no agreement yet, there are certain models or paradigms regarding the application of legal comparison methods, including:

1. Constantinesco

He studied the legal comparison process in three phases, including: a. first phase:

- learn concepts (which are compared) and explain them according to original sources (studying the concepts and examining them at their original source);

- study those concepts in the complexity and totality of legal sources with serious consideration, namely by looking at the hierarchy of

sources of law and interpreting them using the right method or in accordance with the legal system concerned. (studying the concept of complexity and complexity), studying the

complexity and the totality of the source of law, proper to that legal order.

b. second phase: understanding the concepts that are compared, which means, integrating those concepts into their own legal system, by understanding the influences made on those concepts by relating the elements of the system and other factors outside the law, and studying the sources social source of positive law.

c. third phase do alignment (placing in isolation) those concepts to be compared

(the juxtaposition of the concepts to be compared). This third phase is a rather complicated phase in which the methods of comparison of the actual law are used. O de-Met this method is to perform description, analysis, and explanation which must meet the following criteria: critical, systematical, and make generalizations must be sufficiently broad and includes the identification

relationships and causes of those relationships. 2. Kamba

By emphasizing, that the explanation of differences and similarities is something that should be in the comparison of laws, he also talks about three phases: description, analysis, and explanation. I emphasize also the functional approach of problem solving approaches as something that is indispensable for cross-cultural comparison. 3. Scfamidlin

He put forward three approaches, namely: a. analysis according to law (leval analysis): b. morphological-structural analysis; c. historical-functional and evolutionary analysis

4. Soerjono Soekanto

Legal comparisons may be applied using elements of the legal system as a comparison point. The legal system includes three main elements. namely:

a. legal structure that includes legal institutions. b. legal substance that includes a set of rules or regular behavior and c. law culture includes a set of values embraced,

Soerjono Soekanto, a comparison can be made to each element or

cumulatively to all. With the method of comparative law to do research on the various subsystems of law in a particular society or cross-sectoral manner against legal system various different communities.

D. Legal Comparison Method: Functional Method

According to Konrad Zweigert and Kurt Siehr, the comparison of modern law uses methods that are critical, realistic and not dogmatic:

- Critical, because the comparatists (law comparison scholars) now do not attach importance to differences or similarities of various

legal orders merely as facts, but what is important is "whether the solution is legal over : something that is a suitable problem, can be practiced, fair, and why the solution is so.

- Realistically, because of comparative law not only legislation, judicial decisions from doctrine, but also all the real motive which controls du n it, the ethical, psychological, economic, dart motifs of legislative policy.

- Not dogmatic, because comparative law want 'locked into rigidity of dogma as so often happens in every legal order. Although dogma has the function of systematization, dogma can obscure and distort the view of finding "better legal solutions."

So the comparison of laws uses the functional approach. Explained

by Zweigert: "A comparative law scholar is primarily interested in" the nature of things " (die Natur der Sache). He must first determine the nature of the problem at hand, because only then can he determine the proper rule of law. determine its concepts, or in other words define

function categories and not norm categories, for example, every legal system must solve the problem of " restitution of unjust enrichment" ), but each system has its own way of solving the problem. "

So various legal systems can only be compared as long as legal systems

function to solve the same social problems or to meet the same legal

needs. Thus, the comparison of the law does not point to legal norms, but

on functions, namely seeking the identity of the legal norms in solving the

same social problems.

In connection with this functional method, Prof. Soedarto explained as follows:

"This method questions whether the function of a norm or institution

(institution) in a particular society, and whether that function is fulfilled properly or not. The answer to that question depends on the comparison of norms or institutions (institutions) with norms or institutions in societies. Others must fulfill the same function, thus predictions can be made, whether the norm needs to be maintained, erased or changed, so the problem-oriented functional method, and pay attention to the relationship between a regulation and the community where the rule works. Norms, it implies the following view that law is an instrument (means). In this case law is

seen as a means to regulate and control society, as a symptom that causes other symptoms in society. The instrumental view of this law is closely related to the view that the law something made, that the law is suitable to cause something in social reality. It should be noted, that in addition to the instrumental view of this law there are views on non-instrumental (rechtsideologie) law. If we talk about normalization of norms, we must first formulate problems or problems that get answers in or by the rule of law. This problem is generally a social problem and is not juridical (legal). With that, there is a broad field for policy makers in legal comparisons. "

Finally, it should be argued that HU Jessurun d'Oli-veira (1980)

argues: "The use of the term comparative law gives the wrong impression, that what is learned is only legal norms rather than other norms and social phenomena. Comparison of laws which principally only stops by studying legal norms will be a science that should be pitied , because he made himself unable to give full answers to legal matters. "

Thus, making comparisons to make a job is easy. According to

Rene David and Brierley, the difficulty is caused by: - differences in language and vocabulary (language and vocabulary) is

confirmed by them: "The absence of proper agreement on concepts and legal categories among different legal systems is one of the biggest difficulties encountered / encountered in analyzing comparative laws."

(The absence of exact correspondence between legal concepts and categories in different legal systems is one of the greatest difficulties encountered in comparative legal analysis).

- there is no preparatory education specialized in the field of comparative law,

In addition to the difficulties stated above, what is clearly difficult is

knowing the value system which follows the legal system to be compared. E. Family Law or Family Law

To make legal comparisons, it is necessary to first study the law system from a foreign country. Every country has its own legal system. To know the foreign legal system is very difficult. Therefore held to facilitate the classification of the existing legal system in the world in the "family law" (legal families).

Until now there has been no agreement regarding the criteria for the legal family classification. In the book Rene David and Beferley it is argued that some authors base the classification of family law on the conceptual

structure of the law or on the theory of sources of law or on the place of law itself in the social order.

According to R. David and Brierley, two considerations it seems equally decisive to classify goal. It was further emphasized, that the two laws cannot be included in the same legal terms where both use the same conceptions and techniques if they are based on philosophical, political, and economic principles that are different from what they are for the two types as a whole.

Rene David divides four legal families, namely: 1. The Romano-Germanic family

2. The Common Law family

3. The family of social law. 4. Other concepts of law and the social order (conception of law and other social order).

Ad 1 is a legal system group. which is based on the Roman Civil Law consists essentially codified legal system, oriented to legal definitions, concepts / ideas-thinking abstract, engineering-laws and doctrines / dogmas law. Family law ad 2, is based or formed from a legal settlement concretely by Haki in solve individual case. According to R. David, both are directed by the Christian community and; since the Renaissance era the philosophical teachings of accentuate: individualism, liberalism, and individual rights.

Zweigert and Kotz agreed with Prof. Rene David, that which can be

a criterion is the technique of the legal system and the philosophical,

political, and economic principles that derive it, but this criterion is still too

empirical and vague.

Based on the criteria of the legal system style, Zweigert and Kotz

then distinguish between 8 legal environments, namely:

1. Romanistic legal environment

2. German legal environment

3. Scandinavian legal environment

4. Common law legal environment

5. Sociological legal environment

6. Far East legal environment

7. Islamic legal environment

8. Hindu legal environment.

According to Marc Ancel, comparative law scholars agree to

distinguish at least five types of national law grouped by one family. The

five major legal families are:

1. Continental European and Latin American systems (or the

system of civil law)

2. Anglo-American system (or the so-called common law system)

3. Middle East system, for example Iraq, Yordania, Saudi Arabia,

Lebanon, Syria, Morocco, Sudan and so on.

4. East law system (far east system) for example China and Japan.

5. System of socialist countries (socialist law system)

Wikipedia, which includes the family of Civil Law (ad 1) includes:

Albania, Angola, Argentina, Andorra, Aruba, Austria, Azerbaijan, Belarus, Belgium, Beninr Bolivia, Bosnia and Herzegovina,. Brazil, Bulgaria, Burkina Faso, Burundi, Chad, People's Republic of China, Republic of the Congo, Democratic Republic of the Congo, Cambodia, Cape Verde, Central African Republic, Chile, Colombia / Costa Rica, Croatia, Cuba, Czech Republic, Denmark, Dominican Republic, Ecuador, El Salvador, Estonia; Finland, France, 'Equatorial Guinea, Ethiopia, Gabon, Guinea, Guinea-Bissau, Georgia, -Germany, Greece, Guatemala, Haiti, Honduras, Hungary; Iceland, Italy, Japan / Latvia, Lebanon, Lithuania, Luxembourg '/ Macau, Mexico, Mongolia, Netherlands, Norway; Panama, Paraguay, Peru, Poland, Portugal, Republic of China (Taiwan), Romania, Russia, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey, Slovakia, Ukraine, Uruguay, Uzbekistan, Vatican City, Vietnam.

Including common law (ad 2) family according to Wikipedia, including: American Samoa, Antigua and Barbuda, Australia, Bahamas, Barbados, Belize, Bhutan, British Virgin Islands, Canada, "Do" mihica, England and Wales (UK) , Fiji ", Gibraltar, Ghana, Myanmar; Grenada, Hong" Kong; '"India," Ireland, Jamaica, Kiribati, Marshall Islands, Nauru, New Zealand, Northern Ireland (UK), Palau, Singapore, Tonga, Trinidad and Tobago , Tuvalu, Uganda, United States.

It is stated in Wikipedia, that the Law-Religion family (ad 3) consists of: Halakha Qewish law) Hindu law, Sharia (Islamic law), and Canon law (Christian law). Islamic Laws are in Saudi Arabia, Iran, Sudan, Syria; and Canon Law at the Vatican. While those belonging to the customary law family (ad 4) include: Mongolia, Sri Lanka, Indonesia.

In addition, Wikipedia also calls for a "mixed / pluralistic system"

(Pluralistic systems), which is between: (1) Civil law and common law; (2) Civil law and religious law; and (3) Common law and religious law.

Included in the distribution system between "Civil law and common

law" include: Botswana, Cameroon, Cyprus, Philippines, Guyana, Israel, Lesotho, Louisiana (US), Malta, Mauritius, Namibia, Mexico (US) Quebec (Canada) , Scotland (UK). South Africa, Sri Lanka, Thailand, Vanuatu, Zimbabwe.

According to Prof. Jaakko Husa, currently the classification based on harnpir race thinking is not seen as a comparison of valid macro law

(hardly as valid macro-comparative law). The classification criteria based on racial ideas were completely excluded from the problems / studies of comparative modern law academics.

F. Usability or Benefits of Comparative Law

1. According to Prof. Sudarto

In studying legal comparisons there are tendencies to lead to studying the natural legal system. There are two benefits to studying a foreign legal system: 1. General - give satisfaction to those who are curious in nature who are scientific; - deepen understanding of the institutions of society and their own

culture; - bring a critical attitude towards the legal system itself. 2. Which; special properties:

In connection with the adoption of an active national principle in our Criminal Code, namely Article 5 paragraph 1 2nd, that:

"Criminal rules in Indonesian legislation apply to citizens outside Indonesia through if one of the acts which by a criminal rule in Indonesian legislation is seen as a crime, according to the laws of the country where the act is carried out, it is treated as a criminal act. ",

So, for example: A Indonesian women commit criminal provocatus abortions in Singapore where there is no criminal sanction, so if the woman returns to Indonesia, she cannot be convicted.

According to Rene David and Brierley

a. Useful in historical and philosophical legal research. b. It is important to understand better and to develop our own

national laws. c. Helps in developing an understanding of other nations and

therefore provides a contribution to create a relationship / atmosphere that is good for the development of international relations.

According to Prof. Dr. Soerjono Soekanto

a. Providing knowledge about the similarities and differences between various fields of legal order and basic understandings.

b. Knowledge of the equation is the number 1 will facilitate hold up a) uniformity law (unification); b) legal certainty; and c) legal simplicity.

c. Knowledge of the differences that exist gives a more solid guidance or guideline, that in certain matters the diversity of laws is a reality / and things that must be applied.

d. Comparative Law (PH) will be able to provide material about what legal factors need to be expanded or eliminated gradually

for the integrity of society, especially in pluralistic societies such as Indonesia.

e. PH can provide materials for the development of laws between legal systems in fields where modification and unification are too difficult to realize.

f. With the development of PH, the final goal is no longer finding equality and / or differences, but rather solving the legal problems fairly and appropriately.

g. Knowing political, economic, social, and psychological motives that are the background of legislation, jurisprudence, customary law, treaties' and the doctrines that apply in a country.

h. PH is not tied to the rigidity of dogma, i. It is important to carry out legal reforms. j. In the field of research, it is important to sharpen and direct the

process of legal research. k. In the field of legal education; expand the ability to understand

existing legal systems and their enforcement is right and fair. According to Tahir Tungadi

a. Useful for regional and international unification (and codification). b. Useful for harmonizing laws; for example, the existence of

guidelines from the United Nations can bring about harmonization of legislation from various countries regarding a particular problem.

c. For legal reform, namely: PH deepens the knowledge of national law and can objectively see the good and lack of national law.

d. To determine general principles of law (especially for judges from international courts it is important to determine the general principles of law which are important sources of inter public law national).

e. As a science assistant. for Private International Law, for example in the case of a country's HPI provisions showing foreign law that must be applied in a case.

f. Required in educational programs for legal advisers in international trade institutions and embassies, for example to be able to carry out international treaties.

3. According to Thomas Weigend (in the Elgar Encyclopedia

of Comparative Law, 2006) Usually the relevance or benefit of legal comparison is seen

primarily from the point of view of academic / scientific interests. The aim of studying foreign criminal law systems (criminal regulations), more containing the purpose of education than practical purposes. But it can also show the relationship between settlement / legal solutions with various social problems. Comparative analysis is usually used by the court to help interpret its own law, or in the case of its own legal model

originating from the same " mother law " as the other country. Exemplified by the two cases of court decisions in Germany and the USA. German High Court's adopt a provision that rejects evidence of recognition when the police do not inform the defendant of his right to remain silent (remain silent). Another example, the United States Supreme Court's prohibition of imposing capital punishment on children. In both cases, the court indicated that the rules were in line with current international standards. G. A BRIEF HISTORY

The history and background of the formation of the Law

Comparison in the Law of Science, since the comparative study of law

began when Aristotle (384-322 BC) conducted a study of 153 Greek

constitutions and several other cities published in his book entitled Politics.

Solon also conducted research or comparative legal studies when

compiling the Athenian law (650-558 BC). Comparative studies of the law

continued in the Middle Ages where comparative studies were carried out

between canonical law and Roman law, and in the 16th century Britain

had debated the usefulness of canonical law and customary law.

Comparative studies of customary law in Europe at that time have been

used as the basis for compiling the principles of civil law (ius civile) in

Germany. Montesquieu has conducted a comparative study to compile a

general principle of a good government. The development of comparative

law as a science, is relatively new where the term comparative

law or new droit compare is known and recognized its use that began in

the European region. The rapid development of the comparison of law into

a special branch in the study of law was the second part of the mid-18th

century, which was known as the codification era.

The development of the recognition of legal comparisons as a new

branch of law faces constraints, among others due to centuries of legal

knowledge that are in accordance with God's commands and sourced

from natural law and achieves ideals of feasibility, and is very unaware of

the law in reality or the application of the law. The study of positive law

was then ignored in college, which only taught Roman law and canon law.

In the last part of the 19th century the comparison of law began to be

favored as a way to compare laws in mainland Europe, in line with the

waning of attention towards ius commune which taught the existence of

universal law, and the birth of nationalism in the legal field which was

characterized by codification.

The first legal codification after the appearance of the nation state

took place in France, known as Code de Napoleon. The nationalization of

the law was influenced by Von Savigny, a figure in the flow of legal history.

Even though the recognition of the comparison of law as a legal discipline

occurred in the 19th century, a very rapid development occurred in the

20th. The fundamental questions developed in the 19th century are as

follows:

a. Objectives and comparative nature of law;

b. Comparative position of law within the framework of legal science;

c. Legal comparison characteristics and methods;

d. Possible applications and general uses; and

Controversy about the comparison of stand-alone law and

comparison of law as a method. So in the context of the legal framework,

the position of comparative law (comparison of criminal law) as a legal

discipline is one of the science of legal reality, in addition to legal /

sociological / legal history / anthropology / law / and / psychology / law.

We need comparative law because (according to Van Apeldorn)

several objectives / following /:

1. A theoretical goal is to explain the law as a world phenomenon

(universal) and therefore legal science must be able to understand the

symptoms of the world. And for that must be understood in the past

law and law in the present

2. The practical purpose is to provide a tool for help in orderly society

and renewal of national law and provide knowledge of various rules

and legal thoughts to legislators, as well as judges.

3. A political goal is to study comparative law to maintain the "status quo"

where there is no intention at all to make fundamental changes in

developing countries.

4. A pedagogical goal is to broaden the horizons of students so that they

can think inter and multi-disciplinary, and sharpen their reasoning in

learning foreign law.

According to Soedarto, the usefulness of comparative law studies is:

a. Unification of law, namely, the existence of legal unity as already

manifested in the copyright conventions of 1886 and the General

Postal Convention, 1894 and other international conventions.

b. Harmonization of law, namely, the law can still stand alone but go hand

in hand.

c. Preventing national legal chauvinism is that we can get a clear picture

of applicable national law so that we are aware of the weaknesses

contained in positive criminal law so that we do not overestimate

national law and override foreign law.

d. Understanding foreign law

For example: if the Unitary State of the Republic of Indonesia wants to

enter into an international agreement with another country, then a

problem arises, so in order to solve the problem the NKRI must

inevitably understand the legal system of the State that is the opponent

(in dispute).

The debate between the position of law as a method and science

still continues today. Some expert opinions that mention the law as a

method are as follows:

a. Winerton, argues that the comparison of law is a method that

compares legal systems and these comparisons produce

comparable legal system data;

b. Rudolf B. Schlesinger, said that the comparison of law is a

method of inquiry with the aim of obtaining deeper knowledge

about certain laws;

c. Gutterdige, states that the comparison of law is nothing but a

comparison method that can be used in all branches of law;

Some expert opinions that mention the comparison of law as a

science are as follows:

a. Soedarto, argues that the comparison of law is a branch of law

and therefore it is more appropriate to use the term comparative

law from comparative legal terms.

b. Lemaire, argues that the comparison of law as a branch of

science has a scope of legal rules, similarities and differences,

the causes and the foundations of society;

c. Ole Lando, said among other things that legal comparisons

include analysis and comparison of laws;

d. Hessel Yutema, suggests the definition of comparative law is just

another name for law and is an integral part of social science or

like other branches of science that are universal;

In conclusion, the comparative position of the law emerged as a

method and knowledge based on its time so that there were also truths

from those opinions. But the comparison of law as a science is more

appropriate because it is more relevant to the development of today's

society because the comparison of laws is not merely a tool to find out the

similarities and differences between two different legal systems, but is a

separate study using typical methods and approaches namely the

comparison method, history and sociology and the object of its own

discussion, namely system / law / foreign / certain.

Roles and Benefits of Comparison of Criminal Law for Renewal of

National Criminal Law

A. Scientific and Practical Benefits

If we make a comparison of criminal law, that is because it is driven by

the needs for our benefits, where the benefits can be broadly

distinguished in:

1. The benefits of comparing criminal law scientifically.

By comparing various criminal law systems from various countries,

our knowledge of the law and its institutions will be deeper and

wider. This is because we can see that the same problem or

need can be achieved a different solution or problem solving. In

addition, it can also be seen that although the community and

culture are different but can solve the same problem in the same

way, while a society that has the same culture may be able to

solve a problem in a different way. This will certainly broaden our

horizons or our insight into thinking while avoiding

shortsightedness and having a good assumption in the form of

the assumption that our law is the best (chauvinistic) and that

people are not good or think that our system is not good

compared to other legal systems (feeling inferiority).

Furthermore, by comparing the law, the quality of legal education

can be improved. Law scholars will have legal reasoning about

an existing legal institution, in addition to this, the comparison of

laws will lead to a lot of inspiration for various things which are

also efforts and valuable contributions to the development of

criminal law which can later be useful in practice.

2. Benefits of Comparative Criminal Law for Practical Activities

As mentioned above, many foreign laws provide assistance in

solving problems that will be used for the development of their

own law. Therefore, the comparison of the law is very useful for

legislators in the legislature. For Judges, Comparative Law

studies will have many benefits. Because by comparing the laws

and regulations with foreign legislation on the same matter, the

Judges can get a better view of the meaning of the rules

themselves. Comparison of laws can provide better knowledge to

interpret a statutory regulation which can then give birth to quality

and up-to-date new jurisprudences.

With the increasingly close relationship between one country and

another (the existence of interdependence between countries),

there will be a very need for conformity (harmonization of one

criminal law with another). At first this will have a profound effect

on the field of trade and politics, but there is a crime that creates

links in the criminal law of the need for harmony between inter-

state criminal law. For example, it can be mentioned that the

problems of crime that can be extradited.

H. Establishment of Quality and Up to Date National Criminal Law

Indonesia has until now inherited the Criminal Code from the Dutch

colonial period, although there are many here and there that have been

added, changed, and replaced. But after all, the Criminal Code was first

arranged in accordance with the colonial ideology and certainly some of

the provisions have been out of date (out to date). That is why we

welcome the government's efforts, in this case the Ministry of Justice,

which is trying to prepare a new National Criminal Criminal Procedure

Code draft, which is more in line with the needs of the people of Indonesia

today and in the future.

In an effort to form a new and quality National Criminal Code that

we like or dislike requires knowledge of various systems of foreign criminal

law as well as in this context the Law of Indigenous Crimes. This is

because we can take materials that are useful for us in Indonesia.

Moreover, the criminal law of a modern country must reflect "several world

views". Including, as mentioned above, studying the Indonesian traditional

criminal law because the new Criminal Code will certainly reflect the

personality of Indonesia.

Thus the law planners and criminal law makers both the DPR and

the government can benefit from comparative studies of criminal law.

There are several provisions in the Indonesian Criminal Code now

that must be decriminalized and there are also things that occur in the

community that need to be decriminalized immediately to anticipate the

times. Problems related to family planning, the sale of tools to prevent

pregnancy that are prohibited in the Criminal Code need to be reviewed.

Furthermore, matters such as crimes committed by corporations or legal

entities, attention to the activities of the stock exchange needs to be given

attention to be included in the provisions of criminal law.

The new National Criminal Code must have a range of tens of years

in the future so as not to change every moment. For this reason, other

countries' criminal law which has been developed for decades has to be

studied. Furthermore, a comparative study of criminal law is to fulfill the

order of Article 32 of the 1945 Constitution and its explanation which

reads:

Article 32 of the 1945 Constitution: The Government advances Indonesian

national culture.

Explanation of Article 32 of the 1945 Constitution:

The nation's culture is culture that arises as a fruit of the effort of

the people of Indonesia. Culture in regions throughout Indonesia is

counted as national culture. Cultural efforts must lead to the progress of

adab, culture and unity by not rejecting new materials from foreign cultures

that can develop or enrich the nation's own culture, and enhance the

humanity of the Indonesian people.

For example by Prof. Oemar Seno Adji, SH, stated that in the draft

Criminal Code which is only in book I, there is a customary criminal

sanction as fulfilling customary obligations and paying compensation

especially for victims of violations. In modern regulations regarding

compensation or restitution to these "victims" customary provisions can

develop into it.

In the case of compensation to these victims, they can take

experience from the application of Chapter V of the Philippine Criminal

Code concerning Civil liability which, among others, states:

"States that everyone who is responsible for a crime for a crime is

also responsible for the crime".

Thus, we can see that the comparison of criminal law is very

necessary, especially in preparing a new, quality and up to date national

Criminal Code, and can anticipate legal problems that arise in the present

and future.

I. Institutional and Functional Comparison

Inequality in the nature and scope of legal comparisons is so

serious that more classifications can be added to their studies.

Considering the activities of the comparison of law and its field of study, in

terms of the scope of comparison, it can be done in two forms. First, study

and compare the legal institutionalization of two or more legal systems,

known as institutional comparison terms; and second, the functional

comparison regarding the comparison of legal regulations in more detail,

for example the functions of the law and its related institutions.

Institutional comparison, also known as structure comparison, is a

comparison of institutions that are related to law. In this method it relates

to the phenomena of the justice system, constitution, appointment and

transfer of judges, lawyers, legal structures and sources, and so on. This

comparison method tries to clarify and prove both the similarities and

differences in the institutionalization of the law, where the laws made have

been carried out in countries based on the results of the study. After

adopting a comparison of these types, if one of them is further developed

and then tries to look for the specific characteristics of those institutions,

he puts himself in the field of functional comparison.

Functional comparison is the study of legal processes and content

as well as the real implementation of various functions offered by various

legal systems. Here, legal regulations along with their causes and

consequences will be studied. Thus, if one examines a particular problem

from Indonesian criminal law with other countries, the comparison is called

functional comparison.

J. Value, Purpose of Comparative Law

Broadly speaking, uses, some values and objectives of the

comparison of laws are as follows:

1. Understanding of better law (knowledge);

2. Assist in terms of making legislation and other legal reform bodies;

3. Helping legal facilities in the justice system;

4. Helping lawyers to practice;

5. Fill in the legal vacuum

6. Understanding foreign law

7. Legal renewal

CHAPTER II ENGLISH CRIMINAL LAW

A. Introduction

It has been stated in Chapter I, that comparative studies of law as part of the science of reality are actually very broad and difficult studies. He not only intends to understand various foreign legal systems seen from the point of view of their substance alone, but wants to understand more from a broader perspective of reality and context (ie from the point of motivation, policy background and philosophical / ideological, social, cultural, economic values, politics, etc.).

Doing study of comparative law in aspect and a very broad context it clearly is not an easy job. Therefore, it is understandable that the statement of Prof. Dr. Soerjono Soekanto, SH, that the comparison of laws can start from one of the legal subsystems, including the legal substance. A similar statement is also seen in the opinion of GJ. Sauveplanne, as stated in Chapter I, states:

"Functional methods add to the comparison of laws to a sociological dimension. This does not mean, that is a comparison law is the

same as legal sociology. Comparative law is not only engaged in empirical research, however also trying to achieve its objectives in the field 1 of the law itself (normative, pen.), which leads to 7 to comparison and research of critical ingredient found. "

Starting from the explanation above, the comparison of criminal law stated in Chapter II focuses more on substantive criminal law review seen from a normative comparison angle.

The review focuses more on British criminal law including the family of common law law, on the grounds:

1. Conducting a comparative legal study is basically comparing various legal systems. In Black's Law Dictionary stated; that Comparative Jurisprudence is the study of the principles of legal science by comparison of various systems of law. In general, the legal system being compared is a different legal system, positive Indonesian Criminal Law including the family of the Civil Law System. Therefore, it is natural to study or conduct a comparative study with British Criminal Law which includes the Common Law System.

2. Besides there are differences, actually there is also an equation between British criminal law and pi law Indonesian funds . With the existence of unwritten criminal law (criminal customary law) in Indonesia, it is seen from the point of view of this legal source that the legal system in Indonesia is actually closer to the British legal system which also has sources from common law.

3. Another reason is. neighboring countries around kit a are mostly included in the family of Common Law Systems such as Malaysia, Singapore, the Philippines, Brunei. Australia.

Although the description in this chapter focuses more on British

criminal law, it gives an overview more comparative provisions will also be reviewed; other foreign state criminal law in Chapter III. B. Source of British Criminal Law

Source the main principles of British criminal law are: 1. Common law

The common law developed in these court decisions has a very strong position, because in England the principle of stare deception applies or the principle of the binding force of precedents. This principle requires the judge to follow the judge's decision beforehand. In principle, this binding force applies to higher court decisions, but it can also apply to equal court decisions, provided there are no conflicting precedents and the precedent does not occur as accurately as possible, meaning that it does not occur due to a mistake in the law.

The binding power of the precedent law lies in the decision section called the ratio decidendi, which is all parts of the decision or legal consideration that form the basis of the decision in a concrete case. Other matters in the form of mentioning facts that have no direct relevance to the case, which are called obiter dicta do not have binding powers.

In practice the precedent system is not as stringent as it is, because the judge can avoid the binding strength of the ratio decidendi if he can show that the case at hand is different from the case previously decided. 2. Statute Law

Statute law is a law that comes from legislation. As with common law, this statute law also has binding authority.

Unlike in Indonesia, the material criminal law in the form of statute law in the UK only contains the formulation of certain crimes , for example.

a. Law concerning Offenses against the Person Act in 1861. b. Fake Oath Act (Perjury Act) of 1911. c. The Sexual Offencens Act 1956. d. Law regarding the crime (Homicide Act) 1957. e. Law on child murder (Infanticide Act) 1922; that was amended by

the Act of 1938. f. Law regarding premeditated murder or law concerning the

elimination of capital punishment (Murder / Abolition of Death Penalty) Act) in 1965.

g. The Act concerning Abortion (Abortion Act) in 1967. h. The Act on theft (Theft Act) in 1968. i. Law on dangerous drugs (The Dangerous Drugs' Act) in 1965. j. Act concerning hijacking Act 1971.

From the example above legislation seen, that the peru-Musan criminal offense in the UK is not codified in the statute books singly (Single Code) but spread in some act/law it. Similarly, there are no known laws that contain general teachings of criminal law as well as the General Rules of Book I of the Indonesian Criminal Code.

In addition to the two sources of law mentioned in AFAS (common

.law and Statute law, there are also some textbooks which contain opinions or teachings / doctrines of the famous writer. Textbook or opinion of these authors have no binding authority (binding force), but some of them have persuasive authority (meaning persuasive power that is giving confidence / boost strong. C. Principle-General principles (General Principles) Criminal Law in the UK

1. Principle of Legality (The Principle of Legality; Nullum Crimen / Nulla Poena Sine Lege)

Although this principle was never formally defined in the legislation, but this gnat pen animates rulings g injustice, because system from case law, no court in the UK initially felt he was entitled to create offense. But in its development, in 1972 the House of Lords unanimously rejected the existence of court power to create new offenses or expand existing offenses. So there seems to be a shift from the principle of legality in the material sense to the principle of legality in the formal sense. That means

an act on starting can fixed and developed through a court decision, but in the development only be set by law.

2. Principle of Me n s Rea (Actus Non F acit Reum Nisi Mens Sit Rea)

Although not ve d i formulated in the legislation, British criminal law

also adheres to the principle errors that are formulated in Latin actus reum

n o n facit nisi mens sit rea (an act does not make a person guilty, unl ess

the mind is legally blameworthy). Based on this principle, there are two conditions that must be fulfilled for someone, can be convicted namely no external work is forbidden (actus reus) and there is an inner attitude evil / TERC e la (mens rea). Actus reus not just pointing in an act (an act) in the usual sense, but implies that le b ih spacious namely consist of:

a. The act of the defendant b. Results or consequences of that action. c. Circumstances listed / contained in the formulation of criminal

acts.

Mens rea is often translated into guilty or wicked mind, but such translations according to the writers are considered to be appropriate. Or can make a mistake. According to LB Curzon, JC Smith, and Brian Hogan, mens rea still exists even if someone is doing honestly (in good faith) or with clean mental awareness and believes that his actions are in accordance with morals and true according to the law. The inner attitudes

of people including Mens Rea can be: intention (intentional), recklessness

(negligence), and negligence (negligence). It is said that there is recklessness when someone takes

deliberately a risk that cannot be justified (deli berate taking of an unjustifiable risk). For example A drives a car quickly in hopes of quickly arriving home. He did not expect a collision or injury to a person, but he could imagine / predict the possibility of such an effect. If it turns out that A

hit B, then in this case there is recklessness. So in essence, recklessness it is "taking a risk on purpose" (taking a deliberate risk) and risk that is a risk that can not be justified (unjustifiable risk).

Another example of recklessness, for example: A brandishing a pistol to B, and trigger. If A does not know the gun is contained but in reality it contains, then in this case A has been reckless about the "state" of the gun; he had been reckless with his hopes that the gun did not contain or he had been reckless about his ignorance of whether the gun was filled or not.

A buys items from people who are commonly known to commit theft. Although A does not know and does not want that the item he bought comes from theft, but in this case it is said that A is frivolous in the state or origin of the item. From some of the examples stated above, it can be di say that recklessness in the UK can be equated with bewuste schuld ( realized

negligence / error) or in English terms it is called advertent negligence and in some ways it can be equated with dolus eventualis.

The existence of recklessness usually has to be proven, that the perpetrator is actually "aware of a situation" and "knows or can predict the likelihood of the occurrence of a result but he is reckless or does not care about the situation or the consequences. This element of awareness and foresight of probability does not exist in negligence , therefore negligence is often called invertent negligence (negligence that is not attentive). 3. Strict Liability

Although in principle Mens Rea principles apply, but in England there are offenses that do not require the existence of mens rea (in the form of intention, recklessness, or negligence). The maker already can be convicted if he has committed an act as formulated in the law without seeing how he behaves. Here applies what is called strict liability which is often interpreted briefly in liability without fault (accountability without error).

At common law, strict liability applies to three types of offenses: a. public-nuisance (disruption to public order, blocking the road, issuing

an unpleasant odor that disturbs the environment); b. criminal libel (slander, defamation); c. contempt of court (violation of court order).

However, most strict liability is in statutory offenses, regulatory offenses, which generally constitute offenses against public welfare. Including regulatory offenses, for example, the sale of food and beverages or drugs that are harmful, the use of misleading trade images and traffic violations.

Some examples of cases / strict liability include: a. Case R. v. Prince. (1875):

(Note: R stands for Rex which means King / King or Regina which means Queen / Queen; v = versus). - Prince was accused of withdrawing from the power of a 16-year-

old girl's parents without the permission of her parents (violating Article 55 of Offenses against the person Act 1861 which was updated with Article 20 Sexual Offenses Act 1956).

- In front of the trial Prince stated the reason, that he did know the girl was under control parents, but he thinks / believes that the girl Beru m ur 18 years.

- The court is of the opinion that the act of "attracting a girl from the power of the parents" must be proven intentionally, but. the "age of the girl" (i.e. 16 years) does not have to be proven because the law does not require knowledge of the age of the girl. Prince is still convicted.

b. Warner v. Metrology Police Commissioners (1969):

- Defendant Warner was accused of "possessing prohibited material" in the form of amphetamine sulphate tablets , in violation

of the 1964 Drugs (Prevention of Misuse) Act. The prohibited materials were contained in one of the perfume packages the defendant bought from the person who usually sold to him. According to the defendant, he did not know that one of the packages contained forbidden material, he thought and was sure the package contained perfume (scent).

- By the Inner London Quarter Sessions the defendant was convicted after the judge in the Summing up explained to the jury that it was sufficient to state that the defendant was found "possessing" illegal substances and that he did not need to know what ingredients that. Court of Appeal reject appeal of the defendant, but at the request of the defendant establishes that in this case there are important legal issues. Therefore, finally it weighs heavily .

- Court of Appeal allows examination of appeals to the House of Lords. House of Lords argued that the alleged offenses were absolute, ie no need for mens rea, even if the defendant "in having" the package did not know the contents of the package.

c. Sweetv. Parsley (197Q,) - The defendant resides and works in Oxford, but has his own home

outside Oxford. The house was rented to several people who according to the police looked as people that including ... beatnick

fraternity (crossboy / crossgirl fraternity). One of the rooms was still inhabited by the defendant who only occasionally came there. He ignored what was happening in her home, which turned out occasional digiinakan by the tenant to place the suction h m eng

cannabis (marijuana). - The defendant was brought to trial on charges of violating Article 5

of The Dangerous Drugs Act 1965, namely managing premises for smoking marijuana. Although the defendant has stated that he did not know the house the lease was used for that, but he was still convicted.

- The defendant appealed to Courtof the Queen's Bench Devision and then to the House of Lords. Appeal accepted and the decision overturned by the House of Lords by reason, that knowledge will be of use where it is an essential element of the crime, and because the defendant did not have such knowledge, it can not be said to do the crime. So there is no acceptance of Strict Liability in this case. The defendant was not convicted.

Note : Look at the third case above well. In cases a and b, the defendant was

convicted of strict liability but in this case c the defendant was not convicted.

The defendant's absence in this case was not because there was no proven mens rea, but precisely because it was not evidently the defendant did actus reus (prohibited acts) alleged. The alleged action is "managing a place to smoke marijuana."

In the formulation of such offenses, the House of Lords argues that what is prohibited is not only the act of "managing / renting out," but "renting out to suck marijuana."

It is often questioned whether the strict liability is the same as

absolute liability. Regarding this matter there are two opinions. The first opinion states, that strict liability is absolute liability. The reason or rationale is that in the case of the strict liability a person who has committed a prohibited act (actus reus ) as formulated in the law can already be convicted without questioning whether the perpetrator has an error (mens rea) or not. So, someone people who have committed a crime according to the formulation of the law must / must be punished. The second opinion states, that strict liability is not absolute liability, meaning that people who have committed prohibited acts according to the law must not or should not be convicted.

This second opinion among others was stated by JC Smith and Brian Hogan. There are two reasons they put forward, namely:

a. A criminal act can be accounted for by strict liability if there is no mens rea that needs to be proven as the only element for actus reus concerned. The main element or elements of the sole is usually a one-of the main characteristics, but it did not mean that it is not required mens rea as an essential element that remains for the criminal offense. For example, A is accused of committing a crime "selling meat that is not fit to be eaten" (eg endangering the health / soul of another person). This crime is according to British law including criminal acts that can be accounted for in strict liability. In this case it does not need to be proven that A knows that meat is not suitable for consumption, but it must still be proven, that A at least does (intentionally) want to sell the meat. So clearly in this case the strict liability is not absolute.

b. In cases of strict liability, the reason for the defense of a particular fact that is declared prohibited according to the law cannot be filed, for example by proposing a "reasonable mistake," but can still submit a defense reason for other circumstances. For example in the case of "driving a dangerous vehicle" (exceeding the maximum limit), the reason for the defense is that in "riding" the vehicle he is in a state of automatism. For example, A drunk in his own house. But in a state of unconsciousness (fainting), A was appointed by his friends and placed on the highway. In this case there is a strict liability (ie being on a highway in a drunken state), but A can submit a defense based on the existence of a compulsion. So, in this case strict liability is not absolute liability.

Stuart P. Green in an article entitled Six Senses of Strict Cri Minal

Liability suggests that there are six notions of "Strict Criminal Liability", namely: a. Delicts which contain at least one of the material elements of the error,

but the element of the error does not exist (Offenses Containing at Least One Material Element for Which There is No Corresponding Mens Rea Element). - The term Strict liability is generally used for liability for offenses

that contain one material element of error, but an element the error does not exist. Thus, strict liability is defined as "criminal liability in the absence of intent, purpose, knowledge, and so forth" (criminal liability without the element of intent, purpose, knowledge and as such). In short, criminal responsibility without an element of error ("mens rea" or "culpaBilitas"). According to Stuart P. Green, "mens rea" or "culpability" is a term that can be used interchangeably, to describe the inner attitude / mental state of the perpetrator in the form of intentions, goals, knowledge, beliefs, carelessness,

neglect, or other (intent, purpose, knowledge, belief, recklessness, negligence, or some other prescribed mental state).

- Stuart P. Green distinguishes between Strict offenses liability pure

(pure) and impure (Impure). Strict liability offenses are pure ( "pure strict liability") are offenses that are not need their error for each element of the material (offenses for which the ability is required with respect to any material element). For example in the case of "Lambert v. California":

According to the Act, everyone who lives in the city of Los Angeles more than 5 days without registering for conviction. So "actus reus" which is prohibited is: a. Living in Los Angeles (living in Los Angeles), and

b. Failed to do registration (failing to register). - The law does not require that the perpetrator must have

intentions not to do so registration or he realizes that registration required.

- Strict liability offenses are impure ( "Impure strict liability") are offenses that do not require there is an error for one element but for other elements it is needed (offenses for which no culpability is required with respect to at least one element). For example dalarri murder crime (felony murder) and the rape of minors (statutory, rape).

- Murder is a "strict liability offense", because even though the Prosecutor must specifically prove the intentional element of the defendant to commit murder, but for more serious crimes it does not require intentions or awareness of the defendant that his actions will cause / cause death.

- The rape of minors (statutory rape) is also a "strict liability

offense" because, although the defendant must have deliberately committed intercourse with minors, this offense does not require the defendant to know that the victim is not old enough. The defendant was convicted even though for quite a reason he mistakenly believed / thought that the victim was old enough to approve the intercourse.

Note: starting from the reference stated by Stuart P. Green above, it can be said, that the cases mentioned above, namely: 1) Case of Warner v. The 1969 Police Commissioner ("having

banned substances in the form of tablets of tamine sulphate"), can also be included as an example of "pure strict liability", because the House of Lord argues that the alleged crime is absolute, that is, there is no need for men rea, even though the defendant "in possession" of the package did not know the contents of the package at all.

2) Case R. v. Prince 1875 (i.e. the case of escaping underage girls), can also be an example of "impure strict liability",

because the court is of the opinion that the act of "attracting a girl from the power of parents" must be proven intentionally, but against the "girl age" "(ie 16 years) does not have to be proven because the law does not require knowledge of the age of the girl.

b. The pattern of legislation that prohibits the use of one or more reasons for erasing errors (Statutory Schemes That Bar) Use of One or More Mens Rea-Negating Defenses). - Generally, the defendant can defend if he can prove that his

intentional conduct is an offense (eg "taking an item" in a theft) in a "negation" by a reasonable mistake that the item is "discarded" (no man's land) or because he is drunk.

- However, there is a pattern of laws that reject the opportunity to use "a mens rea negating defense" like that (mistake of fact; mistake of law; involuntary intoxication). For example, the term

"homicide" in Montana. To prove that the offender has committed murder, it must be proven that the defendant had "intentionally or intentionally" ("purposely" or "knowingly") caused the death, in the case of Montana v. Egelhoff, the defendant argued for negating / negating the element "purposely" or "knowingly" by stating that he was state of intoxication. But the reason is hindered by the existence the provisions in the Montana Law (§ 45-2-203) which stipulates that "drunken conditions ... can not be considered in determining the state of the soul which constitutes an element of offense except unintentional drunkenness" (an intoxicated condition ... may not be taken into consideration determines the existence of a mental state which is the element of the offense unless [the intoxication was involuntary]. " The commentators state that such a pattern of legislation is a form of" Strict Liability ", even though the Act clearly requires an error. Joshua Dressier, in

Understanding Criminal Law (3d ed. 2001) also states that the provision that states that someone is still convicted even though there is an error that is quite ignorant / reasonable mistake, is a doctrine of strict liability.

Author's note: • In Australia, mistake of fact might used (available) as an excuse or

reason eraser criminal defense to strict liability offenses (Section 23 of the Criminal Code), but can not be used (not available) as the reason defense for offending absolute liability (Section 24 of the Criminal Code).

c. A proof procedure that requires the existence of anxiety the alleged

defendant is based on the discovery of other facts. (Procedural Devices Requiring That Defend's Intent Be Presumed From Other Facts).

This third definition of strict liability, by Stuart P. Green is given the following example: 1) A does not have sufficient funds at the bank, then he issues a

check "with the intention" of deceiving the bank (with intent to

defraud) The fact that "non-payment of check" (i.e. with insufficient funds in the bank) is the main evidence of the intent to defraud.

2) In fencing case, the Act prohibits the "receiving stolen goods he knows comes from the theft" (to receive stolen property knowing it to have been stolen). This means, "if you have stolen goods", you

will expect an intentions on that person, "knowing that the item is stolen". So Strict Liability- n yes. there is a shift in the burden of evidence (shifting the burdenof proof). Antony Duff, also meng h

ubungkan concept of strict liability with a '' legal irrebuttable presumptions of fault "(" allegations that law can not be denied about error). The latter (irrebuttable legal presumptions of fault) is a sub of "strict liability". According to Duff, the Strict Liability rule

implicitly creates "legal allegations that cannot be denied about mistakes".

d. Delicts that require a mild form of error than is usually required by a criminal hoist (Offenses With Less Serious Forms of Mens Rea Than Traditionally Required). : • The form of error is lighter than usual laments by criminal law are

negligence. • In a common law system, criminal acts generally require an

intentional mistake, or at least "knowledge" elements . But there is an offense that eliminates' the element of error altogether, and there is a reduction in the level of error to "negligence" such as

involuntary manslaughter, homicide negligence, and battery attack.

• There is: controversy over opinion, whether negligence is also seen as a form of "mensrea". In contrast to the "reckless ness" (thoughtlessness), which is aware of the risks neglected, in

"Negligence" (negligence) no awareness of the risks that should be realized. Therefore, commentators argue that people who commit acts due to negligence cannot be blamed. This can be seen from Jerome Hall's opinion, that "Negative Behavior Should be Excused from Penal : Liability". Because of the omission of errors, the commentators stated that culpa delicacy is a form of strict liability offense. Opinions like this are revealed for example in the opinion of some scholars (see Jerome Hall, General Principles of Criminal Law 133-41 (2d ed. 1960 ):

o Douglas N. Damaged (in "Varieties of Strict Liabi lity ") states, that in many cases, accountability for negligence is an example of strict liability, even though it is a type that is less strict / strict than , accountability that negates errors altogether (" In many

cases, liability for negligence is an instance of strict liability, a risk that is less strict than liability that dispenses with mens rea altogether ");

o Alan Brudner (in "Lia's Imprisonment and Strict bility ") states:" I will use the terms 'strict liability offense' and 'culpa delicacy' alternately "("I shall use the terms 'strict liability offence' and

'negligence offence' interchangeably ").

e. Delicts that require less serious hazards than those normally required by criminal law (Offenses Requiring Less Serious Forms of Marmfulness Than Traditionally Required) • As with the error rate (mens rea) experiencing erosion / decline, so

does the level of harm / loss caused by offenses. Initially criminal sanctions were only aimed at certain serious offenses (generally in the form of crime, pen), but were later used also for minor offenses which Francis Sayre called "public welfare" offenses. Sayre limits this understanding to (1) offenses containing certain types of minor losses from regulatory regulations and (2) offenses which exclude

mens rea requirements . • In the current development, the term "public welfare" offenses are

associated with "regulatory offenses" without seeing the presence or absence of mens rea miracles . The term "regulatory offenses" is then linked to "strict liability". So, "strict liability" is sometimes used for minor offenses regardless of whether the offenses require menses rea.

f. Delicts that require errors / losses that are lighter than those normally

required by criminal law (Offenses With Lower Level of Wrongfulness Than Traditional Required). • Criminal law is not only used for actions that contain trivial

culpability and contains harmfulness, but also for trivially wrongful actions.

• Iniquity / hold that the law violates the trivial (trivially wrongful) is often called nudum prohibition (as opposed to a malum in se). Most mahtm prohibitum does not require the mens rea element . Therefore, is not the god of malum prohibitum and strict liability are often used interchangeably. For example:

• In the case of United States v. Duncan Ceramics, Inc. (ED Cal. 1982), mala prohibita is equated (ekui-valen) with "offenses not requiring pfoof of intent" (delicts that do not require proof of intentionality);

• William L. Clark & William L. Marshall, A Treatise on : the Law of Crimes 310 (7th ed. 1967) uses mala prohibita as a synonym for "strict liability crimes";

• Mark D. Knoll & Richard G. Singer, "Searching for : the 'Tail of the Dog': Finding 'Elements' of Crimes in the Wake of McMillan v.

Pennsylvania," 22 Seattle UL Rev. 1057, 1059 n. 11 (1999) states, that the exclusion of mens rea conditions is in prohibitum delicacies, or strict-liability offenses. After revealing the six definitions of strict liability above, Stuart P. Green emphasized, that a more appropriate understanding is the first understanding, namely in relation to offenses or elements of offenses that do not require the mens rea element. He explained, that a number of commentators made between (1) formal strict liability (also referred to as "narrow," "legal," or "elemental" strict liability); and (2) substantive strict liability (also referred to as "broad," "moral," or "culpability" strict liability). According to Stuart P. Green, only the first understanding is formal strict liability, while the other five constitute substantive strict liability. The term strict liability should only be used in a formal / legal sense, not in a substantive / moral sense. (The term strict liability should be used solely in its formal or legal sense, and not in its substantive or moral sense).

There are five reasons stated, namely: 1. Compliance with the modern concept of mens rea (Con sistency With

Modern Conception of "mens rea"). 2. Difficulties in determining whether the law requires / requires the

existence of substantive Strict Liability (The Difficulty of Determining whether a Statute Entails Substantive Strict Liability).

3. The mistaken impression of moral equality between formal Strict Liability and substantive (Misleading Impression of Moral Equivalence Between Formal and Substantive Strict Liability).

4. Confusion in determining whether the law removes mens rea (Confusion in Determining whether Statute OmitsMens Rea).

5. Heresy in assessing the level and nature of deficiencies . The lack of perfection moral (Frrorsin Assessing the Extent and Nature of the Moral Deficiency Problem).

4. Vicarious Liability

Vicarious liability is often interpreted as "accountability according to one's law on wrongdoing done by someone else" (the legal responsibility of one person for the wrongful acts of another). Briefly it is often interpreted as "substitute accountability."

In what ways can a person ; responsible for the actions of others? a. The general provisions that apply according to the Common Law are

that a person cannot be vicarious accountable for crimes committed by his servants / laborers.

This is seen in the feasus R. v. Huggins (1730): Huggins (X) a prison warden accused of killing an inmate (Y) who was actually killed by servant Huggins (Z).

In this case Z is found guilty, while X is not because Z's deed was done without knowledge X.

So in this case the principle of mens rea still applies. Exceptions to the general provisions above, meaning that someone can be accounted for for wrongdoing by others, is in the case of a criminal act against public nuisance (ie an act that causes substantial interference to the population or creates a danger to life, health and property). By de m ikian, an employer (X) be held accountable for the public nuisance which changes are application- n by servants (Y), although in doing deeds that Y does not comply with the instructions or orders X.

So in principle, according to Common Law, an employer cannot be held accountable for acts (criminal acts) committed by his servants. But there are exceptions, namely in terms of public nuisance and criminal libel (Smith & Hogan; 141). In both of these criminal acts, an employer responsible for the actions waiter / labors even seeara personal and se c fig directly innocence.

b. According to the law (statute law), vicarious liability may occur dala m

matters as follows. 1) A person can be accountable for the actions done by others, if he

has released his authority according to the law to others. So there must be the delegation principle. Some examples of cases include: a) Alien Case v. Whitehead (1930) X is the owner of a restaurant. The management of the

restaurant was handed over to Y (manager). Based on the warnings from police, X has instructed / disallow Y to allow prostitution in the place turned out to be violated by Y. X accounted for by Metro politan Police Act 1839 (Section 44). The construction of the law is thus: "X has delegated its obligations to Y (manager). By delegating the wisdom of his business to the manager, then the manager's knowledge is the knowledge of the owner of the restaurant."

b) Vane v. Case Yiannopoullos (1965) - X a restaurant owner said to Y (an ordinary waiter) to only

sell liquor to people who buy food. X then goes to the room below the restaurant. Y apparently violated the ban.

In this case X was not found guilty of violating the Licensing Act, because he had not delegated his authority to manage the restaurant completely or thoroughly to Y.

2) An employer can be held accountable for actions that are physically / physically carried out by workers / workers if according to the law the work of the worker is seen as an employer (the servant's act is the master's act in Jaw). So, if the worker is the maker of material / physical (auctor fisicus) and the employer as the maker of intellectuals (auctor intellectuals).

This second principle is mostly applied in cases where the law uses selling (selling) or using (using) verbs as the main elements of prohibited acts (actus reus), for example in the Trade Descriptions Act, UU regarding food and medicine (Food and Drugs Act) and Law on fertilizers and foodstuffs (Fertilizers and Feeding Stuffs Act). The verb can be interpreted both physically and intellectually. In such cases, it is the intellectualist actor who is declared the maker. Example of Coppen v. Moore: - D has six shops that sell American meat (American hams). He

gave a clear indication that meat was described as "meat for breakfast" (breakfast hams) and no. sold by the specific name of where the meat came from (ie America). Beyond knowledge D, his aides sell the meat with the name "Scottish meat" (Scotch ham). D blamed by Merchandise Marks Act 1887 (Article 2, paragraph 2), namely " m enjual goods with false trade paintings."

5. Corporate Accountability

Criminal liability called vicarious liability can be linked to the accountability of the Corporation .

The corporation acts by means of people. If this person violates a statutory provision, then the question is whether the corporation is accountable.

For violations of a legal obligation by the occupier of the factory and/ or the actions of the servants, the corporation can be accounted for. In this case the corporation is only responsible for a small number of offenses, on the basis that there are enough laws to violate the existence of strict liability.

In 1944 there was a strong opinion, that corporations were allowed to be responsible in criminal law, both as makers or participants, for each offense, although mens rea was required by using identification principles. So unlike in Indonesia, corporate responsibility in the UK is not limited to certain fields of law, although not all offenses can be done by corporations.

Corporations in principle can be justified as individuals based on the principle of identification. For example, a company accused of having a common law offense , is consenting to conspiracy to defraud, an offense that requires mens rea and is not possible for vicarious liability. In this case the court look or assume, that the actions and the inner attitude of certain top officials were seen as the embodiment of selfhood organization is deeds and spiritual attitude of the corporation. In this case the corporation is not seen as responsible for the responsibility of the actions of its officials, but the corporation as well as in violating legal obligations is seen as having committed an offense that is private.

Although in principle the corporation can responsibility same with private person, but there are some knowl-exception, namely:

a. in cases which, according its nature can not be done by a corporation, for example her rape, perjury.

b. in cases the only criminal that can be imposed may not be imposed on corporations, for example imprisonment or criminal it.

Corporations can also be accounted for in Criminal Law because one's actions in the case of possible vicarious liability, so in the position of the corporation as an employer. This vicarious responsibility must be distinguished from responsibility based on the principle of identification. In addition, corporations can also be accounted for because of the actions of corporate leaders who acted in the company's business.

6. Participation in a Crime

Before 1967 (before the release of The Criminal Law Act 1967), there were four categories of participation, namely: a. a principal in the first degree (first level actor; main actor or material

maker / actua l offender); What is meant here is, people who actually commit the crime

themselves. So it is the main offender; Prohibited acts (actus reus ) can be directly caused by innocent

people (known as innocent agents), for example by crazy people, children, or people who have absolutely no mistakes. In such things which are seen as a principal in the first degree are people who manipulate the innocent agent . Example: 1) A intended to kill X by giving poison to daughter X while explaining that

what he gave was a medicine to cure his father's fever. In the event that X dies due to the poison given by the child, then it is A who is declared the perpetrator.

2) A persuades an underage child to take money in a cash drawer and hand it to him. A is said to be the perpetrator if the child cannot be justified.

More than one actor can also. For example: 1) A holds X (victim) so that B can steal wallet X. 2) A and B together persecute X with the intention of killing him.

b. a principal in the second degree (second level actor; i.e. "maid"; aider / abettor);

What is meant here is, people who help when or when crime is ongoing.

This helpful act is often referred to as aiding and abetting. The real meaning of to aid is to provide support or assistance to (to give help support or assistance to) and to abet means "to encourage, incite, encourage or encourage" (to incite, to instigate, to encourage). The term to aid shows more help in the occurrence of actus reus, while the term to abet shows more help in the occurrence or formation of mens rea.

Even though the word to abet means to advocate (to incite), it is different from counsel which belongs to the third category. The term abet is related to the form of advocacy when a crime is committed, while counsel is related to a form of advocacy before a crime takes place. In addition, the terms abet and counsel are the same. contains meaning recommends (to Incite), not the same as the form of incitement (advocacy), which includes one-on-one form of crime that is not complete, but is already regarded as a criminal act that stands alone (called inchoate offense; see description in another section). At the incitement of the recommended criminal act does not have to occur, while the abet, and counsel actions or criminal acts occur.

c. an accessory Be / ore the fact (helper before the follow-pi funds);

If the second form (a principal in the second degree) is the one who helps there when the crime is committed, then in this third form (accessory before the fact) the people involved help not exist when the crime is committed. They are involved in providing assistance before a crime is committed. This form of assistance can be in the form of providing tools to commit crime or by persuading. For example, a week before A unloads an iron chest containing money, B gives the tools to dismantle the iron chest.

In terms of assistance in the form of inducing or advocate a term used to form accessory here is counseling or procuring.

Literally, to procure means to get or get. In British criminal law, what

is meant by to procure is "produce / create something with a business" (to produce by endeavor). There is no procurements if there is no causal relationship between what is done by the proponent and the occurrence of a crime. Example: - Knowing that B will be driving a car. When B drinks in a restaurant, A

adds alcohol to drink B without knowledge or consent B. If B is declared to have violated Article 6 (I) of The Road Traffic Act 1972, namely "driving a vehicle with alcoholic blood pressure above the set limit" (Driving with a blood-alcohol concentration above the prescribed limit), then A is alleged to have committed procuring for A-one who has caused are conducive the crime.

- If the principal (the principal) commits a criminal offense that is different from what is recommended, then the advocate (instigator) remains responsible. For example: to kill X, A recommends B to pierce X with a knife, but it turns out B killed him with poison. In this case A remains responsible as an advocate. However, in the case of criminal offenses committed at all different from what is recommended, then A can enter a plea. In one of the cases, A persuaded B to steal Y's wallet. To get the wallet it turned out that B shot Y to death. In this case A cannot be declared an accessory (maid), especially as an advocate, for the occurrence of fertilization of that Y.

d. an accessory after the fact (maid after a crime). What is meant here is someone who knows that a crime has occurred, then hides or releases the perpetrator; or with a way to protect or try to protect his wife. After the issuance of the 1967 Criminal Law Act, participation only consisted of three parties, namely: 1) actual offender (a person who does the action himself or through

an innocent agent). 2) aiding and abetting the second form is the same as the a principal

in the second degree before 1967 (see the description above). 3) counseling or procuring (people who advocate); this third form is

the same as an accessory ore the fact before 1967 (see above). Thus, after 1967 the fourth form was no longer known, namely the accessory after the fact. However to Article 4 (1) The Criminal Law Act 1967, a person who helps the creator to avoid themselves from arrest and prosecution may have been blamed for doing assisting offenders. This provision is similar to Article 221 of the Indonesian Criminal Code.

7. Inchoate Offenses (Incomplete or New Crimes) Starting Level)

The occurrence of a criminal act often involves or is preceded by various acts of activity that are very closely related to the principal crime. Various actions that precede the occurrence of basic crimes which are actually just the beginning stage, can be seen as independent offenses and therefore can be referred to as preliminary crimes (crime at the stage of preparation / beginning / introduction). It is this preliminary crimes which in the English literature is known as the Inchoate Offices, which includes:

a. Incitement (Sofrcztation) / Advancement Advocacy in the UK can still be prosecuted, even if: 1) the proposal failed (such as Article 163 bus KUHP) 2) only persuade to commit a minor crime (summary / petty offence ).

Thus, even if the crime referred to cannot be done, it can still be punished. For example, A persuaded B to want to arrange for the stolen goods, but it turned out that the stolen goods were not available (so B did not / did not do the handling). Seduction must be communicated. In one of the cases, judge Lord Parker stated: "There is no incitement towards someone, unless the incitement (oral or written) has been received or has arrived at the person being persuaded." The existence of "certain real actions" is an essential thing in incitement (solicitation). However, in one of the cases that occurred in 1881 (the case of R. v. Most) was stated: "enough for the existence of advocacy in newspapers / articles aimed at general words." For example, advocating by letter , but the letter never arrived. If X persuades Y to commit a crime and Y does it, then X is declared a principal offender in relation to that crime.

Note : The above matters are incitement in common law. In addition, there are also several proposals set out by law. Example: 1) Article 4 of the Offenses against the Person Act 1861 establishes

as a misdemeanor (offense) people that jut right or trying to persuade someone to kill another person.

2) Article 7 of the Official Secrets Act 1920 criminal threatening pitch toward those who persuade others to commit offenses relating to professional secrecy.

b. Conspiracy (evil Covenant) 1) Definition

According to Common Law, Conspiracy is: a) the agreement (agreement) b) of two or more parties (of two people / parties or more) c) to do unlawful act / (to commit an unlawful act ) d) or l aw / act by unlawful means / way (or do according the law,

but by the means / way that is against the law). So, conspiracy is not merely the intention of two or more people to commit a crime. Compare with

Article 88 of the Indonesian Criminal Code. 2) Agreement as actus reus

a) This conspiracy is complete, even if it is not followed by further actions to realize the agreement. So there is no need for an action to be carried out or there is no need for an agreed crime.

b) What is important is the agreement, not the ingredients. So there is still a conspiracy even though the parties have not determined the means to be used.

c) The emphasis on an agreement implies that a person is not guilty of conspiracy unless they seriously intend to implement the agreement. However, if it turns out that parties do not have the intention to implement the agreement, it does not prevent the other party from guilty.

d) For conspiracy there is no need to prove that the parties have made direct communication. For example X 1 communicates with X 2 and X 2 communicates with X 3 . All three can be accused of conspiracy, even though X 1 does not communicate directly with X 3 .

e) If there is no clear evidence regarding the agreement, the existence of the agreement can be sought from separate actions carried out according to a goal held jointly by the defendants. In other words , it can be concluded from the actions carried out by the parties.

3) Mens rea on conspiracy issues

Because the conspiracy is a common crime according to common law, it is required that there be a mens rea, which for int criminal acts is "an intention to implement. The agreement and their knowledge of the facts that cause the agreement to be against the law."

4) The unlawful purpose of the agreement The unlawful term stated above (see elements in number 1

above), is not formulated certainly. Some "unlawful consensus objects" are as follows: a) Crimes. An agreement to commit a crime (crime), even though

a summary / petty offenses Meru feed a conspiracy that can be prosecuted (indictable conspiracy).

If an agreement is made abroad (outside the UK) to commit a crime in the UK (and according to British law is also a crime) and further actions for agreement are carried out in the UK, then the British court has the authority to prosecute the parties on conspiracy charges.

Regarding the punishment, in very exceptional circumstances it can be subject to more severe criminal penalties, namely exceeding the maximum sentence for actual criminal acts (substantive criminal acts) -Note; Evil agreement in Indonesia:

only for certain crimes (see, among others, Article 110, 116, 125, 139c, 187 ter). the maximum criminal investigation is lighter than the offense involved.

b) Certain torfs (certain losses) carried out with bad intentions or with fraud / fraud, for example wrongdoing in the field of civil law include: an agreement to hijack the copyright of a musical composition .

c) Public mischief (actions that damage / harm the general public). Example; agreement to obtain a passport for X by faking it falsely, that the passport was intended for Y; - agreement to allow one gain admission to the courtroom

as a student by showing fake documents; agreement to issue materials that are intended to interfere with or disrupt the fair trial ;

- agreement to damage the morale of the community by publishing obscene readings or informing matters relating to prostitution (prostitution) or to facilitate the occurrence of prostitution (eg by mentioning the names / addresses of certain people); agreement to provide or provide a fake certificate (certificate) stating that the development is in accordance with the regulations of the regional regulations.

5) Two or more conspirators A person cannot agree on himself; at least there must be two

thoughts to meet to say there is an action (actus reus conspiracy). Some problems arise as follows. a) - Can a company and its manager director be said to have a

conspiracy?

- Can’t, because the company and director / manager are seen as an inseparable entity. This was based on one of the decisions in the 1944 case (case R. v. ICR Houlage Co. Ltd.) which stated:

" will be something artificial that a company can be seen as a separate entity or as a separate mind."

However, if the director communicates his intentions to others (third parties) it can be said that there is a conspiracy.

b) What about husband and wife, can it also be said to do conspiracy? In the 1957 case (Mawji v. R) stated: spousal seen as one person with one will, therefore, not be able to do "consensus together." However, a husband, his wife, and a third party can be said to do "mutual agreement."

6) Accountability of the parties to the conspiracy

All parties responsible for the acts of the other party which is due to alarm or consequences which may occur from the original plan (probable consequences of the original plan).

For example: A, B, and C plan robbery (robbery). All parties are responsible for the murder committed by A, even though the murder was not part of the original plan.

However, if one party commits an action that is not directly related to the agreed purpose, the other parties are not responsible.

For example: A, B, C agree to do car theft. After the car is successfully stolen, on the way A sees the enemy (X) running. Suddenly A immediately took his gun (8 and C did not know) and shot X. In this case, • B and C were not responsible for the death of X.

c. Attempt (Experiment)

1) Basic understanding

Experiments of committing an offense, according to Common Law are marked as a misdemeanor. So it is seen as a mild violation of law, even though the trial was directed against crime.

In order to obtain the trial, proof is needed, that the defendant intends to commit an unlawful act and he has carried out several actions which form actus reus from the evil trials that can be punished. The Actus reits of an attempted criminal offense exist, if the defendant commits a number of actions which can be seen as a movement for the realization of the crime and the

implementation or appearance of the act cannot be interpreted as having a purpose other than the realization of the crime.

2) Metis Tea da ! Am trial a) to their experiments, mens rea is that consensus. This was

stated by the judge (Edmund Davies) in the case of R. v. Easom in 1971. The case is as follows:

Easom had picked up the handbag of a female policeman in a cinema, then opened it, flipped the contents (grunted) and put the bag back without taking anything.

In this case, Easom not found guilty of doing theft or attempted theft. In the decision stated as follows :

"There is no legitimate sentence against the accused accused of attempted theft, except that he is proven to have done so because he was moved by the same intention to take police goods forever as needed to establish a complete criminal offense." So, in general, it must be pointed out, that the person accused of conducting an attempted crime wants or knows in advance the consequences of the action that is expressly contained or implicitly in the formulation of the offense (crime) concerned. If an intent is an essential element of a criminal offense, it must be proven that an intentional trial of the intent element is insufficient, only with the existence of a reckless state of mind (inadvertent).

b) To convicted trial must be proven that the defendant requires the consequences of the actions contained expressly or implicitly in peru Musan criminal offense, even if enough of the level or form of mens rea lighter if he was charged with crimes are complete. Example:

X can be found guilty of killing Y when it is proven that he killed Y for the sole purpose of causing serious injuries (So it is sufficient to prove lighter mens rea ); but for allegations of attempted murder it must be proven that X really intended to kill Y. X was accused of attempting to murder Y (his wife) by giving a physical shock when his wife took a bath (case R. v. Whybrow 1951). In this case, the appellate court stated:

it is not true, that if X means (there is an accident) to severely injure Y, then X can be found guilty of attempting murder. The intent to kill Y must be proven.

3) Experiments of doing things that are not possible (incapable), for example stealing a wallet that turns out to have no contents, is still stated as a trial that can be punished

8. Reasons for Exemptions From Liability A person who is accused of a criminal offense can submit a reason

for defense or a reason for the removal of a criminal. Reasons for defense can be general (called genera? Defences ), meaning that they can be submitted for crimes or criminal acts in general; and can also be special (called special defenses) which can only be submitted for certain crimes or criminal acts. Including genera / defenses include: a. Mistake (error) b. Compulsion (coercion) c. Intoxication (alcohol intoxication) d. Automatism (reflex) e. Insanity (insanity) f. Infancy (minors) g. Consent of the Victim (victim's agreement) Including special defenses including: a. in the case of abortion delinquency, if it is done based on reasons,

including: the pregnancy (if continued) will endanger the safety of the mother's life; the possibility of a child born will suffer a physical or mental disability that is quite serious; (This reason is referred to in The Abortion Act 1967).

b. in the case of publishing or publishing obscene writings, if it is justified for the public good, for the sake of knowledge, art and so on.

This reason is regulated in the Obscene Publications Act 1959. a. Mistake (error)

Some conditions or conditions for receiving a defense based on a mistake reason are: 1) The heresy must be such that the facts as believed by the

defendant caused the absence of actus reus or mens no. that is required for the existence of the crime. Example:

X intends to steal a Y suit from a cloakroom, but he mistakenly takes Z's suit. In this case, actus reus and mens rea remain so that the reason for the mistake is unacceptable.

2) The heresy must be reasonable. For example in case R. v. Tolson (1889):

X left by her husband (Y). Based on investigation. X is sure that Y has sunk in the sea. Based on his belief, after 5 years he became a widow, he married Z. It turned out that Y was then reappeared. X was not found guilty of bigamy because his error was reasonable.

3) The heresy must be about facts, not about law. In this case adagium applies:

Ignorant faction ignorance of the fact excuses. Error regarding forgiven / not convicted facts; Ignoramia juris non

excusat (ignorance of the law does not excuse), heresy about the law is not forgiven / remains punished.

However, there are exceptions, namely the mistake of law can

be a reason for removing the criminal if the defendant does not have mens rea as required for the alleged crime. Thus, if X (who is accused of theft) proves that he has taken goods Y in the belief that according to the law he has the right to seize the item from Y, then the X taken cannot be seen as dishonest. . The belief in X resulted from a mistake in his understanding of the law, however he was found not guilty according to applicable law (ie Article 2 (1) The Theft Act 1968). Note: In Article 2 (I) a it is stated:

"Taking the belongings of others is not seen as dishonest (dishonest), when he took it with confidence .bahwa goods rnenurut law he is entitled to seize the goods, on their own behalf or on behalf of third parties."

b. Compulsion (Pressure) There timpat rnacam compulsion, namely: 1) Duress per minas (by threats / by force) The reason for this defense is based on the pretext, that a person

does not have the freedom of will in carrying out an act because it is a direct result of another person's threat. So it is similar to overmacht according to the Indonesian Criminal Code, but the application is more limited.

Duress was accepted as a defense reason for treason cases ( treason ); fencing of stolen goods (receiving stolen goods), theft (Larceny), destruction of goods (malicious damage), and a false oath (perjury); Duress cannot be used as a general defense in murder cases. In the case of R. v. Tyler (1838) stated: "No one for fear of the consequences of befalling himself has the right to commit crimes against humanity."

(No man from a fear of consequences to himself has a rig / to make himself a party to commit a mischief on mankind). However, in 1975, the House of Lords stated that on charges of murder, it was possible for people accused of being a principal in the second degree (i.e. aider or abettor) to plead based on the duress, namely that he committed the act in under threat of death or serious serious injuries. So the actual killer is still not valid. Such provisions are regarded as unsatisfactory, because the person who kills in a state of duress air is actually less wrong than one who kills with a free will.

In duress, the threat or coercion must be serious, such as threats to death, threats of injury to the body or threats to be put in prison. The threat of loss to property alone is not enough. "Threat" (threat) must be an instant threat or at the same time (present threat). If the threat does not exist at the time the action is committed, then it cannot be said that there is a duress. For example, A Trick-B, so doing theft. If at the time of stealing, the threat from A is gone, so in this case there is no

duress. Similarly, can not be used for threats in the future will come or will occur. For example, A said to B: "If you do not help me do a robbery, watch out I will come again in the week before and kill you and your family." Such threats cannot be used as reasons for defense based on duress.

The defense based on duress inadmissible where the defendant has the opportunity to avoid an Caman it.

If the defendant submits a duress reason , the prosecutor 's obligation to deny and not the defendant's obligation to defend it.

2) Necessity (Circumstances forced) Necessity can arise in the event that a person faces a choice to

commit a crime or let a greater misfortune take place, and he chooses to commit the crime (crime).

So, to say there is necessity, the person's actions: a) It must be a smaller crime or misfortune (a lesser evil) than the

misfortune you want to avoid by doing it; and

b) greater misfortune is impossible to avoid other than that action. Some example can be expressed as follows. a) In case R. v. Dudley and Stephens (1884): Three men (A, B, C) and a boy (X) escaped the shipwreck .

After two weeks without food, X was killed by A with B's consent and was eaten by the three of them (A, B, C). Four days later they were helped. A ~ and B were accused and convicted of murdering X. In their defense, they stated that without X they would starve (Starvation). Their defense was rejected. In the verdict stated: "The temptation to do that in this case is not what according to law is called necessity. Even though the law and morality are not the same , the absolute separation between law and moral will have fatal consequences, and such separation will be followed if the temptation is killing in this case represented by the law as an absolute defense. But it was not determined for the sake of growing. "

b) A doctor kills a baby in the womb to save the life of the mother who will give birth. In this case it can be said of necessity, because the choices taken by doctors are a smaller risk / misfortune alternative.

3) Obedience to orders

In certain circumstances "obeying the orders of superiors" can be used to exclude mens rea (compare with Article 51 (1) of the Criminal Code which is justification and Article 51 (2) which is a forgiving reason). Obedience to orders can be a reason for defense, if with the command of this reason it causes a mistake of fact, meaning that the perpetrator feels confident that the deed he Zakukan does not oppose the law and his conviction is reasonable. 4) Marital Coercion

In Common Law there is an assumption, that if a wife (X) commits a crime and her husband (Y) is at the scene, it means that X commits the act on compulsion Y. There is no need to prove the actual intimidation by the husband against his wife. However, this defense does not apply to: treason, murder, manslaughter, and robbery.

The above assumption was abolished by the Criminal Justice Act 1925 Article 47 stating: "Any presumption of the law that a crime is carried out in the presence of a wife (with the presence) Her husband means carried out under the compulsion of the husband, this is abolished; but the accusation against the wife is a crime other than betrayal (murder) or murder, such things can be a defense to prove that the offense was carried out in the presence and under duress husband. " Although the presumption of hiring the Common law has been removed, but such a defense still exists, except for Treason or murder. The defendant must prove that the crime was carried out as a result of coercion by others and in the presence of that other person.

c. Intoxication (Poisoning) In general drunkenness / intoxication is not a reason for defense,

but in the beginning in the 19th century deliberately drunk themselves was seen as a weighting factor. However, deliberate drunkenness can be a reason for defense, if: 1) drunkenness deliberate produce or m arouses the mentally ill or

insane (insanity); 2) negate any intentional or forms other than mens rea required for

the alleged crimes. Accidental intoxication, such as forced or deceived others to

drink that contain much alcohol, can be used as an excuse defense.

d. Automatism (Automatic / Uncontrolled Movement)

Automatism is any action arising from muscle movements terkont r ol, such as: convulsions veins (spasm), reflex (reflex action), convulsion (conviction) or an act performed by people who do not realize what yang.ia do for example because of somnambulism (sleepwalking).

A person's actions in automatism are accidental and therefore cannot be punished.

e. Insanity (Insanity) The terms insanity and insane have very special meanings in

criminal law that are different from medical terms. Insanity of a person seen from a medical perspective is not enough as a basis for defense. His soullessness must be such that it affects his responsibilities

according to the law. The liability is determined based on the criteria specified in M'Naghten Rules. Conditions (Rules) is legal criteria digu nakan into consideration when insanity submitted as a defense argument. This rule was motivated by the case in 1843 in the case of Daniel M'Naghten, who was in a state of delusion ( Sirsickness ) that Sir Robert Peel was torturing / torturing him, killing Drummond (Sir Robert's secretary) whom Sir Robert Peel had assumed. M'Naghten Rules contain: 1) Presumption of sanity, namely: each person is considered normal / sane and is responsible

for the crime he committed, except as stated otherwise that the defendant is insane when committing a crime.

2) Defect of reason, namely: to set. the existence of a defense based on insanity must be

clearly proven, that at the time of committing an act the defendant is in a state of a defect of reason due to a mental illness in such a way that he does not know the nature of his actions, or if he knows or is not aware or not knowing that what he did was wrong.

3) Insane delusion, namely: if a person is delusional about something, then he commits a

crime as a result of his imagination, he must be seen as responsible in the same situation as if the facts he imagined really existed.

Therefore, when under the influence of an imaginary X on her that Y would kill him, then Y actually killed because he thinks or feels in a state of self-defense, then X was released from criminal prosecution for murder.

But if X is under his imaginary influence that Y has insulted him, then X kills Y to treat the insult (which he imagines), then he can still be convicted.

In its development, M'Naghten Rules received many

criticisms, among others, stated that the Rules were based on an ancient view of insanity and ignored the development of modern psychology. The Royal Commission on capital punishment (The Royal Commission on Capital Punishment) in 1953 once stated that the Rules were revoked; and The Butler Committee on Mentally Abnormal Offenders (1975) stated that M'Naghten Rules were unsatisfactory.

Problems Irresistible Impulse (urge had that could not be detained)

In relation to the M'Naghten Rules above, in the UK it is often questioned about the problem of irresistible impulse, namely in the case that someone knows the nature and nature of the crime and knows that the act is wrong, but he continues to do it because he

is under the influence impulse that cannot be resisted or irresistible .

Such circumstances are recognized by psychiatrists but cannot be included as reasons for defense based on M'Naghten Rules.

The judges disagree mostly defense circumstances that excuse, because it is difficult to distinguish impulse (support liver) that really comes from the soul and the ubnormal motifs derived from avarice (greed), jealousy or envy and revenge . However, even though M'Naghten Rules remain unchanged, the defense of ' irresistible impulse' has now been recognized through what is known as diminished responsibitity (reduced ability to be responsible) contained in The Homicide Act 1957.

Diminished Responsibility

Diminished responsibility it can be said to new defense argument (the new defense), but it only applies specifically to the case of murder. In Article 2 1957 Homicide Ace states:

"If someone kills the other , he will not be convicted of murder (murder) if he suffer abnormality or to l Ainan soul (whether caused by circumstances or for soul growth that retarded or due to illness / injury which substantial damaging or disrupting his responsibility for the actions he committed. "

Based on the article, a person who proposes reasons for diminished responsibility must show that he or she is suffering from abnormality of mind that is affected by: 1) the growth of the soul retained / kept low (Arrested

Development of mind); including embiciel, idiot; or 2) growth soul backward (retarded development of mind); among

others senile (senile dementia) or 3) to Ainan because of illness or injury (disease or injury).

In one of the cases (i.e. the case R. v. Byrne; I960) the court

stated: The word abnormality of mind means that the state of the soul

is so different from normal people in general; These abnormalities include not only a person's perceptions that are physical and their ability to form rational judgments about whether an action is right or wrong.

If he was unable to use the power of his will due to his mental abnormality, it would be enough for defendants to defend themselves based on diminished reasons responsibility.

Although this diminished responsibility can be a reason for defense, it does not mean that it is the reason for the abolition of the crime. The lack of responsible responsibility is more of a reason for criminal offenses, namely the defendant was not

convicted of murder punishable by a fixed sentence, but he was convicted of manslaughter which was threatened with a certain period of time until the maximum limit of his lifetime. So, the defendant can be convicted less than the maximum limit ;

f. Infancy ( Minors) English criminal law on the limits of age to account \ answer

(the age of responsibility) as follows. 1) Under 10 years

There is an assumption that children under 10 years are considered unable to commit crimes (incapable of crime or doli incapax). Therefore, he cannot be found guilty or convicted.

(Article 50 Children and Young Person Act 1933 as amended by Article 16 Children and Young Person Act 1963).

2) 10 years old but under 14 years old

There is an assumption that children in this age group are seen as doli incapax, but this assumption can be refuted by proving the existence of "evil will" (mischievous discretion) that is, he knows that what he does is wrong. So, "mean evil increases age " (Malitia Supplement aetatem = Maike supplements age).

3) Above 14 years

This age group is fully deemed responsible for the actions he committed.

g. Consent of the Victim (Approval Victims) For crimes against individuals, such as theft, the consent of the

victim can be used as a reason for defense. For other forms of crime that has far-reaching impact to the community, the consent of the people involved in the crime can digu nakan as an excuse criminal eraser.

If lack of consent is an element needed for a crime, such as in a case of rape ( robber ), robbery (robbery), and theft by dismantling (burglary), then the tuition fee for the absence of agreement is considered to exist. However, if the defendant proposes consent as a defense, then the public prosecutor must prove that the defendant has committed the act without the victim's consent.

There are four conditions for filing a defense based on this reason for consent, namely: 1) the person who gives approval must be the person who is able

to give consent. For example people who are insane (crazy) and children, according to the law are seen as incapable (incapable) to give consent.

2) criminal offenses committed must be a type of criminal offense which indeed consent can be given (constitute consentable crime).

Murders, for example, include offenses that cannot be approved (nonconsentable crime).

3) the agreement cannot be obtained due to fraud or threats; 4) the agreement must be given by a person who has the authority to

approve; for example A can give approval so that the items themselves are taken by someone else (stolen), but A is not authorized to give approval to take other people's property.

D. Crime in the UK

1. Criminal Classification

a . Historical Classification

Before 1967 (prior to the issuance of The Criminal Law Act 1967), criminal acts were divided into two: 1) Felonies (serious crime, can be likened to "crime" ) , and

2) Offenders (less-serious crime, can be likened to "violations"). Explanation: The difference between the two criminal acts is as follows. 1) based on criminal threats: echelon is a criminal act which is threatened by a common law

or law with capital punishment or seizure of goods / assets; all other criminal acts are classified as misdemeanours.

2) not based on criminal punishment: the difference in principals and aceessories-hz is

padsfelonies, while misdemeanour does not recognize that difference. there are broad powers to detain people who commit felonies without a warrant (warrant) on-the people who do misdemeanour. revocation of certain public positions can be applied to. echelon certain. - All differences between echelon and misdemeanour have

been abolished by Article 1 of The Criminal Law Act 1967. t

b. Clasification based on The Criminal Law Act , 1967, is as follows

1) Arrestable offences: i.e. criminal acts whose crimes are determined definitively

(fix) by law or that the person (perpetrator) can be sentenced to 5 years imprisonment (Article 2 paragraph 1). but in

accordance with Article 12 (3) a criminal offense can be established by law as "arrestable offences" even though the maximum criminal threat is less than 5 years. 2) Non-amstable offences: i.e. all other criminal acts rather than criminal acts above (sub a).

c . Procedural Classification

In addition to the above division (b), also known as division or classification based on the mode of trial ( way or judicial procedure), namely: 1) Indictable offences

that is , serious crimes (such as murder, theft, gambury) whose trial is carried out by Crown Court with jury of this serious crime must be filed with written accusations (called indicment).

2) petty offences

that is a crime that must be tried in a concise (short) and no jury.

- most criminal acts according to the law are considered minor (minor statutory offences).

3) Hybrid o / fences (mixed crime) ' i.e. a crime that can be filed with written allegations (such as

sub a) or submitted in a summary (such as sub b); Misdemeanor (sub b) which carries dengan'mak simum 3

months in prison may be filed in the court jury .

2. Acts of Criminal Specific in English

The following description only points to the understanding of certain types of criminal acts, because criminal acts in the UK in general are not much different from those in Indonesia, only their interpretation is different. Some of the specific crimes discussed below are about: a. Homicide, Murder, Manslaughter The three definitions of this crime need to be discussed

specifically because all three if interpreted literally can be confusing, that is, both can mean "murder." 1) Homicide

Homicide is "the killing of humans by humans" (the killing of a human being by a human being), which is divided into: a) Lawful homicide, for example:

(1) implementation of capital punishment imposed by the competent court;

(2) death arising in an effort to uphold / prioritize justice, for example: to prevent the occurrence of crime; to make effective the detention or legal arrest of the criminal or suspect;

(3) death arising from the actions of someone who defends himself or his property;

(4) death arising from accidents (misadven ture). b) Unlawful homicide (unlawful killings) Included here are:

(1) Murder, (2) Manslaughter, and

(3) Infanticide. 2) Murder There is no statutory definition of murder, but it is usually

formulated as an unlawful homicide with malice aforethought. So it is similar to "planning murder" (moord) in our Criminal Code.

Malice aforethought, merupakan.inens rea for murder. This is a term that digunakarj in conjunction with crime murder and understanding can not be equated with everyday words about malice (malice / bad) and aforethought (premeditated).

Malice aforethought can be interpreted as: "the intent of the defendant to kill or cause another person to be seriously injured" (intention on the part) of the person who has to kill or cause negative bodily ham to another person). The definition of malice consists of several categories as follows. a) Express and implied malice

Malice express is a malicious intent that is stated or intended for real. For example, with intentions / intentionally killing. So it seems to be the same as commonly known as dolus directus. Implied malice is an evil intent which is stated indirectly. So that is included or included (implied) on malice express. For example, "mean a t au deliberately to inflict serious injuries" are included in "intent / purpose to kill."

b) Universal malice

Suppose X fires a gun incoherently at a group of people no matter who is killed. So it can be likened to dolus indeterminatus.

c) Transfered malice

which is meant here, someone is responsible also to the unintended result (a result which is not desired or not dituj u ); so it is similar to Dolus indirectus.

Some examples: (1) X intended to kill Y, but his shot slipped into Z which X is not

known to stand near Y. Compare the meaning of aberratio ictus and dolus eventualis.

(2) A intended to shoot B, but because of his shadows he shot C which was thought to be B. In this case A was still convicted. Compare this with error in objecto.

(3) X intends to steal at home no. 6, but because of the dark, it is wrong to enter and steal at home no. 7. K remains convicted of theft. Constructive malice

Some examples before 1957 (before the release of The Homicide Act): (1) If in committing a crime or for achieving the intended crime, X

commits an act that causes the death of another person , then X is declared to have committed a murder. In this case, it is sufficient to prove the existence of mens rea for the intended crime, and it does not need to be proven that X knows beforehand that there will be a result of serious injuries or the result of death.

(2) If X causes death in the fight against arrest or arrest by the police, then he can be blamed for committing murder. In this case, it was enough to prove X's intentions to fight the detention with violence. With the existence of the 1957 Homicide Act (Article 1), constructive malice aforethought as the examples above are abolished. According to this law, in examples above, X is not alleged to have committed murder unless the act that caused death of the other person (used with malice aforethought the same (either express or implied malice) as required for their murder that was not committed in order or to commit another crime. Based on the Homicide Act 1957, everyone who doing murder subjected to the death penalty. With the release of The 1965 Act of the Murder (Abolition of Death Penalty), the death penalty for the murder was abolished and replaced with a life sentence (constituted / bced sentence).

3) Manslaughter Manslaughter can be formulated generally as "an unlawful

homicide unaccompanied by malice aforethought. If it is associated with the malice aforethought notion stated above, it can be said that Manslaughter is "unlawful murder committed not with the intention of killing." That is, the offender does not have the evil intention to cause the consequences of the death of others.

So, actually it is not exactly the same as ordinary murder (not planning) as in Article 338 of the Criminal Code. Manslaughter classification

a) Voluntary Manslaughter (intentional Manslaughter) According to Common Law, Voluntary Manslaughter only

occurs in one thing, namely murder committed because of provocation (incitement). But now, according to the law (Homicide Act 1957), voluntary manslaughter refers to a murder committed by someone because: (1) provocation in such a way that the defendant loses control

(self control);

(2) not ability responsible (diminished res ponsibility); (3) the agreement of suicide (suicide pact) with the person who

died. b) Involuntary Manslaughter That is a murder without malice aforethought which is caused

by: (1) acts against the law that caused the death of (unlawful act

causing death), for example: X waved a knife with the sole intention of frightening Z

who had been closely associated with Y (wife X). The drunk Y staggered towards X and his throat sliced through the knife. As a result of his injuries, Y died. (Case R. v. Larkin 1943). X follows his wife Y and Z (who gets along well with Y) by carrying a knife unsheathed with the sole intention of scaring Y and Z to walk towards X and getting knives so that they are injured and die. (Case R. v. Hall 1961). - X lives with a woman who has children (ie Y). X was found guilty of manslaughter of Y who died from falling from the stairs of the house (his neck was broken) because he tried to avoid X who had slapped him. It was evident in this case that Y was afraid of physical abuse from X. This fear caused Y to try to escape from X and cause his death. {Case R. v. MackieI973).

(2) not doing an obligation (omission to perform a duty), for example: X lives with his 73-year-old aunt Y and is disabled. During the last 10 days, X did not provide food or nurse assistants so as to speed up Y's death (case R. v. Instan 1893).

X a doctor had neglected to take care of Y, his wife, who was addicted to drugs and had refused to allow his wife to go for treatment, so that Y died (case Rv Bonnyman 1942). (3) acts carried out in an act of negligence (act performed with criminal negligence), for example:

A took off his very wild and dangerous horse to eat grass in a common place, the horse kicked the head of an 8-year-old boy and died,

X drives the car at night on the wrong road and hits Y to death.

b. Contempt of Court

Contempt of Court is a general term for describing acts (or not doing deeds) which in essence want to interfere or interfere with the system / process of administering a fair / due process (due process of law) '. Contempt of Court can be divided into two: 1) Civil contempt

namely non-compliance with decisions or court orders; so is peiiawanan to the implementation of the law (an offense against the enforcement of justice), for example: refusing to comply with court orders. (in civil cases) to stop the disturbance, tmtuk pay damages and so on.

This sanction for civil contempt is coercive nature. 2) Criminal contempt namely actions that aim to disrupt or obstruct the

administration of criminal justice; so it is a form of defense against offence against the administration of justice.

Sanctions against this contempt criminal are punitive nature. Forms of Criminal Contempt Forms of harassment against management per unfairness of

criminal and can be either: 1) Disturbance in the face or in the courtroom

(Contempt in the face of the Court); often also called Direct Contempt)

Even though the term is Contemplate in the Court, but the problem is not whether the dignity of the court has been attacked or violated, whether the proceedings are interrupted or not. The goal is not to support or me li ndungi dignity of the judge, but to protect the rights of the public by ensuring that the administration of justice is not compromised.

Disorders can be in the form of words or deeds, for example: issuing words that threaten or attack physical instruments against judges, legal counsel, witnesses or against the defendant's own friends. S actions that do not come on court orders; witnesses who do not answer questions (unless they have the right to refuse) or refuse to be sworn in; witnesses who did not want to leave the courtroom on the orders of Hakira (the case of Chandler v. Home, 1842). the defendant directly insulted the judge ( case R. v. Davison, 1821).

Cata t an: According to the Indonesian Criminal Code, physical

attacks on officials can be subject to Article 212 and Article 356 second (persecution of officials) for example; and when using threats, Article 211 can be included (forcing officials with violence or threats of violence) or if directed against witnesses can enter Article 336 of the Criminal Code. Raising noise in the courtroom or refusing to leave the room at the behest of a judge / authorized official can be subject to Article 217 or 168 of the Criminal Code. Witnesses who do not fulfill obligations can be subject to Article 224 or 522 of the Criminal Code.

Somewhat different from in Indonesia, according to the Common Law System actions which include direct contempt can be directly tried and convicted by the judge without the need for investigation or prosecution first. The term, the judge has inherent power to punish. So, for example, there is a commotion in the trial (such as Article 217 of the Criminal Code}, the judge can directly process and impose criminal acts 2) Actions to influence the impartial judicial process (Acts are calculated to prejudice the fair trial) Actions that are sub b this occurs outside the court, because it is often called contempt out of court or indirect contempt.

Including these actions is bribing, camouflaging, or trying to influence in other ways towards judges, judges, witnesses and so on. Influence by other means, for example: conducting private communication with the judge to influence the decision;

Comment in a letter of newspapers, magazines and so on, a case is pending; inform or publish something that is impartial to influence the decision. In the above cases it does not need to be proven, that the judicial process in his statement is truly influential and impartial. Note:

For bribery of judges (in Indonesia) see Article 210 and for other officials Article 209 of the Criminal Code.

3) Acts that are embarrassing or create a scandal for the court (Scandalizing the court) Scandalizing the court actually includes contempt out of court , but more specifically it is intended to reduce the authority of the court or the authority of the judge, for example by publish criticisms or allegations in the letter of the news about abuse or acts of misconduct which are not worth doing a judge. For example, accused the judge had abused the rules of evidence, has sided or has received pressure from outside and so on. criticisms directed against judges or the court may not constitute a contempt of court if it is reasonable (expressed as reasonable criticism) and expressed in a good manner.However, this reasonable criticism criteria is still a negative material because it is closely related to people's freedom to express opinions and criticisms. Note :

In the Indonesian Criminal Code, there are no provisions regarding scandalizing the court, unless it leads to insult or slander.

4) Interrupting Obstructing Officers of the Court outside the court . These actions also included contempt out of court because

they occurred outside the court, for example: attacking or threatening judges, prosecutors, defenders or bailiffs after leaving the courtroom.

Note : Acts that disturb, obstruct or oppose officials according to the

Indonesian Criminal Code are regulated, among others, in Articles 212 and 216. See notes in sub a above,

5) Breach of duty by court officials (Breach of duty by an officer of the

court) According to Prof. Nico Keijzer, the shape of these violations

come into one's vision right the oldest form of contempt. This includes forms of violations such as prison officials or correctional institutions that hold documents / letters from inmates sent to their defenders or to court officials.

Theoretically, violations of these obligations can also be carried out by judges. But according to Prof. Keijzer, to his knowledge, there has never been a judge who was blamed for contempt of court.

Note: The case above (holding a letter / document) can be

compared with Article 374, 415, 417, 432 of the Criminal Code. In the case of violations of obligations carried out by judges or other officials , for example, subject to Articles 418, 419, and 420 of the Criminal Code.

Retaliation for acts committed during the trial process (Revenge for acts done in the course of the litigation)

Including the types of actions such as AG cases v. Butterworth, namely D and the total membership of a trade union condemned the testimony of E (other members) at the trial and stated that they would issue E from their position as branch treasurer. The defendants (D and other members) were found guilty of contempt of court. Catalan:

The above acts in the Indonesian Criminal Code are not a criminal offense, but are likely to be pursued by civil settlement. If acts of retaliation against witnesses such as the case above in the form of persecution, can be used for example Article 351 of the Criminal Code.

CHAPTER III NETHERLANDS

I. KUHP BELANDA (criminal law of Belanda) (NED. WvS)

COMPARED TO THE KUHP INDONESIA The Dutch Criminal Code (Ned. MvS) is most important in

comparing criminal law in Indonesia, because the Criminal Code is sourced from it. Even if the law is in the process of the Criminal Code being processed at the Ministry of Justice transformed into a new Criminal Code, this is still relevant, because generally the principles and formulation of the offense in the Criminal Procedure Code are still the same as the Criminal Code (WvS).

A. DIFFERENCES SINCE THE EARTH (AT THE TIME OF WVSI IN

1918) Since the beginning, there has been a difference between the

Indonesian Criminal Code (Het Wetboek van Strafrecht voor Nederlandsch Indie) because the situation and conditions between Indonesia (Dutch East Indies) and the Netherlands are different,

These differences (which are stated important) include: 1. The difference in the formulation of the enactment of criminal law

(Article 2 and so on) of the two Criminal Code (Ned. WvS and WvSI). In Article 2 Ned. WvS is listed as a Wafet (Criminal Law) applicable in the Netherlands region, while in Article 2 WvSI (KUHPj is written by the authorization of the opposite (legislation ( criminal) applies in the Ned Indie region (now Indonesia). This is logical, because the Indies Government used to The Netherlands cannot make laws (wet), but ordinance and verondening (Government Regulation).

2. Different types of criminal acts listed in Article 9 Ned. WvS and Article 10 WvSI (now Criminal Code). In the Indonesian Criminal Code the death penalty is listed, whereas in the Netherlands since 1870 it has been deleted. The reason is that the situation in Indonesia is different from the Netherlands, thousands of islands, various ethnic groups, insufficient police force, so it needs to be more severe. By itself the articles relating to capital punishment such as Article 6 and Article II (implementation of capital punishment) are contained in WvSI (KUHP) but certainly not in Ned. WvS, in additional criminal cases, there is a second type of criminal at Ned.WvS, that is placement in a national workplace, not contained in Article 10 WvSI (KUHP).

3. Some of the more severe criminal offense da l am WvSI prison (Penal Code) than in Ned. WvS. For example theft, in Article 310 Ned. WvS is a maximum of 4 years in prison, while in Article 362 WvSI (KUHP) a maximum of 5 years in prison. Likewise, fraud and

embezzlement offenses in Article 326 and 321 Ned. WvS has a maximum of 3 years in prison while in WvSI a maximum of 4 years in prison.

Likewise with the charge offense, in Article 416 paragraph (1) Ned. WvS imprisonment for intentional offenses is carried out intentionally, is a maximum of 3 years in prison, while in Article 480 WvSI (KUHP) imprisonment both intentionally and culpally (should be suspected), a maximum of 4 years in prison.

Sprinkling the culpa inside Ned. WvS is regulated in another article, namely in Article 417 bis paragraph (1), which has a maximum prison sentence of 1 year. In the offense of decency violations, Article 239 Ned. WvS is a maximum threat of 2 years imprisonment, while in the Criminal Code the maximum is 2 years 8 months in prison. The reason, why the crime in WvSI (now the Criminal Code) is some more severe than Ned. WvS, the same as the reason for capital punishment.

In the criminal procedure law (HIR which sourced in Dutch criminal procedure), the offense that the suspect can be detained, which is punishable by 5 years in prison or more or offenses which Pida it's less than that, but it's called one by one. In the Dutch ring-ring , the suspect can be arrested, is the offender who is threatened with 4 years in prison or more or offenses whose crimes are less than that, but are mentioned one by one. So, apparently the pardon offense (the 5-year sentence in the Criminal Code, 4 years in Ned. WvS) is the standard of detention. The Criminal Procedure Code continues to accept this HIR provision (Article 21 paragraph (4)). However, there are also criminal offenses, generally high-level offenses such as murder, criminal penalties, namely a maximum of 15 years in prison, as well as rape (Article 285 of the Criminal Code, Article 242 Ned. WvS), and criminal penalties, namely a maximum of 12 years in prison.

4. Provisions regarding conditional criminal offenses listed in Article 14 a to Article 14 f WvSI (KUHP) were created in 1926 with Stbld. 1926 Number 251 entered into the Criminal Code and entered into force January 1, 1927 (Stbld. 1926 Number 486). There are certain differences between the conditional criminal provisions in Ned. WvS and WvSI (KUHP). For those who want to deepen their knowledge about conditional criminality please study the book WLG Lemaire: Het Wetboek van Strafrecht voor Nederlandsch Indie vergeleken met het Ned, Wetboek van Strafrecht.

5. There are also differences regarding the implementation of criminal acts. For example Article 20 Ned. WvS determines that prisoners can choose to work or not, which in Article 19 of WvSI (KUHP) is an obligation to work. Article 24 WvSI (KUHP) is truly Indonesian and is not contained in Ned WvS, ie prisoners work outside the prison walls. Article 19 Ned. WvS, in conjunction with Article 28 WvSI

(KUHP), prisoners carry out criminal acts in various types of institutions, while in Indonesia this is not the case.

6. The minimum criminal penalty is lower in WvSI (KUHP), which is f 0.25 while in Ned. MvS. F 0.50. At present in the Indonesian Criminal Code the minimum fine is IDR 250.00

7. Provisions regarding psychopathen in Article 44 of WvSI (KUHP) are different because in Nederland there are several laws regarding this matter. In 1925 two laws were created there concerning psychopathen.

8. Similarly about. juvenile justice, in the Netherlands there are laws that were created regarding this matter.

9. The difference in the formulation of the provisions of forced defense (noodweer). In Ned. WvS is written in Article 41 (paragraph 1): Niet strafbaar is the one who has fallen into love, the geboden door de noodzkelijke verdedigen van eigen of eens anders lijf, eerbaarheid of goed tegen ogenblikkelijke, wederrechtelijke aanranding. In the equivalent article in WvSI (KUHP), namely Article 49 paragraph (1), the sound is the same, except behind ogenblikkelijke (that instant) inserted the word of onmiddelijk dreigende (or immediate threat). So, in Indonesia people are allowed to defend themselves in addition to instant attacks, also the threat of an immediate attack. According to WLG Lemaire, this happened because the experts composing WvSI CKUHP) in Indonesia (the Dutch East Indies) thought that the instant threat was too narrow, needed to be added (to Indonesia) with immediate threat. However, he said in the Netherlands, experts also interpreted the wide-ranging ogens and interests . As a note, the Penal Code translation of Moeljatno, specifically Article 49 (noodweer) does not have the word "or immediate threat" or other words as the onmiddelijk dreigende translation listed in the WvSI (KUHP). So, the Moeljatno Penal Code specifically Article 49 WvS (KUHP) is a translation for Article 41 Ned. WvS, not the Indonesian Criminal Code.

10. Even in the formulation of offenses in Book II there are several differences between Ned. WvS and WvSI (Penal Code), also include e na kar circumstances differ between the two countries. a. Formulation of Article 239 Ned. WvS which is equivalent to

Article 281 WvSI (KUHP) says the word "intentionally" in front "violates public decency". This happened because of cultural differences between the two nations. The definition of "decency" between the Dutch population is the same. In Indonesia, it is very different. Breaking morality according to Acehnese people is not necessarily the same as Balinese. So that the word "intentional" was added in Article 281 WvSI (KUHP).

b. Delik or offense " knevelarij " Article 366 Ned WvS which is equivalent to Article 425 WvS (KUHP), which later in 1971 was

included as a compilation offense, by the compiler of WvSI (KUHP) it was considered inadequate for Indonesia (Dutch East Indies). Thus, for Indonesia (the Dutch East Indies), Articles 423 and 424 were created which were not contained in Ned. WvS. Article 423 was also subsequently included as a corruption offense. Paragraph (1) Article 425 is exactly the same as Article 366 Ned. WvS, while paragraphs (2) and (3) are not found in i Ned. WvS.

Articles 423 and 424 inserted into WvSI (KUHP) are intended as "intermediate forms" between abuse of office in Article 421, extortion in positions in Article 425 and extortion in Article 368 WvSI (KUHP). Article 423 and Article 424 were created because he said in Indonesia (the Dutch East Indies) there was a special character of the crime of extortion in the position (knevelarij) in Indonesian society. [3]

11. Inside Ned. WvS is a type of theft that has no equivalent in WvSI (KUHP), which is called stroperij (robber), grass, dried leaves, soil, sand, etc. which are considered irrelevant in Indonesia.

B. DIFFERENCE THEN (NOW )

Difference between Ned. WvS and WvS (Criminal Code) are now widening. Ned. WvS is constantly being changed in accordance with the demands of technological progress. Also if carefully reviewed, the provisions concerning criminality in the Netherlands are getting "soft", Increasing "soft" in the author's opinion, through two lines, namely the elimination (decriminalization) such as overspel has been removed then changes in the formulation of offenses, for example Article 239 commensurate with Article 281 of the Criminal Code, which originally sounded except the criminal threat and the word "intentional" in Article 281 of the Criminal Code. The words "in public" are replaced with "in places that become public traffic" in Article 239 Ned. WvS it. It naturally decreases the person who violates the article, because "in public" explains the explanation, is in a place that can be seen by the public. For example, in the bedroom of her own house she is naked with the window open facing the uraum street, meaning in public because it can be seen by people passing by on the street. However, it is clearly no longer able to be convicted in the Netherlands of such an act, because the Kendiri house's lidur room is a place that has become public traffic.

Also getting "soft", because the criminal threat is all offense in Ned. WvS has an alternative penalty. There is also an insertion article, namely Article 9a, in which the judge may not impose a criminal offense, if the offense is small in meaning, the circumstances at the time of the offense, as well as afterwards.

At present the system of fines in Dutch WvS is based on categories, from categories one to six. In the list of categories that be included

maximum fines. The list of categories of fines is included in Book I, namely Article 23.

So, in each formulation the offense only mentions the threat of criminal penalties in what category. Since 1976 it has also been determined, that the corporation (legal entity) is the subject of criminal law. Corporations can be sentenced to crimes, which are clearly not possible imprisonment but especially criminal penalties. Therefore, suitable if all there is a ncaman criminal offense penalties as an alternative to imprisonment.

List the following categories: Kutegori 1, five hundred guilders. Category 2, five thousand guilders. Kat e gori 3, ten thousand guilders. Category 4, twenty-five thousand guilders. Category 5, one hundred thousand guilders. Category, 6, one million guilders.

This category system is suitable for countries with high inflation, because if the fine has become small as it is now (1995) in Indonesia, then only one article has been amended, namely that regulates the list of categories of fines in Book I of the Criminal Code. Perhaps that is also the thinking of the drafters of the Indonesian RK. The Indonesian Ministry of Law included a system of categories of fines in the draft.

The most basic change in the Dutch Criminal Code (WUHS), in the 1980s was the inclusion of alternatives (there are also alternatives / cumulative) fines on all formulations of offenses, including offenses against state security, including treason against the king.

In fact, if we examine there is not one formulation at the time this book was written which was threatened with criminal penalties according to the sixth category (one million guilders). The highest according to the fifth category.

So, the sixth category is still a reserve. Another change is the insertion of new titles such as: Titel VIII A. Special provisions for minors. Titel II A Action Titel XIX Abortion.

Many other articles of insertion, in accordance with the development of modern law, for example Article 139 a to Article 139 g concerning the act of secretly listening (eavesdropping) the conversation of others without permission.

Even when the book was compiled, the formulation of the "eavesdropping" or "eavesdropping" offense was proposed again to be repaired by a Commission in the Netherlands tasked with formulating computer offenses, so Article 139a, which is an insertion article that does not have an equivalent in the Indonesian Criminal Code, the complete change will read:

"Threatened by the longest imprisonment or fine according to the fourth category, whosoever with the help of technical tools a conversation is carried out or data submitted through objects that

are automated in a residence, the room is closed by the yard intentionally;

1. Hear secretly or record other than at the behest of a participant in the conversation or submission.

2. Recording form without become participant conversation or other submission of orders a participant said.

Paragraph two of this article concerning exceptions.

From the formulation of Article 139A of the Criminal Code (WvS) Dutch no criminal in the Criminal Code (old) Indonesia was, it was proposed to added that includes a computer offense. Words with cursive that consist of proposed amendments.

Effect of criminal law modern, such as the so-called su b sociality (subsocialiteit), which says that if an act is an offense but a small social meaning, not need to be dropped criminal or action, namely Article 9a which can be translated as follows. (1) "If the judge deems it appropriate to refer to the small meaning of an

action, the personality of the perpetrator or the circumstances at which the act was carried out, so after the deed is done, he determines in the decision that no crime or action will be imposed" (Indien de rechter dit raadzaam acht in verband met de grater van het felt, de persoonlijkhetd van de dader of de omstandigheden waaronder het felt is good, and wel die zadi nadien hebben voorgensi, right het het vonnis bepalen dat geen straf of maatregel warden opgelegd).

The influence of international criminal law as a result of the emergence of interstate agreements on criminal law is also reflected in the new insertion article in the Dutch WvS, namely Article 4a (March 6, 1985, Sib. 131), which came into force July 19, 1985, which reads:

De Nederlandse strafwet is toepassen op ieder tegie de strafervolging door is the genie van een vreemde staat op grand van een vedrag waaruit debevoegheid tot strafvervalging voor Nederland volgt. (The Criminal Law of the Netherlands is applied to every person whose prosecution is taken by the Netherlands from a foreign country based on an agreement that gives authority to the Netherlands to prosecute crimes). Apart from that, there is also an aspect of international criminal law

in the new insertion article, such as the abolition of the right to sue if the foreign country has been settled or not sued by the authorities there (Article 68 paragraph (3)).

Similarly Article 77 of the new bus, which was inserted in 1985, in paragraph (1) states that the right to prosecute crimes and the right to carry out criminal penalties is due to the submission of criminal prosecutions to foreign countries in accordance with the third part of the X title of the fourth book Wetboek van Strafvordering .

One thing that is not less important to know is that the provisions in the Criminal Code are not possible for cumulative imprisonment and fines, which have been breached by WVS . For example, in fraud and fraudulent offenses it is possible for cumulative / alternative imprisonment and fines.

In addition, comparison between imprisonment and fines under the new provisions in the Netherlands WvS not apply symmetrical. Not that if the prison criminal is higher then the alternative penalty is also higher. There are things that seem to be aligned with the effectiveness of criminal penalties. For example, offenses for theft (Article 310), the threat of imprisonment for years and fines are the fourth category. Compared to fraudulent offenses (fraud Article 326) whose criminal status is a maximum of 3 years, but the penalty is the fifth category.

So, the threat of imprisonment in the thefts is heavier than the fraud offense, but the threat of criminal penalties is lighter.

CHAPTER IV KUHP RUSSIAN FEDERATION

A. GENERAL

The Criminal Code of the Russian Federation, including the most recent KUHP in the world, was compiled after the collapse of the Soviet Union, promulgated by Law No. 63-FZ June 13, 1996. Received by DPR Duma May 24, 1996 and Federal Assembly June 5, 1996. It is affirmed in Article 2, that this Criminal Code is based on the Constitution of the Russian Federation and general principles and norms recognized by international law. It is also emphasized about the objectives of the Criminal Code of the Russian Federation as follows: "protect the rights and independence of people and citizens, property, public order and public security, the environment, and the Russian Federation's constitutional system of criminal offenses, maintain peace and humanitarian security and also crime prevention. "

So, the philosophical basis of the Criminal Code (criminal law) is stated in Article 2. The principle of legality is regulated in Pasai 3, which is somewhat different from the soundness of the legal principles contained in the Criminal Code of other countries such as Indonesia, the Netherlands, France, etc. because it is not called criminal statutory provisions before the acts. So, it is not implied that criminal legislation is not retroactive. Article 3 paragraph (1) reads: The criminality of a deed, and also its punishability and other consequences shall be determined by the present Code alone. (The crime of an act can also be punished and other consequences will be determined only by this Book).

Although it is not mentioned, there must be criminal legislation that precedes the action, but it is confirmed prohibition of analogy in Article 3 paragraph (2). In contrast to the Criminal Code of other countries including Indonesia, the Netherlands and others if there is a change in legislation, the most favorable provisions applied by the defendant, the Russian Criminal Code puts some distance, namely in Article 10 and covers the reduction of criminal penalties if new legislation reduces criminality for this act.

It is affirmed in Article 9 paragraph (1) of the provisions stating that criminality and the conviction of an act are determined by the criminal law that applies when the act is committed. Paragraph (2) was confirmed again, when an act (neglect) the social harm, is considered done at the time of the perpetration of crimes regardless of the time of the result.

Similar to the provisions in the French Criminal Code, Article 4 of the Criminal Code of the Russian Federation confirms the principle of individual equality before the law. People who have committed violence will be the same before the law and must be brought to criminal liability, regardless of gender, race, nationality, language, origin, property , official status , place of residence, attitude towards religion, belief, but in public associations or other circumstances. "

The principle of justice is also affirmed in Article 6 paragraph (1) saying: criminal and other legal actions that are applied to someone who has committed an offense, must be fair, that is in accordance with the character and degree of the social danger of the offense, the conditions when doing the act that and the personality of the guilty party. Pa sal 4 verse (2) reads: No one? may be burdened with multiple criminal threats for one and the same crime. Added in Article 7 paragraph (2): Criminal and legal actions applied to someone who has committed a crime should not aim to cause physical suffering or violate human rights.

Regarding the entry into force of criminal law based on the place and time regulated similar to the Criminal Code of other States. Extradition is specifically regulated which says that the citizens of the Russian Federation who carry out crimes abroad cannot be extradited to that country. Foreign nationals who commit crimes outside Russia and are found in Russia, can be extradited to that State for criminal liability and carry out their crimes in accordance with that State agreement with the Russian Federation.

The system of the Criminal Code of the Russian Federation consists of two books (parts). Book I consists of 6 paragraphs. Paragraph I concerning criminal law; Paragraph II about crime; Paragraph III concerning criminal; Paragraph IV extends from criminal liability; Paragraph V concerning criminal liability of children under the age of; Paragraph VI concerning acts of coercion on medical grounds . Book II consists of four paragraphs, namely paragraph VII concerning crimes against people; Paragraph VIII concerning economic crimes; Paragraph IX concerning crimes against public security and public order and Paragraph X concerning crimes against State power. There are still additional paragraph XI concerning Crimes against military service; Paragraph XII concerning crimes against peace and humanity.

What is described here is something different from the Indonesian Criminal Code nesia, for example, which is seen as a crime is an act that is socially harmful because of an error, and is prohibited by the Criminal Code and threatened with criminality. Crime is divided into: minor crimes, rather severe crimes; serious crimes, and very serious crimes. If the criminal threat is not the first e bih than two years in prison then including an evil ring. Called crime is rather heavy (medium) if the criminal threat is no more than five years in prison. If the criminal threat is ten years in prison, then it is called a serious crime. If the criminal threat is more than ten years imprisonment or more severe is called a very serious crime. What is rather special is that the criminal for the combined delik (concursus; samenloop) is the summing up of all crimes or the cumulative system if. So, it is the same as America and is different from Indonesia and the Netherlands who are familiar with the absorption system.

Recidivism is specifically regulated for crimes committed intentionally. Distinguished serious crime recidivism:

a. If he commits a serious crime, he has been sentenced twice to prison for intentional crime which is a moderate crime; b. If he commits a serious crime that has been sentenced to jail because of a very serious or very serious crime.

A recidivist is considered very dangerous if he commits a serious

crime that has previously been jailed twice for serious crimes. Regarding recklessness it was asserted that the statement of intent

or extraordinary carelessness was seen as a crime committed intentionally. Article 29-31 formulating the offense is not completed, Article 31: A person is not responsible for the criminal. He refused to commit the crime. If someone refuses to doing will be responsible for criminal crime if deed filled the element of another offense. Refused to do evil, meaning that stop own implementation of offense.

B. PARTICIPATION Article 32 states that intentional participation by two or more people

to conduct delinquency is deliberately considered to have participated in the offense. Article 33 regulates the types of participation, namely the perpetrators, organizers, advocates (instigators), and assistants are seen as participants. The Russian Criminal Code does not recognize the type of doenplegen (making other people do) such as the Indonesian Criminal Code which follows the Netherlands. Someone who participates directly with another person (co-perpetrator) and those who commit an offense by using another person who is not responsible for crime because of being underage, mentally ill, or other conditions specified in the Criminal Code are seen as perpetrators. So, similar to the other KUHP other than the Dutch Criminal Code and Indonesia doen pleger (the perpetrator of the perpetrator) according to the Russian Criminal Code the same as the perpetrator (pleger). Penganjur (instigator) is the same as fishing (uitlokking) in the Dutch and Indonesian Criminal Code because it says: A person who has abetted another person in crime by persuasion, bribery, threat, or any other method shall be deemed an instigator.

An accessory is given in accessory in Article 33, namely those who help to be violated by giving advice, instruction in making offenses, or removing obstacles to it, also those who hide criminals, tools or instruments to do offenses, or objects obtained from crime, or willing to accept the object. So, it is different from the Indonesian and Dutch Criminal Code which does not recognize assistance after the offense is committed (which is an offense of its own such as hiding criminals and collecting). C. CRIMINAL

Article 41 paragraph (2) regulates the purpose of punishment, namely restoring social justice, repairing criminals, and preventing further crimes.

Which is somewhat different, for example, the arrangement of robbery and rape offenses of various types is not one type like Indonesia. This Delik is prepared with quality (ballast wounds).

Article 131 regulates rape which consists of three types: 1. Rape by using violence, or threats to victims or other people or taking

advantage of helpless victims (the latter in Indonesia does not include rape while intercourse with women who are helpless or unconscious, as stipulated in Article 286 KUH P). His sentence was from three to four years in prison. Far under the threat of Indonesian criminality which is a maximum of 12 years in prison.

2. rape carried out by a group of people under a conspiracy or organized group. rape with the threat of murder or seriously injuring the victim or carried out very cruelly (especially cruelty) to the victim or other person. Rape which causes victims to contract venereal disease. Rape of women who are real teenagers. Penalty for point 2 is four to one year in prison.

3. Rape due to negligence caused the death of the victim. Rape due to negligence caused serious injury to the victim, HIV infection or due to other weight. Rape of women who are not yet 14 years old. Penalty for item 3 is eight to 15 years in prison. The draft Indonesian Criminal Code also regulates criminal offenses for several types.

The Criminal Code of the Russian Federation also regulates

offenses for several types of killings : 1. Kill two or more people. (in Indonesia and the Netherlands this

includes the realist concursus, with criminal added 1/3.) 2. Killings of people or their families in the official activities of that

person or in carrying out public duties. 3. The killing of a person known to the killer in a helpless state. And

also murder through kidnapping people or holding hostages. 4. Removal of women who are known to the killer in a state of

pregnancy. 5. Murders were very cruel. 6. Murders are carried out in a very dangerous manner. 7. Murder is carried out by a group of people through collections or

organized groups. 8. Murder with a motive without mercy by renting, or accompanied by

robbery with violence, extortion, or bandit. 9. Murder done in a very evil way. 10. Murders are carried out to hide other crimes or to facilitate their

implementation, and also killings accompanied by rape or other acts of sexual violence.

11. Murder committed for national, racial or religious reasons or hostility or blood hostility.

12. Murder with the aim of obtaining body organs or tissues.

The crimes for the 12 types of killings are deprivation of independence from eight to 20 years, or capital punishment or seizure. independence for life.

CHAPTER V GERMANY AND RUSSIA

A. German

These two countries are equal or variable in the fields of law, language and culture. The two countries revised and imposed their new Criminal Code in 1975. The revision can be said to be polishing the old KUHP, so that it is in accordance with the times.

Criminal Code of 1975 introduces additional measures, namely a reprimand and penundi ng mentioned in Article 59, It is imposed if there is hope the accused will stop doing bad deeds and public order does not require the defendant was sentenced. However, this action is rarely applied.

Article 153 deals with dismissal of prosecution carried out by the public prosecutor. This is done if the court and the defendant's e're going with a specific imposition, the recovery of damages, the distribution of money to government agencies, or public services (public servic e). Meskip un is not the same, can be compared with schikking in economic offenses in Indonesia and the Netherlands. Because Jerm a n embraced the principle of legality, it should be dis schikking etujui by the judge. Kete Pomlkiun shortages of Senior Attorney in Bonn when penul i s located in the Ministry of Justice of Germany (Bonn February 12, 1991).

Austria also that the principles of legaKtas the prosecution, the public prosecutor still b e rw e nang to exclude the case or to the prosecution on condition honlikiin. So, it is also similar to schikking in the Economic Criminal Law.

The main crimes in the German Criminal Code are only two important ones, namely a maximum prison choice of 15 years or a lifetime, and criminal penalties as the most important alternative. Besides that, it is known that the criminal has been postponed (suspended sentence).

It is known that a number of actions have also caused the loss of independence, namely being placed in psychiatric settings , placed in healing drug addiction, placed in social therapeutic institutions, and confined to strict security for public safety (confinement with high security for reasons of public safety).

There are still other actions that do not cause the loss of independence, which are called preventive measures including revocation and postponement of driving licenses and prohibitions on carrying out professions. The hardest action, is confinement with tight security for public safety, which is also called preventive detention. This action is imposed on recidivists who have served at least two years in prison. The first imposition is limited to 10 years the second line is not limited to duration. In 1978 there were 268 people convicted. What hasn't gone well, is the act of social healing, this is an imitation of Denmark called the Herstedester. In the Netherlands there is Van der

Hoeven Kliniek and in the UK there is the Maxwell Jones therapeutic community. This institution in Germany is intended primarily for multi recidivists who are dangerous with deviant personalities and also for dangerous sexual criminals and certain young recidivists who are very poorly estimated. This institution cost a lot of money, so it was delayed until the late 1980s. The states want this social healing to be carried out in an ordinary prison (special section) for financing reasons.

B. AUSTRIA Austrian criminal law is always parallel to German criminal law. What is different is the implementation. Basic crimes are only imprisonment for life and fines. Both can be applied together. In 1975 Austria issued a regulation concerning actions for mentally ill offenders, narcotics abusers and drug addicts and dangerous multi-recidivists.

Since 1966 there has been a trial of ten years. Then, in 1979 it was made 12 years and in 1980 a trial was held which was permanently accompanied by coaching afterwards (after care service).

Trial crimes in Austria have character as a methodological sanction, social work, and organizational restrictions. Criminal penalties are imposed on all imprisonment for up to six months, unless deemed necessary for the accused to be imprisoned to prevent them from committing further offenses. Criminal penalties apply only to the imprisonment of more six months if deemed that the p idana prison is no need for special prevention. The imposition of fines will be satisfactory in general prevention objectives.

Criminal penalties are carried out in the same way as the German model, with the difference that 1 day of imprisonment in Austria is equal to 2 daily fines. Whereas in Germany 1 day prison is converted to 1 daily fine day. If he is unable to pay, due to changes in his life, a new amount of daily fine will be determined or he will go to jail. Daily fines are the same as in other countries (Germany, Portugal, Denmark) intended for short imprisonment alternatives.

CHAPTER VI CHINESE PEOPLE REPUBLIC

The PRC is one of the communist countries that still survives, even

though in its economic life it has opened up and in certain cases has also taken the "path of capitalism".

PRC Penal Code drafted in 1979 and came into force on January 1, 1980, so including the Penal Code still modern in the sense of a new Criminal Code of the PRC still be r characteristic of communism, in the absence of provisions on the principle of legality (nullum crimen sine lege stricta). There are also no provisions regarding changes in legislation that are generally determined in many of the Criminal Code in the world, which are applied to those who benefit the defendant. It is also emphasized in Article 2, that criminal acts in the PRC are used as a means of struggle to face counter-revolutionary actions, to maintain the system of the dictatorship of the proletariat to protect socialist property and so on.

Provisions regarding the enactment of criminal law, in general there is no difference with the provisions in the Indonesian Criminal Code and other Criminal Code, except the provision, that criminal liability for foreigners who enjoy diplomatic immunity will be resolved through diploma channels (Article 8) that.

The criminal type of the PRC Criminal Code begins with Article 38, namely: 1. Supervision (for minor offenses). 2. Criminal detention (for relatively minor offenses). The convict is sent

somewhere. Can you get home to one or two days every month and for work, he is paid. This cannot be confused with detention before a hearing held by a public security agency.

3. Prison a certain time. 4. Life in prison. 5. Death Penalty.

It is also different from our Criminal Code in additional types of

criminal penalties, because fines are a basic crime like us. Additional crimes are referred to in Article 29: 1. Fines. 2. Revocation of political rights. 3. Appropriation of property. We do not recognize the withdrawal of political rights, but we know the introduction of certain rights, for example to hold certain positions.

Also this additional criminal sanction of the PRC can stand alone, in contrast to our Criminal Code which is attached to the principal penalty, except certain things, a stand-alone statement can be held , for example about false things.

The death penalty is special, because it only applied to perpetrators k e jah a tan very cruel, the death penalty may be delayed for two years, the accused was given a job and supervised. Death penalty must be ratified by the Supreme Court. Death penalty is not applied to actors b e lum reached the age of 18 years at the time he was doing it. K a lau he behaved well during the two-year delay, he can commuted to imprisonment and not more than 20 years in prison. If during the delay time he refused to improvements in ways k e hatred, he was executed in accordance with the approval of the Supreme People's Court.

The amount of fines paid is adjusted to the conditions at which the crime was committed, so it is not the ability of the convict as a case of the Criminal Code of Germany, Austria and Scandinavia. If he doesn't pay? If he is unable, the fine can be reduced or deleted. Revocation of political rights includes. 1. The right to choose and be elected. 2. Rights specified in Article 35 of the 1982 Constitution. 3. Rights to occupy positions in state bodies. 4. The right to hold a leadership position within a company, institution, or

people's organization. The fourth is completely contrary to our criminal law system.

Revocation of this right is no less than 1 year and no more than 5 years. The PRC Criminal Code concerning a minimum criminal sanction is

different from our Criminal Code which only covers a general minimum of 1 day in prison or imprisonment.

The division of chapters in Book II (Special Terms) is very simple and different from the Indonesian Criminal Code, because the number of chapters (types of offenses) is only 8, from Chapters I to Chapter VIII. Many types of offenses in our Criminal Code stand alone in chapters, in the PRC Criminal Code incorporated in one chapter. There is no chapter on decency offense. The chapters are: 1. Counterrevolutionary crime. The contents of this chapter are the

political and ideological criminal law which intends to maintain the ideology of communism and the dictatorship of the proletariat.

2. Crimes that endanger public order. These include burning, explosions, sabotage of factories, mines, oil fields, ports, rivers, water sources, warehouses, residential houses, forests, agriculture, important pipelines, etc., include also sabotages trains, cars, trams , ships, airplanes, and roads, bridges, tunneling, highways, airports, waterways, lighthouses. Also sabotage power plants, gas, transportation, and others.

3. Crime undermines socialist economy. In this chapter including those we know with economic crime, such as smuggling, foreign exchange, taxes, counterfeiting of money, valuable bags, and brands. It also

includes environmental crimes, such as: forest digging, animal hunting, and so on.

4. Crime violates the personal rights and democratic rights of citizens. In this chapter stacked various delicts in the Indonesian Criminal Code are located in different chapters, such as: persecution, murder , rape, false reports, and others. Short ones that attack personal or personal interests such as beating. Copulation with girls under 14 years is considered rape.

5. It also includes the act of forcing women to prostitute, sell people, seize people's freedom, illegitimate searches, insults, and others.

6. Crime of property infringement. Here includes the theft carried out by violence, personal property theft, custom theft, fraud, extortion, official corruption, and destruction of public and private property.

7. Crime destroys orderly social administration. Here includes crimes against officials against court decisions, disruption to social order, gathering to disrupt order in stations, ports, civil airports, markets, public parks, cinemas, exhibitions, sports fields, holiganisrne, gathering for fighting, undermining public order, escape from custody, hide the counter, store weapons, making or selling drugs, the magic that makes the hearsay, confess officials to deceive, forge, steal, alter, destroy official documents, gambling, persuading women to prostitution, pornography, narcotics, imprisonment, archaeological objects, border mark sabotage, border violations, border quarantine violations. Anyway, another systematics altogether rather than the Criminal Code Indo Eng (and the Netherlands).

8. Crime breaks (ruins) marriage and family. Here includes violence to interfere with marital freedom, bigamy or marry someone who knows the person has a family, marries someone who has married an army, persecutes family members, neglects the obligation to help parents or children or sick people, kidnaps children under 14 years old or separate from their parents or mentor.

9. Crime leaves (neglect) obligations. Here includes officials who are corrupt, divulge state secrets, officials who because of negligence cause harm to public property, or the interests of the state, or the people, judicial officials seek their own profits causing someone to be prosecuted, even though he knows they are innocent or intentionally protecting him from prosecution he knows that the person is guilty, the judiciary is against the law and regulations, about prison management, punishes the prisoners body, judicial officials who release criminals on their own behalf , postal or telecommunications employees who open, hide or damage letters or telegrams at will own.

The last chapter of the Criminal Code, ie Article 192, which is still

part of Chapter VIII, said that if p e handshake aforesaid conduct less serious offense, it may be subject to administrative action ol e h each department. It is obvious, that the division of the chapter and the

formulation of the Criminal Code offense of PRC very simple, many kinds of Indonesia's Criminal Code offense in the Criminal Code does not exist in the PRC. Apparently this Criminal Code was compiled for practical purposes, meaning that only ordinary offenses were posted. This is also consistent with the adoption of the application of analogy.

CHAPTER VII PORTUGAL

The Portuguese Criminal Code determines the principle of legality explicitly in Article 1 to 1 which reads: An act that is only criminally finished if it is committed before the act is committed ( An act may only be criminally convicted if it is determined to be convicted by law). invoice before the action was taken). So, it is strictly and concisely arranged.

This principle of legality is reinforced by the prohibition on the application of analogies. Article 1 to 3 says: An appeal to the law is not permitted to qualify as criminal, to determine a case of perilousness, or determine a corresponding security measure. (The application of analogies is not permitted to qualify an act as a criminal act or determine a dangerous case or to determine a criminal or security action in question).

Regarding the changes in legislation that favored the defendants of the Portuguese Criminal Code, it was more strict and complete. Article 2 to 2 reads: A punishable act in according to the moment of completion, even if a new law eliminates it from the number of infractions, in this case if there is hr .. been comdemnation, even if it becomes a definitive sentence, the execution ceases and all its reason effects. (Failure by convicted an act in accordance with the legislation in force at the time of its completion, stops may be liable if a new law negate of a list of offenses, in this case have been sentenced, so decision has become definitive, execution stop and sem ua the criminal effect).

So, it is different from the Indonesian (and Dutch) Criminal Code which does not say if the defendant has been convicted and has power (rather than changes in legislation that benefits the defendant.

About laws prevailing criminal contemporer in Indonesia and the Netherlands ha of its doctrine and the decision court that the defendant can be imprisoned if he were tried after the temporary regulation expired, the Criminal Code Portugal confirm in the norm, namely in Article 2 to 3, which reads: If the law is valid for the period of time, the committed act continues to be finished.

The Portuguese Criminal Code includes modern K UHP in a very new sense . The Penal Code drawn up entirely in a revolutionary radically changing system la ma Penal Code comes into force 1 Janu ari its Criminal Code 1983. The more recently, effective January 1st, 1987. It s e h a rusnya first created the Criminal Code rather than the Criminal Code. Unlike us, the KUHAP was created first.

Both of these books are different from what was previously especially about criminal sanctions. The process began with the appointment of Eduardo Correia, a professor, by the Minister of Justice in 1961. The old Criminal Code was in effect since 1886 (it became exactly the same age as Ned. WvS which applies now in the Netherlands). The Portuguese Criminal Code was even earlier, in 1852.

Unlike the preparation of the new Criminal Code in other countries, the Portuguese Criminal Code was arranged in installments. The draft Book 1 concerning this Provision was compiled in 1963 while the Standard II concerning Special Provisions was compiled in 1966. The central point of criminal law reform in Portugal lies in the criminalization and humanization of administrative criminal prosecution, the handling of criminal imprisonment, and the emphasis the protection of the public and rehabilitation offenders.

To realize this goal, several draft laws were drafted which contained:

1. introducing new sanctions and methods of implementation such as weekend detention and detention; 2. expand the scope of existing sanctions and methods of execution, such as pending penalties, fines that must be based on day fine and parole; 3. reduction in the use of detention measures; 4. elimination of types of imprisonment;

5. raising the minimum prison sentence to 1 month. The criminal sanctions contained in the old Criminal Code of Portugal are many kinds of very hard dim. Thus, the compilation of new sanctions in the 1983 Criminal Code is simplified. The new sanction system is: - principal punishment; - additional criminal; - criminal which is relatively undetermined (time period); - measures to protect public safety. The principal criminal case consists of:

- imprisonment; fine; - pending crime; - conditional criminal (probation); - public outbursts; - community service crime ; - conditional release.

Sanctions that are not contained in the Indonesian Criminal Code,

are punishments that are postponed, reprimand in public, and criminal social work. However, this criminal social work is in the Draft Criminal Code. In addition, even though criminal penalties also exist in the Indonesian Criminal Code, the system of inquiry is different. Criminal fines in Indonesia are general in nature, meaning they are equal to the maximum amount for each offender for the same offense. Not based on income are calculated per day of offense offender. So Portugal penalties in the Criminal Code is the same with Germany on its implementation, which is based on the income of offenders per day. So, the fine imposed on rich people is greater than for people with low income, for the same

offense. That is, to make criminal penalties effective as an alternative to imprisonment.

Additional penalty is dismissal or suspension from public office at as denial of the right to serve a particular position, job or function.

Crimes that are relatively undetermined (time period) are a kind of prison speech that can be imposed in certain circumstances on professional or customary prisoners, or who are addicted to alcohol or drugs . The duration of the sentence is not determined exactly at the time of criminal imprisonment, but depends on the results of the treatment, which is an integral part of this decision. The judge only determines the minimum and maximum of this criminal. This depends on the case, the hole becomes two, four or six years more than imprisonment that can be imposed.

This type of criminal punishment is not found in the Indonesian Criminal Code, also the Criminal Procedure Code . In: a new model criminal, which is truly in accordance with the purpose of the planning in the form of rehabilitation.

Furthermore, the so-called action for the safety of the public, subject to the offender who is not accountable for his actions, including placement in institutions for maintenance, treatment (treatment) or protection and a ban on profession or business (job) specific.

Prison sentences in Portugal, which used to be of many types, are now only one, namely "imprisonment". In the past, the minimum sentence of imprisonment was three days (Indonesia, 1 day), now it is raised to one month. So, in fact dinaik Draft Indonesian Criminal Code should not it also be a minimum of 1 month imprisonment, in line with the per-struggle of reducing brief imprisonment. The maximum jail sentence for Portugal is reduced from 24 years to 20 years. The maximum prison sentence can be increased by a quarter (25 years) in certain offenses such as genocide (mass murder) and terrorists. Both imprisonment and relatively undetermined ones have not passed 25 years.

Actually imprisonment Penal Code Portugal according to time period is relatively, because there is no general minimum and maximum public. Each offense is specifically determined the minimum and maximum. Known conditions that alleviate crime, for example if the damage has been repaired, it can be subject to less criminal penalties than the minimum.

Because it is determined by the legislator that a short prison sentence (six months or less) is very limited and given strict limits, then it is determined in Article 43 that all imprisonment of six months or less must be replaced in a balanced manner with a day fine) If a short term criminal sentence cannot be avoided , all negative aspects and adverse effects should be avoided.

Similarly specified in Article 44 and 45, that judges are chance to convict the until 3-month run as detention weekend (weekend), or detention half.

Weekend detention (prisao por dias livres) is run a maximum of 15 weekends, each consisting of a minimum of 36 hours and a maximum of 48 hours. One weekend is four days in prison. Imprisonment can be substituted into detention weekend, if the judge consider about personality and situation personal, behavior before and after the offense done and circumstances at the time the offense is done, the imposition of detention weekend a not show condemnation effective against the offense and prevent recidivism .

This consideration is the same as the consideration listed in Article 9a Ned. WvS (see in advance), but based on Article 9a, a Dutch judge may not impose a criminal sentence, not replace a prison sentence to be a weekend detention.

Criminal penalties are applied based on day fine. If this fine becomes the most important alternative to imprisonment, especially for short prison sentences. Criminal sentences of 6 months or less must be converted into criminal penalties.

Fines can only be an alternative to imprisonment that lebi h long (six months), if the offense was punishable by a fine as the principal criminal. In addition to being an alternative prison sentence, fines can also stand alone as the main criminal. The difference between fines that replace imprisonment (brief) and penalties imposed stand alone, is that the first is actually a model of execution (criminal conduct).

One day of daily fine of at least 10 and at most 300. Even though the defendant has more than one offense, the maximum is 300 days.

The minimum number of fines per day is 200 and maximum of 10,000 escudos. So, this means that even though the convict's income is less than 200 escudos per day, they still have to pay 200 escudos. Similarly, if his income is more than 10,000 escudos per day, he cannot be fined more than 10,000 escudos. Thus, the maximum fine in Portugal is the maximum number of days (300) times for fines per day of 10,000 escudos, namely 3,000,000 escudos. The minimum is 10 days 200 escudos, equal to 2,000 escudos.

Social work crimes (community service; trabalho a favor da communidade) in Portugal have actually existed for a long time, only their application is different in the current Criminal Code.

Changes to the Criminal Code 1983 are social work crimes are the main criminal. There are two kinds of work without being paid. 1) As an alternative criminal for a sentence of imprisonment of 3 months

or less or a fine of up to 90 days (Article 60 of the Criminal Code). 2) As a criminal substitute for fines that cannot be withdrawn from the

convict's income or assets (Article 47 of the Criminal Code). Fines for up to 6 months imprisonment are included in this sense if the fine is not paid. So, indirectly the social work replaces imprisonment (up to 6 months).

There is an inconsistency between the provisions of social work in the legislation and the regulations implementing the criminal, so that happen gaps such as the nature and scope of social work, requirements for approval of the convict, reports the supervisory social, guidance and supervision of the existence and consequences if it turns out social work fails.

Therefore, we must learn from the experience of the criminal setting k e rj a social from Portugal, especially later if we draft Penal Code lists the criminal social work as one of the major criminal be accepted by the House, to be followed by the implementation regulation neat.

It is apparent in statistics in Portugal that social work criminality is still less applied. The Criminal Procedure Code has been in effect since 1983, in that year only one case subject to social work crimes, in 1984 and 1985, only 6 cases each. Compared to imprisonment (which was not postponed), which were 5,955 (1983) 6,261 (1984), 6,697 (1985) or 43%, 39%, and 35% of all cases.

Imprisonment which was converted into a fairly large fines, 4175 (1983), 3606 (1984), and 4:48] (1985) or 31%, 23%, and 23% dar i whole case.

So, criminal social work faces many obstacles in its implementation. Therefore, Sweden is different from its neighboring countries, it still rejects this type of crime and has not yet entered the 1965 Criminal Code.

The suspended sentence called suspensao , do execucao da pena has long been listed in the Portuguese Criminal Code, namely since 1893. At first this criminal was limited to imprisonment corrections combined with criminal penalties or not. Only a novice criminals to known imprisonment pending.

It was later amended in 1954 where a criminal fine could also be postponed. Offenders who have been sentenced to prison sentences cannot be given a suspended sentence.

At present, any recidivists can be subject to criminal sanctions which are postponed. Criminal to 3 years (formerly 2 years) can be postponed on condition. Can also be given a fine that is not postponed. Fines can only be postponed if the convict cannot pay (Article 48 of the Criminal Code).

It is the judge who determines the sentence that is postponed if according to his consideration the pending criminal is sufficient to prevent the convict from committing a crime again and also in accordance with public condemnation and general prevention. Consider personal, personal circumstances, at the time and after the crime is committed. This can be compared with Article 9a Ned. WvS that the judge can not impose criminal if there are things like that. Terms of criminal delay: 1) compensate the victim or there is a guarantee for that; 2) make victim moral improvement; 3) payment of certain money to the victim, to the state equivalent to the

amount of the fine imposed for the offense.

Can also be subject to other conditions. Can be placed under p e ng a wasan. If the conditions are violated, the judge can take action depending on the seriousness of the violation. Actions that can be taken: 1) public rebuke, 2) bail, 3) extend the trial period, 4) revocation of the postponement of the criminal and stipulating the

original criminal. Revocation can be done if the defendant does not who is threatened with imprisonment carried out intentionally.

CHAPTER VIII DENMARK

Denmark created the Times Codification in 1683 under the name Danske Lov. The form is not yet modern as in the various Penal Code countries today. In 1866 a separate Criminal Code was created and was valid until 1933, a Criminal Code created in 1930.

The old provisions regarding sanctions are still maintained between other: 1. low minimum regarding criminal detention (7 days) and imprisonment

(30 days); 2. the basics of the possibility of criminal reductions that give the judge

the authority to discretion at the time of executing the criminal. A major change regarding sanctions in Denmark occurred in 1973,

namely by Law No. 320, June 13, 1973, eliminating the imprisonment of children, work institutions, detention for security reasons, and imprisonment for treatment. Since then, sanctions in Denmark have been:

jail,

simple detention,

fines as general crimes,

pending crime,

detention to secure,

seizure,

revocation of rights.

Prison criminal (faengset) is a fund that is general in nature at least 30 days, the longest is a lifetime or 16 years. In a k e Circumstances could become 20 years old. Imprisonment life normally converted into a certain period with the pardon if it is past a certain time. Parole can be applied.

Penal Code define some way of execution of imprisonment, such as p e n a hanan at night time (Article 34) the convict can do a particular job. How the implementation of imprisonment can be determined with a p e , hundreds of ministers of justice or the king.

Simple detention lasts at least 7 days and most lam a 6 months. This criminal lighter than imprisonment, usually dik e nakan against offenders who drive under the influence of a lkohol or other traffic violations. But in practice no different by imprisonment in the sense of the bitterness of life in prison . This type of crime is parallel to imprisonment in the Indonesian (and Dutch) Criminal Code. The time period is different, because the midwife is a prisoner for at most one year and at least 1 day.

Fines (bode), as well as Germany, Austria, Portugal, Swedia, and Iain, fined in Denmark run by way of fine daily (day fine). The minimum

daily fine is one day and the maximum is 60, but if more than one offense is committed, the daily fine can be accumulated indefinitely. Daily fines are calculated with income per day reduced by costs such as family expenses. The minimum daily fine is 2 Danish crowns, while the maximum is not specified. Thus, it is different from Germany with a maximum of 10,000 marks and the maximum Portugal also 10,000 escudos.

In contrast to other countries, the Criminal Procedure Code recognizes also certain fines (for certain). The Criminal Code does not determine the minimum and maximum penalties, and is the most important sanction for money. This exact penalty can be imposed on suspended imprisonment (58 KUHP).

In certain cases, prosecutors and police may also impose criminal penalties for m e Preventing criminal prosecution. Under Article 723 KU H AP Denmark, prosecutors can rule out the case on condition defendant pay a fine determined by prosecutors and confirmed by a judge who called Tiltalefrafald. In Sweden the imposition of fines by prosecutors is called patale unnlatese.

This provision can be compared to transactions carried out by officier vanjustitie in the Netherlands or the practice of schikking (peaceful fines) in Indonesia. Because it is not determined by our Criminal Procedure Code that there is such authority for the prosecutor, since the 50s the Attorney General used to exclude cases (smuggling) based on the principle of opportunity provided that the defendant pays certain fines. Our 1981 KUHAP too to mention the authority of the Attorney General to exclude matters in the public interest.

If the fine is not paid in Denmark, then together with Sweden and Norway, converted m e njadi imprisonment. In Indonesia it is converted into a prison sentence.

In certain cases, detention can be 9 months. Fines paid in excess of 1,000 crowns outside the judicial program are determined in exact terms. The calculations are as follows: 0 - 399 crowns are the same as 2 days of detention, 400-799 crowns are equal to 4 days of detention, 800 - 999 crowns are equal to 6 days of detention, 1,000 crowns are the same as 8 days of detention.

Can be given the first example as follows: The convict is sentenced to 7 months in prison, with the provision that 3 months must be served, while the rest (4 months) is postponed (with conditions).

Secondly, the convict was sentenced to 3 months in prison and must be served, while the remainder has not been determined and postponed, So, if the conditions are not fulfilled, then it is determined exactly how long you have to go.

In short, the Danish suspended criminal sanction system is very sophisticated and requires mathematical calculations. The main requirement in the postponed criminal case is that the convicted person does not commit offenses during the period of delay, and the judge can determine special conditions. So, it is the same as general terms and

special conditions in Indonesian conditional criminality (Criminal Code 1918).

The duration of the trial period in Denmark is three years and can be extended in certain circumstances to 5 years (Article 56 of the Criminal Code).

For special prevention it is determined that the suspended criminal be imposed on juvenile criminals, youth criminals, and criminals regarding property. It was determined that for general prevention limiting judges in suspended criminal acts, which involved violence offenses, perjury, sexual crimes whose victims were minors, and other serious delusions such as forgery, rape and robbery.

Specified conditions in the trial for the postponement of the criminal that can be imposed by the judge are eight, as follows. a. Comply with rules regarding residence, employment, education, leisure

time, or association with certain people. b. Subject to submission to the institution for a certain period of time for a

criminal not more than one year. c. The convict stopped abusing alcohol or drugs. d. Subject to treatment from alcohol or drug addiction, if necessary at the

hospital. e. Subject to psychiatric treatment, if necessary at the hospital. f. Comply with Trial Official instructions regarding spending money and

capital. Pay compensation for losses caused by offenses committed. g. Fulfill the instructions given by the Child Welfare Officer and fulfill their

specified conditions. Criminal Social Work (Community Service)

This type of crime is also known in Denmark. There are many actual obstacles in implementing this criminal justice system, starting from the challenges of trade unions, which is due to the reason that there are still many unemployed people, how lenders can be given jobs. Therefore, before a person is sentenced to this type of crime, a report from the Criminal-Forcorgen (the body that supervises conditional crime) is requested first . The report me initiation, family circumstances, work history, and education convict. Reports to determine whether or not a convict can be charged with criminal social work.

In short, this report concerns the estimation of whether this criminal will succeed in achieving its objectives or not. Special reports come from judges, public prosecutors, defendants, or legal counsel.

The convict must agree to be charged with criminal social work. Other sanctions are detention for security (safe custody; forvaring). This sanction is coaching (treatment) known since 1973 with the name forvaring. The application is very limited to very serious offenses, makers of threatening the lives, health, bodies, or independence of others.

This detention for security (forvaring) should not be more than a year, but if there is a request from the Public Prosecutor, it can be subject to new detention. Delayed Crime There are two kinds of suspended crimes: 1. A criminal fix is postponed, 2. Delayed criminal implementation. The second is this which is parallel to our conditional criminal, while the first system is not known in Indonesia.

Detention crimes and suspended crimes can be combined: the judge determined that the detention criminal was partly carried out

with a maximum of 3 months and partly suspended. the judge determines the length of the sentence in part, and the other

part is left open (not yet determined). The part that must be traveled is a maximum of 3 months, while the rest can be converted into imprisonment if the convict does not fulfill the conditions imposed on him.

Determination of criminal delays with part of what was undertaken

and part of which was postponed was introduced as long as 1961. As for pending criminal acts which are partly determined and must be carried out while some are not determined, introduced in 1965.

CHAPTER IX SWEDEN AND ARGENTINA

A. SWEDEN

The history of Swedish legislation began by promulgating various legal provisions in the Codes of laws in 1734. The separate Criminal Code was born in 1864, which lasted for a long time, namely until January 1, 1965, when the new Criminal Code came into effect.

The long journey of this legislation parallels the change in the sanctions system, especially with a short reduction in imprisonment, the extension of the imposition of suspended sentences (suspended sentence), the treatment of offenders and the review of regulations regarding detention if the convict does not pay a fine.

Initially if the fine is not paid, it is automatically replaced by imprisonment. Then privileges were held, including delaying criminal detention, or not being subjected to detention at all with certain conditions.

From 1938-1956 a committee was formed to draft new sanctions. In 1956 a very radical law was created which emphasized prevention called skyddslaq (Book of Protection). The criminal purpose is to protect the public from criminal acts. Also distinguished between criminal and action. Even the term criminal is abolished and replaced with consequences (pafoljd). The so-called consequence (pafoljd) is: 1. The lightest, is a criminal suspended in the form of a warning, which

can be accompanied by a fine or compensation. 2. Probation (probation) as the principal criminal liability possibilities in

addition to staying in place a training center up to 2 months. 3. The detention center replaces a maximum of 3 years in prison for

children. 4. Captivity (internering) for the crime are two years or more that the court

considers necessary in order that the manufacturer does not do a serious offense again.

5. Placement in specialist services in accordance with child welfare laws. behavior laws, and mental welfare laws.

6. The imposition of a maximum daily fine of 120 can be increased to 1 80 days if more than one offense is made.

7. The maximum jail is 10 years which can be 12 years or lifetime if more than one offense is committed.

The 1965 Penal Code determines that common crimes are fine

(holer) and prison (fangelse). Another sanction is dismissal or suspension from criminal civilian, military detention and a fine of discipline for the military, the criminal who was delayed, orders trial. Imprisonment of children (ungdomsfangelse), detention (internering) placement for special

maintenance by a body such as psychiatric institutions, clinics, drug addiction, and so on.

In 1973 there was another change, military detention and disciplinary fines were abolished and general crimes were applied. Common crimes are fines (boter) and prison (fangelse). Other sanctions are pending criminal acts, probation, deprivation and placement in a body responsible for the maintenance of special cases.

Penalty Penalty Criminal penalties are applied based on daily fines (day fine or

dagboter). The minimum daily penalty is 1 day and a maximum of 120 days. If more than one offense is committed, it can be 180 days. The calculation depends on the financial condition of the convicted person, income is reduced by family expenses and others. The amount of the fine is between 10 and 1,000 crowns per day . It's rather easy to take into account that the tax report is no secret.

In addition to judges who apply fines as crimes, prosecutors can also apply this daily fine with the intention of avoiding criminal prosecution. However, this application can only be applied by the prosecutor if the accused confesses. The prosecutor will submit the case to the court if he feels that the judge will impose imprisonment (unconditionally) or the defendant will be fined more than 100 days of daily fines.

In addition to daily fines, Sweden also knows a certain fine (fix or penningboter). Some offenders determine the exact amount of the fine, which is a maximum of 1,000 crowns, which in certain cases, for example, more than one offense, fines are maximum ... 2,000 crowns. This exact penalty can be imposed by the police in the form of a transaction (compare with a ticket) in Indonesia. This exact penalty also applies to industrial and trade crimes (compared with economic crimes in Indonesia). These corporate fines range from 10 to 3 million crowns. Fines are often applied as stand-alone crimes. However, judges often impose fines along with criminal (imprisonment) postponed, probation, or surrender to the agency responsible for carrying out maintenance specifically.

If the fine is not paid, it will be converted into imprisonment (forvandlingsstraff). Provisions regarding criminal substitution of fines become imprisonment if fines are not paid, Sweden is different from Indonesia, the Netherlands, Denmark, Norway, etc., ie it is not determined how long the substitute prison sentence will be imposed when the penalty is imposed. So, you have to go through another procedure. National Office for Billing ask the Public Prosecutor to file prosecution. This office has wide powers to collect fines if not paid, including confiscation of valuables of convicted persons. Rarely defendant not pay the fine. Alternative prisons are only imposed if the convicted head and negligent do not pay,

Since 1983 there have been alternatives other than imprisonment if fines are not paid. It is rare for the National Office for Billing to ask the Public Prosecutor to sue. He will strive charge offenders between 2 weeks

to 3 months. Can be subject to criminal (prison) postponed as an alternative.

This figure shows the decreasing number of prison alternatives for unpaid fines:

In 1980-49 people,

1982-37 people,

1983-9 people.

Since July 1, 1983-0 people. Prison Crime (Fangelse)

Prison sentences in the form of a lifetime or a certain time, a minimum of 14 days and a maximum of 10 years. If more than one offense, then it can be 12 years. For residents , it can be a life sentence or 16 years.

Life imprisonment can be converted to criminal punishment for a certain period after passing 15 years with pardon. Lifelong criminal punishment can be a conditional release.

Imposing imprisonment in Sweden continues to decline. In 1984, sanctions were imposed by police, prosecutors and judges 358,188 cases. Which is subject to imprisonment of 14,714 (4%) . If those who were tried in court only counted in 1984 which amounted to 73,569 cases, then only 20% would be in the form of imprisonment. It can be compared with Indonesia, which rarely violates the Criminal Code which is subject to criminal penalties. Almost all of them are subject to imprisonment.

Conditional Crime (Villkorligdorri)

Conditional crimes are only imposed on offenders who are threatened with imprisonment if they are not considered to be subject to heavier criminal penalties. Conditional crimes have been imposed in Sweden since 1906. In 1965 the implementation was amended. The number of cases that were subject to conditional penalties in 1984 was 11,043 (15%). Trial punishment (probation or Skyddtillsyn) is more severe than conditional punishment, because the convict is placed under the supervision of the supervisory body.

So, it is different from in Indonesia, because conditional criminality in Indonesia is often referred to as probation. Trial punishment in the sense of probation is different than in Indonesia, because in the case of this probation the criminal (prison) imposed has not been determined if the defendant violates the conditions during the probationary period.

Criminal Social Work (Community Service)

This type of crime is not (yet) accepted in Sweden. It is included here to find out what is the reason so that the types of crimes that are widely applied in Western Europe such as Portugal, Denmark, England, France, Germany, and even the Netherlands have introduced the 1987 law. States and Australia also recognize the type of criminal this.

Because this type of crime in the draft Penal Code also included in Indonesia, it is critically reviewed, because there are also terms weakness. In countries that are included in the Criminal Code is also in practice still m encoba error.

Sweden rejects this type of criminal social work as an alternative for short prison times, because: the criminal social work requires the determination of the work that is

suitable for the individual capability of the accused, it requires a lot of labor to oversee the implementation of this criminal social work,

there must be a willingness of the defendant to accept the crime. Workers in Sweden are professional and trained people. the

defendant was rather difficult to fulfill the skill requirements. So for criminal social work this is only suitable for those who are trained.

In addition, in Sweden there is a lack of social work agencies like in other countries. Those who are suitable for being charged with criminal acts of social service in Sweden are only those who refuse military service.

To receive this social work criminal, questions need to be answered: - whether social work will be more effective and suitable for certain

offenses than other crimes, - whether the results are better for rehabilitation and whether reducing

recidivism.

B. ARGENTINA

The Argentine Criminal Code is Spanish and has similarities with the Philippine Criminal Code.

What is special in this Criminal Code is that the system is the same as the Modern Criminal Code which consists of only dim parts (books). In particular the systematics section is unique, it does not begin with chapters of crime against state security and then crimes against public order, but begins with the title Crime against lining (Chapter I Crime against life).

One thing that is the key to every Modern Criminal Code, namely the legality principle known as Nullum Crime Sine Lege, as stated in Article 1 paragraph (1) of the Criminal Code (both old and complex), is not found in the Argentine Criminal Code.

The provisions of the legislative changes that profitable defendant as listed in Article 1 (2) of the Criminal Code we, also listed in Article 2 of the Criminal Code of Argentina, even expanded to include the convicted person is serving the sentence, will receive advantage, so if the law changes from its criminality which is far less or removed, it will reduce the criminal convict that is.

CHAPTER X THE REPUBLIC OF KOREA

The Korean Criminal Code only consists of two parts, namely the general provisions and the second part concerning special provisions which contain the formulation of offenses and sanctions. They do not know the term violation (violation) as listed in Book III of our Criminal Code and the Netherlands as well as Book IV of the French Criminal Code.

So, it is similar to the modern 1975 (West) Criminal Code. The formulation of the offense is practical, not too theoretical as with our Criminal Code (and the Netherlands). In terms of ways to form delicts, similar to the Criminal Code of Malaysia, Singapore and Brunei. Delict theft for example is formulated: A person who steals properly of another (someone who stole other people's property). Instead of taking an item entirely or partly belonging to someone else with the intention of having it against the law such as Article 362 of our Criminal Code or Article 310 WvS Netherlands, then theoretically questioned about the notion of "taking", "possessing", "against the law" that experts differed from each other one another.

What the meaning of "stealing" seems to be considered by all people by Sudani to know.

A law that uses language that is easily understood by the people is seen as good, reflected in the Korean Criminal Code. - whether the judge will consider as an alternative to imprisonment so

that imprisonment can be reduced. Most DPR members doubted the first and second questions.

Furthermore, in Part I, firmly included principle of legality even

happen to the same article in the Criminal Code (old) Indonesia, as well as draft Penal Code, as well as the Netherlands, namely Article 1 (L). However, the formulation is somewhat different, because it is not only a p deed can not be convicted always a bag statutory provision, ire also called an act of criminality and criminal prosecution should be determined by the legislation which preceded ... and so on, which means the size of the criminality (dual criminality) is determined by law.

Likewise, changes in legislation that benefit the defendant are also regulated in Article 1 paragraph (2) in accordance with our Criminal Code. However, it is expanded in Article 1 paragraph (3), because changes in legislation that benefit convicts can be reduced.

It is very different from us, for example the abolition of the 1964 Empty Check Law, many people who are still undergoing serious crimes (up to 10 years), the law is revoked so that the withdrawal of empty is no longer an offense (stand alone). This is really unfair.

The application of the Criminal Code is almost the same as our Criminal Code, only the principle of personality - adopted by the Korean

Criminal Code is wider than our Criminal Code, because Koreans who do offenses outside Korea (which is not restricted) apply the Korean Criminal Code.

Similarly, the principle of universality is broader, because there are seven types of offenses committed by foreigners outside Korea that apply the Korean Criminal Code (see Article 5 and Article 6).

Similar to Article 103 of our Criminal Code regarding lex specialis derogat legi generali listed in Article 8.

Minors are not convicted (Article 9). People who are mentally ill will be blinded who cannot make a

rational value or control their will cannot be punished, whereas because they are less able to make rational judgments, less criminal (Article 10 paragraph (1) and (2)).

One thing that needs to be imitated is the provision of paragraph (3) of Article 10 which says people who deliberately make themselves mentally ill can be convicted (remember the case of Yulia Yasin's murder).

Mute deaf people are reduced by crimes, this is the same as the Japanese Criminal Code.

Ignorance about the deed elements is not punished unless the law is entered into.

Then it is regulated about the facts and legal errors, which are not regulated in the Criminal Code.

The act is justified specially arranged, the defense forced (NOODWEER ) set broader, as it includes acts committed karmic fear, surprise, uproar or confusion during the night was not convicted (Article 21). The main reason for the abolition of the crime is regulated more than our Criminal Code, including the termination of voluntary offenses, which is the same as the Japanese Criminal Code.

Delegation of participation is regulated more practically than our Criminal Code. That is also the recidivism and concar (concursus).

What needs to be discussed more specifically, is the criminal system of the Korean Criminal Code, the type is very similar to the Japanese Criminal Code. There are capital punishment, criminal deprivation of liberty / prison with the obligation to work (reason servitude) or in the Criminal Code of Japan called hard labor , prisons, revocation of qualifications ( revocation of rights for certain activities ) that are wider than revocation of rights according to our Criminal Code, delay (xkorxing), disqualification. In the Argentine Criminal Code it is called criminal disqualification. It is clearly broader than revocation of rights, because this disqualification includes the qualifications to become a corporate director. Following criminal sanctions, criminal detention (detention), minor fines and seizure.

For convicts who do not pay fines, a small fine is provided in a work house.

The duration and amount of each fund item are determined in general, but also in each article in the specific provisions the minimum is sometimes determined (in serious offenses) and the maximum.

Criminal robbery is additional, but sometimes it can stand alone as in our Criminal Code.

It is almost the same as the Japanese Criminal Code , self-destruction and voluntary recognition can alleviate and eliminate criminal offenses.

Announcement of judges' decisions is not criminal (additional), because; 1. At the request of the victim. 2. Exemptions can also be announced.

Delays or criminal suspensions are similar to our conditional criminal sanctions, but are not determined about general and specific conditions.

Then arranged on conditional release or parole in t erinci. Mentioned that in terms of life imprisonment may be released conditionally if t e lah lived ten years. In the Netherlands a lifetime is practically only thirteen years.

Revocation of parole if during conditional release imprisoned or more severe. So, if it is fined, it does not remove the criminal.

Criminal restrictions ( l ewat time) set out in detail about the time period. SPECIAL

As discussed earlier, the Criminal Code of Korea is much in common with the Criminal Code of Japan, as well as in the formulation of the offense in the Special Section, in addition there is also a typical Korea, such as the protection of the interests of allies, foreign flag, foreign envoys, and delik concerning The demonstration was arranged at a time . In Chapter 1 of the Special Section, it deals with the carefully formulated rebellion.

In Chapter 5 it is regulated by criminal group organizations that we commonly know as organized crime that are not available in our Criminal Code.

Crime of the explosives are also regulated in Chapter 6, which in Indonesia is regulated in the Law on Special, yai t u Act No. 12 (DRT) of 1951.

Chapter 7 concerning the crime of public officials. If we compare with Chapter XXVIII about the crime of office in the Indonesian Criminal Code (old), then this Korean arrangement is somewhat different, because it also includes the actions of officials who leave obligations, interfere with the implementation of other people's rights , imprison others, violent and cruel acts to others, the publication of the facts of the crime under investigation before the trial, betrayal position, impede the election, etc .. not regulated in the offense office of the Criminal Code we are is only the h

set offense to force people claim (Article 422) and the abuse of using power to force someone to do something or not mi 'do something (Article 214).

The same set is the provision of the Criminal Code offense of bribery but Korea is wider, because the subject of the offense of bribery includes not only civil servants but also an arbitrator, and also accepted bribes not yet became official, also includes bribes to third parties. Thus, the subject of bribery offenses in the Korean Criminal Code is more Inns than in our Criminal Code. It may be equated with Article 177 of the Penal Code or Article 328 of the Dutch WVS.

On the other hand, the position of the Korean Criminal Code does not include requests for kneadarij or not including officials who participate in buying, leasing, and slashing the work they manage themselves (Article 435 of the Criminal Code), but are regulated in other chapters.

Chapter 8 regulates the act of obstructing the implementation of official obligations, also wider than our Criminal Code, including insulting the court.

Chapter 9 deals with the crime of escaping and hiding criminals. This is also regulated more broadly than our Criminal Code which regulates it in Article 223 for people who give help to people who run away.

Chapter 10 regulates perjury and suppression of evidence is set wider than perjury in Chapter IX of the Penal Code (old) Indonesia consisting of one chapter only, yait u Article 242. In regulation Korean Penal Code is also a provision for an expert opinion, Recognition and self-harm before the verdict is final, the punishment is irreversible or deleted. The same goes for families that benefit the defendant, not convicted. Chapter 11 deals with false prosecution, which is parallel to Article 220 of the Indonesian Penal Code (old),

Chapter 12 regulates the offense against people who swallow the dead, which is parallel with Article 178 to Article 181 of the Criminal Code (old) Indo nesia, just in the Criminal Code of Korea is organized also on disturbance to implementation of burial, in addition to pollution, excavation and theft of corpses .

Chapter 13 regulates fires caused by negligence which is not about negligence alone, parallel to Article 187 to 206 Indonesian Criminal Code (KUHP) which regulates more broadly about offenses that treat public security for people or goods, some of which are regulated by the Korean Criminal Code in other chapters, including Chapter 14 of the crimes of the flooding and p e Utilization of water, and Chapter 15 on crimes impede traffic.

Chapter 17 regulates the crime of opium, which can be equated with Law No. 9 of 1976 concerning our Narcotics, but the narcotics law is far more complete. In the Criminal Code we are not regulated about narcotics.

Chapter 18 regulates crimes regarding payment instruments, which can be compared with Chapter 10 concerning counterfeiting of currency and paper money in the Indonesian Criminal Code (old).

Chapter 19 regulates the crimes concerning securities, postal and stamp stamps which can be equated with Chapter XI of the Indonesian Criminal Code (old) for counterfeiting of seals and brands.

Chapter 20 regulates the crime on documents y a n g can be aligned with Chapter XII of forgery in the Criminal Code (old) Indonesia.

Chapter 21 regulates crimes can be said to be equal to the Chapter 20 governing document fraud, but here special regarding counterfeiting stamp, signature, name or symbol written another person (an individual) and official.

Chapter 22 concerning decency offenses which can be equated with Chapter XIV concerning decency offenses in the Indonesian Criminal Code (old). Adu some differences between the offense Mukah (overspe l ) Korea with our Penal Code. First of all the criminal threat in the Korean Criminal Code is more intense, which is a maximum of 2 years, whereas in Article 284 of the Indonesian Criminal Code (old) Indonesia is a maximum of 9 months. Also in the Korean Criminal Code it is explicitly stated that if the husband / wife makes use of the decree, then the complaint cannot be withdrawn.

Delik pimps, arranged a little more, namely someone who with the aim to get advantage persuade an underage woman or a woman who usually does not commit non-sexual behavior to have sexual relations. Korean pornography is similar to the provisions of Article 282 of the Indonesian Criminal Code (old). Delusions of indecent conduct on a face to face basis are the same as the provisions of Article 281 of our Criminal Code.

Chapter 23 regulates gambling offenses and sweepstakes, which are parallel to Article 303 and 303 bus plus Act Number 22 of 1964 concerning Lottery.

Chapter 24 regulates the murder offense that is different from our Criminal Code, the Korean Criminal Code is parallel to the Japanese Criminal Code, the murder of parents and in-laws straight lines are threatened with criminal penalties that are heavier than ordinary killings, namely capital punishment, deprivation of liberty / obligation to work for life without being called a minimum, such as ordinary murders which mention about premeditated murder, because murder (ordinary) has been threatened with capital punishment.

Chapter 25 regulates the offense injure the body and violence that can be equated with the offense persecution in our Penal Code Chapter XX. There is a difference, namely the Korean Criminal Code is a more severe criminal design if the act of injuring the body is carried out against a parent or parent-in-law on a straight line, with a minimum of one year. Also experiment can be imprisoned, while in the Criminal Code (old) Indonesia attempted abuse are not threatened criminal.

In addition, the offense about injuring other people's bodies in the Korean Criminal Code is qualified, in terms of being carried out together and using weapons ...

Chapter 26 regulates the offense of negligence that causes injury and death. This is parallel with Articles 359, 360, and 361 of the Indonesian Criminal Code (old).

Chapter 27 regulates abortion delinquency, which is parallel to Article 346 to 350 KUHP (old) Indonesia. The difference is that the (old) Indonesian Criminal Code regulates abortion offenses not in separate chapters, but in the chapter on offenses against life.

Chapter 28 regulates neglect of neglect. This is in line with Chapter XV of the Indonesian Criminal Code (old) which regulates delinquency leaving people who need help (Article 304-309). Nonetheless, provision Korea is somewhat different, because the direct mention of the old straight line upward abandoned. Also about the severe work-related offenses of children who are under their environment, as well as about cruelty to other people and parents of straight up lines, arranged specifically.

Chapter 29 regulates false offenses and false imprisonment. This can be compared with Chapter XVIII of the Indonesian Criminal Code (old). Ak a n but, also in this case, a special set if the person detained was frustrated parents and in-laws straight line upwards, the offender shall be punished more heavily, y a was given a special two-year minimum. Chapter XVIII of the (old) Indonesian Penal Code is broader, including Chapter 31 of the Korean Criminal Code.

Chapter 30 regulates the bullying of intimidation, which is parallel to the offense of extortion and threats (XXII) of the old Indonesian Criminal Code, but there are fundamental differences, namely; 1. Delegation of intimidation Korea does not include elements to benefit

themselves or others such as the extortion offense (368) and threats (369) of the Indonesian Criminal Code (old).

2. If Korea's intimidation is raised, the criminal if done against parents or in-laws is a straight line up.

3. Delegation of Korean intimidation is a qualified offense in matters carried out jointly, as well as against habitual criminals.

4. Korea intimidation offense is not punished if he refused explicitly to prosecution, except for the offense of intimidation qualification and for criminals habit.

Chapter 31 regulates the abduction and escape offense, previously

mentioned which is parallel to Chapter XVIII of the (old) Indonesian Criminal Code. Although the formulation of the Korean Criminal Code is broader.

Chapter 32 regulates the offense about chastity. In the Indonesian Criminal Code, this includes decency offenses, while the Korean Criminal Code separates decency offenses (including mukah) with offenses about chastity (including rape). In addition, the crime regarding the sanctity of the

Korean Criminal Code is wider than the rape offense in our Criminal Code. Including rape, if the victim fights. In the event that the victim dies, the offender is threatened with a life sentence of not less than five years.

Likewise sexual relations with abusing authority based on position, etc. are regulated in this chapter.

Chapter 33 regulates offenses against good names. This is parallel to the offense against the good name. This is in line with insults in Chapter XVI of the Indonesian Criminal Code (old).

Chapter 34 regulates offenses against business beliefs and auctions, there is no equivalent in the Indonesian Criminal Code (old).

Chapter 35 regulates the offense against secrecy, which is parallel to Chapter XVII concerning the opening of secrets in the Indonesian Criminal Code (old). Chapter 36 regulates the offense of disruption to human residence I which consists of four articles, comparable to Article 167 of the Indonesian Criminal Code (old).

Chapter 37 regulates the offense of disruption to the exercise of the rights of others, which can be compared to Chapter XXVI concerning offenses which harm a person who is in debt or who is entitled to the (old) Indonesian Criminal Code, although there are differences.

Chapter 38 set the offense of theft and robbery, which is clearly aligned with the offense of theft in Chapter XXII of the Criminal Code (old) Indonesia, te t fire porumusan robbery offense dala m Korean Penal Code regulated in detail. as well as theft, which is a habit, is punished more severely.

Chapter 39 regulates the crime of fraud and extortion are aligned with the offense of fraud in Chapter XXV of the Criminal Code (old) Indonesia, tet fire formulation Korea broader, included actions take keun rofits of lack of experience of an minors also advantage that should be in took advantage of the circumstances to need others. So, this includes the fraud committed by loan sharks against people who really need money. So in Korea, fraud by using "opportunity in narrowness" is threatened with criminality. Such actions also occur in Indonesia, so that there are thought to be such provisions in the new Criminal Code.

Chapter 40 deals with delinquency offenses and trust budgeting. Trust here means that the act of misusing the trust given by someone is related to property. This parallels the offense of embezzlement in Chapter XXIV Kill IP (old) Indonesia, but the Criminal Code of Korea is broader, as it includes the abuse of the trust of others, that is, those who take care of other businesses who take advantage and hurt the other person, as well as those who violate work obligations link with handling other people's business,

In addition, also receiving bribery committed by people who take care of other people's business, in the service of the petition not truth in connection with the business.

Also added in the Korean Criminal Code is the offense of embezzlement of goods lost, stranded goods carried by the current, which are not regulated in our Criminal Code.

CHAPTER XI JAPAN

The first Japanese Penal Code was introduced by Boissonade and also introduced asas nulla poena sine lege, as well as humanity. Formerly criminal law was used to threaten and intimidate the authorities.

With the influence of new thinking in criminal law at the end of another century, Japanese law scholars saw that the Criminal Code was imperfect in terms of theory. In 1907 a new Criminal Code was promulgated which came into force October 1, 1908. This Criminal Code remained in force until now despite several changes.

In the 1907 Criminal Code there are still provisions similar to the old Penal Code. However, the division of the same offense with the Penal Francis Code listed in the old Criminal Code has been abolished. The judge is authorized un t uk wearing the appropriate punishment. There are minimum and maximum criminal differences for each offense. Thus, the judge is free to impose a criminal that is suitable for the level of error of each defendant based on the limit specified in the offense.

The defense was forced to apply to every offense, in contrast to the old KUHP which forced forced defense only applies to offenses.

Chapter 41 governs crimes related to stolen goods were aligned with the offense fencing in Chapter XXX Code P (old) Indonesia, but act Indonesia wider because it is not just limited to its object is originating goods stolen, but items dip e roleh of crime (Article 480 paragraph (2)). Chapter 42 is the last chapter, namely the offense of destruction and destruct evil. This is parallel with Chapter XXVII concerning the destruction or destruction in the Indonesian Criminal Code (old). The difference is in the Criminal Code regulated qualification offense of Korea, that if the destruction to forces together or carry a dangerous weapon. Our Criminal Code also explicitly states the destruction of ships not mentioned in the Korean Criminal Code ilulam. Murder and persecution. Third, the KUHP 1907 is more systematic than the previous one. Also criminal executions are more moderate.

The most important change in the Japanese Criminal Code occurred after World War II. In 1947 there was a violation of the Criminal Procedure Code with the new Japanese Constitution. With the law October 26, 1947 the Criminal Code was improved to become more democratic, more fascist (peaceful). Many provisions regarding the war were revoked.

Improvements to the price of individuals bring improvements to the execution system. Provisions regarding equality before the law were introduced, so that the provisions concerning offenses against the royal family were corrected.

The next addition, was the issuance of a law on minor crimes (keihanzai ho) on May 1, 1948. By law July 21, 1952 created an offense

about subversion (hakai katsudo boshiho). This law was issued to deal with the radicalism of the communist party at that time. However, the opposition succeeded in inserting provisions so that this law was limited to its application, as far as possible applied only to public order. Broad interpretation must be omitted.

The Japanese Penal Code (The Penal Code of Japan) only consists of two books (parts), namely general parts and special sections, so they are the same as the German Criminal Code. (West) 1975, Austria, 1975, Korea, and Argentina.

If our Criminal Code and its source WvS Netherlands consists of three books , even the French Penal Code which has four books, the Japanese Criminal Code is the same as the Argentine Criminal Code, Colombia, Korea, and the German Federal Republic consists of only two books, Book I concerning General Provisions and Book II concerning Crimes.

All formulations of the offense are found in Book II, which is called Crimes (Crime or Delegation or Crime).

So if the DPR later accepts the draft Criminal Code which also consists of only two books, then the new Indonesian Criminal Code will be the same as Japan, which only consists of two books.

Although the Japanese Penal Code is only made up of 264 chapters, but d a pat to say that quite complete. Many chapters consisting of two a tau more paragraphs (paragraphs). The number of articles in our Criminal Code is 569, because there is Book III Violations, which contains many replications of the offenses in Book II. For example there is the offense (crime) decency and k e mudian in the third book is again the violation of decency.

The simplification of the formulation of the Japanese Penal Code is held in Book I, where the conditions that aggravate and alleviate crime are regulated. So if a formulation of the offense (crime) was about to convict if there h a l-case or mitigating circumstances (which is parallel to the offense violation us) then immediately called if it is done in certain cases the punishment may be cut or reduced (reduced and remitted) . The criminal rule for deduction is regulated in Book I.

One thing that is interesting, that if we learn the Japanese Penal Code this is the first e bih prominence of the adage that the law a criminal is a mirror pe ra a body of a nation. It is evident that the nature of knighthood is highly valued in Japan, reflected also in its Criminal Code. For example, people who are tired of m e do evil surrendered before known or arrested, it will be reduced criminal.

Only in Japan the use of the Criminal Code requires a reasoning high, because structured such that one article related to the other chapters. An article sometimes pointed to several article other as a relation, sometimes we have to read the book I returned for instance rules on criminal cuts listed in Book I, which is quite complicated.

BOOK I ABOUT GENERAL PROVISIONS

This is parallel with Book I of the Indonesian Criminal Code. 1. One thing that really needs to be emphasized here is that Japan does

not mention anything about the principle of legality as mentioned in Article 1 paragraph (1) of our Criminal Code. However, the Criminal Code of Korea which have much in common with the Japanese call the Criminal Code may amending caused by experience occupied bitter over Japan.

In the Japanese Criminal Code this is also not referred to as a change in legislation, but a criminal change that is beneficial is not as stated in Article 1 paragraph (2) of our Criminal Code both now and in the draft. Unlike the Argentine Criminal Code which mentions that, but the same does not mention the principle of Legality.

2. The scope of application is similar to Article 2 and beyond our Criminal Code. Regarding the criminal system there are differences as follows: a. Different types of crimes, in addition to the same in the case of

capital punishment, imprisonment and fines, they also know what is called penal detention, which is a lighter crime, may be equated with our imprisonment, although clearly different in nature, also they recognize a minor fine, very light when viewed from the money to be paid. As an additional criminal they recognize confiscation, There is no revocation of rights or disqualification as is the case with our Criminal Code and Argentina.

b. Calculations about the sequences of the weight of the criminal are very thorough and detailed.

c. The implementation of capital punishment is the same as the Criminal Code, which is hanged. Even the coincidence of the article is the same, namely Article 11.

d. They recognize two types of imprisonment, namely forced labor and without forced labor (imprisonment at or without forced labor).

e. They know the minimum criminal, but not all articles. f. It seems that the serious ones use the minimum. g. As a substitute for unpaid fines, it is known as detention at work

(detention at work-house for non-payment of fine). h. Objects that can be seized are similar to the provisions of our

Criminal Code. i. Detention can be calculated in the length of the sentence. So it's

not absolute like our KUHAP. i. The calculation of the duration of the crime is regulated in detail

(Chapter III Book I). j. Delays in criminal executions (Chapter IV of Book I) are not the

same, but are parallel to conditional punishment in Indonesia.

k. It is also regulated about conditional release.

3. Regarding intentional and negligence are not regulated in any article. Briefly only referred to in Book I, Article 38 that actions carried out unintentionally cannot be punished, unless otherwise stipulated by law. So, negligence is mentioned in the relevant article.

4. Regulations concerning forgiving and justifying reasons are almost the same as our Criminal Code, except the provision that deaf mute people's actions cannot be punished or the criminal reduced.

5. What's interesting is the provision of people who surrender before being known as criminals, the penalty is reduced.

6. Experiments are determined in each article concerned. So if it is not mentioned, it cannot be convicted (Article 44).

7. Joint crime (concursus) her tour in detail, there are similarities with our Penal Code.

Provisions regarding recidivists are similar to the provisions of our Criminal Code. Likewise about participation, similar to our Criminal Code. Regulations concerning the reduction and addition of crimes are regulated in detail, certainly in accordance with the fact that they do not have Book III.

BOOK II

CRIME (DELIK) 1. Crimes against rebellion are similar to our Criminal Code, but there are

provisions regarding people who surrender, who are given criminal deductions.

2. Damaging and destroying foreign flags is subject to criminal sanctions but is an offense against complaints.

3. Crimes against criminals are similar to our Criminal Code. 4. Crime escape (escape ) is set in a separate chapter (Chapter VI). In

the Criminal Code that is threatened with criminal sanctions, only officials cause people to flee (Article 426 of the Criminal Code) and those who help (Article 223 of the Criminal Code), but people who escape from detention or prison are not regulated in our Criminal Code, even a qualified offense, if he fled in a destructive way, violence, intimidation and conspiracy, he was threatened with a more severe sentence.

5. Crime hides criminals, riots and arson similar to our Criminal Code. However, the Japanese Criminal Code added about intimidation of witnesses, including coercion for interviews with witnesses related to his own criminal case.

6. In Chapter VIII Book II, it regulates the offense of riots. This indicates that in Japan there are often demonstrations leading to riots, because the formulation of offenses smells of anti-demonstration.

7. Chapter IX regulates fire offenses (houses) and because negligence causes fires. It is distinguished by the burning of buildings that are

inhabited and which are not inhabited. In the case of buildings that are inhabited by criminal threats to capital punishment, the buildings that are not inhabited for a maximum of 7 years. He also added about blasting gunpowder.

8. In addition, it is also regulated separately regarding flood crime and water use (Chapter X Book I). Here is also regulated about division.

9. In Chapter XI it is regulated about crime obstructing traffic. which in Indonesia is included in a special criminal code, namely the Road Traffic and Transportation Act , but in the Korean Criminal Code it also includes railroad and electric trains that are parallel to Article 192-199 of our Criminal Code.

10. Crime disturbing the residence set out in Chapter XII is similar to Article 167 of our Criminal Code, but our Criminal Code is more complete, because separately in Article 1 68 it is regulated about entering the public service room.

11. Open secret crime is regulated in Chapter VIII Book I similar to Chapter XVII of our Criminal Code.

12. Chapter XIV which regulates opium (opium) is already out of date, because it still calls opium (opium) only, not mentioning narcotics. So it is clear Law No. 9 of 1976 concerning Indonesian Narcotics is far better and complete.

13. Chapter XV which regulates drinking water crime concerns pollution or water pollution, so the terms of environmental law are similar to Article 202 - 206 of our Criminal Code.

14. Chapter XVI which deals with counterfeiting money is similar to Chapter XI of our Criminal Code.

15. The crime of counterfeiting documents is set out in detail in Chapter XXVII similar to Chapter XI of our Criminal Code.

16. The crime of falsifying the guarantee documents provided for in Chapter XVIII is similar to Chapter XII Forgery of Letters in our Criminal Code.

17. The fraud counterfeiting crime is set separately in Chapter XIX. 18. False crime is regulated in Chapter XX, similar to Chapter IX of the

Indonesian Criminal Code. 19. False accusations are set out in Chapter XXI which consists of only

two articles, similar to Article 220 of the Criminal Code concerning false reports. The specialty of this Japanese Penal Code is if the defendant claims to have made a false accusation before the verdict becomes binding, in the final, the sentence is cut or reduced.

20. Chapter XII regulates the violation of decency that same with our Chapter XIV of the Criminal Code, but there are some things that need to be addressed: 1) provisions regarding rape, because people who are unconscious

or unable to resist, 2) rape is a complaint of complaint.

21. Chapter XXIII specifically regulates gambling offenses and lotteries. And it can be aligned with Article 303 and 303 bis of our Criminal Code which are not self-contained, but are included in the chapter on violations of decency.

22. Chapter XXIV specifically regulates the crime of places of worship and tombs, which can also be equated with Articles 175-181 of our Criminal Code, although there are differences, especially those concerning worship related to their Shinto religion.

23. Chapter XXV regulates corruption of officials, in line with the position offenses in our Criminal Code, but it is necessary to explain the differences regarding this corruption offense. Article 193 of the Japanese Criminal Code can be equated with Article 421 of our Criminal Code which is often included as an offense of abuse of authority, commonly called knevelarij. Especially for law enforcers, namely the police, prosecutors, and judges who abuse their authority to detain people, they are threatened with severe penalties from a minimum of six months to a maximum of ten years (Article 194). The law enforcement acts of violence against the accused, threatened with serious criminal Similarly, the maximum tenor h year (Article 195). Although the formulation is somewhat different, it is similar to the provisions in Articles 418, 419, and 420 of our Criminal Code. One thing that is somewhat different, which is not regulated in our Criminal Code, but can be considered to be imitated in an effort to compile a delinquency corruption offense, namely the formulation of special offenses for officials who accept money as compensation for being able to influence other officials to express their wishes. Giver bribes by the m e do his duty incorrectly. This is provided for in Article 1974. Money can bribe taken, and if necessary, free of money equivalent, so parallel to restitution in the legislation eradcation criminal acts of corruption us. Article 198 which threatens criminal penalties for bribery providers in line with Article 209 of our Criminal Code.

24. Chapter XXVI regulates articles of murder Article (199 - 203). The concern about the killings in the Japanese Criminal Code is very different from our Criminal Code, because they are not mentioned about the "intentional" element, just say "kill other people" ( another kills ), there is no parallel article with Article 340 of the Criminal Code . These are listed in one article, namely Article 199. However, specifically for offenders who kill their own parents, a straight line up or parents wife / husband straight line up, threatened with severe punishment, the death penalty or imprisonment of work forced for life. This indicates again, that truly the criminal law of a nation reflects the personality of the nation. Easterners' respect for parents is very high. Therefore, this formulation should also be contained in our new Criminal Code.

25. Chapter XXV1T regulates the crime of injuring people's bodies. This can be equated with the torture offense in our Criminal Code. It also

includes the provisions of Chapter XXVIII, specifically regarding the negligence of causing other people's bodies.

26. Chapter XXIX regulates abortion delays, almost the same as abortion deletions in our Criminal Code. Chapter. XXX regarding the act of leaving someone who needs help, also similar to the formulation in our Criminal Code.

27. Chapter XXXI regulates the act of holding people back, also similar to Article 333 and beyond our Criminal Code.

28. Chapter XXXII regulates intimidation offenses, which are also parallel to the threat of threats in our Criminal Code.

29. Chapter XXXIII regulates kidnapping with violence and persuasion. The formulation is very detailed and unique. One thing that needs to be considered, is that if kidnapper marries the victim, then the complaint (because this is a complaint of complaint) does not have any effect, unless the judge cancels the marriage.

30. Chapter XXXIV regulates crime against reputation. This is similar to the defamation offense, pollution, and defamation in the Criminal Code us, but all of the formulation to a complaint. Especially for a good name in terms of the credibility of the people and businesses (business ) is set out in Chapter XXXV.

31. Chapter XXXVI regulates in detail the theft and robbery offenses, which are parallel to Article 362 and so on. Criminal Code. However, the formulation of the offense is very simple, it is only said that someone who steals ( a person who steals), is not said to be against the law or not, with the intention of having it and so on. Robbery offense is set detailed, unlike Article 365 of our Penal Code, also a provision for rape at the time ripened pokan done, with a very heavy punishment, the minimum and maximum 7 years hard labor for life imprisonment. This needs to be considered in the preparation of the new Penal Code. It has also been regulated about theft of electricity which is seen as property (Article 245).

32. Chapter XXXVII regulates fraud and extortion offenses that are in line with the provisions of our Criminal Code. However, they arrange it in detail.

33. Chapter XXXVIII regulates fraud offenses, which are parallel to the provisions in our Criminal Code, but with a striking difference, namely embezzlement of one's own property is subject to criminal penalties, if the item itself is entrusted, burdened, insured, and given to other people who hold the item. In this case, the exception is in our Criminal Code, namely inter-family evasion is not punished (in our Criminal Code it becomes an offense).

34. The detention crime is placed in the final chapter of law II, namely Chapter XXXIX. The chapter is entitled Crimes Concerning property Obtained Through Crime (Crime concerning property acquired due to crime).

If we compare it with the criminal offense in the Criminal Code, which is listed in Chapter XXX entitled detention, Publishing, and Printing, then the difference can be seen as follows. a. Our Criminal Code consists of 3 pieces of articles which are

imposition, while the Japanese Criminal Code consists of 2 articles, from Article 256-257. From the number of articles that are more in our Criminal Code can be concluded that the delays in the stipulation in the Japanese Criminal Code are shorter but the scope is broader.

b. If our Article 480 of the Criminal Code is only said that the goods are obtained from malfeasance (paragraph (1)) and from crime (paragraph (2)), the Japanese Criminal Code formulates very detailed, first called property obtained from evil (Aperson who receives a property obtained through a crime) (Article 256 paragraph (1)). However, in doubt (2) of article that dip e detail: concerned, accept for storage, purchase or act as an intermediary property derived from a crime against property (meaning the wealth offense; vermogeiis delicteri).

c. Not as well as the de l ik our fencing, Japanese fencing offense if committed by a particular family of criminal cut, but not the participant who is not a family (Article 257). We not Penal Code governing the offense fencing between families, but In contrast set about light fencing (Article 482). One thing that needs to be considered, is that our Criminal Code only deals with objects obtained from ignorance, not just crime about property. From Article 482 it can be seen that the meaning of the word "crime" is wider than the crime obtained from theft, embezzlement and fraud.

35. Chapter XL is the last chapter, namely the crime of Destruction and Hiding (Article 258-264).

Article 258 specifically regulates the destruction or deduction of

official documents of Government offices. Article 259 regarding the same issue, but to document private person. Article 260 concerning destruction, destruction or damage to buildings or ships. Article 261 is a collection of remnants that are referred to, namely items not mentioned above. Seeing the way this formulation is done, it is clear that the Japanese Criminal Code regulates things in layers, because on the front there are also delinquency damage such as ship damage. Something unique, is that the destruction of goods itself is an offense if the item is entrusted, burdened, or leased to another person (Article 262). Article 262-2 regulates the destruction of boundaries. Although on the front there has been an offense about the freedom of correspondence, Article 263 regulates the concealment of correspondence which is a regulation that overlaps the previous provisions. Article 264 is the last offense that stipulates that the offense in articles 259 and 261 is an offense against complaints.

CHAPTER XII MALAYSIA

When compared with the Criminal Code-modern Penal Code, the Criminal Code Malaysia included outdated Criminal Code.

The system and its basis are very different from our Criminal Code, both with what is now valid and with the draft new Penal Code,

The most basic difference is that the Malaysian Criminal Code does not consist of books I, II, and so on, as with our Criminal Code (the old 3 books designed with 2 books), also another foreign Criminal Code that cosnsit of two or three or four books (Francis ) The Malaysian Criminal Code is directly divided into chapters.

Chapter I Introduction contains the provisions of the essence of this Criminal Code, which are listed very briefly. Not listed the principle of legality (nullum crimcn sine lege). Also included is the change in legislation that benefits the defendant, as stated in many of the Criminal Code in this world.

Chapter II concerning the definitions of terms in this Criminal Code in our Criminal Code is listed at the end of book I, namely Chapter IX. Just like the other chapters, illustrations and explanations are added here too long.

Chapter III of the criminal, which when compared with our Penal Code, provision is incomplete, only set about offense to combined (coupling).

Chapter IV deals with general exemptions, which can be compared with the provisions on the abolition of crimes in our Criminal Code, which are divided into justifiable and forgiving reasons. Exceptions to criminal charges are very detailed, with explanations and constellation illustrations . At the same essence with the provisions of our Penal Code, only the name and the same formulation s e other times.

Chapter V of advocacy, which although not the same, but it can be equated with the offense told to do (Right as n yes brag others do) or doenplegen in Penal Code us) d Elik advocacy in Malaysia apply also if the person recommended is outside Malaysia , for example in Java.

This advocacy item is detailed, with detailed illustrations and explanations.

Chapter VA, regulates conspiracy offenses, which in the old Indonesian Criminal Code are regulated in Article HS. In this chapter the Malaysian Criminal Code has announced criminal sanctions, and can be said to have entered parallel to Book II of our Criminal Code.

Chapter VI deals with offenses against the state. This chapter is parallel to the first chapter of Book II (both old and draft), although maybe formulation is very different from us that the Criminal Code.

Chapter VII regulates the offenses related to the armed forces, which had no parallel in our Penal Code, but noted d a lam Criminal Code of the army (KUHPT).

Chapter VIII deals with offenses against public peace, the equivalent of which is listed in Chapter V of Book II of our Criminal Code (the old one) but the content and formulation are very different, for example the Malaysian Criminal Code begins with prohibited meetings and associations, whereas our Criminal Code begins with hate and hostility (haatzaai Artikelert), and desecration of the state emblem.

Chapter IX concerning offenses committed by civil servants or related to civil servants. In the Criminal Code we are regulated in Chapter XXVIII concerning position offenses.

What is different, is that some of the provisions in the Criminal Code offense we like bribery (Section 418.519, and 420 of the Criminal Code) entered corruption offense, while in Malaysia, anti-corruption laws have tert formulation self that is extremely urgent and distorted the meaning of the provisions of KUHP. There are two anti-corruption laws. According to the explanation of the Director General of Badin Prevention of Rasuah in Kualalumpur) a corrupt official, especially bribery offenses, he could be charged with three laws at once, namely two anti-corruption laws and also violations committed by or relating to civil servants in in the Criminal Code.

Chapter X concerning the insult to the legitimate authority of civil servants, which contains the disobedience of civil servants who exercise their legal authority, such as not obeying other calls or orders from civil servants, preventing being handed over to him, and so on. This can be equated with Chapter VIII Book II of the Criminal Code (old), even though the contents are very different.

Chapter XI concerning false evidence of offenses against public courts. Here it is regulated about perjury, including here the offenses which are usually used in contempt of court offenses which in the draft new Penal Code are compiled in a separate chapter.

Chapter XII regulates procedures for dealing with coins and government stamps. This can be compared with Chapter X. KUHP (old) about counterfeiting money.

Chapter XIII concerning scales and sizes. In Indonesia such offenses are specifically regulated in the Tera Legal Act, Number 2 of 1981.

Chapter XIV regulates the offense - delik on health for safety, pleasure, politeness and decency. If we examine chapter, then turns arranged chronologically and detailed start with delik about noise, environmental health, including beverages and medicines that damaging health, water and air pollution, to the safety of the traffic in the streets, and ship navigation.

Most of the formulation of this chapter can be aligned, so very different with Chapter VII of Book II of the Criminal Code (old) Indonesia that about delik, offenses which endanger public safety people and people. The other part, can be equated with decency offenses in our Criminal Code (Chapter XIV).

Chapter XV regulates religious offenses that can be compared with Article 156 a Chapter V of Book I of the Indonesian Criminal Code (old).

Chapter XVI concerning offenses against the human body. These include dying of life, abortion, infant earthing, bodily injury (persecution), limitation and confinement of people, assault on people, kidnapping, running away, slavery and forced labor. The part can be aligned with Chapter IX of the persecution, Huh XVIII about crime, about independence, all in books II of the Criminal Code (old) Indonesia.

Chapter XVII regulates the offense against property which is parallel to Chapter XXI concerning theft, Chapter XXIV about embezzlement, Rev. XXX concerning imposition, Chapter XXV on fraud, and Chapter V specifically regarding offenses entering people's homes, all of Book II of the Criminal Code (old) Indonesia.

Chapter XVIII regulates offenses relating to documents, trade and brands, which are parallel to several Chapters II of the Indonesian Criminal Code (old), namely Chapter X concerning counterfeiting of money, state banknotes and banknotes, Chapter XI concerning stamp forgery, and brands , Chapter XII about forgery of letters.

Chapter XIX of the Malaysian Criminal Code has been deleted. Chapter XX deals with offenses concerning marriage which can be

aligned with Chapter XIII concerning crimes concerning the origin and marriage in Indonesian Book II of the Indonesian Criminal Code (old).

Chapter XXI regulates the offense of defamation or defamation, which is parallel to Chapter XVI concerning insults in Book II of the Indonesian Criminal Code (old), and the last.

Chapter XXII regulates criminal offenses of intimidation, humiliation and disturbance, which can be equated with the extortion and threat offenses in Chapter XXIII of our Criminal Code.

In general, it can be concluded that the Malaysian Criminal Code includes the ancient Criminal Code, compared to the current Dutch WvS, and of course the soon-to-be-born Indonesian Penal Code.

CHAPTER XIII DESIGN OF KUHP BELGIA

The Belgian Criminal Code which is still valid now is very old. Can be said to be outdated. For example, the death penalty is still listed, even though it has never been implemented since World War II. So can be applied to de facto abolition or abolition in practice. In the 1980s a draft KUHP was created by one expert in the former chairman of the Supreme Court and currently Professor of criminal law in Brussels, H. Robert Legros.

The work was carried out again by a commission consisting of experts and practitioners, but because of the replacement of the Minister of Justice, this draft became stagnant.

Some things from this design need to be considered for a comparison.

It is necessary to look at the systematic comparison between the original design of H. Robert Legros and after being approved by the commission with the plenary session on 18 December 1980 are as follows. Design of H. Robert Legros. Chapter I Delik

Part 1 Delik

Conclusion

Although the number of articles in the Argentine Criminal Code is only 306, plus 13 pieces of child crime articles added to this translation. The KUHP consists of 569 (formerly 570) articles, but it does not mean that the Argentine Criminal Code is incomplete compared to our Criminal Code, because many articles are lengthy consisting of items (paragraphs).

Chapter I Violence and resistance to authority. Chapter II Delik is faced with general honor. Chapter III Scramble for authority, title (title) and honor

(honorarium), Chapter IV Abuse of authority and violation of obligations by public

officials (position offenses), which includes corruption in Indonesia.

Chapter V Violations of Metrics and Documents. Chapter VI Bribery (similar to bribery offenses in the Criminal

Code). Chapter VII Misappropriation of public funds (including corruption). Chapter VIII Transactions that are prohibited by public officials

(including corruption too, and needs to be considered

imitated in the new Penal Code). Chapter IX Barring justice (including Corruption by the Judge).

Chapter X Rejection or delay in the judicial process (this is similar with the provisions of Algemene Turning First).

Chapter XI False testimony. Chapter XII Protecting criminals (also in our Criminal Code). Chapter XIII Inmate escape such provisions are not specifically

regulated in our Criminal Code, so it needs to be considered to be copied, because of the frequent escape of prisoners in Indonesia).

43. The last titel regarding offense against general trust in the sense of counterfeiting money, other fraud, and so on.

44. What needs to be checked is that delinquency and embezzlement are not regulated separately. Delik of fencing includes delegation of assistance to criminals.

33. Specifically for immovable property, a separate offense is prepared, namely the act of detaining, seizing immovable property which is usually regulated in civil law (Articles 181-182).

34. Delik of destruction of goods is similar to the provisions of our Criminal Code, but there are exceptions, namely husband or wife, siblings. brother-in-law, and so on that damage goods.

35. Crimes against public security (Article 186-189) are in line with the provisions of our Criminal Code.

36. Crimes against transport roads are arranged in more detail (Article 190-197).

37. Delegation of robbery is in line with the provisions of our Criminal Code. What is not regulated is air piracy. There may be additions in the Argentine Penal Code that have not been included in this translation.

38. Delegation to the environment is regulated in Chapter IV of the VII Titel (Articles 200-208). Also adequate includes delict in the field of medicine (drug administration).

39. VIII Titel regulates crimes against public order, including encouragement to commit crimes of illegal association, general intimidation, praise for crime. Praise for evil and criminals is a new thing for us.

40. Title IX regulates offenses against state security, which in our Criminal Code are listed on the front of Book II. Crimes against the state are regulated in detail from Chapter I to Chapter II, which is similar to our Subversion Eradication Act.

41. Chapter X regulates offenses against the Government and constitutional principles. This offense can be classified as a Subversion offense

42. Tilel XI Crimes against public order are very broad, covering corruption offenses and other positions. Consists of 13 chapters (Chapter I - Chapter XIII).

24. Marriage offenses are regulated in a separate chapter, Chapter I, IV, whose provisions are similar to the provisions of our Marriage Law (Law No. 1 of 1974).

25. Covering or embezzling the civil position with the intended harm is also an offense (Articles 138 to 139).

26. Provisions regarding deprivation of independence are also detailed with careful attention. These include acts of torturing inmates (Article 144 Ter). Deprivation of independence is threatened in ten articles (Articles 140 to 149).

27. In the case of entering the yard of another person, it is excluded from corruption if it is carried out to prevent greater harm to oneself, disbelievers, third parties or to those who use humanitarian obligations or assist the judiciary (Article 152).

28. Crimes open secrets including letters from other people that were not addressed to him were also carefully regulated (Articles 153-157).

29. Crimes against freedom of work (Chapter V TV Chapters), freedom of assembly (Article 160), including freedom of the press (Article 161) are regulated quite well, including actions to prevent or disrupt the circulation of books or periodically.

30. Delegation of theft (Articles 162-163) is similar to our Criminal Code, but their robbery offense is more detailed.

31. Delegation of extortion (Articles 168-171) is also regulated in detail, even including conversations about holding hostages for ransom. This means that in Argentina there are such acts, whereas in Indonesia we have never heard of such cases. So, there needs to be such provisions, which can be seen as over criminalization.

32. Delusions of fraud and other fraud, are also regulated in detail, (Article 172-175), as well as bankruptcy offenses (Articles 176-180).

13. Delicacy abortion is regulated more fully, and has called legal abortion, that is if it endangers the lives of people who are pregnant because of rape or attacks on crazy women. However, doctors who do it must have permission. This needs to be considered for our new Criminal Code.

14. The regulations regarding the offense of their persecution are more detailed as well as the duel offense is arranged in more detail.

15. Actions leave people who need to be helped also in more detail. So is humiliation.

16. One thing that is rather strange to us but reasonable, is that the rapist can not be sentenced if he is willing to marry the woman with his consent. This provision is more focused on the benefits than the imposition of retaliatory criminal penalties.

17. Another thing is, in the case of overspel, if the complainant has passed away, then the right to sue is lost, and if the criminal sentence has been decided, it cannot be executed (Article 74).

18. Persecution that results in injury or disability is arranged in more detail.

19. Gunfire, even if it does not cause injury, is subject to criminal sanctions. This is clearly different from our Criminal Code.

20. A false report as a report concerning someone who has committed an offense, entered into the title II of the crime of honor, together with insult.

21. Defamation, pollution is regulated in more detail, pollution in the Court by parties, which is not issued is not an offense but a discipline, so cases such as those carried out by lawyers Yap Thien Hin are not offenses, but disciplinary sanctions (administrative actions).

22. Concubinage (kumpul kebo) is punishable by criminal if the man has a wife, entered into Article 118 (mukah).

23. Prostitution is also threatened with criminality and is also carefully regulated.

6. Regulations regarding participation are similar to our Criminal Code, but their formulation is more practical. Criminal against assistance is not another, because it can be reduced by 1/3 to 1/2 of it. In the case of participation not specifically regulated regarding the press offense.

7. In terms of recidivism, the provisions are similar to our Criminal Code. Only one provision that is rather strange to us, namely military and political offenses are not taken into account for recidivists.

8. In the case of a combination of offenses (concursus), the Argentine Criminal Code is very similar to the provisions of our Criminal Code. The difference is in relation to the different criminal, that is because they are the two kinds of criminal lost independence, the prison

(Imprisonment) and cover (jail), resulting in a second special calculations in terms of a joint criminal offense. Likewise, they do not deal with offense offenses, so there is no accumulation as we know in terms of violations.

9. The same goes for the abolition of criminal offenses, the same as our Criminal Code, except the provision, that the complainant in the case of complaint offense can forgive the convicted person, and abolish the sentence.

10. Provisions about passing time (verjaring), which they call the restriction (the statute of limitations} are arranged more carefully.

11. One thing that is usually regulated in criminal law, namely the principle of legality and community, they are regulated in the Criminal Code which is included in Article 71 which adheres to the principle of legality such as Germany, that each offense must be prosecuted in

Ex Officio, except for complaints and offenses that can only be prosecuted for overspel.

12. The killing code is somewhat different than our Criminal Code, which is said to kill (to kill), it is not said to be deliberately simple. It's just that they are about to kill with weights such as killing their parents, at the time of the flood, and so on.

If the Criminal Code of Criminal Procedure Article 103 shows that the general provisions of Book I of the Criminal Code also apply to the Special Law, then Article 4 of the Argentine Criminal Code is not valid .

Their criminal distribution is simpler, not using an additional criminal system which according to our Criminal Code generally cannot stand alone. Argentine Penal Code only recognizes the criminal point where

included disqualification that sort of removal from office professions, certain job for a certain time.

They do not recognize capital punishment. In addition, it is necessary criminal t fish that they are much lighter than our Penal Code.

Criminal imprisonment (imprisonment) is distinguished by jail (cover). The jailer consists of several buildings or blocks, while the jail consists of just one block.

Some other specificities or detailed as follows. 1. Known compensation for victims, even prioritized from others, including

fines (Article 11), also repairs to damage (Article 29). 2. Disqualification includes the revocation of parental rights and the right

to manage their own property (Article 12). 3. Also known as conditional release (Article 13) provisions regarding

conditional release are very detailed, and do not apply to recidivists. 4. In terms of criminal liability, the provisions are similar to our Criminal

Code regarding reasons for forgiveness (fait d'excuse) on the grounds that they are correct.

5. Provisions regarding the trial, in contrast to our Criminal Code, are subject to criminal matters because they are cut 1/3 to 1/2, even if the offender is not dangerous. Because there is no distinction between crimes and violations, the provisions regarding not being charged with violations are not regulated.

Part 2 The intimate part of the offense

Part 3 Evidence

Chapter II Criminal Law

Part 1 Criminal law according to time

Part 2 Criminal law according to space

Part 3 Interpretation

chapter III Delegation maker Part 1 Responsibility

Part 2 Participation

Chapter IV Limitation of offense

Part 1 The basics of justification

Part 2 Trial Part 3 Combined offense

Chapter V Criminal Part 1 Criminal types

Part 2 Criminal independence

Part 3 Fine

Section 4 Special seizure

Section 5 Revocation

A. Revocation of certain rights

B. Prohibition of carrying out a profession

Section 6 Trusteeship according to criminal law

Section 7 Introduction of sanctions

Section 8 Criminal motivation

Chapter VI Criminal justice simplification

Part 1 Criminal justice simplification

Part 2 Schikking is a criminal law

Part 3 Beschikking (provision) is criminal law

Chapter VII Criminal Restrictions

Part 1 Criminal choice

Part 2 Repetition

Part 3 Criminal matters are not carried out according to view reklaseing

Part 4 Government Part 5 Guilty statement and warning

Part 6 Parole

Part 7 Criminal offense

Part 8 Remove the punishment Chapter VIII Special Civilization and recovery

Part 1 action

Part 2 civil law enforcement Chapter IX Action

Part 1 Security measures and protection

A. Community protection against abnormal people

B. Youth protection

Part 2 Substitute action

A. Appointment of forced education or governing government

B. Work for interest community

Chapter X General requirements

I. Application of Book I for offenses listed in special laws

II. Implementation of Book I of persons who are not subject to the Military Penal Code which taken part in a crime l ataa minor crimes where the criminal governed by the Code of Military Criminal Justice Act. Laws to amend the Judicial Code and the Criminal Procedure Code and the creation of judicial executions.

The draft of H. Robert Legros was then discussed by the

Commission and approved by the plenary session on December 18, 19O. Ra ncangan other than the original. If the original design is not divided into

Book I, then this is called Book I. The second draft does not contain Books 2 and 3 (Crime and Violation).

Thus, the revision of the Criminal Code Belgium mainly on general provisions in the b uku 1. Harapir together with draft BPHN and DG Kumdang, 1991, which changed only general provisions (Book I) sedangkaii I Book II (also ex-Books incorporated III) virtually unchanged from WvS. This draft starts with the Criminal Law with general principles. Chapter 1 General attention

Part 1 Purpose

Part 2 Prioritizing human rights

Part 3 National Criminal Law and Obligations

obligations arising from International Law

Part 4 Validity of punishment and sanctions

Part 5 Elimination of the application of analogy

Part 6 Non bis in idem

Part 7 The equality of justice seekers in

Constitution

criminal Part 8 Personal immunity

Part 9 Personal sanctions

Part 10 Application of laws and

Special provisions, unless otherwise specified

chapter II Application of criminal law according to time

Part 1 Law contradiction

Part 2 Criminal law according to time

Part 3 Time to sue

chapter III Application of criminal law according to space

Part 1 Delik is done in Belgium Part 2 Delik is carried out on an airplane and

Ship

Part 3 offenses committed outside the kingdom

Section 4 consequences in Belgium about criminal decisions

abroad. Section 5 legal assistance

Section 6 surrender (extradition) Section 7 criminal charges committed abroad.

Titel II Criminalization

Chapter I General principles. Part 1 General principles

Part 2 demands, offenses and delinquency of commissions

Part 3 cause and effect Part 4 Cause danger Part 5 happens instantly and the continuity of offense

Part 6 offense localization

Part 7 autonomy of criminal law.

Chapter II In order Part 1 crime

Part 2 misdemeanor Part 3 violation

Chapter III Justification

Part 1 emergency state

Part 2 self-defense from the law

Part 3 government order or permission

Part 4 legitimate orders by the government. Chapter IV Justification and forgiving foundation

Chapter V Trial Title of accountability

Chapter I General principles

Part 1 Nullum crimen sine culpa

Part 2 Personal mistake, the basis of accountability

criminal offense that does not stand own

Chapter II General basis cannot be accounted for Part 1 Underage

Part 2 Mental illness and really abnormal things

really

Section 3 Severe and temporary disorders

thinking ability

Section 4 coercion Chapter IV Error

Part 1 Intentional purpose

(concerning crime and minor crime) Part 2 Dolus

Part 3 Culpa

Part 4 As a result of errors that precede

(drunk and so on)

Part 5 Arrangements about the consequences

accidental Part 6 Mistakes about the law and circumstances

Chapter V Criminal liability and accountability civil Chapter VI Legal entity

Sanction VI Title

Chapter 1 General principles. Part 1 Statement of guilt

with deliverance from

other criminal A. Without registration in the criminal register B. By registering in the criminal register

Part 2 Community work

Part 3 Fine

Part 4 Removal and revocation (loss

rights, job ban, company closure)

Part 5 Criminal seizure

Part 6 Announcement of judge's decision

Part 7 Prison criminal Part 8 Death Penalty

Chapter III Security measures

Part 1 Detention. Placement within the institution

maintenance or environment Part 2 Submission to the government Part 3 Deprivation as a security measure

Part 4 Announcement of judge's decision

Part 5 Statement of deletion and revocation

Part 6 Preventive guarantees

Chapter IV Types of sanctions

Part 1 Ordinary suspension

Part 2 Ordinary delay

Part 3 Experiments and community work

Part 4 Duration

Chapter V Criminal provisions

Part 1 Criminal objectives and tools to achieve

that goal Part 2 Information from the Judge

Part 3 Choice of sanctions and restrictions

Constitution

Chapter VI Implementation and Elimination of sanctions

Part 1 Weekend detention

Part 2 Confinement is limited

Part 3 Limited freedom

Part 4 Temporary release

Part 5 Parole

Part 6 Criminal leave

Part 7 Past time

Part 8 Forgiveness

Part 9 Amnesty

Part 10 Restoration of honor and rights

Part 11 Removal Part 12 Death of the convicted person

Part 13 Resistance to implementation

Part 14 Prison criminal substitute

Part 15 Implementation with equations

Chapter VII Sanctions applied to legal entities

Part 1 Warning

Part 2 Court order Part 3 Bail Part 4 Guarantee

Part 5 Fine

Part 6 Deprivation

Part 7 Affordable recovery

Part 8 Statement of deletion and revocation

(loss of rights, elimination of power, interesting ban on general storage)

Part 9 Statement of the elimination of Legal Entity

Part 10 Revocation of Legal Entity

Part 11 Announcement of Judge's decision

Chapter VII The consequence of criminal punishment (return, prohibition

legislation, cancellation, fees and guarantee funds) Title V Definition

Looking at the systematics and material of this Belgian Design, it can be said that it is modern. It has been regulated regarding the relation between National and International criminal law, types of sanctions and acts that are religious, attention to victims of crime and the civil consequences of a criminal decision.

CHAPTER XIV

SOME NOTES ON INTEGRATED CRIMINAL JUSTICE IN NEDERLAND, GERMANY, SCOTLAND, ENGLISH, AND BELGIUM

NEDERLAND

What is called integrated criminal justice or integrated criminal justice system as a lesser-known term in the Netherlands. But in practice this country is best in carrying out integrated criminal justice in the sense of harmonious relations, in tune between all relevant agencies in criminal justice. Coordination and deliberation are carried out well.

This is due in part to the organizational or structural elements of law enforcement under the auspices of Ministerie van Justttie (Ministry of Justice).

Courts, Prosecutors, State Police (Rijskpolitie), and Immigration are all within the organization and structure of the Ministry of Justice. Even the

Interpol section and the Criminal Laboratory are under this Ministry. Therefore, structurally and coordinating is far more smoothly the implementation of criminal justice in the Netherlands than in Indonesia where the law enforcers are under different Departments (Institutions).

The police are under the Department of Defense, the Prosecutor's Office itself, the Judge is under the Ministry of Justice and we do not yet have a perfect and independent criminal. This is complete with the Criminal Laboratory under the Ministry of Justice, so that several cases were sent there from other countries.

Indeed, every Gemeente (city and district) with a certain population has its own police (Gemeente Politic), but all of the Rijkspolitie and

Gemeente Politie are under the leadership of the Officier van Justitite

(Prosecutor) in the investigation. In large or important case investigations since the start of investigations conducted by the Rijkspolitie or Gemeente Politie, they must immediately be reported to the Prosecutor because of the investigation leader. This information was given by us by the Chief of Police in Breda.

Particularly in cases involving the environment, the time is related to licensing (licensing) then there is a possibility of completion of administrative, civil or criminal methods or two or all together . So it is known as driehock overleg between prosecutors; Police, and Gemeente.

The Prosecutor's Office gives very large authority to the Officer van Justitie individually, also accelerates and accuses the settlement of a case.

District Attorney (District Openbaar Ministerie) in the northern part of the Netherlands such as Friesland Province , Drente, and Groningen, the Attorney General's Office is only in the provincial capital, Gemeente

(municipality / regency).

Only in the south there are some great Gemeente there Kcjaksaannya. The National Police or Gemeente Politie is in every

Gemeente. Prosecutors at the District Prosecutor's Office are divided into

certain areas of particular criminal / for example, there are one or two special Prosecutors who handle: and demand environmental offenses.

Police who submit cases to the Prosecutor's Office directly to the Prosecutor concerned (environmental prosecutors or prosecutors for the regions concerned). So, in the Netherlands (also in English, Scottish, German, and Belgian) Chief Prosecutor "no" divide p e rkara the Prosecutor. Management of case administration via computer. In the Netherlands two times a week is usually a right mengad Chief Prosecutor meetings with prosecutors to discuss his m umu about policy (policy) general prosecution. So, in particular, the Chief of the Prosecutor's Office does not order the Prosecutor to comply with criminal penalties for example. Only uraum bersifal. For example if the offense is murder, so that it is prosecuted more heavily and so on.

The head of the District Attorney (district) is very strong. For example Cfllon Attorney General (Procureur Getieraal) in Lceuwaarden whose territory covers the three provinces of Friesland, Drente and Groningen, silent b il of three chief prosecutor in the region, (Leeuwaarden, Assen, aluu Groningen).

So, Advoeaat Generaal (compared to the Assistant Attorney Office in Indonesia) should be the first new Chief Prosecutor be cal o n Procureur Generaal.

All prosecutors function as court cases. Prosecutors in the District District in Kantongerecht and Arrondissemand, Procureur Generaal and

Advoeaat Generaal at Gerechlshof, the appeal hearing at the Gerechtshof; The next Procureur Generaal Generaal and Advoeaat on HW Raad appeal hearing at the Supreme Court. The one who controls the prosecutor down is the Regional Police in the area.

Prosecutor's Office in Belgium

As in the Netherlands the Prosecutor's Office in Belgium is under the Ministry of Justice.

At the Belgian Supreme Court there is an Attorney General (Procureur Generaal). He is not the supreme leader of the Prosecutor's Office and does not supervise prosecutors. He is only an advisor to the Supreme Court and is present whenever the Supreme Court convenes (for criminal cases).

The direct oversight of the Prosecutors is the Attorney General in the Court of Appeal (Cour d'Appel). This Attorney General is called

Procureur Generaal as well and his office is called Parquet General. Because in Belgium there are 5 Appellate Courts, there are 5 Prosecutors

/ Parquet General Prosecutors . It is the Attorney General who oversees the Prosecutor (Procureur du Roi) in each of his territories. The Attorney

General also with the Minister of Justice set a prosecution policy for each of their regions. Because Belgium consists of 9 provinces, it means that the area of the Attorney General / Court of Appeals consists of 2 and even 3 provinces. In this case the same as the Netherlands.

In every provincial capital and in Brussels there is a Cour d'Azis. This court is a court that examines cases of murder and persecution that have caused the deaths of people. Actually this court is not permanent. The chairperson and 2 judge members are appointed every time there are cases that become their authority (murder and so on). What is interesting is that the Public Prosecutors in this Special Court hope that the red is the same as the Chairperson of the Judicial Commission.

While the judges were black magic members. This is a symbol, that the Prosecutor's Office in Belgium has an important role. Even though the Prosecutor is generally less senior than the poultry judges, his position is equated with the Chief Justice of the Court, because the Public Prosecutor concerned is the deputy attorney general for the Court of Appeal. (Special courts in other countries, whether in the British, American or Continental European systems are often referred to as the High Court. prosecute certain crimes, which may not be tried by the District Court, namely for example murder, rape, discordant relations or incest, political crime, betrayal or subversion, fires that cause death of people, and terrorism. Therefore, unlike in Indonesia, the 'High Court' is not necessarily the Court of Appeal).

Because the criminal code of the Belgian Criminal Code is of three kinds, namely crime; Delit, d $ n contravention, then there are three courts, including the Special Court for Crimes (Cour d'Aziz has 9 pieces), the District Court for the offense (Tribunal de Correctional or Arrondissement amount 27 pieces, meaning there are two or three in each province ), furthermore in each Municipality there is a Court for violations which have the authority to impose a very limited sentence. As in the Netherlands, in Belgium there is no district, the so-called Municipality is a second tier. Also like in the Netherlands, the Parquet is not in the second level but is in each of the 27 Arrondissement Courts or Tribunal de Correction . As for the light court, there are approximately 100 people. As in the Netherlands, even in Norway the Attorney at the Parquet may have jurisdiction for 2 or 3 Municipalities. Principle of Oportunity

The Belgian Prosecutor's Office monopolizes the prosecution and adheres to the principle of opportunity. Belgian prosecutors by law were given the authority to investigate and be given leadership positions in the investigation. However, because the Ministry of Justice has a Police Judiciare (Gerechtelijke Politie or Police Judiciary), the investigation was practically carried out by the Judicial Police. Police The organizational justice is led by a Commissioner General. However, while carrying out their duties, they were responsible not to the Commissioner General, but

to the Attorney General at the Court of Appeal. And in practice the Judicial Police commanders with offices in the Prosecutor's Office (Parquet) are submissive and follow orders and instructions from the Chief Prosecutor's Office. Every Judicial Police Office is equipped with a criminal laboratory.

In the meantime, Attorney in Belgium free to determine who might investigate, because in addition to the Judiciary Police, there are two else especially police keep order that police paramilitary Gendarmerie nature as Marsose in the Netherlands, and the Municipal Police. The police of the Gendarmerie sit down to the Ministry of Defense and the Municipal Police to the Ministry in Nugeri. This is the difference with France. According to Secretary General of the Ministry of Justice of Belgium, in France the three types of police were holding the Ministry of Internal Affairs.

Any police investigating criminal acts as appointed by the Belgian Prosecutor, then once carried out their investigations subject to the orders of the Belgian Prosecutor. In practice, investigations are generally carried out by the Judicial Police. In addition, every Judicial Police office has a

Criminal Laboratory. In other words, the Belgian Prosecutor occupies a key position in

investigating and prosecuting criminal cases. Not one case will escape the supervision of the Prosecutor, because once investigating anyone must report to the Prosecutor. Besides the police in Belgium can only arrest the judge's orders, except in the case of being caught. The arrest warrant cannot be directly faced by a judge, must go through the Prosecutor. Termination of investigation must have the attorney's approval.

It can be concluded that the criminal justice system in Belgium is a mixture of the Dutch and French systems. It should be noted that the official language in Belgium is B language elanda and French; North Belgian court in Dutch and South Belgium Peranc is nienggunakan language. Unique in Brussels, as the capital of Belgium, has a Dutch-language court and in French. The defendant may choose to be tried by a Dutch-language court or by a French-speaking court. Therefore, the Prosecutors and Judges in Belgium consist of Dutch-speaking Law Faculty alumni or the Franciscan Law Faculty. There is rarely a judge or prosecutor who can master both languages.

The Belgian Prosecutor's Echelon is Procoreur Genera in charge of Advocaat Generaal. Below it is Procureur du Rot (Head of the High Prosecutor's Office or Head of the Prosecutor's Office at the Arrondis-xcmcnt Court ) who is assisted by the Subsitut and Subsitut Police. As a public prosecutor they are all called Magistraat. Prosecutor's Office in England

Until the end of 1986 England (and Wales) did not have a Prosecutor. Even though in another part of the region, namely Scotland, there is a Prosecutor with his organizations and authorities as in Continental Europe. Anyway in cash Be British colony itself such as Singapore, India, Canada, Australia, and the United States there are

prosecutors. Even in Herslatus colonies, such as Hong Kong, it has a Prosecutor (Crown Prosecutor). Until the end of 1986, Public Prosecutors for minor cases were not the Police themselves (Police Prosecutor). For the most moral cases, the prosecutor is generally a lawyer called a

solicitor. As for the serious cases that were tried at the high court and the Appellate court, the Umam Prosecutor was a lawyer who formed a

barrister. Both the solicitor and the barrister who are prosecutors of the program are paid by the police on a case-by-case basis in client relations

(police) and lawyers (prosecutors). Therefore, the public prosecutor in such a situation must fulfill the client's wishes , so that he does not have the final decision to determine whether he can sue or sue for a case. The preference of the policy is prioritized, even though the case contains weak facts and very little evidence, so it is very likely that it will not result in conviction from the judge.

This situation has been revealed more than 100 years ago by Lord Denman in 1824. He said, a strange anomaly in the English Criminal System was the entire want of responsible public prosecutor. In 1845 Lord Denman repeated his complaint, followed by the Criminal Law Commission, that the procedures (were) were conducted in a loose and unsatisfactory manner. So the Commission concluded that defects or deficiencies in the prosecution system must be corrected by the appointment of public prosecutors.

However, it was not until 1880 that a Director (General) of Prosecution (DPP = Director of Public Prosecutions) was appointed. However, it is still in the Ministry of Internal Affairs and is responsible to the Minister of Home Affairs. After all, he did not have any hands in dispute, because prosecutors were not formed with the Prosecutor's organization. The current DPP is the tenth and since a number of DPPs have previously been appointed and appointed by the Attorney General and accountable to the Attorney General. However, his authority in prosecution is only in big cases. That is, the police before paying the barrister for a big case must get a recommendation from the DPP first. Without his approval the case cannot be submitted to the Court.

In the meantime, in the twentieth century, police in the UK began to attack the solicitor department, where solicitors worked full time in the local police to process cases investigated by police to prepare prosecutions and appear before the court as public prosecutors. It should be stated in Britain that there are dozens of police units that are separated from each other. So, there are no National Police or Royal Police.

However, the irregularities that the police still determined to sue or not demanded a case still hampered legal experts in Britain.

So in 1978, a Royal Commission on Criminal Procedure was formed which identified three deficiencies in the applicable prosecution system:

British police as investigators are not eligible to determine whether a case must be prosecuted or prosecution must be stopped.

British police are not consistent in determining criteria when a case must be prosecuted and when not to be prosecuted.

British police have filed too many illicit cases so they are often released on trial.

In 1981 the commission suggested to the Government to form a

British Prosecutor's Office with legislation. The government approved but wanted a national Prosecution (not apart-off as a police organization), but s e each local authorized the Attorney large in determining prosecution scsuai with local conditions and situations. (Perhaps knowing in Scotland, the Attorney General called the Crown Office iku t l interfering t thinking in the determination of prosecution in Scotland in cases yung not the summary).

In 1984 the AGO Bill was submitted in Parliament. Perde-hiitan and the invitations were rather long, because the Prosecutor's concerns that were formed would only be police stamps. Finally, in 1985 the British Prosecutor's Law was born. On I October 1986 the British Prosecutor's Office (Crown Prosecution Service (CPS) was born and began operations. Such is the struggle of British jurists in forming the Prosecutor's Office. Now the Prosecutors (Crown Prosecutor) are the ones who determine whether a case can be prosecuted or not. As a result, as early as possible the Sudanese police contacted Kejak-saun when he began investigating a case. The police are subject to the Prosecutor's decision.

However, the struggle to form a strong Prosecutor's Office in England is not over. The reason is that prosecutors in the UK have not yet been entitled to become public prosecutors at the High Court and the Court of Appeal. The prosecutor's office still has to pay a barrister lawyer to appear in such a court. (Like the police used to pay solicitors and barristers to become public prosecutors). In the next five years, the struggle will succeed. It is also possible that in the year 2000 the British Prosecutor's Office under the law will also be the leader in the investigation. Even now without written regulations, in the practice of the Prosecutor's Office becomes the head of the police in the investigation, because without the earliest possible consultation with the Prosecutor's Office the case might be less successful in the Court. This was also said by a middle Scotland Yard officer in London, that with the presence of the Prosecutor's Office, the quality of cases investigated by the police had increased. Just waiting for time, the British Prosecutors will be as strong as their counterparts in Continental Europe and across the Atlantic (United States, Canada, and Latin America).

The British Prosecutor's Office of Operations is headed by the Director (General) of Prosecution (DPP). The DPP was in power once, after the British Attorney General, in the field of prosecution. In the UK there are 31 Prosecutors or CPS (Crown Prosecution Service). The ranks from low to high are Crown Prosecutor, Senior Crown Prosecutor,

Axsistent Crown Prosecutor Branch, Branch Prosecutor (Kajari), and Chief Prosecutor (Kajati).

The British Attorney General's Office has the Police Complaints Division, which is the part that receives complaints from the public, that a police officer has committed a crime, from a criminal act of striking a person to another crime. This section receives complaints or orders from the judge that the police have committed a crime.

The uniqueness of the prosecution system in the UK is known as private prosecution, namely prosecution by individuals without going through the police (investigation) clan without going through the Prosecutor's Office (prosecution). Article 6 paragraph (2) of the Law of the Prosecutor of the United Kingdom gives Authority to the Prosecutor (CPS) to take over a private prosecution to become a public prosecution. In other words, the final determination of whether or not to demand a case remains in the hands of the Prosecutor's Office. For example in the case of The Moors Murderes, where you were one of the victims doing a private prosecution. The Procuratorate then took over and stopped the prosecution with the consideration that the defendants had been sentenced for the murder of several children in the 1960s. One of the victims was you personally sued. SCOTLAND PROSPERITY

Scotland is the territory of the Kingdom of Great Britain, next to England, Wales and Northern Ireland. Different from the other three regions with the British legal system, Scotland is closer to the Continental European legal system. This is due to historical relations; in other times Scotland allied itself with Francis against England. However, according to observations, especially the prosecution system was closer to the prosecution system in the Netherlands and Germany. This was also confirmed by several senior prosecutors there. Specifically, Scotland may be in terms and names of legal officials only. For example, a district court judge in Scotland is called a Sheriff, while a Prosecutor (High Prosecutor or Head of the District Prosecutor's Office) is called a Fiscal Procurator. Because Scotland has a legal system that is different from England, there is the Attorney General himself called Lord Advocate (In England the Attorney General is Attorney General).

Lord Advocate is represented by a Solicitor General. Underneath it are dozens of Advocate Deputies. Lord Advocate and Solicitor General are political positions. Even the Advocate Depute also until a few years ago was still a political office. The three types of legal officials appear at any time themselves as public prosecutors in a court session. However, it is the Advocate Deputes who generally prosecute, especially for cases in the first instance that are the authority of the High Court. In this connection it needs to be explained that in many good countries with the British system, even though the United States has a Continental European system, such as Scotland, there are certain cases that are tried for the first

time not by the District Court, but by the High Court. state, political crime, murder, rape, sexual incest and nighttime fires caused the death of people. Prosecution of Opportunity

First of all noted that the Attorney Scotland basically monopoly prosecution, because, as in the United Kingdom in Scotland on (Jusiirnya everyone can prosecute its own (private prosecution) without requesting police assistance (under investigation) and (without ask for help prosecutors (in prosecution ). However, (practice needs to be underlined that the prosecution without going through the Prosecutor was arguably the exception that rarely happens. The long almost the last hundred years in Scotland only happened twice prosecution without going through the Attorney General. the fact is also among the Sulu that distinguishes the system prosecution in Scotland and in the UK Furthermore, as in the countries of Western Europe and Indonesia, the prosecution system in Scotland adheres to the principle of Opportunity: the Scotland Prosecutor's Office has exercised much authority to stop prosecution, only in contrast to its counterparts in Western Europe. from the Crown Office (AGO Agung Scotland). Authority of the Attorney General of Scotland

The main task of the Scottish Attorney General is the highest public prosecutor in Scotland. He occasionally appears as a public prosecutor in a court session. Its function as a public prosecutor was carried out by the Attorney General's organization in Scotland called the Crown Office based in Edinburgh, Crown Office was the highest institution in the organization of the Scotland Prosecutor's Office.

The Attorney General of Scotland or Lord Advocate is assisted by a Crown Agent who can be likened to a Jambin who is the highest civil servant who leads the management affairs of the Scotland Prosecutor's Office. The Lord Advocate is also assisted by around two Advocate Deputies . In practice, the Deputy Attorney General appeared as a public prosecutor in the High Court and Court of Appeals. (In the English-American and Scottish system the High Court and the Appellate Court are different. The Court of Appeal is a Court that checks Appeals from the High Court and District Court. As explained earlier, there are certain criminal acts which may only be heard by the High Court and not by the Court Country).

Attorney General of Scotland has full powers over prosecuction. No one can govern the Attorney General for m e demanding a case or not to prosecute a case.

The authority of the other Attorney General of Scotland is the legal advisor and constitutional adviser of the British Government for the affairs of Scotland, including responsibility in the field of drafting a bill for Scotland. For this reason, in London there is the Lord Advocate

Department led by a Legal Secretary who is responsible for drafting the Bill for Scotland. Authority of Prosecutor Scotland

As in countries with continental European systems, the Scottish Attorney is authorized to carry out investigations and prosecutions. Both of these things became his responsibility, because he was the representative of the Attorney General of Scotland in his area. But in daily practice, the police who carry out the investigation, but are supervised by and always given instructions by the prosecutor. Only in heavy and important matters, the Scottish Attorney conducts his own investigation.

Even if the investigation is carried out by the police, the Prosecutor will always be able to follow him, because the law requires the police to carry out the investigation to report to the prosecutor. Even in the case of murder, the police immediately contacted the prosecutor to go along looking place events and to do everything on management victims under the direct leadership of the prosecutor. As in Germany and in the Netherlands in conducting arrests there must be a judge's order, except if caught red-handed.

The police do not have the authority to stop the investigation, because the prosecutor has the authority to order the investigation to be continued and then fully determined by the prosecutor whether the case can be prosecuted or not. Therefore, even though in practice the police who carry out investigations and also the police have broad freedom to determine the priority of investigations, but it is the prosecutors who stop the prosecution (which means stopping the police investigation).

The prosecution rights of the Scontland Prosecutor are limited to ordinary matters (not sumier matters). In ordinary cases, Scottish Prosecutors must submit case files to the Attorney General's Office in Scotland for review. The investigation of the Attorney General's Office will produce an order to the Chief Prosecutor (Procurator Fiscal), whether the case must be tried with ordinary procedures or must be changed to a sumier procedure. The review also determines what court should examine it, whether the High Court or District Court / Sheriff. (As explained before the Judge of the District Court in Scotland is called a Sheriff).

The Uniqueness of Attorney Scotland

Scotland prosecutors have other authority with their colleagues everywhere. He is authorized to determine whether someone's death is unnatural or suddenly caused by a crime or not. If the death is not caused by crime, the investigation is stopped and the case is closed. If it turns out that the death was caused by a crime, the case was submitted to the prosecutor's investigation department or to the police for investigation.

In addition, the Regional Prosecutor (High Court) received reports from the public that a police officer has committed a crime s e a task. The

investigation was carried out by the Prosecutor himself, or it could also be submitted to the unit of the police concerned. But y a ng assess whether the evidence is strong and sufficient facts for a has put forward to the court, not the police boss under investigation, but the head of the Attorney Reg.

It should be mentioned that in Scotland a Chief Prosecutor m e duplicates into the domicile of the District Attorney Prosecutor High are concerned. PROSPERITY OF THE GERMAN FEDERATION REPUBLIC (RFJ)

There are 2 types of Prosecutors in the German Federation Republic (RFJ). Namely the Federal Attorney and the State Prosecutor's Office (Lander).

The Federal Prosecutor's Office, led by the Federal Attorney General domicile in Karlsruhe, because the Federal Supreme Court is in situ (not in the capital Bonn). The State Prosecutor is led by J a ksa Supreme State. As there are 16 States, then t e ral 16 of the State Attorney General, in which the Federal Prosecutor's Office is under the auspices of the Ministry of Justice and the State Section Prosecutor's Office under the auspices of the Hagian State Ministry of Justice,

The State Attorney General is very powerful in his jurisdiction. Hersama, the State Minister of Justice, determined his prosecution policy for his jurisdiction. In other words, the Attorney because portions are not supervised by the Federal Attorney General. Principle of Legality

As in Indonesia and other Western European countries the Prosecutor has a monopoly on prosecution rights. What differs in principle is that if in Indonesia and Western European countries they adopt the principle of opportunity, the RFJ Prosecutor's Office adheres to the principle of legality. This means, once known to have been a crime, the Prosecutor must sue him. If not, he is considered to have committed a criminal offense that was threatened with criminality in the German Criminal Code.

However, it is wrong to assume that prosecutors in Germany do not have discretionary power as their Western European counterparts have. The reason is, there are some exceptions to the principle of legality. For example in small cases, also in cases where there is no public interest, or in cases of complaints, RFJ prosecutors are permitted not to prosecute. Moreover, the notion of legality principles is not interpreted too narrowly. Even in everyday practice, the principle of legality is the main shield for Prosecutors from political pressure or from coercion by their superiors to demand that they do not sue for a case that is in conflict with their opinions and beliefs. Because, the determination of whether the evidence is sufficient and the facts have been filed has been fully handed over to each Prosecutor. So in practice RFJ Prosecutors have extensive freedom like

the Prosecutors in Western Europe. So, art i important principle of legality for j Aksa-prosecutor RFJ is that they can not be forced, either by political pressure by the pressure of supervisor to prosecute cases that menur ut opinion and conviction is not enough evidence or lack of facts . S e behind it, they can not also be forced to not prosecuting those cases which in the opinion and belief evidence- enough evidence and strong facts. If there is coercion and until the prosecution is carried out or the prosecution is not carried out, then that forces the Prosecutor to be punished by the German Criminal Code even though his boss.

Object of Investigation and Prosecution

According to the law, both the Federal Prosecutor and the State Prosecutor have the authority to carry out investigations in addition to monopolizing prosecution. The law provides the position of leader in every investigation to the Prosecutor, so that he is the Master of Trustees or the Master of the Innitiative. The police and other investigators are only Auxiliary Officers, such as the Hulp Magistrate in Indonesia before the 1982 Criminal Procedure Code or like the Hulp Officier van Justitie in the Netherlands today.

However, the object of the investigation and prosecution of the Federal Prosecutor's Office is different from that of the State Prosecutor's Office. The Federal Prosecutor's Office is authorized to investigate and prosecute certain crimes which are very small in number compared to crimes that may be investigated and prosecuted by the State Prosecutor's Office. Crimes that can be investigated and prosecuted by the Federal Prosecutor's Office are terrorism, heavy treason (subversion and espionage), and political crime. The Federal Prosecutor's Office can also delegate its authority to the State Prosecutor's Office due to certain considerations. Therefore, most of the criminal acts stipulated in the Criminal Code and in other regulations, in practice, are handled by the State Prosecutor's Office.

Four Stages of Authority

The authority of the German Prosecutor's Office includes four stages, namely

first stage : investigation,

second stage : preliminary examination before the Judge,

third stage : examination in court,

fourth stage : execution. Because the third and fourth stages can be said to be not much

different from the practice in Indonesia, it does not need to be explained again in this report. It is only necessary to state its uniqueness in the case that the German Prosecutors by law are obliged to disclose evidence and facts that can alleviate and even free the defendant. The philosophy is that the Prosecutor must seek essential truth. Therefore, in Germany it is not

only the defendant's lawyer who can appeal the interests of the accused, but prosecutors may also appeal to the defendant's interests. Regarding the first and second stages of the German Attorney's authority, this can be briefly stated. First Stage: Investigation

It has been stated earlier that in the investigation the Prosecutor was given a position of leadership by law. He was also authorized to carry out his own investigations. But so, in daily practice, the prosecutor in the German surrender completely investigation to the police, especially in cases that are not too heavy and important. Even in heavy and important cases it is not uncommon for the Prosecutor to ask for help from the police to investigate him. He is sufficient to provide guidance and advice actively and intensively.

The workings of the German Prosecutors are due to the fact that German police have complete and professional means of investigation. else as arranged by the law, Hanwa German police can not act alone, it will always depend on the prosecutor. Therefore, at the time of the investigation, the police will contact the Prosecutor as early as possible. So, in German unlikely police conduct an investigation of the case or without as for as you know prosecutor in the region. Moreover, only authorized prosecutor value whether the evidence is sufficient and whether the fact that a strong or weak. Therefore, the role of prosecutors in the field of investigation is very important and prominent. During our visit to several police forces in Germany, police officers always replied that in the investigation prosecutor the leader, not the police commander in question. They said it was impossible to avoid prosecutors' oversight, because they would always need it. Especially in Germany the police have no right to arrest and detain, except on the orders of the judge or except in cases of being caught (flagrant delicti). To request the arrest and detention order, the police could not immediately ask for a judge's sentence but had to go through the Prosecutor. Then there is not one case in the Input from the Prosecutor's supervision.

Second Stage: Preliminary Examination in Court

This stage is not known in Indonesia, but is well known in European countries (Continental, as well as in countries with British and American systems. It is referred to as committal proceeding. In this case it is the same as the Netherlands.

In this second stage the German Prosecutor played a role in the evidence and facts to convince the Judge that it should be tried. The judge who handled this second stage was known as the Reachter Commissaris, Judge d'instruction, Magistraat. This judge determines whether the case can be tried and by what Court. Also Diala h which determines whether the defendant should be detained, or should continue to be detained while

awaiting trial when his case or whether the accused should be released from custody.

Thus in summary about the role and authority of the Prosecutor's Office in the Federal Republic of Germany, including the former states of East Germany (German Democratic Republic).

CHAPTER XV

GRENLAND

Greenland (Green Country) is the largest island in the world located in northeast Canada. So, it is located between the Americas and Europe. It looks like an ax, about 840,000 miles2 or 2.2 million square kilometers wide.

But the population is very rare, first at the time found ol e h Hans Egede in 1721 only about 7,000 of the nation inhabited Eskimo. Later, the Eskimos mated with Europeans. Even though they are now made up of various ethnic groups, they call themselves Greenland people and use the Greenland language which consists of many Danish words. At the 1805 census and the first time in Greenland 6,000 population, in the years 1960 and 33,000 at start 1970 as many as 40,000. Only 3,000 air- a da in s e b el ah west and southwest.

The native people of Greenland, the Eskimo were reported to have come from Canada about 3,000 years ago.

In 1,000 AD came the second wave expected to come from Alaska. A Norwegian sailor named Eric in 982 discovered Greenland. In

1578 Marten Frobisher find again Greenland. In 1605 and 1616 in the name of the King of Denmark John Davis et al. explored the coast of Greenland.

Hudson reviewed the east coast in 1607. In 1721, Hans Egede the Danish missionary founded a mission and colony near Goathaab. S e a long 200 years of missionary berk e Liling in western Greenland.

In the 19th century east coast exploration began, led by an Englishman named William Scoresby.

In 1894 a Danish colony was established in Angmagssalik on the southeast coast . On the north coast was visited by investigators I nggris and America.

Only in 1921 Denmark claimed sovereignty throughout Greenland. He closed beach for others. It was given a concession to England and Norway to sail in the northeast. In 1941 when Germany occupied Denmark, Greenland became a temporary protector of the United States and established a military base there in World War II. Also Germany established weather stations on the east coast. After the war, Denmark gave defense rights to the United States and other Nato members.

In accordance with the state of the unique geography and population, the Criminal Code of Greenland is also very unique in creation, sanctions describes not only the severity of the offense itself, but a desire for rehabilitation offender and protect the public.

Thus, the criminal is intended to impose sanctions on individuals in a humane way.

Greenland Penal Code was designed by a group of expert people sent by the government of Denmark to Greenland in 1948 in 1949 to study

the possibility of applying criminal law Denmark in Sana, or codification of the law who lived in Greenland.

This group of experts argues that often a crime is more disturbing to the small community than the crime itself. sanctions it always increase rather than decrease the dispute in the middle of the community posed by the public.

The Greenland Criminal Code of 1954 as a result of the creation of a group of experts called for incorporating this view into criminal sanctions.

His life continued the habit in Greenland was determined by the sociocultural characteristics of the country. The Greenland community is small and compact. The perpetrator of the offense known to the whole country, as well as police and judges. He is individualized, rather than the symbol of evil he has made.

Sanctions for customary law in Greenland are still colored by feelings of social solidarity because the accused is well known to the community. Then the needs of workers, the absence of penal systems or institutions that similar and the smallness and isolation of the island community. For these reasons, both the Greenland and Denmark who uda in Greenland requires that existing patterns of criminal sanctions maintained.

Devised to maintain Greenland of influence ben t UK- form of penal control of Western society dominated by industry.

Greenland Penal Code serves to maintain the patterns p e mbinaan individual criminals that there is no society envied isolate, determine guidelines for local authorities and m e mperkenalkan equal legal treatment between Greenland and Denmark were not there before.

There should be a culture of knowledge rnengenai Greenland to understand organization and application of the Criminal Code of Greenland anywhere. The hunu KUHP is applied in West Greenland with a population of 35,000. 5,000 Danes mixed with Eskimos mixed with Europeans. Colonization 1721 is under Danish customary law.

The desire for existence of California produced a study in 1948-1949 and finally gave birth to the 1954 Criminal Code. Actually, before colonization in the past, Greenland native people lived in peace without any meaningful crime. Before legal sanctions in 1949 laid the foundations organization justice in Greenland, particularly coaching offenders Individualization not determined in accordance with the severity of criminal that do.

The most desirable characteristic of the informal system that was introduced by the 1948-1949 system was its flexibility and the unknown prison system.

The forms of sanctions are only a few of the same ones as in Europe or America. Confinement is rarely used as a form of criminal sanction. There is no prison. Greenland residents are psycho logically can not accept imprisonment, it is difficult to provide appropriate detention tcmpal. After all, this country really needs labor.

Only in cases of very specialized offenders locked up in cells if possible, but still given the opportunity to work on during the day. In generally confinement only done against a dangerous criminal who has committed a crime or a very serious.

However, no one is treated and continues to curl up in confinement for a long time. It will be released in a short period of time if the insulation is modified. Often they are sent to places where he lives normally with limited supervision, not to an uninhabited place. Often also placed as an accomplice to hunters or shepherds, who often provide mandatory training. Environmental changes need to be given to them. Such thinking is often ordered to protect the population from bad influence from offenders.

Forced labor requires that convicts to work, usually for public institutions, is often applied. Normal wages are generally paid for the work, even though the wages are often used to have losses incurred by crime or to support the family of the convicted person. At first, forced labor was intended for in the habit convicted for regular work, but in years past is also charged for the purpose of a penal nature, offenders convicted work force to a certain period varied from one to three years even if the criminal's most the treasure is from two to six months. Crimes from 12 to 18 months of forced labor are relatively frequent. This period of time is often reduced.

Fines are the most s e ring is used against all categories of crime, and even used to attempted murder. Similarly, the imposition of compensation is very often used in municipal assemblies.

Appointment of supervisors is also used as a sanction. Loses the right-h a k civil dropped in some cases lasting from one to five years and in one case made permanent. Crimes related to alcohol revocation of the right to buy alcohol are often set. Supervision is easy because of the limited number of members of the public and the small number of stores that sell alcohol drink.

Additions with other sanctions such as seizure, announcement of the defendant's name and offense and reprimand or warning are often also applied. Even in serious offenses, the court also often resolves cases with warnings or warnings. In certain cases dangerous sexual criminals are given a choice between indefinite confinement and castration. Castration was dropped at least to convicts who raped six girls between the ages of six and thirteen.

The Greenland Criminal Code regulates mental disorders. He focused on the suspect's personal circumstances and circumstances. He reflects on Italian Penal Code made in 1921. But Enrico Ferry different of the Italian Penal Code, Criminal Code of Greenland codify customary law does not alter the existing system.

Greenland's new Criminal Code is a "social experiment". A special study will be held for the upcoming Criminal Code. Criminal cases surged three times between 1949-1959. The reason is both because of the

increasing effectiveness of law enforcers and the reality of increasing crime.

In 1951 the new judicial system was introduced to the dismissal of executive and judicial powers. Judges la h ir in Greenland and Greenland language.

The appeal system was held and the chairman of the assembly was a Danish law scholar. West Greenland is divided into 6 police districts. Each is headed by a Danish police inspector and one or more Greenland people are translators and assistants. In a small, isolated society of 90 sheriffs , Greenland people are generally very popular.

The arrival of Danes flowing to Greenland which consists of experts, technicians and workers, so that contact between the two communities creates social conflict. In the legal field Danish law officials learned to work with police and Sheriff Greenland judges . Increased crime may be due to s e part because of social and cultural pcruhahan-konnik and social conflicts that arise.

Find a way how to create an institutionalized se to convict it remains unchecked because the system is not preferred imprisonment. The desire that there be more effective actions against convicts very big among Danish people. Especially the fear of the magnitude of sexual offenders in the community is clear.

Some Greenland politicians and prominent newspapers argued that the Criminal Code shows that Greenland people were not given responsibility for their actions as the people in Denmark, a symbol of low national status.

For the application of sanctions, it is evident that the most imposed are fines compared to forced labor and training of examinations that are rarely imposed until 1949. After it turns out that criminal cases are increasing, except in small communities, Greenland people no longer want to accept convicted in their home. The nature of evil is more than the personality and environment of the criminal, determining the effect of sanctions and this is not in accordance with the principles of this Book.

It is seen that the Criminal Procedure Code did not succeed in creating sanctions patterns before the 1954 codification. The 1954 Criminal Code, regulated offenses rather than street law. The offense formula reads: "... will be found guilty ..." and law"... will be convicted for ...". Before the Criminal Procedure Code, what was applied was an unwritten and habit oriented law, the Criminal Code determined that the defendant could only be convicted because of the delicts listed in the Book or its equivalent (Article 1).

Article 4 determines the unification because he stated that the Book i ni can be applied to everyone in Greenland regardless of its origin, and previous legal status and domicile. So, this is also a territorial principle but with the exception, that someone who does not live in Greenland or who has had little connection with him, can be prosecuted in Denmark based, the Danish Criminal Code. It is the failure by the criminal inflicted on

people who do not align with life in Greenland or unfairly m e mperlakukan defendant subject to the laws in Greenland than k e Circumstances social in Denmark. So, people who live in Denmark who do seasonal work in Greenland and do offense there will be tried ol e hp e ngadilan Denmark by the Danish Penal Code. It is also clear flood- action based on the Criminal Code sentencing Greenland does not have impact to someone who has been sentenced to imprisonment in Denmark.

Increasing crime due to social change has resulted in reduced use of other sanctions. Small and remote communities have been integrated into the larger social system that affected by characters, complex-paced industrial society.

Officials do not know the law also started community members due to the increased mobility of people and the displacement of the handshake Denmark. Surely as a result of being unable to maintain hygiene individual development of criminals. There is no codification that is able to stop fundamental changes in the public datum.

The Criminal Code was well received by the people, showing a feeling of justice and equality between Greenlander and Denmark, both rulers and ordinary rukyat. The police viewed that it was very valuable as well as the judge that it increased the fair authority of their decision. It is harmonious and in accordance with the feeling of justice in the country.

Subdivision 2 of Part I of the Criminal Code contains a list of crimes, bringing difficulties. It looks very little compared to other KUHP, because offenses are not divided according to the weight and severity of determining sanctions. Crimes and sanctions are separate in the articles in the Criminal Code. In the list of crimes, it is considered sufficient to include in a few provisions that limit the independence of individual moves.

The simplification of the offense formulation contained in the Danish Criminal Code was simplified. Crimes against the authorities are not included because they are not distinguished from ordinary offenses. There is no difference terminology between murder and death due to negligence. Fraud (fraud), embezzlement, lack of what is done by the agent against the principal and fraudulent debtors are collected in one article and called "fraud". There is no formula on extortion and robbery are not in the customary law other be covered by the formulation of coercion, violence, and theft.

This simple approach cannot be maintained on a regular basis. The reduction in the number of crimes is only within certain limits. The reason is that the Criminal Code will be applied to people in (Lieenland who was formerly under the Danish Criminal Code. Then the political people in Greenland want to divide certain crimes based on the severity of offenses.

However, these distinctions do not prevent the ruler in terms of having any sanctions he deems appropriate in accordance with the circumstances. In previous practices, courts often imposed soft sanctions on several serious cases.

While the elimination of several other distinctions persists in accordance with the peculiar traits of life in Greenland, the deviant curves of the Danish Criminal Code are Article 24 which reads:

"A person will be convicted of alcohol abuse, which is intentionally or because of a great negligence that causes themselves or others to get drunk and therefore endanger the person or the price of other people's things". This provision relates to Article 138 paragraph (I) of the Danish Criminal Code, namely the application to someone who is willing or because a large negligence causes another person to get drunk.

Committee of the House of Representatives (Folketingef) Denmark

worry this provision too far, but not changed since the practice of law in Greenland that alcohol abuse in Greenland is very dangerous y a ng people are not familiar with the consequences and dangers of alcohol y a ng relating to accidents such as drowning or froze big memory in Greenland than Denmark. This provision is considered necessary until people become accustomed in Greenland wore alcohol.

Sexual offenses are applied in accordance with the views of the Danish because increasing influence of Denmark in Sana. Also on the grounds some non Greenland will be subject to the laws of Greenland. T but made a provision based on the concept of time, which the ruling was given authority not to prosecute against sexual offenses relating to the local traditional concept about decency.

There are some objections to the inclusion of the individual Criminal Code in accordance with traditional law first. But the performance of the deterrent effect is not too urgent because other social forces are sufficiently overseeing criminal behavior in Greenland and the number of crimes is quite low. Article 85, namely:

1. Warning 2. Fine 3. Restrictions reside and visit certain places. 4. Mandatory work 5. Mandatory training 6. Medic treatment. 7. Placement within the institution. 8. Other restrictions on freedom of action 9. Deprivation.

These sanctions can be imposed by trial.

Indeed these sanctions are far lighter than our Criminal Code and other countries. It seems that the hardest is placement in institutions and mandatory work.

No compensation is required. Deemed not need implement a civil action in the Criminal Code.

It is also stipulated in Article 85 concerning sanctions for "other restrictions on freedom of action", the term of which is seizure of rights, for example the right to drink alcohol.

Article 86 stipulates that if the court decides defendant has done offense the court may impose one or several acts, is criminalized in the Criminal Code, but can not wear measures if the situation demands it. K et entuan is split between the conviction and the imposition of sanctions.

The court may deceive done a serious crime, but m e mention the reasons why the sanctions imposed mild or no sanction at all.

It can be decided by the court that an act is not desired by the community but is not subject to criminal action due to the personal condition of the violator. Provisions like this are not listed in the Danish Criminal Code and of course the Indonesian Criminal Code, but through Article 44 of the Indonesian Criminal Code (defendant with mental illness) the defendant was declared to have committed prohibited acts, but was not convicted for criminal liability. So, the same results are obtained.

Article 86 paragraph (2) determines that the decision of the criminal action will consider the nature of the offense and the social interest in opposing the act. It will consider the defendant's personal circumstances and what is needed to prevent him from committing the next offense.

However, the committee still believes that the crime itself does not determine the sanctions.

Radical actions such as compulsory labor, compulsory training and detention should not be used in cases of very small offenses. Article 87 stipulates that it is only applied if both the offense is committed and the defendant's personality shows that there is a serious offense.

Articles 90 and 92 relate to the length of criminal acts and determine that an offender can be punished indefinitely or up to a maximum of no more than 10 years.

It is really so that all coaching efforts reach their goals in that period of time. If the action chosen proves to be inappropriate then it will be replaced with a provision in accordance with Article 9 2. The flexibility of this sentence implies the aspect of the Criminal Code system that contains individual sanctions. It was determined that absolutely no rigid system would develop after the Criminal Code arrived.

A system of sanctions is the second milestone datum is found in Article 92, determine that in all cases the sanctions worn for a certain time, the accused and the public prosecutor might appealed to the court to modify or abolish these measures.

The public prosecutor is obliged to do so if he believes that the k e Circumstances-state has change or have disappeared. In the case of a criminal it is not determined prosecutors must bring the matter to the court has been the passage of three-year sentence imposed, and every two years.

Justice at any time can cancel or change the legal status of a criminal act. Timed that is determined not to be extended should not be too aggravated criminal sanctions except the original It gives the possibility.

One thing that is truly soft is the provision of Article 93 which stipulates that during the imposition of a new offense filed for prosecution, the issue of changing the decision will be heard together with the new case. Obviously it has air different from our Penal Code, because reduction criminal or remission, the prisoners may not be granted if it performs another offense, because it shows the convict has not changed and is not to be good. Article 114 of this Criminal Code determines that the convict will continue to monitor his personal situation. The point is that the mobility of Greenland residents can be monitored continuously by judges, especially those concerning the appeal of the convicted person.

Detention is the most severe act because it is the only thing that separates convicts from their environment. This is applied to professional criminals, habitual criminals or very dangerous, but really if necessary for public securities. Here he can be taught for certain livelihoods.

It can be concluded, that the Greenland Criminal Code does not contain sanctions that are retaliatory at all. It really is only coaching and training. A Criminal Code that is completely different from the others, but according to the situation and conditions of the people.

Again, it can be said that the criminal law is a mirror of a nation's civilization (a mirror of civilization of a nation).

CHAPTER XVI SOME CRIMINAL LAW PROBLEMS

REVIEWED FROM VARIOUS FOREIGN KUHP

Introduction

After the previous chapter was specifically presented as a comparison of British criminal law material, this chapter proposes a comparison of several criminal law issues in terms of various other foreign criminal law systems. In this chapter do not talk about the whole issue of criminal law, but only some of the issues deemed relevant enough to u s

aha criminal law reform in Indonesia, particularly in the context of preparing the new Penal Code.

Some of the problems that are compared below are those that relate to legality issues, land problems, probation problems, recidive

problems and problems related to criminal and criminal cases. A. Problems of the Principle of Legality

Introduction

The principle of legality can be seen as a principle about the source of law and the principle of the space for the entry into force of criminal law according to time. If the principle of legality seen as a problem of "source / legal basis (basic, legalization and criminalization)", usually time l ah that arises is: • Is the source of criminal law only a law (written law 0 ?

• Can living (unwritten) law be a source of law?

If the principle of legality is seen as the problems of space enactment of criminal law over time, is generally time l ah that arises is:

Which criminal law applies when the offense is carried out? L ah future is linked to the problems of principle LTD (lex temporis delicti) - the principle of non-retroactivity.

Which criminal law applies if there is a change in law? Can the criminal law be retroactive (retroactive).

The following description will review the above problems from various Penal Code in other countries. 1. Korean Criminal Code

The principle of Legality in the Korean Criminal Code was formulated in Article 1 with the subtitles of Criminality and Punishment which consists of three verses as follows. (1) What constitutes a crime and what punishment is to be imposed on it,

shall be determined in force at the time of commission. (What constitutes crimes and crimes which are safeguarded for

that purpose, will be disclosed according to the Act that applies at the time the crime was committed).

(2) The new statute shall be applied to the conduct of the crime no longer constituted a crime or that the punishment imposed upon it . (If a law is issued after a crime is committed in if the result of the action is no longer a crime or a crime that is threatened to be lighter than the one stipulated by the old law, then the new law will be implemented).

(3) Where a statute is changed after a sentence imposed under it upon a criminal conduct has Become the finals with the effect that such conduct, no longer constitutes a crime, the execution of the punishment shall be remitted.

(If a law changes after the criminal has been imposed (based on the Act) on a malicious act of fixed strength, with the result that the act is no longer a crime, then the implementation of the crime will be canceled / abolished).

The formulation of paragraph (1) of the Korean Criminal Code

above, in principle is the same as Article 1 paragraph (1) of the Indonesian Criminal Code which contains the principle of lex temporis delicti.

Paragraph (2) is also in principle the same as Article 1 (2) of the Indonesian Criminal Code which regulates retroactive matters in the event of a change in law.

According to the Korean Criminal Code, the new law can be applied

retroactively if: 1. there have been changes to the law after the crime was committed; 2. the change causes: the action of the person concerned is no longer a crime, or a criminal sanction is threatened to be lighter.

So the difference with Indonesia lies in its formulation. In the

Indonesian Criminal Code there is no explicit formulation of the meaning or scope of "changes in legislation," whereas in the Korean Criminal Code there is confirmation

regarding that, which includes two things: a. changes to "acts that can be convicted," that is, originally a criminal

act (crime) and then changed to "not a crime of crime." b. changes to "criminal sanctions are threatened," ie, heavier becomes

lighter.

Paragraph (3) above regulates the existence of changes to the Law after the existence of a conviction decision that has a fixed power. If according to the new law, an act that has been sentenced under the old law is no longer a crime (crime), then the execution or execution of the crime is canceled / abolished. Such provisions are not in the Indonesian Criminal Code. According to the Indonesian Criminal Code, the validity of Article 1 (2) of the Criminal Code only reaches a decision that has a fixed power. Although this is not explicitly formulated, it is clearly seen in the practice of jurisprudence so far, namely Article 1 (2) can be used at the appellate level at the High Court or at the appeal level at the Supreme

Court. If after the verdict of the District Court, High Court or Supreme Court has a fixed power, then a new law comes out stating that the action that has been decided is no longer a criminal offense, then the criminal that has been dropped and has a permanent power must still be executed or executed. So the convict who is undergoing his prison term is not released. Another case in Korea, - that person must be released.

2. Thai Penal Code

Provisions regarding the principle of Legality are regulated in Article

2 of the General Rules of Book I which read as follows. A person shall be Criminally punished only when the act done by him is provided to be an offense and the punishment is defined by the law in force at the time of the doing such act, and the

punishment to be inflicted upon the Offender shall be that provided by the law. If, according to the law provided afterwards, such an act is more offense, the person doing such acts will be relieved from being an offender; and, if there is a final judgment of inflicting the punishment, such person must be considered as having not been convicted by the judgment for committing such offence. If, however, he is still undergoing the punishment, the punishment shall forthwith terminate. (A person will only be convicted if the act carried out by him is determined as a criminal offense and the crime is formulated by the Act that applies when the act is committed, and the criminal imposed on the offender is criminal as determined by the Act. then, the act is no longer a criminal offense, the person who commits the act will be freed as a perpetrator / violator, and if there is a final sentencing decision (permanent force), that person will be deemed to have never been convicted of the act, however, if he is undergoing the crime, then the punishment will be terminated immediately). From the formulation of Article 2 paragraph (1) above, it is clearly

seen that the Thai Criminal Code also adheres to the principle (ex

temporis delicti. Provisions in paragraph (2) regulate changes in the law, especially in the case of a new law stating that the law is regulated no longer a crime according to the new law, in this case there are two possibilities:

a. In the event that there has been no verdict based on the old law, the defendant will be released as an offender (because according to the new law his action is no longer a criminal offense) .

b. In the event that there is a final (permanent force) sentencing decision based on the old law, then: o if the criminal has not been executed / implemented, the

defendant is considered as having never been convicted; or o if the defendant is undergoing the crime (in part), the penalty (the

rest) will immediately be stopped or terminated.

What if according to the new law, the act regulated by the old law is

still considered a crime? Regarding this matter, Article 3 of the Thai Criminal Code affirms that a law that is more beneficial to the offender will be applied, except if the case is final, meaning that the decision has a fixed power based on the old law.

In the event that the defendant has been decided based on the old law, then Article 3 determines the following matters:

a. If the sentence imposed is more severe than the criminal threat according to the new law, then the court will re-determine the crime in accordance with the new law. If he redefines the criminal, the court can determine a criminal that is lighter than the minimum criminal according to the new law, or if the criminal that has been carried out by the violator is deemed sufficient, the court can release it. b. If the defendant is sentenced to death (according to the old law) but according to the new law which should be imposed is not as heavy as capital punishment, the execution of capital punishment will be postponed, and it is considered that the death penalty is replaced with the heaviest penalty according to the new law.

3. Polish Penal Code

Provisions regarding the principle of legality are contained in Article 1 and Article 2 of the General section Chapter 1 under the heading

Principles of Penal Liability. The complete sound of these articles is as follows.

Article 1

Penal liability shall be incurred by the person who has socialized a dangerous act prohibited under the threat of a law in force at the time of its commission. (Criminal liability will only be imposed on someone who commits an act that harms the community threatened by criminal law applicable at the time the act was committed).

Article 2

(1) if at the time of adjudication, the new law should be applied to the

perpetrator. (If at the time of the court's decision, the applicable law is different

than the one that applies when the crime is committed, then the new law will be applied, but the previous / old law must be applied, if it is lighter for the perpetrator).

(2) If the sentence is prohibited under threat of penalty, the sentence shall be expunged by the operation of law,

(If according to the new law, the act appointed / threatened by criminal law is no longer prohibited by the threat of punishment, the punishment will be abolished by the enactment of the Act).

The formulation of the above article clearly refers to the same principle 'with Article 1 (1) of the Indonesian Criminal Code, namely the principle of lex temporis delicti (the applicable law is the law when the offense occurs). It should be explained, that the term a law in the English translation above, comes from the term vstawa in Polish which means the Statute or legislative enactment.

Article 2 of the Polish Criminal Code above regulates the problem of

changes to the law. It seems that there are two problems that Article 2 wants to regulate, namely:

a. In the event that the new law still states that the act regulated by the old law as an act that can be punished (remains a criminal act), then according to paragraph (1) in principle the new law must be declared valid; however, if it turns out the old law is more alleviating for the defendant, then the old law must be applied. So it is not much different from the principle in Article I (2) of the Indonesian Criminal Code, namely the Law which is more favorable to the defendant being applied; however, in the Polish Criminal Code there is an affirmation (explicit formulation), that in principle a new law must take precedence or be declared valid. So in the event that there is no difference between the old law and the new law, the principle of lex posterior derogat legi priori applies.

b. In the event that the act according to the old law no longer constitutes a crime according to the new law, then according to paragraph (2) the criminal according to the old law is declared null and void by the adoption of the new law.

4. Norwegian Penal Code

Provisions regarding the principle of legality are contained in Article 3 General Rules (General Provisions). In principle, the Criminal Code

Norway adheres to the principle of Lex temporis delicti, unless specified otherwise. This can be seen in the formulation of paragraph 1 as follows.

"If the penal l aw has been ammended in the interval between the commission of an act and the trial, the penal provisions in force at the time of commission are applicable, unless otherwise provided."

(If the criminal law has been amended in the period between the conduct of an act and a court hearing, then the criminal provisions that apply at the time the action is committed are applied, unless stated otherwise).

Then in the second paragraph it is formulated as follows. "The reasoning provisions in the case of decision are more favorable to the accused than the reasoning. Provisions that occur at force after adjudication, however, shall not apply in case the decision is appealed or requested rehearing. " (The criminal rules that apply when a decision is made in a particular case (meaning new regulation, pen)) are applied if the regulation is more favorable for the defendant than the criminal rules that apply when the action is committed (that is, the old rules, pen ) . However, the regulations applicable criminal after a court decision (ie the new regulations, pen.), will not be applied in the event that the decision is appealed or requested a re-examination).

From the above provisions it can be seen that, even though

according to paragraph 1 in principle the applicable law is the law when the offense occurs, but based on the provisions of paragraph 2 if when the verdict is imposed there is a new law, then the new law is applied if the new law it is more profitable than the old law. The principle of implementing a more favorable law like this is similar to Article 'I (2) of the Indonesian Criminal Code. However, it seems that the principle in Norway is more limited than in Indonesia. In the practice of jurisprudence in Indonesia, the principle of prioritizing a more favorable law can also be applied at the appellate and cassation level; whereas in Norway this is not the case. According to the last sentence of paragraph 2 above, the new law cannot be applied at the appeal level or on re-examination. This means that if after the first level decision there is a new law, then the new law cannot be applied at the level of appeal or re-examination even though the new law is more profitable. From the explanation above, it can be concluded that the Norwegian Criminal Code seems to prioritize the old law or the law that applies when it is offended happen; while the new law can only apply if: - The new law was in effect before the court ruling was dropped, and

- The new law is more profitable than the old law. 5. LATVIA Criminal Code

The General Section of the Latvian Criminal Code begins with Chapter I General Rules (General Provisions) which consists of: - Section 1. Base of Criminal Liability

- Section 2. Application of the Criminal Law in the Territory of Latvia

- Section 3. Applicability of Criminal Law to Aircraft, and Sea and River Vessels Outside the Territory of Latvia

- Section 4. Applicability of Criminal Law Outside the Territory of Latvia

- Section 5. Time When The Criminal Law is In Force

It is interesting to note, the arrangement of "Time / Time of Enactment ( criminal law" (legality principle) is included in Section 5, after the articles concerning: - Foundation / basis for criminal liability (Section 1); - Applicability of criminal law in the Old (territorial) area (Section 2); - Applicability of criminal law on aircraft and ships outside the Latvian

territory (Section 3); - Applicability of criminal law outside the Latvian territory (Section 4).

Thus the Latvian Criminal Code does not begin with the formulation

of the principle of Legality as in Indonesia, but begins with the general principle of the basis / basis for criminal liability as stipulated in Section 1 as follows: Section 1 . Base of Crijninal Liability

1. Only a person who is guilty of committing a criminal offence, that is, one who deliberately (intentionally) or through negligence has a commitment that is set out in this law and which has all the constituent elements of criminal offence, may be held criminally liable and sentenced.

[Only people who are guilty of a criminal act, namely a person who intentionally or negligently has committed a criminal offense set out in this Criminal Code and who has fulfilled all elements of a criminal act, can be accounted for and punished].

2. No one shall be found guilty of committing a criminal offence and

criminal punishment shall not be imposed upon anyone other than judgment of a court and in accordance with law. [No one is found guilty of a criminal offense and is not charged to someone other than a court decision and in accordance with the Act].

From the above provisions, it can be seen that on the basis / basis

of criminal responsibility there is a balance between the principle of legality and the principle of culpability. But Section 1 itself is not an article that formulates legality ssas. The formulation of the principle of legality is seen in Section 5 which teaches about "Time When The Criminal Law is In Force" (When the Criminal Law comes into force).

Section 5. Time When The Criminal Law is In Force

1. The criminality and punishability of offense (act or failure to act) which is enforced at the time the offence was committed.

[Acts (do or not do) that can be fulfilled funds and penalties are determined by the law in force at the time the crime was committed].

2. A law that is not effective, not effective, has a positive effect, that is, it applies to offenses which have been committed prior to the applicable law coming into force, as well as the person who is serving a sentence or serving a sentence regarding whom conviction remains in effect.

3. A law that recognizes offence as punishable, increases the sentence, or does not have a retrospective effect.

[Law which states that a criminal offense can be convicted (initially not convicted, pen)), aggravate the criminality or other things that do not benefit a person, cannot retroactively apply.

4. A person who has committed an offense against humanity, offence against peace, a war crime or has participated in genocide, shall be irrespective of the time when such offense was committed.

[A person who commits a crime against humanity, against peace, war crimes or participates: in committing genocide, is convicted regardless of the time / when the crime was committed].

The provisions of paragraph (1) above contain the principle "lex

temporis delicti" which is the same as the Indonesian Criminal Code. Paragraph (2) regulates the provisions of the Law which can be retroactive, and paragraph (3) applies set laws that cannot be retroactive. The uniqueness is seen in the provisions of paragraph (4), because the retroactive prohibition in paragraph (3) seems to be deviated if a criminal act is carried out.

So retroactive criteria are based on the principle of balance, between: a. favorable criteria seen from the point of view of individual interests /

protection (Section 5 paragraph 2), namely if: 1. deeds which were originally criminal acts (se can be convicted

initially) become unable to be convicted; 2. the criminal (previously threatened) is reduced or becomes lighter;

or 3. There are other things that benefit someone.

b. favorable criteria seen from the point of interest / protection of the community (Section 5 paragraph 4), that is if the actions taken constitute a crime that is very dangerous / detrimental to the community, in the form of: 1. crimes against humanity (humanity crime); 2. a crime against peace (peace crime); 3. war crime, or 4. participate in doing genocide.

It is also interesting to note the provisions in Section 5 (2), that giving a retroactive law is beneficial not only to crimes committed before (before the Act is declared granted), but also to people who are or have been serving a crime as long as the sentence is still valid / take place. This provision is impressive, that retroactivity (favorable provisions) gives both the defendant (before the verdict) and the convict (after the verdict is fixed).

6. Estonian Criminal Code

As with the Latvian Criminal Code, the formulation of the legality principle in the Estonian Criminal Code is set out in § 5 which regulates "the validity period of criminal law" (Temporal applicability of reason law), which reads in full: (1) A punishment shall be imposed on pursuant to the law in force at the

time of commission of the act. [Criminal punishment is imposed in accordance with the law

which gave me when the offense was committed]. (2) An Act which precludes the punishability of an act, mitigates a

punishment or otherwise alleviates the situation of a person shall have retroactive effect.

[Laws that abolish can be imposed by an act, reduce criminal or other which alleviate a person, have retroactive influence (may apply

recede)]. 3) An Act which declares an act as punishable, aggravates a punishment

or otherwise exerts a situation of person not not retroactive effect. [Law which states an act can be punished, aggravate the criminal

or other that makes a person's condition worse / worse, does not have retroactive influence (cannot give me retroactive)].

(4) Offenses against humanity and war crimes shall be punishable regardless of the time of commission of the offence. [Criminal acts against humanity and war crimes can be punished regardless of the time / when the crime was committed].

The above provisions are similar to Article 5 of the Latvian Criminal Code. The difference is only in paragraph (4) above which allows the law to give retroactive only to two (2) criminal acts which are considered to endanger the community (ie crimes against humanity and war crimes); whereas in Latvia there are four (4) criminal acts. 7. Sudan Criminal Code

The formulation of the principle of legality is seen in Section 3 which regulates "Criminal Procedure for Crime committed in the New Sudan Region". The full editor is as follows. Section 3- Punishment of Offenses Committed within the New ' Sudan

1) Every person shall be liable to punishment under this Code for every act or mission done within the New Sudan to be contrary to its provisions.

[Everyone can be convicted based on this Criminal Code for every act (doing or not doing) that is contrary to this Criminal Code and carried out within the territory of New Sudan].

2) In the application of this Code, courts may consider the existing custom laws and practices prevailing in each area. [In implementing this Criminal Code, courts can consider existing customary laws and practices that apply in each region].

3) It includes land, airspace, territorial waters, and all the New Sudan ships and aircrafts wherever they are.

[For the purposes of this Criminal Code, what is meant by New Sudan covers land area, watershed boundaries, and all Sudanese New ships and aircraft wherever they are].

From the provisions above, it can be seen that according to: paragraph (1) the main legal source is the law (KUHP), but in paragraph (2) it is possible "existing customary laws and practices applicable in each region" are applied by the court (being a source of law ) It is interesting to note the formulation of Section 3 paragraphs (1) and (3) which contain the formulation of the principle of legality, as well as territorial principles. B. Error Problems

The issue of "error" or " criminal responsibility / liability" in criminal law is one of the general teachings of criminal law. However, in our Criminal Code (Wvs) all this time, the problem of "error" is not entirely fourth (its regulation) in "General Rules." What has not been regulated in Book I (General Rules) of our Criminal Code, among others, relates to the problem of the principle of error (culpability), the notion of intentional and negligence, accountability for the consequences that arise not intentionally, and the problem of error. These problems have been planned to be arranged in the Concept of Book I of the New Criminal Code. Therefore as a comparison material, the following problems will be viewed from the point of view of comparing various KUHPs in other countries.

1. Principle of Error

The principle "no criminal without error" (principle of capability: nullla poena sine culpa) in the ummah is recognized as a general principle in various countries. However, there are not many KUHPs in various countries that expressly (explicitly) this principle under the KUHP. Usually the formulation of this principle can be seen in the formulation of criminal responsibility (liability), especially in relation to social problems. For details, the following are formulated in various countries as follows. a. In the USSR Criminal Code (1958) there was a special article which

explicitly formulated the Basis for Criminal Responsibility, namely Article 3 which reads:

"Only a person who is of the commission of a crime, that is who has, either deliberately or by negligence, is committed to any of the socially dangerous acts defined by the criminal law, is considered liable to criminal responsibility and to punishment."

(Only people who guilty crime, namely person who intentionally or by negligence perform an act that is harmful to society defined by the

criminal law, can consdired for criminal responsibility and convicted). b. As one of the principles of criminal law, the Criminal Code of the

German Democratic Republic (1968) states in Article II the General Rules include:

"... The proper application of criminal law demands that all criminal acts are detected and that the guilty person is called to account ..."

(The right application of criminal law demands that every criminal act be prosecuted and the guilty person be accounted for).

c. The Criminal Code of Greenland (1954) said in general rules regarding the application of sanctions. After Article 85 is referred to as 9 types of sanctions, Article 86 states: "Upon a finding of guilt the court shall be above sanctions shall be imposed." (Based on the discovery of errors, the court will appoint / state which of the one or several sanctions above will be imposed on the perpetrator of the crime).

d. The Criminal Code of the Yugoslavia (1951) affirms in Article 7 ( 1 ) as follows,

"An offender shall be criminally liable for a criminal offense only when he has committed it intentionally or by negligence."

(An offender will be accounted for for a crime he committed only if he did it intentionally or with negligence).

e. In one of the articles concerning Criminal Liability, the Thai Criminal Code (1956) formulates in Article 59, among others, as follows.

"A person shall be Criminally liable cnly when he commits an act intentionally, except in the case WHM the law Provides that he must be liable when he commits an act by Negligence, or except in the case

where the law Cleary Provides that he must be liable event even though he commits an act unintentionally. " (A person will only be held accountable if he commits an act intentionally, except in the case of: 1) The law stipulates that it must be approved responsibility if he

does a per made with negligence; or 2) The law clearly stipulates that it must be held responsible even if it

does an intentional act). From the above formulation, it can be seen that according to the

Thai Criminal Code, in principle, only people who commit acts intentionally can be found guilty 'and convicted. Can be convicted someone who commits an act of negligence (by negligence; see clause a above) or just doing an act even if not intentionally (see the clause b above), is only an exception (exceptional). It is interesting to note the editorial differences in the exception clause in letter a. which uses terms with negligence (by negligence) in terms of accidentally

(unintentionally) used in clause b. The exception formulation in letter b shows the adoption of the teachings of Strict Liability as an exception to the culpability principle.

f. The principle that only the person who acts deliberately alone can d i blame and convicted, while convictions for do. Negligence or not intentionally is only an exception if specifically determined by the Act, also seen in the formulation of several other KUHP as follows.

1) Article 7 (1) of the Greenland Criminal Code (1954):

"This Code will apply to negligent acts only when specifically provided."

2) Article 6 of the Polish Criminal Code (1969): "A serious offense may be committed only with intentional guilt; a more

serious lack of offense may be committed with unintentional guilt, if the law so provides."

3) Article 38 (1) of the Japanese Criminal Code (1907 updated until 1968):

"An act done the criminal intent is not punishable; Provided that the same shall not apply in cases where otherwise specially provided by law."

4) Article 40 of the Norwegian Penal Code (1902 updated until 1961): "The law shall not be committed unintentionally unless it is explicitly provided or unmistakably implied that a negligent act is also

punishable. " 5) Article 7 (4) of the Yugoslav Criminal Code (1951):. "For a criminal offence committed by negligence, the offender

shall be criminally liable only when provided by law." 2 . Understanding Intentions and Forgiveness

The definition or definition of intentional and negligence is not found in our current Criminal Code. The forthcoming concept of the New Criminal Code intends to determine the two forms of error. What about the formulation in various KUHPs in other countries? Regarding this problem there are two groups: a. There is a Criminal Code which is sufficient to formulate or affirm, that

people can only be convicted if there is intentional or negligence without explaining or giving understanding / definition of both forms of error. Such technical formulation is seen for example in. Criminal Code Norwegia, Greenland, Japan, Korea, and the German Criminal Code 1871.

b. On the other hand there are also those who consider it necessary to formulate an understanding of intentions and omissions, such as can be seen in the Criminal Code of Thailand, Poland, the Soviet Union, the German and Yugoslav Democratic Republics.

Because the New KUHP concept intends to formulate an

understanding of intentions and omissions (tending to the second group above), the following are some examples of formulation of the Criminal Code in other countries as a comparison material. First, the formulation of intentions is first stated, then later about negligence. a. Understanding intentional 1) Thai Penal Code (Article 59 paragraphs 2 and 3). (2): "To act intentionally is to act and be conscious of the same

time the effect of such doing." (Doing an act intentionally is doing an

act consciously and at the same time the maker wants or can predict / know in advance what this action is like).

(3): "If the doer does not know the facts constituting the offence, it can not be considered that has the effect of such doing."

(If the buyer does not know the facts which are (elements) of a criminal act, it cannot be assumed that he wants or can predict / know in advance the consequences of such actions).

The formulation of paragraphs / paragraph 3 above wants to emphasize, that error facti cannot be seen as an act carried out intentionally. However, according to Article 62 paragraph (2), if the ignorance of fact occurs because of negligence the perpetrator can be accounted for because of his negligence in the event that the law specifically states that the negligence can be punished.

2) Polish Penal Code (Article 7 paragraph I): "An offense intent when the perpetrator has a prohibited act, that

is the will of its commission or for the future the possibility of sharing the reconciliation itself to this." (A criminal act committed intentionally, if the offender has the intent to do per the artificial forbidden, that he wanted the act was or even if he had been expecting / Me Knowing the likelihood of that action he remains reconcile or appease hearts against hi it (ie: "he allows or approves the possibility," pen.).

3) Soviet Criminal Code: The Soviet Criminal Code did not formulate its own intentions

intentionally, but there are articles that formulate the notion of crimes which (intentionally) are planned more first (premeditated crime), namely in Article 8 as follows.

"A crime is Considered to have been premiditated when the person committing the act or omission, foresees its socially dangerous, consequences and desires or consciously sanctions such consequences."

(A crime is deemed to have been intentionally planned beforehand if the person doing the act knows / knows the nature of the social danger of his actions or does not do it (negligence) can know / imagine the consequences that are harmful to the community and want or consciously agree to similar consequences). From the above formulation seems eating Soviet Penal Code only sense dolus with dolus premeditatus.

4) Criminal Code of the German Democratic Republic (Article 6):

(1) Anyone who is consciously decides to commit a legally punishabk offence, acts an intentional manner. (Anyone who consciously sets out to doing an offense, committing it on purpose).

(2) Likewise anyone who, though not intending to commit the legally punishable offense, acquiesces consciously in the possibility of its

commission by Deciding to act, acts in an intentional manner. (This is the case for every person who, even though he does not intend to commit the crime, consciously approves the possibility of the crime by deciding to continue to do it, to do it intentionally).

5) The Yugoslav Criminal Code (Article 7 paragraph 2):

"A criminal offence is committed intentionally when the offender is conscious of being inhibited consequently might result from his activity or omission and has been consented to its occuring." (A criminal offense committed intentionally if the offender aware of his actions and wants to do something it; or if he was aware that a prohibited consequence might result from doing his or inaction (not done) it and agreed to the occurrence as a result of it).

Note: Compare the examples of intentional formulation above, with a

formulation that is too short of the Bam KUHP concept (1936/1987) (Article 34 paragraph 2) which reads:

Criminal action is carried out intentionally, if the person who commits a crime knows and stops it. "

The formulation above is not in the next concept to date (Concepts 2008-2010). b. Definition of negligence

1) The Thai Criminal Code (Article 59 paragraph 4): "To act by negligence is committed to independence but without exercising such care as might be expected from people under such conditions and circumstances, and the doer could exercise such care but not do so sufficiently. "

(Doing act by omission is a penal offense has not deliberately, but without me doing careful as they should be expected (to do) from people who are in conditions and similar circumstances that, while the offender can do careful like that, but he did not do this enough.

2) Polish Penal Code (Article 7 paragraph 2): "An offense is unintentional, both the perpetrator foreses and

without reason that will avoid it, and also should not be for such possibility although he should and could have foreseen it." (A criminal offense is carried out not intentionally, if:

The offender knows in advance the possibility of the prohibited act, but he considers it

unconscious / healthy reasons that he can avoid it; and' If he cannot guess such a possibility even though he should be

able to guess the possibility of this happening).

3) Soviet Criminal Code (Article 9); "A crime is Considered as Committed by Negligence when the

person committing it foresees the possibility of the socially dangerous consequences of his act or omission but thoughtlessly relies on their prevention, or does not Foresee the possibility of such consequences : Although he could and should have foreseen them. "

(A crime is carried out with negligence if the person who does it knows beforehand the possibility of a social hazard from his actions or from not doing it by not thinking (ignoring) prevention, or if the person cannot imagine / suspect the possibility even though he can and should / should have can imagine that possibility).

4) Criminal Code Rep. German Democracy (Article 7): ' "Anyone who foresees that he might cause legally described

consequences unintentionally brings them about, because he thoughtlessly bases his decision to act on the expectation that these consequences will not occur, acts in a negative manner," (Anyone who imagines / knows beforehand) that it may cause unintentional consequences that are prohibited by law, because he carelessly bases his decision to act on the expectation that the consequences will not occur, commit the act negligently).

5) The Yugoslav Criminal Code (Article 7 paragraph 3): "A criminal offense is committed by negligence when the offender

is conscious that a prohibited consequence might occur but will not be assumed that it will not be able to prevent it. consequence occuring while under the circumstances and by his personal qualities he should be aware of that possibility. "

(A criminal offense is carried out with negligence if the perpetrator is aware that a forbidden consequence might occur, but he recklessly considers that it will not happen or he considers that he will be able to prevent it, or that he is unaware of the possible consequences of the situation and personal ability he should / should be aware to the possibility of it).

The formulation above covers two notions, namely: a) conscious neglect (bewuste schuld), and

b) unconscious forgiveness (onbewuste schuld).

Note: Compare the examples of the formulation above with the formulation

according to the concept of the New Criminal Code 1986/87 (Article 34 paragraph 3) which reads as follows. "The criminal act is carried out with negligence, if the author has not been careful as he should, and / or did not suspect in advance about the consequences that were prohibited, or even if he suspected that the prohibited effect might be caused by his actions, but he believed that he could avoid the occurrence of these

consequences, while the reality is the opposite. " The formulation above is not in the next concept to date (2008-2010 Concept).

3. Criminal Accountability To As a result of the Tirabul photo Deliberately

The consequences that occur unintentionally are usually formulated in crimes that are qualified or crime aggravated by the result. These delictions in the Indonesian Criminal Code for example are formulated in articles; 187 2nd and 3rd; 333 paragraph (3), and 354 paragraph (2).

Doctrinally, accountability for consequences (arising) is not intentionally based on Erfolgshaftung teachings. According to this teaching, a person can be accountable for the consequences that arise without the need for a relationship between the creator's evil attitude (dolus / culpa) and the result, the origin is objectively as a result of his actions. This teaching can be referred to as pure Erfolgshaftung teachings. According to Prof. Paul Kichyun Ryu (Professor of Criminal Law at Seoul National University, Korea), Erfolgshaftung's teachings are inspired by the doctrine of Versari in re illicita in canon law (the same as dolus • indirectus, pen.) Which is an exception from the principle of mens rea (assumption).

Our current Criminal Code does not regulate or enforce the adoption of the Erfolgshaftung (pure) teaching. There are certain articles in the Criminal Code in other countries that regulate this problem, but with certain refinements or modifications that are oriented or consistency with the principle of culpability. So do not adhere to pure Erfolgshaftung teachings.

Some examples of the adoption of Erfolgshaftung teachings that are not pure (or experience modification) are seen for example in the formulation of the following foreign KUHPs. a. Korean Criminal Code (Article 15 paragraph 2): "Where is the severe punishment imposed on a crime because of

certain results, such a higher punishment will not be applied to these results are not foreseeable."

(If the more severe criminal d i its threatened against a ki bat-specific result of a crime, criminal heavier it does not apply if the consequences that can not be imagined or alleged).

b. Polish Penal Code (Article 8): "The perpetrator of an intentional offense which the law makes

dependent on should not have should and should have foreseen that consequence."

(Actors intentionally will be subject to more severe liability, which by law is associated with a certain consequence, if at least they should be able to and have been able to imagine / suspect beforehand).

c. KUHP Norwegia (Article43): "Where the law provides an unintentional consequence of

increased punishment, the more severe punishment applies only when the offender can have forensic consequences, or where in spite of his ability to do so, he after having been made aware of the danger. "

(In the case that the law stipulates that an unintentional consequence of an act that can be convicted is demanded for an aggravated punishment, the heavier criminal punishment is only imposed if the perpetrator can suspect the possibility of such a result or even if he is able to do so, but he failed to prevent the consequences. after he realized the danger).

d. German Penal Code 1871 (Article 56): "If the law threatens a higher penalty, the perpetrator will be

subjected to this investment but only has caused the consequence at least negative." (If the law threatens a more severe criminal offense for a certain consequence of an act, the perpetrator will be liable for the aggravated criminal offense only if he causes the consequence to be at least due to negligence).

e. Greenland Criminal Code (Article 7 paragraph 2): After paragraph (1) has been formulated that "this Criminal Code

is only imposed on acts carried out with negligence if specifically stipulated" (so in principle only imposed on intentions), then in paragraph {2) it is confirmed : "An offender shall be held liable for unintended consequences of offense only on proof his negligence."

(So accountability for the consequences of the unwanted or unintentional can only be done if there is evidence of negligence).

f. The Yugoslav Criminal Code (Article 8):

(1) If a graver has consequences, the consequences of punishment are provided by law, the severity punishment shall be attributed to the offender's negligence.

(If more severe consequences arise from a criminal offense, for which heavier criminal acts are determined by law, then the heavier criminal or imposed in the case of such consequences can be related to the violator's negligence).

(2) due to particular circumstances a severer punishment was Provided for a given criminal offense it shall be imposed only in case the Offender was aware of Reviews those circumstances and couid or should have been aware of them.

(If due to special circumstances a more severe punishment for an offense set certain, then a heavier punishment was only imposed in case the offender aware of the circumstances).

Of the various examples of the formulation of the above it can be concluded that in order to be able to account for someone ter facing as a

result of the actual unwanted / unintended remains necessary element of fault (dolus or culpa), although in its most mild, namely dolus eventualis or bewiiste Schuld (omission unconscious) . 4. Problems with error (Error, Mistake / Ignorance, Dwaling)

The current Criminal Code in Indonesia in no way regulates this problem of error. In its development the concept of the New Criminal Code intends to regulate it. To provide the following comparison material discussed the problem of error in various KUHP in other countries. Thai Criminal Code:

Article 61: "Whenever any person intends to commit on act against a person, but commits such act against another person by mistake, such person may not raise the mistake as an excuse that he did not intentionally commit such act." (If someone intends to do an act against someone, but because of an error / error that he / she is committing an act against another person, then that person cannot file an error / error as a forgiving reason that he or she accidentally committed the act). Article 61 above seems to regulate what is commonly referred to as error in person. According to the theory, like this can still be convicted of the same object properties. Likewise it seems the establishment of the Thai Criminal Code. What is interesting in the above formulation is that the formulation of heresy is associated with the problem of intentional intentions on the perpetrator. With the existence of Article 61, the lawmaker wants to emphasize that in the event of such an error, the defendant's actions are still seen as done intentionally.

Article 62 regulates the error facti (ignorance of fact) problem. According to this article the error of a fact or event will be treated in accordance with the subject matter. The point is, if a person is misled by facts / events and facts or events (if there really is / occurs) causing an act committed by that person not to constitute a criminal offense, then that person must be deemed not to have committed the crime and therefore must be found not guilty. Likewise, if the fact / event {if it really exists / occurs) causes the defendant to not be convicted or cause the defendant to get a criminal waiver, then because of his error the perpetrator must also not be convicted or get a criminal waiver.

In other words, misguidance of facts / events (error facti) will be treated the same as if the error actually exists. This is what is meant by Article 62 (1) of the Thai Criminal Code which reads as follows.

"Whenever any fact, if it is really there, it will cause it to do nothing, or not to be punishable, or to receive less punishment, and even though fact does not really exist, bat the doer understands mistakenly that it really existed, the doer shall not be guilty, or shall be exempted from the punishment, or shall receive less punishment, as the case may be"

Article 64 regulates ignorance of law. According to this article, there is error. the law does not free a person from criminal liability. So, it is the same as the traditional adage error of nocetical law (ignorantism in the center; Ignorant legislation center ; Ignorance of law does not excuse) but in Article 64 of the Thai Criminal Code it is affirmed, if the court looks at the nature and nature of the the perpetrator is not likely to know that the action he has committed has been determined, by law as a criminal offense (all of this is based on convincing evidence of the judge), then the court may impose a lighter criminal according to the law stipulated for the criminal offense concerned. This is the definition contained in Article 64 which reads as follows. "Ignorance of law shall not excuse a person from criminal liability. But, if the Court is of opinion that, According to the nature.and circumstances, the Offender may not have known that the law has Provided such act to be an offense, the The Court may not produce evidence before it, and if the Court believes that the doer does not know that law is provided, the Court knows that information is far more than provided by the law for such offense. "

From the provisions of the above it can be concluded that according to the Criminal Code of Thailand error iuris in principle still be convicted, but may be factors that mitigate criminal prosecution. b. Korean Criminal Code:

Misdeeds are regulated in Article 15 (regarding the Mistake of Fact) and Article 16 (concerning the Mistake of Law). According to Article 15, the mistake of fact cannot be convicted and according to Article 16 a mistake of law cannot be convicted if its error is based on reasonable ground, the complete sound of the articles is: Article 15 (Mistake of Fact): (1) Criminal Code in ignorance of facts which aggravates a crime is not

punishables as the aggravated crime. Article 16 (Mistake of law): Where a person is committed to conduct is a crime under existing

law, he will not be punished only when his mistake is based on reasonable grounds.

The interesting thing from the above provisions is that according to

the Korean Criminal Code the legal error (error inns / mistake of law) may not be punished. So it's different from the traditional adage that states that legal error remains punished (error juris nocet). The traditional view or adage was initially strictly adhered to in Korea, because before the enactment of the new Korean Criminal Code (which took effect from 3 October 1953) the Japanese Penal Code was in force for 40 years (from 1913-1953). According to Article 38 (3) of the Japanese Criminal Code, the existence of an ignorance of the law cannot be seen as a lack of intentions to commit a crime (so that it can be punished), but the sentence can be reduced according to circumstances (the complete sound of the article is: "An ignorance of the law can not be deemed to constitute a lack

of intention to commit a crime; Provided that the punishment may be reduced in the light of the circumstances). Change the view in the Criminal Code a new Korean (1953) can not be separated from the many criticisms against the supposition / assumption that everyone is deemed to know the law. The weakening of the assumptions is this which is one-on-one factor causing many legal experts support to the acceptability of mistake of law as one of the reason eraser criminal or as reason defense. In addition, there can be released also from there are changes in views or theories regarding mistakes, especially intentions.

In the beginning there was a view, that's a deliberate disregard of people do not need to be aware of or pulled that his actions are prohibited by law or is against the law. But then there is a view, that for intentional people must be aware of or know that their actions are illegal. Starting from the last thought, it seems that the decision of the Bundes-richshof court in Germany on March 18, 1952 stated that "the knowledge of the lawlessness of acts is part of the fault" , so that if without the mistake the defendant does not know the law that is violated, then he is fully forgiven. The decision of the German Bundesgerichtshof in 1952 was one of the important events in the history of (criminal) law, because it was through this jurisprudence in Germany that the acceptance of the mistake of law was developed as a defense issue. Besides going through jurisprudence, it was also developed through the opinions of scholars, including Mezger who argued: "the unconsciousness that the actions taken are against the law, eliminate intentions" (unawareness that the act is wrongful eliminates intent). Similarly, ME Mayer argues, "the possibility of knowing a legal obligation is a basic element of error" / the possibility of knowledge of legal duty is a constituent element of mens rea). According to Prof. Paul Kichyun Ryu, professor of criminal law at Seoul Korea University, said that ME Mayer's view mainly influenced the Korean Criminal Code to accept the mistake of law as a defense measure. That is, if the defendant can indeed propose reasonable grounds that he is misguided, that is, it is not possible to know that the sifet is against the law of an act, then he must be declared completely innocent and therefore not convicted.

c. Polish Penal Code:

The error stipulated in Article 24 reads as follows. (1) Whoever commits an act of unintentional less serious-offense is

involved and the mistake is due to recklessness. or negligence. (He who commits an act because of an error in the wrongdoer

concerning the conditions constituting an element formulated from a prohibited act / criminal act, then he does not commit a crime, except in the case of an accidental misdemeanor and error caused by carelessness or negligence) .

(2) A wareness of the illegality of the act does not exclude liability if the perpetrator could have avoided the error. (The unconsciousness of the unlawful nature of an act does not negate accountability if the culprit should have been able to avoid that error).

(3) The case for extraordinary mitigation. (In the case mentioned in paragraph 2, the court may impose

extraordinary criminal remedies on the offender).

From the above provisions, it can be seen that according to the Polish Criminal Code: 1. facti error (see paragraph 1 above) was not convicted, except

misguidance that happens to a misdemeanor committed unintentionally (unintentional less-serious-offense) through carelessness (recklessness) because of negligence (Negligence).

2. Jurisdictions (see paragraph 2 above) remain punishable if the author should be able to avoid that error;

3. in the case of a criminal error being convicted, the offender can obtain a reduction / mitigation of external criminal biisa (extraordinary of penalty).

Note: According to Article 57 (3) extraordinary mitigation of penalties can be in the form of imposition of penalties that are less than the minimum sanctions under the law or a lighter type of criminal. The interesting thing from the provisions of the Polish Criminal Code above is that error facti, which according to the traditional view is not punished (error facti non nocet: ignorant fact center: ignorance / mistake of fact excuses), but according to the Polish Criminal Code can also be convicted if the error is due to recklessness or negligence. And conversely, error iuris which according to traditional view still may be liable, according to the Polish Penal Code may also not be convicted if the maker actually should not be able to avoid straying it. Note; Compare the provisions of the Polish Penal Code above with the formulation in the Concept of the New Penal Code 1886/1987 which included error facti (Article 37) and Islamic errors (Article 38) as one of the two. The complete sound of the Concept articles is as follows: Article 37

In the event that did not know the maker of an element of a crime, then it becomes a reason not convicted stronger, unless it can be blamed for not knowing him as an omission, or based on reasons that do not make sense.

Article 38

In the event that the maker commits a criminal offense in the belief that his act is not a criminal offense, then he is not convicted, unless his wrong conviction is based on unreasonable reasons. The concept formulation above, has now undergone a change. d. Yugoslav Criminal Code: Error facti (mistake of fact) is regulated in Article 9: (1) A person who is at the time of committing a criminal offense is not

aware of some constituent elements of law, or who is assumed to be subordinated, if they really are subordinated, such an act would be permitted, shall not be criminally liable .

(A person who at the time of committing a crime is not aware of some of the basic elements of the crime determined by the Act, or who mistakenly assumes that there are / continue to be conditions that if there really is an action that is not prohibited, will not accounted for).

(2) If the offender's mistake was due to his negligence, he would be criminally liable for a committed criminal offence by a negative if criminally liability was provided by law for such an offense as well.

{If the offender's error / error is caused by his negligence, he will be held accountable for the offense committed with negligence if the criminal responsibility is determined by the Act for the offense as well).

From the above provisions, it can be seen that error facti in principle

is not punished (paragraph 1); but can be convicted if the error occurs because of negligence (paragraph 2) with a record as long as the law stipulates that the culpa offense can also be convicted. (Compare with Article 37 of the KUHP Concept above). Error iuris provided for in Article 10, which reads: 'The Court may impose a reduced punishment on the perpetrator of a criminal offense who for justified reasons did not know th at such an act was prohibited, and it may Also remit the punishment. " (Courts may impose criminal reductions on the perpetrators of crimes based on reasons that are justified in not knowing that the act is prohibited, and the court may also abolish the crime). So, according to the Yugoslav Criminal Code, Jurisprudence is still convicted, but it can also not be convicted or received a criminal reduction if its error is based on justified reasons. C. Experiment Problems

1. According to the Korean Criminal Code 1953

Provisions regarding the trial are stipulated in Articles 25 to 29 which are included in the "General Conditions" (Part I). Article 25 reads as follows. (1) Where a person commences the execution of commit to commit such

crime does not complete it.

(2) The punishment for attempted crime may be a decrease in the consumption of crime.

From the formulation above shows that the elements that can be prosecuted for attempting a crime are if someone: a. start carrying out a crime, and

b. implementation: not completed, or the consequences do not occur. Review: According to the above provisions, a convicted trial is an experiment against crime; but what is meant by crimes in the Korean Criminal Code is a criminal offense in general.

The Korean Criminal Code consists of two parts, namely Part I concerning " General provisions" and Part II concerning " Specific provisions" that formulate certain crimes. In this Part II 42 groups of types of crimes are formulated which can also be classified into three major groups seen from protected interests, namely: a. Crime against State interests (State interests), b. Crime against the interests of the community (Social interest. c. Crimes against the interests of individuals (interest / individuals).

Experiments that can be convicted are not against all types of crimes, because in general provisions Article 29 is stipulated as follows. "The punishment of attempted crimes will be specifically provided in each Article concerned." (Penalties for attempted crimes will be specifically stipulated in each relevant article). So, Article 25 (1) above only stipulates the conditions / elements when it is said that there is an attempted crime that can be convicted; whereas according to Article 29 which crimes the trial can be convicted is stipulated in a separate article. In other words, the trial of crime is formulated as a separate offense in the articles (crimes) concerned in the special provisions of Part II.

Provisions such as Article 29 of the Korean Criminal Code are not contained in our Criminal Code. As for how to formulate the trial offense in the Korean Criminal Code for example as follows.

Article 87 formulates offense uprising (Insurrection) and Article 88 of murder for the purpose of formulating the uprising (Homicide for the purpose of Insurrection); then Article 89 states: "the attempt to commit crimes in the previous two articles can be punished."

For comparison, it is also necessary to know the trials of crimes that can be punished according to the Korean Criminal Code, which include: a. against attack / aggression using the country (among others,

persuading / abetting foreign countries; cooperating with enemies; giving benefits to enemies, spying).

b. against the use of explosives. c. against illegal detention. d. against acts of escaping or helping to escape legal detention.

e. against the crime of arson due to negligence. f. against several types of traffic crime

g. against the crime of opium. h. against financial related crimes . i. against crimes related to the post. j. against crimes related to documents. k. against kidnapping murders and so on.

It is interesting to note about the elements of criminal attempt in

Article 25 (1) above, that is, the inclusion of elements of the mat and the implementation are not completed, not solely because of their own intention as contained in the formulation of Article 53 of the Indonesian Criminal Code.

"The formulation in the Korean Criminal Code reminds us of the proposal for the formulation of the trial offense from Prof. Moeljatno at the Congress of Persahi II in Surabaya in 1964, namely; There is a trial offense if people: a. has begun to carry out the intended crime; b. but the implementation did not end.

According to Prof. Mulyatno's experiments contain two core, namely

subjective aspects (the existence of intention to commit certain crimes) and objective aspects (the beginning of the implementation of a crime). According to him both cores per trial was seen in the formulation of the proposed he was, that in the words "began to carry out the crime in question." In the formulation stated both subjective aspects (i.e. the intended crime) as well as objective aspects (i.e. starting to implement).

Regarding the implementation of crimes not completed, Article 26 of the Korean Criminal Code formulates the following. "Where a person, after commencing the execution of a crime, voluntarily desists from his criminal conduct or the consummation there of, the punishment shall be mitigated or remitted." (If someone, after carrying out a crime, intentionally or voluntarily stops the act or prevents the completion of the crime, the sentence will be reduced or eliminated).

From the formulation, it can be seen that if the implementation of

the trial of the crime is not completed because of its own will from the perpetrator, namely intentionally / voluntarily: a. stop his evil deeds, or b. prevent the completion of the crime. then the criminal offender can be reduced or abolished. So, the completion of the trial on its own accord according to the Korean Criminal Code, does not automatically constitute a criminal offense, but it

can also be a reason for criminal reduction / mitigation. This is different from the Indonesian Criminal Code.

It may also be noted that "incompleteness of 'actions of one's own accord' according to Article 26 above can be in the form of: a. Riicktritt or voluntary resignation (see sub a above), and

b. Tatiger Reue or acts of regret (see sub- section above). How if completion / imperfect offense was not possible due to a

wrong tool or obj e knya, or in other words like m ana if there is a trial was unable to because the tool or object? Regarding this matter Article 27 of the Korean Criminal Code formulates the following.

"Evert where there is a possibility that is not a mistake, which is chosen for its commission, punishment shall be imposed, there is a risk, but the sentence may be reduced or remitted."

(Although the completion / completeness of a crime is not possible due to an error, the tool used or the object chosen for its actions, the criminal will be charged in an event where there is a risk / possibility of loss, but the criminal can be reduced or abolished). Based on the above article, the experiment did not mung kin

completed due to the inability tool or object can still be convicted, only criminal reduced by the terms "been there / raised the risk or loss." But besides that, it might also not be criminal. All this depends on the judge's judgment.

Provisions like the above are not in the Indonesian Criminal Code. Regarding preparation or conspiracy to commit a crime that does not arrive at the initial stage of action, according to Article 28 cannot be convicted unless specified in the law.

Explicit formulations like this are not contained in the Indonesian Criminal Code. Regarding the criminal for trial, in Article 25 (2) the Korean Criminal Code above stipulates that the sentence can be reduced under criminal threats for a complete / complete crime. How many deductions are not determined by law. So, this is different from the Indonesian Criminal Code System. ' 2. According to the Thai Criminal Code 1956

The provisions concerning the trial are regulated in Articles 80-82 of Book 1 concerning "General Provisions," The conditions or elements that can be applied by the experiment are formulated in Article 80 as follows. Sub 1: "Whoever commits commitment, but does not carry it through,

or carries it through but does not achieve its end, it is said to be committed." (It was said that he had attempted a criminal offense, whoever began committing a crime, but did not complete it, or carried out / completed it but did not achieve the results / objectives).

Sub 2: "Whoever attempts to commit shall be liable for two punishments provided for such offence."

(Whoever tries to commit a criminal offense will be convicted of two-thirds of the criminal sanctions set for the criminal offense concerned).

From the above formula, it can be seen that the elements of

criminal acts according to the Thai Criminal Code are: a. has begun to commit a criminal offense (so there has been an initial

implementation). b. but the implementation is: not completed, or the results / consequences

of the goal are not achieved. This formula is essentially the same as the formula in Article 25 of

the Korean Criminal Code as stated above. The difference is only seen in the criminal threat, namely: a. according to the Thai Criminal Code, it is threatened by a sentence of

two-thirds of the threats to the criminal offense concerned; so the penalty is reduced by one third;

b. according to the Korean Criminal Code, criminal reductions for trials are not determined exactly.

It is interesting to note that the Criminal Code of Thai land to use the term "an attempt to commit a criminal offense" (to attempt to commit an offense). So the term " attempt to commit a crime " is not used like the Korean Criminal Code, because the Thai Criminal Code does not distinguish between the types of crime and violations, but only uses the term specific offences in Book II petty offences in Book III.

According to Article SO (1) above, it is said that there is an experiment if the implementation is not completed or the objective is not reached.

What if the goal is not achieved because there is an inadequate trial? Regarding this matter Article 81 of the Thai Criminal Code formulates as follows.

"Whoever does art act by aiming at the effect of the which the law Provides as an offense shall, if his doing of the act is Certain!) ' Incapable of Achieving its end on account of the factors employed in the doing, or on account of the Aimed at the object, be deemed to attempt to commit an offense, and shall be inflicted with the punishment of not more than one half of the punishment provided by the law for such offense. " (Anyone who commits an act aimed at a consequence which by law is determined as a criminal act, will be considered as conducting a criminal offense if the act is definitely not able to achieve its goal, either because of the factors / tools used in the act or because the object to be addressed, and will be subject to a penalty of no more than half of the criminal sanctions set for the criminal offense concerned).

From the above formula, it is clear that according to the Thai Criminal Code, if a person already has an intention / purpose to commit a criminal offense, but the goal is not achieved because of an "inadequate trial" (either not capable of the tool or unable to object), he remains convicted with a maximum of half of criminal penalties for the criminal offense concerned. So it's a little lighter than the experiments formulated in Article 80 above.

Still being persuaded that an incapable trial, as stated above, is similar to the provisions in Article 27 of the Korean Criminal Code. Only the difference, according to the Korean Criminal Code: a. trials cannot be convicted only if there has been a risk or loss; b. in addition to being able to be convicted (by increasing the amount of

criminal charges) the judge can also abolish the conviction of the incapable trial;

c. in the case of a criminal sanction, the reduction in the number of criminal charges is not specified in the law.

The formulation of the elements of the experiment in Article 60 of the Criminal Code of Thailand mentioned above (see the number 1), just as the case, V with Article 25 of the Criminal Code Korea, did not include explicitly the element mat and implementation is not finished is not solely because of his own free will as well as in Article 53 of the Indonesian Criminal Code.

There is a cessation of implementation on its own accord (there has been a voluntary resignation in the Thai Criminal Code specifically in Article 82 as follows).

"Whoever attempts to commit an offense, but on his own accord, desists from carrying it through, or changes his mind and prevents the act from Achieving its end, shall not be punished for such attempt to commit the offense. But, if what he has already been done comes under the provisions of the law of offense, he shall be punished for such offence. " (Whoever tries to commit a crime, but on his own accord stops doing it, or changes his intention and prevents the act from reaching its goal / result, is not convicted of attempting the crime. But, if what he has done includes / is a criminal act according to provisions of the law, he will be convicted of a criminal offense concerned).

So according to the article above: a. A person is not convicted for an experiment, if the trial is not

completed by his own will, namely in the case of: 1) stop the execution on its own accord (there is a voluntary

resignation; Riicfetritt); or 2) change his intention and prevent the achievement of goals /

results or prevent the occurrence of consequences (there are acts of regret or Tatiger Reue).

b. But if it does not complete the trial of its own will which constitutes / includes a criminal offense according to the law, it can still be convicted of the criminal offense concerned.

Thus, the failure to carry out the implementation (in trial) of its own

accord, according to the Thai Criminal Code does not automatically constitute the reason for criminal offenses. The failure to carry out the trial on its own will can be the reason for the removal of the criminal insofar as the actions taken are not a criminal offense; but if it is already a separate crime, the perpetrator can still be convicted of the crime in question.

Provisions such as in Article 82 of the Thai Criminal Code above are similar to Article 26 of the Korean Criminal Code. According to the Korean Criminal Code, "incompleteness of conduct on its own accord" does not automatically constitute a criminal offense, but can also be a criminal reason for reduction, so according to the Korean Criminal Code it can be punished, except that there are no strict terms or conditions as in the Thai Criminal Code (see ad b above), namely "if the act he has committed has constituted or includes a crime according to the law."

In connection with the above, Prof. Mulyatno never expressed the opinion that all three elements of the offense trial under Article 53 of the Criminal Code of Indonesia ( "deploy n is not completed and not because of his own free will") is the reason eraser prosecution. Nevertheless he did not object to prosecute people who had voluntarily abandoned their intentions if they caused harm, and the penalties could be reduced at the discretion of the judge. Opinion of Prof. Mulyatno is similar to the merging of provisions in the Korean and Thai Criminal Code.

3. According to the 1969 Polish Criminal Code (Applicable January 1, 1970) Provisions regarding the trial are regulated in the "General Section" , starting from Articles 11 to 13.

Articles on this experiment (attempt) included in one chapter, namely Chapter II, entitled Forms of commission of an offense, together with the provisions of the act preparation, acts perform / execute (per petration) advocacy (instigating), administration (aiding).

So, according to the Polish Criminal Code, the trial is stated as a form of crime. a. Deception of Experimental Elements

The juridical formulation of the experimental elements / conditions is contained in Article 11 paragraph 1 which reads as follows. "Whoever with the intent to commit, which however does not take place shall be liable for an attempt." (Anyone who has the intention / intention to commit a prohibited act with his actions directed at the settlement / achievement of the prohibited act but does not occur, will be accounted for for a "trial").

Based on the formula above, a person can be convicted for conducting an experiment if it is fulfilled the following conditions. 1) there is an intention to commit a prohibited act (the intent to commit a

prohibited act); 2) the action is directly aimed at achieving / completing the prohibited act;

and

3) the settlement / achievement of the prohibited act does not become fits accomplishment does not take place).

Note: The formulation of Article 11 (1) of the 1969 Criminal Code was subject to change 'in the Polish Criminal Code 1997 (6 June) into Article 13 as follows. Article 13

1. Whoever has the intention to directly commit his commission through his conduct which, however, does not take place, shalt barbeld liable for an attempt. Furthermore, in Article 11 paragraph 2 it is formulated as follows,

"An attempt is also made to make it effective because of the absence of an object that has the intended offense or because of the use of means to bring about the intended consequence . "

(An experiment also occurs if the perpetrator does not realize the fact that the settlement is not possible due to the absence of an object that is appropriate for the completion of the intended crime or because of the use of a tool that is not suitable for the intended consequence).

Note: The formulation of Article 11 (2) of the 1969 Polish Criminal Code above was amended to Article 13 (2) of the Polish Criminal Code 1997 (June 6) as follows. Article 13

2. An attempt is also possible because of the lack of suitable objects that are not suitable for perpetrating this prohibited act. .

Thus, recruiting the Polish Criminal Code, it is still said that there was an experiment even though the completion of the prohibited act was due to an inadequate trial, whether it could not afford the tools or objects. b. Punishment for Trial

The criminal provisions for this trial are regulated in Article 12 which reads as follows:

(1) The court shall impose a sanction provided for the given offense. (The court will impose punishment for trial in / not more than the

limits specified penalties for certain crimes) (2) In a case specified in Art. 11 (2), the court may apply extraordinary

mitigation of the penalty, and even waive its imposition. (In the case as formulated in Article 11 (2), the court may impose

extraordinary criminal reductions, and may also release / exempt criminal charges). Note: Article 12 above changes in the Polish Criminal Code 1997, into Article 14 with the following editorial. Article 14

§ 1. The court shall impose an attempt within the limits of the penalty provided for the given offence.

§ 2. The case specified in Article 13 5 2 the court may apply extraordinary

mitigation of punishment or even renounce its imposition. From the above provisions can be concluded as follows: 1) Criminal charges for trials cannot exceed the maximum sanction set

for the criminal offense concerned. So here is not used a strict term or formulation that the penalty can be reduced, even though it is clear that the criminal charged is under the maximum criminal for the criminal offense concerned. How much the amount of criminal under the criminal offense is also not determined. This seems to be left at the discretion of the judge. This system is similar to the Korean Criminal Code.

2) In the unlikely event the completion of the trial because of their Perco baan not afford as defined in Article 11 (2) above, it can be subjected to a reduction in criminal or entirely criminal charged. This also seems to be left to the real assessment. This provision is similar to the Korean Criminal Code (Article 27), only in the Polish Criminal Code there is no formulation that the trial cannot be convicted only if there has been a risk or loss.

c. Implementation Is Not Completed By Self-Will Article 13 of the Polish Criminal Code reads as follows. (1) "Whoever voluntary has abandoned the act or prevented criminal

consequences." (Anyone who intentionally or voluntarily removes the act of doing

so or prevents the arising from the occurrence of friendship, will not be subject to criminal conduct for trial).

(2) "The court may apply extraordinary mitigation from the perpetrators who have attempted to prevent the criminal consequence."

(Courts may impose special / extraordinary criminal reductions on the perpetrators who have voluntarily tried to prevent the occurrence of crimes).

Note: In the Polish Criminal Code 1997 (June 6), Article 13 above changes to Article 15 as follows. Article 15

$ 1. Whoever has voluntarily abandoned the ban or prevented the consequences shall not be subject to penalty for the attempt. $ 2. The court may apply an extraordinary mitigation of punishment to a perpetrator.

Based on the above provisions it can be concluded that according

to the Polish Criminal Code: 1) A person cannot be convicted of an experiment in terms of:

a) act on their own will inevitably stop enforcing the (so no voluntary resignation or Rucktritt), or

b) on their own accord or voluntarily prevent the occurrence of a crime (so there is an act of remorse or Tatiger Reue}.

2) However, the court may impose shortages of criminal preferentially in case there is a "act of contrition" (see lb).

The provisions above are also similar to Article 26 of the Korean Criminal Code, only in the Korean Criminal Code that it is not explicitly formulated that those who can be reduced in criminal sanctions are only in the case of such "remorse" in above. In the formulation of the Korean Criminal Code, it is possible for criminal reductions also in the event of Rucktritt (La.)

The provisions in Article 13 of the Polish Criminal Code are also

similar to Article 82 of the Thai Criminal Code in the sense that the existence of Rucktritt and Tatiger Reue is not convicted. Only the difference, according to the Thai Criminal Code, the existence of la and lb above can still be convicted "if the act he has committed has constituted / included a crime according to the law." Penalties that can be imposed are crimes for the criminal offense concerned. 4. According to the Norwegian Criminal Code 1902 (With Changes

in 1961 and 1994) In the 1961 edition, the provisions concerning the trial are regulated

in " General Provisions" Book I, namely d! in Article 49, 50, and 51 of Chapter 4, the complete details are as follows. Section 49

An attempt to commit a felony is punishable. An attempt is purposively directed, but falling short of, completion of felony. An

attempt to commit a message is not punishable. (Experiments of committing a crime can be punished. Trial is an act that is intentionally aimed at resolving a crime, but without success.

Trial. committing a violation cannot be convicted). . Note: In the edition of the change until 1994, the editor became as follows, S 49. When not completed, butan act has been done whereby the commission of the felony ; intended to begin, this constitutes a punishable attempt. An attempt to commit a misunderstanding is not punishable]. Section 50. -

An attempted felony is not considered punishable if the offender, before he knows that the effort has been discovered, before the attempt has been completed, the result which is constitute the completed felony. (Experiment crime is not seen to be convicted if the offender, before he knew that the trial of evil it does is it known to others, with a will-of her own to stop the continuation of per -made evil of it before the trial was completed, or it prevents the consequences arising from crime finishes he has done).

Note: In the edition of the change until 1994, the editorial is as follows, §50. An attempt shall cease to be punishable if the Offender, before he knows that the felonious activity has been discovered, of his own free will either desists from the felonious activity before the attempt has been completed or prevents the result constitute the completed felony] . Section 51

The attempt is subject to a milder punishment than the completed felony; the punishment may be reduced to less than the minimum Provided of such an offense or to a milder type of punishment. The maximum punishment provided / or a completed felony may be applied if the attempt has been led to such a result would justify that punishment if it had been purposely achieved. (Experiments subject to criminal sanctions are lighter than completed / complete crimes; the imposed penalties can be reduced less than the minimum criminal stipulated by the criminal act in question or subject to a lighter type of crime. The maximum penalty set for a complete crime can be imposed if im trial has led to an effect as justified / threatened by the maximum criminal if that result has been deliberately achieved). Note: In the edition of the change until 1994, the editorial is as follows.

$ 51. An attempt will be punished by a penalty than a completed felony. The penalty may be reduced to less than the minimum provided for such felony and to a billion form of punishment. The maximum penalty provided for completed may be applied if it has been intended by the offender. a. Understanding and Elements of Experiments

From the formulation of Article 49 above it is clear that the experiment that can be punished under the Norwegian Criminal Code is an experiment against crime; while trials of violations are not punished. Such provisions are the same as in Indonesia, except that in the Indonesian Criminal Code the provisions cannot be accepted and trials of violations are regulated in separate articles, not united with the formulation of experiments on crimes such as in Norway.

The interesting thing about the formulation of Article 49 above is that the definition of the trial is formulated quite simply, namely: 1) an act that is intentionally aimed at crime completion (certain); and

2) the intended crime was not completed successfully. Such formulation is similar to the one proposed by Prof. Moeljatno

(see above, page 111), which is different from the formulation of Article 53 of the Indonesian Criminal Code. In the formulation of Article 49 the Norwegian Penal Code above does not include the element "implementation is not completed not solely because of his own will" as in the Indonesian Criminal Code. The element in the Norwegian Criminal Code is regulated separately in Article 50 which is formulated as the reason for the abolition of criminal acts. The provisions of Article 50 are related to the second element of the experiment in Article 49 above (ad 2). According to Article 50 a person who commits a crime is not convicted, if: 1) with his own free will stop the continuation of his evil deeds before the

experiment is completed; (so there is "voluntary resignation ) 2) it prevents the consequences arising from the crimes that have been

done. b. Criminalization against Trials

Penalties against trials are regulated in Article 51 as stated above, in principle criminal for trial is lighter than for crime completed / complete. The interesting thing about this system in Norway is: 1) how long the number of "lighter" crimes for the trial is not determined

exactly in law (compare with in Indonesia which according to Article 53 paragraph 3 of the Criminal Code, the principal penalty can be reduced by one third);

2) Crimes for probation can be reduced less than the minimum criminal stipulated for the criminal offense concerned; so it can be lighter than the "special minimum" that is threatened.

Explanation: The Norwegian Penal Code adheres to a "general minimum"

system (initially until 1961, minimum generally 21 days, but until 1994 edition the minimum changes to 14 days) and different "special minimums" for each offense (there are 2 months, 1 year , 3 years, 5 years, or 8 years); so for the experiment can be lighter than the "special minimum," but still not bo l eh less than the "minimum uroum" (14 days).

3) a lighter sentence for the trial is not only the number or duration of the

criminal, but also the type of criminal offense. 4) although in principle the trial is subject to a lighter sentence, but

according to Article 51 'above it can also be subject to "maximum criminal (special)" for the complete crime in question if it turns out that the experiment has led to the emergence of the consequences of the perpetrator.

Note:

The provisions of punishment as outlined in Article 51 above are general rules of punishment because they are indeed stipulated in Book I concerning "General Rules." In addition, there are also "special rules" for the prosecution of trials which have been formulated separately for certain crimes contained in the Book II concerning "Felonies" (Crime).

In the formulation of offenses for certain crimes, among others, it is stated that the trial for the offense concerned is punished equally with that particular crime (complete / complete crime). Such provisions are seen for example in: ' - Article 100 (causing death or treason against the king / head of state;

with the threat of life imprisonment); - Article 148 (causing fire, explosion, collapse, flood, victim of ship

accident, train or airplane accident; with the threat of imprisonment from 2 years to a lifetime); Article 192 (rape; a penalty of mini mum 1 year to a maximum of 10 years). Special provisions as above are not found in the Indonesian Criminal Code, but are in provisions outside the Criminal Code, namely Law No. 3/1971 concerning Eradication of Criminal Acts of Corruption (see Article 1 sub 2 jo Article 28) and in the Law on Narcotics (Law No. 9/1976). In Article 37 of the Narcotics Law it is stated that the attempted criminal offense in Article 36 paragraph 1 to paragraph 7 is punishable by imprisonment which is the same as imprisonment for criminal acts.

5. According to the Greenland Criminal Code 1954

The Greenland Criminal Code Systematics consists of only two parts. Part I is entitled On Crimes (concerning evil) and Part II entitled The Legal Consequences of Crimes (legal consequences of crime).

Part I mostly contains the formulation of criminal offenses and Part II contains provisions on sanctions. Both in Part I and Part II there are " general provisions". Provisions regarding the trial are contained in Article 8 General Provisions of Part I and Article 88 sub 6 and 7 General Provisions Part II. In Article 8 stated: "This Code shall apply to attempts, even where no crime is committed." (The provisions in this Criminal Code will be applied later to the trial, even if no crime has been committed). In Article 88, among others, it is stated: "The Court should have mitigation of sanction the following circumstances: (6) that the crime is not completed especially when the crime, voluntary

and not because of extraneous or not, or is not an act of achievement, or intended to prevent it. completion, or

(7) that the criminal after being caused by the act is caused by the act, or

(Courts must consider the conditions below to reduce sanctions: (6) that the crime is imperfect (not complete) especially if the offender is

intentional (voluntary) and not because of unrelated barriers or not because the barriers are free to the completion of the evil deed as well as to the goal of the offender, stopping the perpetrator further action that is intended or prevented or attempted (tried) to prevent its completion, or

(7) that the perpetrator after completing the crime, has intentionally (voluntarily) avoided / prevented the danger arising from his actions or corrected or tried to repair the damage / loss caused by the act).

From the above provisions, it is clear that the Greenland Criminal

Code does not provide formulation of understanding or experimental elements.

Article 8 above only states, "The provisions in this Criminal Code" (meaning the provisions in Part 1 that comprise the formulation of criminal offenses) apply to the trial. That is, "punishable" actions (not used the term "who can be convicted") are not only actions that have been formulated as crimes in Part I {which are stipulated in Articles 11-81), but also the trial of these acts or the trial of those crimes can be punished. Whereas what is meant by "experiment" or what conditions / elements are not at all. mentioned. On this matter it seems to be left entirely to the practice of justice and the opinions of scholars (doctrine).

Judging from the placement of Article 8, namely in Part I it is clearly seen the establishment of lawmakers in Greenland, that the trial was seen as a basis for extending can be punished by an act .

Even though based on Article 8 the trial of crimes can be punished, but based on Article 88 sub 6 and 7, the court can provide a reduction in sanctions if a person who commits a crime is not finished (conducting an experiment): a. intentionally or voluntarily stop further implementation of the intended

action, or prevent or attempt to prevent its completion (see sub 6); so if there is "voluntary resignation" or Rucktritt.

It is affirmed in sub 6, that the termination of the implementation must not be due to the existence of barriers to the completion of the evil deed or for the achievement of the perpetrator's objectives.

b. intentionally or voluntarily prevent the danger resulting from the act or repair or attempt to repair the damage / loss caused by the action (see sub 7); so if there is what is called Tatiger Reue.

Note;

Even though Article 8 does not formulate explicit (explicit) elements, but with Article 88 specifically sub 6 (see sub-section 3a above) implicitly it can be concluded that there are experimental elements, namely if there is intention and there is an act of implementation.

The provisions of Article 88 sub 6.and 7 above which contain the formulation of "voluntary resignation" (Rucktritt) and "remorse" (Tatiger Reue) are not placed close together or berumtan with PasaJ 8 about the experiment. Such placements are different from most, the formulations of other countries' Criminal Code as stated earlier (Korea, Thailand, Poland, Norway) have formulated them in successive articles.

Rucktritt (sub 6} and Tatiger Reue (sub 7) by the maker of the Greenland Penal Code are seen as "reasons for reducing sanctions" (Article 88). Therefore it is reasonable to place them in Part II which indeed contain provisions regarding sanctions or imposition of sanctions. .

With the inclusion of "voluntary resignation" (sub 5) and "remorse" (sub 7) into Article 88 as "reasons for reducing sanctions" means that according to the Criminal Code Greenland the person conducting the trial can still be convicted even though there are two things above, only the sanctions can only be reduced or commuted.

Such provisions are different from the Indonesian Criminal Code to include elements of "implementation is not complete and not solely because of his own free will" as the third element of a trial under Article 53, therefore, the absence of a third element, namely when implementation not be completed because of the will of its own, cause the person is not convicted because there is a reason for criminal offenses. Pompe or there is a reason that I am forgiving (according to van Hattum and Oemar Seno Adji).

What if the provisions of the Greenland Criminal Code were compared to other countries' Criminal Code as stated earlier?

Regarding this matter, please review Article 26 of the Korean Criminal Code, Article 82 of the Thai Criminal Code, Article 13 of the Polish Criminal Code and Article 50 of the Norwegian Penal Code. The following is only illustrated briefly as follows.

Criminal Code

Article

the trial was not completed because it was about to go alone.

(1) Korea

26

a) may be a reason for criminal compensation (not determined by the amount of tax) b) can be used as an excuse for criminal waiver.

(2) Thailand

82

a) in principle not convicted (so as the reason for criminal offenses) b) but can still be convicted if it has constituted a separate criminal offense according to the law (the maker of the ids na for the criminal act in question).

(3) Poland

13

a) the principle is not convicted ( so as an excuse for criminal offenses) b) for Tatiger Reue, it can be an excuse for a reduction in criminality which is a privilege.

(4) Norway

88

as a reason for criminal offenses

(5) Greenland

88 sub 6 sub 7

as an excuse for criminal reductions

Punishment System against Trials

Here used the term of punishment instead of punishment because as noted above, the Penal Code of Greenland in the formulation of the crime did not use the term shall be punished for but to use the word-glass shall be convicted of.

The use of the words shall be convicted o is related to the establishment of the Criminal Code maker to not use criminal terms (punishment) or action-treatment (treatment), but also uses the term neutral, namely sanction (sanction). Starting from that position, the Greenland Penal Code is not referred to as The Greenland Penal Code, but The Greenland Criminal Code, because punishment is only one form of sanction determined by law.

It has been stated above, that under Article 8 'the Greenland Criminal Code the crimes formulated in Part I (i.e. Article 11-81) also apply to trials. This means that sanctions for experiments are in principle the same as those who commit crimes. Reduction of sanctions for trial only if

there are things mentioned in Article 88 sub 6 and 7 as stated above (with no definite mention of the amount of reduction).

The interesting thing in the Greenland Criminal Code is that in the formulation of crime offenses (Part I) there is no mention of the type and duration of sanctions. This type of sanction is formulated in "general rules." Part II (Article 85) which according to Article 86 the judge may choose one or more of these sanctions or at all cannot impose any sanctions, Regarding the duration of sanctions, according to Article 90, can be imposed in a "certain time" with a maximum of 10 year or indefinite period. This indefinite sanction can only be imposed if after considering the matters referred to in Article 86 paragraph 2 (ie considering the nature of crime and the interests of the community, the perpetrator's personality and things that need to prevent the perpetrator from committing a crime again), that indefinite sanction deemed necessary.

Especially for sanctions in the form of placement in an institution (placement in an institution) such as imprisonment, it can be imposed for indefinite time only if public security requires:

"General Rules" regarding the imposition of such sanctions also apply to trials. That is, judges may choose one or more than 9 (nine) types of sanctions mentioned in Article 85 and if they want to impose sanctions at a certain time, the maximum is only 10 years.

D. Reddive Problems

This recidive problem needs to be specifically reviewed from the point of view of comparison because in the framework of compiling the Earu Criminal Code in Indonesia there is a tendency to make changes to the formulation policy. So far the provisions regarding recidive have been formulated in special rules, namely as reasons for criminal offenses for certain offenses scattered in Book II and Book III. Such a formulation policy will undergo changes, which are included in the General Rules of Book I as the basis of general criminal offenses,

Some foreign Criminal Code which regulate this recidive problem in general rules, among others; 1. The Thai Criminal Code states in Book I (General Provisions), Chapter

8, entitled Recidivism, Articles 92-94; 2. The Korean Criminal Code regulates it in Book I (General Provisions),

Chapter 2 sub 4 entitled Repeated Crime, Articles 35-36; 3. The Criminal Procedure Code of Japan, said in Book I (General

Provisions), Chapter X entitled Repeated Crimes, Article 56-59; 4. The Norwegian Criminal Code, regulates it in Book I (General Part),

Chapter 5 concerning Grounds for Mitigating or Aggravating Punishment, Article 61;

5. The Austrian Criminal Code, regulating in Book I concerning Felonies, Chapter III Article 44 as one of the reasons that aggravates the nature of crime in general;

6. The Polish Criminal Code, regulates it in Book I (General Part), Chapter VIII concerning Recidivism, Passages 60-65;

7. The Yugoslavian Criminal Code, regulates it in the General Part, Chapter IV Article 40 (Reddivity) and Article 40 A (Multiple Reddivity).

From the general description of the recidive arrangements in

various KUHPs in other countries, it can be seen that there are countries which regulate them in separate articles with special titles (namely Recidivism or Repeated Crime); and some regulate it as one of the reasons for the grounds for Aggravating Punishment. It is also interesting to note, that there are countries that in addition to regulating recidive problems which usually also regulate the form of repeated repetitions (Multiple Recidivism).

Regarding when it is said there is recidive, in general some of the foreign Criminal Code above is not different from Indonesia, which is related to the requirements: 1. the perpetrator has committed a crime; 2. against the previous criminal offense, the offender has been convicted

by a permanent judge's decision; 3. after being convicted the offender commits a criminal offense again

within a certain period of time. Although the requirements are generally not different, in formulating

each of these requirements each country is not the same because it depends on the criminal policies of each country.

Some provisions regarding recidive of various foreign Criminal Code which are quite interesting are compared with the provisions that have been contained in the Indonesian Criminal Code, among others, as follows. 1. In the Norwegian Penal Code (Article 61) there are provisions

stating: "Provisions concerning increased punishment in case of recidivism are only for persons who have completed their eighteenth year at the time of the commission of the earlier offense." (Provisions regarding criminal penalties in recidive cases can only be imposed on people who have reached the age of 18 when committing a previous crime).

With the foregoing, then download the Norwegian Penal Code unit if a child under the age of 18 years to repeat the criminal act (recidive) no worn criminal weighting. In other words, there is no recidive for children under the age of 18 years. Such provisions do not exist in Indonesia. According to the Indonesian Criminal Code, in principle a child under the age of 16 {Article 45 jo. 47) can still be convicted, only the maximum threat is reduced by one third. If the child triggers a repetition of a crime, the maximum criminal threat for the offense he has committed will continue to be made worse by uniting the recidive rules for the offense (for example a third), but if

the judge imposes a sentence, the maximum sentence that can be imposed on that child is the one who had been aggravated was reduced by one third.

Another interesting provision of Article 61 of the Norwegian Penal Code is the provision that reads:

"The court may allow previous punishments to be imposed in other countries to serve as basis for increased penalties in terms of punishments imposed in this country". (The court may take into account the criminal penal terdahu l u are dropped (to the defendant) in other countries to be used as a weighting basis of criminal as well as criminal-punishment was handed down in the country).

This means the criminal decisions of other countries can be

used as a reason for estab recidive objections criminal. Such provisions do not exist or are not explicitly formulated in the Indonesian Criminal Code regarding recidive. Explicit arrangements regarding the decisions of other (state) judges are only seen in the rules regarding ne bis in idem (Article 76 of the Criminal Code).

2. In the Thai Criminal Code , an interesting provision is Article 94 which basically states that the rule of criminal penalties in terms of recidive does not apply to: (1) criminal offense due to negligence (culpa offense); (2) petty offence ; (3) the perpetrator of a criminal offense is not more (under) age 17

(both when committing a known crime and later). The above provisions are in principle the same as Article 61 of the Norwegian Penal Code above. Explicit formulations such as Article 94 of the Thai Criminal Code are also not in the Indonesian Criminal Code.

3. In Korea the Criminal Code (Article 35) assertion that sait it has been doing repetitions (recidive) where a crime is repeated or performed later threatened with a criminal jail (Imprisonment) or a more severe punishment. The meaning of a more severe criminal according to the Korean Criminal Code is the reason servitude and death penalty. So if someone commits a criminal offense that is not threatened with imprisonment, or is threatened with imprisonment (imprisonment / imprisonment at forced labor) or is threatened with death (death penalty), then it cannot be said to have done repetition (recidive) Provisions in the Korean Criminal Code above are similar to the Japanese Criminal Code (Article 56). Only in Japan is more assertive, that is to say there is a recidive, someone must have been sentenced to imprisonment at forced labor or has been sentenced to death penalty which is then replaced with criminal imprisonment at forced labor, then the person is again punished with imprisonment at forced labor (Prison with forced labor) for a certain period of time.

Thus, in Japan there is an affirmation of what type of criminal has been imposed on the perpetrator for a previous crime, whereas in Korea there is no such affirmation. Note: Compare with the Indonesian Criminal Code.

4. The interesting thing about the Polish Criminal Code is that there are special provisions regarding " Multiple Recidivism" in addition to the usual repetition or the first time. This multiple recidivism is regulated in Article 60 paragraph (2) which gives the following restrictions or multiple recidivism conditions . (1) someone who has been convicted twice according to the

contingencies of paragraph 1 (ie recidive regular / recitii've the first time);

(2) and have undergone criminal entirely or at least have undergone a one (1) year pe criminal spoils of independence (deprivation of liberty);

(3) committing a deliberate criminal offense which is the same as the previous one (at least equal to one of the previous criminal acts) within 5 years after undergoing the last criminal act;

(4) repetition is done with the aim of obtaining material gain or being done because of evil character. '

Penalty for Multiple Recipients This is heavier than the usual / first

recidive . Recidive is usually subject to 2 (two) times the minimum deprivation of liberty to the maximum criminal ancama. Criminal penalties for Multiple Recipients are 3 (three) minimum sanctions (but not less than 2 years) to achieve maximum sanctions plus half (provided that the maximum is not greater than 3 years, up to 5 years of deprivation of liberty). In addition, actions can also be carried out in the form of protective supervision for 3 to 5 years, and if ha! this is deemed insufficient, it can be included in a social readaptation center for a maximum of 5 years.

Protective supervision can also be given to regular / first time recidivism , but the action of entering into a social readaptation center can only be applied to Multiple Recidivism. The action "protective supervision given can be in the form of: a. may not change his place of residence without court permission; b. prohibit living in certain places or setting another place of residence for

him; c. obey / fulfill several orders, including:

- perform a specific job to aim so unlucky; do paid / paid work, - take an education or are prepared for a job; refrain from abusing

alcohol; submit / submit to medical care; - detain / distance yourself from places frequented by people; - other acts that can prevent the person from committing a crime

again.

Protective supervision and also the act of entering into the social adaptation center, begins after the convict has left the institution (after serving a criminal offense). E. Criminal and Criminal Problems

I. KUHP Norwegia

According to Johannes Andenaes, Nonvegia 1902 Penal Code which came into force in 1905 of the Criminal Code is the most modern in Europe at saa t promulgation. The Criminal Code: is the first result of renewal ideas proposed by IKV (Internationale Kriminalistische Vereinigung), because the draft Criminal Code comes from a committee chaired by Prof. Bernbard Getz is an active member of the IKV. According to Marc Ance l, this Criminal Code is the result of the influence of the social defense movement which is a further development of the modern school.

The Norwegian Criminal Procedure Code adheres to a double track system , which recognizes two types of sanctions for punishment (punishment) and special measures (special measures): a. Penalty (punishment) consists of:

1) Capital punishment (ordinary punishment) which is regulated in Article 15 and comprise: a) imprisonment (prison) b) jailing (same as prison) c) fines (fines).

2) Supplementary punishment stipulated in Article 16 and consists of: a) deprivation of rights in the form of: the right to become a

member of the armed forces (regulated in Article 30) and the right to vote and be elected (Article 31).

b) banishment from specified places , that is, if the existence of a defendant in a place is deemed harmful to the person or har: a object. Defendants may be prohibited from staying or appearing in that particular place or within a certain distance from that place. This prohibition can be terminated for a certain time or not for a certain time.

c) confiscation of specific objects (confiscation of certain objects), baife objects produced and those used to commit crimes.

b. Special measures (Special Measures) consists of: 1) Security measures regulated in Article 39.

Kind of sanction or action is intended for offenders who are not normal, which is crazy, people who have no awareness (eg, intoxication / drunk), which is the ability of the soul underdeveloped or damaged / defective. The types are: a. place or prohibit him from living in a certain place; b. place under the supervision of an appointed official or special

official; c. prohibit him from drinking alcoholic beverages;

d. placing it in the care of someone who is deemed appropriate; e. placing it in mental hospitals, sanatoriums, nursing homes or

workshops ; f. detained him / held him in custody

2) Preventive detention (preventive detention) which is intended for recidivists who have repeatedly committed certain crimes. This is regulated in Article 39a.

Note: In Article 15 which regulates basic crimes, there is a provision that in special circumstances a person may be convicted of criminal deprivation of certain rights as mentioned in Article 29, namely in the form of: - loss of rights for public / government positions (loss of public office); - lost the right to hold office or carry on certain jobs (to pursue a certain

occupation). According to Article 15, this type of crime (loss of rights / deprivation

of rights') is a stand-alone criminal offense in addition to other crimes or as a substitute criminal (in addition to or instead of other punishment). Compare this with the Indonesian Criminal Code which includes the criminal "revocation of certain rights" as "additional criminal" (see Article 10 sub b).

From the main types of criminal crimes mentioned above, it can be seen that the Norwegian Criminal Code does not recognize capital punishment. However, in the Criminal Code I (The Military Penal Code) it is still known as a capital punishment for treason (treason) committed during wartime or in an emergency.

Amount or duration of criminal a. For criminal imprisonment, implying Article 17 is:

1. for a certain time. ranging from 21 days to 15 years which can also be up to 20 years if there is a concursus; and

2. for a lifetime, (according to Article 55 it cannot be imposed on children under the age of 18).

b. For jailing crimes, according to Article 22, the duration starts from 21 days to 20 years, provided that 2 (two) days of tailoring are designed with 1 (one) imprisonment day. According to Article 23, at the request or approval of the convicted person, criminal jailing can be converted into criminal imprisonment,

c. Criminal penalties are not set minimum and maximum, because if determined not in accordance with the principles set forth in Article 27, that criminal. fines will be determined in accordance with the economic capacity of the convicted person.

Note: . Interesting things to compare with the Indonesian Criminal Code are: The Norwegian Criminal Code recognizes "general minimum" for 21 days jail, while Indonesia is only 1 day; The Indonesian Criminal Code recognizes "minimum" and "special maximum" for criminal penalties, while Norway does not know. Criminal Threat Formulation

As is the case with the Indonesian Criminal Code now, the Norwegian Criminal Code is also followed by a single and alternative formulation. But what is interesting from the alternative decision used in Norway is that the lighter criminal formulated first. For example it is formulated: fines or jailing; jailing or imprisonment or fines or jailing or imprisonment. So it is different from in Indonesia which threatens serious criminal penalties first. At first glance it does not seem to have the meaning of which type of criminal is formulated first. However, from the point of view of the principle of criminal law, the formulation system according to the Norwegian Criminal Code is more suitable and consistent with the principle of subsidiarity.

Regarding the single formulation (especially for imprisonment), there are quite interesting provisions in Article 24 of the Norwegian Penal Code as follows.

"Where the formulation is only the form of confirmation, a corresponding jail sentence may be pronounced, provided that there are special circumstances that appear to be detached from a depraved mind." (If imprisonment is determined as the only form of confinement, the equivalent jail criminal can be imposed, provided that special circumstances appear to indicate that the offense does not originate from a broken soul / depraved character). The provisions above provide a kind of guideline for judges in facing

single prison sentence formulation. Based on the above provisions, imprisonment which is formulated singly can be replaced with an equivalent criminal jail , if in special circumstances it turns out that a criminal offense committed by the offender does not arise from a damaged soul or character . This means that a single formulation can be an alternative formulation. Such provisions are not in the Indonesian Criminal Code.

Regarding the method of formulating the length of criminality (especially for criminal imprisonment), various methods are quite interesting when compared to Indonesia, namely:

The maximum is formulated, for example, saying "..", shall be completed by imprisonment up to 3 years "(" ... will be sentenced to imprisonment for up to 3 years ").

This formulation means that the offender concerned is threatened with imprisonment starting from a minimum of 21 days to 3 years.

The minimum is formulated, for example: "... shall be finished by imprisonment for at least \ year" ("... will be sentenced to a minimum of 1 year imprisonment"). This formulation means that the offender concerned is threatened with imprisonment of at least 1 year up to a maximum of 15 years (or 20 years if there is a concurstis).

The minimum and maximum formulated (combined), for example: "... shall be punished by imprisonment from 2 years to life, but not less than 5 years, if ..." ("... will be sentenced to imprisonment of 2 years to life, but not less than 5 years, if ... "). 2. Polish Penal Code

a. Criminal Types

According to the new Polish Criminal Code (1969), criminal sanctions are divided into two types, namely: 1) Criminal Principal (Basic Penalties), provided for in Article 30, which

consists of; a) deprivation of liberty ( deprivation of liberty ) b) Limitation of liberty (freedom restriction} c) fine

The types of principal crimes are regulated in paragraph (I). In paragraph (2) it is stated that capital punishment is an "exceptional" principal crime for very serious offenses. Next in paragraph (3) states that for offenses punishable by the death penalty may be imposed criminal deprivation of liberty (deprivation of liberty) selama25 years. :

2) Crime Supplement (Supplementary Penalties), stipulated in Article 38, which consists of: a) deprivation of public rights '; b) deprivation of parental or guardianship rights (deprivation of

parental rights); c) prohibition of occupying specific posts, following specific

occupations or engaging in specific, activities (the prohibition on occupying certain positions, doing certain jobs or activities);

d) prohibition of operating motor driven vehicles (prohibition on driving motorized vehicles);

e) confiscation of property ; f) forfeiture of objects (seizure of goods * goods); g) publication of a special way public information (announcement of a

judge).

Note: In the beginning the formulation of the principal types of crime according to the old Criminal Code of 1932 was as follows. 1. death

2. imprisonment 3. detention

4. fine.

Note the change in the position of the formulation of capital punishment and the change in the term imprisonment into the deprivation of liberty in the Criminal Code in 1969 above.

Criminal limitation of liberty (limitation of liberty) is often also referred to as restricted liberty or limited freedom. This type of criminal is an unknown new institution in the old Criminal Code (1932).

According to K. Proklewski Koziel, this crime is one type of substitute or alternative type of criminal imprisonment. The person charged with this crime remains on his freedom / freedom, so he is not deprived of his liberty but is only limited, namely (according to Article 33) the convict: a. may not change his permanent residence without court permission; b. required to perform certain jobs determined by the court; c. revoked his right to perform several functions in social organizations. d. obliged to make reports relating to the implementation of this crime.

Certain jobs that are required (ad b), according to Article 34, are

jobs for the purpose of non-paid public interestor doing paid work but the wages are deducted by around 10-25% for State Treasury or for purposes social goals. In addition, according to Article 35, justice can require convicts to repair or compensate, in whole or in part, and apologize to victims. Finally, it should be stated that the criminal "limitation of independence" can be an alternative criminal for the criminal "deprivation of liberty" which is threatened singly for a crime that has a minimum of no more than 3 months. b. Criminal Amount / Duration

1) For criminal deprivation of liberty, the length of the sentence according to Article 32 is, at least 3 months and a maximum of 15 years. For certain offenses, the Law can set a maximum limit of 25 years. In addition, as stated above, a person who commits a crime with the threat of capital punishment can be subject to a 25-year sentence of deprivation of liberty (Article 30 paragraph 3).

What is interesting compared to Indonesia is that the new Polish Criminal Code (1969) did not recognize the criminal offense of independence for a lifetime; while the old Penal Code (1932) recognize life imprisonment for criminal-specific crimes.

2) For criminal restrictions on independence the length of the sentence according to Article 33 is, at least 3 months and a maximum of 2 years.

3) Criminal fines according to Article 36 can be imposed as an independent penalty or can also be imposed together with the criminal "deprivation of independence." The general penalty for fines is from 500-25,000 zlotys (Article 36 paragraph 1), but if they are imposed together with criminal deprivation of independence.

The limit is from 500-1,000,000 zlotys (verse 2). Thus, the Polish

Criminal Code determines the general minimum and general maximum for criminal penalties. In the formulation of offenses the maximum threat has never been formulated, so it does not know the maximum specifically for criminal fines (compare with Indonesia). According to the provisions of paragraph (3), a higher fine limit under paragraph (2) which is between 500-1 million zlotys, will dike nakan if the offender acts with the purpose of acquiring material gain and also in cases other specifically-defined by law. Furthermore, in paragraph (4) it is stated, the court may impose a fine with a higher limit according to the provisions of paragraph (2) jointly with criminal deprivation of liberty, if the intentional offence causes damage or loss to social property, Criminal Threat Formulation

1) The same is true in Indonesia and Norway (see above), - The Polish Criminal Code also adheres to the formulation singly and alternatively.

2) As in Norway, the Polish Criminal Code contains guidelines for judges in dealing with a single formulation, namely in Article 54 as follows. (1) "(If the offense is threatened only by a penalty of deprivation of

liberty, the lower limit of sanction is not higher than three months and the penalties imposed would not exceed 6 months deprivation of liberty, the court recognizing that the sentencing to such a penalty would not serve a purpose, may adjudge the penalty of limitation of liberty or a fine) ".

(If a criminal offense is only threatened with a criminal deprivation of independence that is no more than three months and the sentence imposed will not exceed six months, and the court recognizes / realizes that such punishment will not support the achievement of the objective, the court may impose restrictions on independence or criminal fine).

(2) "(The provision of paragraph 1 shall not be a perpetrator of intentional serious-offense) who has been sentenced to intentional offense to the penalty of deprivation of liberty)".

(Paragraph 1 shall not be applied to violator committed the crime deliberately light, which had previously been sentenced ripened barely independence for the crime of intentionally).

According to the above provisions, even though an offense is only threatened with criminal deprivation of liberty (if in Indonesia it can be read "imprisonment") but the judge may also impose a criminal restriction on independence (limitation of liberty) or criminal fine. In fact, according to Article 55, the judge may also only impose an additional penalty if the conditions for such a decision are fulfilled and if the criminal purpose is thus able to get an airline. With this provision, it means that the judge can impose a type of criminal that is lighter than the criminal deprivation of liberty / prison, even though the lighter type of crime is not included in the formulation of the offense concerned. This also means that the single formulation system seems to be an alternative formulation system.

The authority of the judge to impose the type of pi funds lighter, according to Article 54 above, if it met the following requirements. 1. the criminal offense concerned is threatened with a criminal offense

that has a minimum of no more than three months. 2. the criminal deprivation of independence imposed will not exceed 6

months. 3. the judge realizes that the criminal to be imposed will not support the

achievement of the goal. Regarding the ad 1 requirements above, it should be explained,

that offenses with a minimum threat of no more than 3 months include a minor criminal offense (wystepek or less-serious-offense).

The authority of the judge above is limited by Article 54 (2), which is not applicable if the person who committed a minor crime was previously sentenced to imprisonment/deprivation of independence for dolus offense. C. The formulation of the length of the sentence in Poland is the same as in Norway.

That is, if an offender is threatened with a criminal offense for one year, then the offense is threatened with a minimum of 3 months to 1 year; and if threatened with a not less than 10 years offense , it means that the offense is threatened with a penalty ranging from 10 years, to a maximum of 15 years. It should be explained, that in the Polish Criminal Code the number of l imitation of liberty and fine has never been formulated.

In this essay the author chooses the method of comparing with the

central point of the Indonesian Criminal Code, then some foreign Criminal

Code compared to it, especially the span of principles and sanctions

systems. Criminal law sanctions is a paramount. Because of the draft

Indonesian Criminal Code in the process of completion, it was also stated.

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Attachment:

Similar Subject Lecturer Meeting (deepening courses)

Faculty of Law of the State Trustees University in Indonesia at Candra Wilwatikta-Pandaan

Pasuruan, 28-30 November 1988 Commission : M Courses : Comparison of Criminal Law Session Results Commission: Subject: Chapter I : Introduction

1. Comprehensive History of Hu's Comparative Development cum

2. Terms and Definition of Legal Comparison 3. Comparison of Laws as a Scientific Method 4. Legal Comparison Method: Functional Method 5. Family Law 6. Use of Comparative Law

Chapter II: British Criminal Law

A. Introduction. B. Source of British Criminal Law C. General Principles (General Principles):

1. Principle of Legality 2. Principles of Men Rea 3. Criminal Liability 4. Participation 5. Inchoate Offenses 6. Reasons for Criminal Erasers (Exemptions from

Liability) 7. Reasons for Criminal Reduction (Dem this shed

Responsibility) D. Certain Crimes.

Chapter III: Law Comparison to Criminal Provisions According to

some Foreign KUHP Foreign Criminal Code

A. Introduction B. About the Principle of Legality C. About Errors D. About Experiments

E. About Recidive F. About Criminal and Penalty:

1. Types of Sanctions 2. Formulation of Criminal Threats 3. About the Special Minimum 4. Regarding the Criminal Guidelines.

AUTHOR PROFILE

Sabungan Sibarani, was born in Aceh on November 15,

1959, NIK. 3175091511590006, No. Mobile: 081384810888,

e-mail: ssibarani01@gmail.com , get married with Sister

Merion Hutabalian and blessed two children that

is Sumiati and Daniel Bryan and blessed with 3

grandchild that is Nataniel Fernandes , Andrian Siahaan and

Elsa.

Author complete education School Elementary at Lawe Elementary School

Loning , Agra on year 1973, School Middle class First at Lawe Middle School

Desky , Southeast Aceh on in 1975 and School Middle class Above at SMA N

Cane City, Southeast Aceh. Then author continue lecture at the Institute of

Christian Jakarta graduated in 1994, then author continue education Masters in

Management at the University Satyagama graduated in 1999, then author continue

college department Education Pancasila and Citizenship (PPKN) at STKIP

Kusumanegara Jakarta graduated at In 2004, then author too continue education in

the Faculty Law University Satyagama and pass on in 2007, together with p that is

author too continue education in the Postgraduate Program Doctorate Science

Management Government to Results Seminar Research in 2008, then author

continue Master of Science education Law at Tama Jagakarsa University

graduated in 2010, then on In 2011 continued college in the Postgraduate

program, Doctoral Program Science Law (S3) at Borobudur University Jakarta

and graduated in 2014. Besides formal education, the writer too non formal

participation such as Courses Language English s for 6 months in Jakarta, PKPA

Education ( Peradi ) for 6 months in Jakarta, Test Toefl at ILP Jakarta, TPA

Course at Bapenas Jakarta. Author ever enter various organization as Maid Dean

of Faculty Economy University Indonesian Entrepreneur, Management clan

Sibarani in Greater Jakarta period of 2010 to now. On when this author work as

Lecturer Stay in the Faculty Law Borobudur University, University of Mpu

Tantular and author too have level position academic as Chancellor No. Parent

03115115901 from Minister of National Education in 2001. On 2018 Writer Pass

Certification Lecturer ( Serdos ) with number registration : 18103101809263 by

Ministry Research Technology and Education High in the field Science The law .

And the author when is being processed to level Academic Chancellor Chief .

As for books that have been published written author is :

1. Introduction Science Law

2. Application Law Criminal and Good Governance in Indonesia "(Study about

Organization Government in Medan City for Prevent and Take action

Perpetrator Action Criminal Corruption - ISBN: 978-602-9216-78-3).

3. Law Family and Inheritance Adat.

While journals creation scientific, good journal local (national) and international

is as the following :

1. Legal Development in Framework Transformation Globalization ( Journal

Yure Humano Vol. 2 No. January 2 - June 2013. ISSN: 0216-7646, p . 53-81,

published by Faculty Law Mpu Tantular.

2. Testimony Employee Corporation in Case Action Criminal Embezzlement by

Corporate Organ (Journal Yure Humano . Vol. 3 of 2013. ISSN: 021-7646, p.

1-20, published by Faculty Law University Mpu Tantular.

3. Violation P origin of 6 Regulations Minister Law No. M-HH-24.PK.01.01 of

2011 on Spending Prisoners for the sake of law on Occurrence of Overstaying

at Home Tahanan Negara Salemba , Jakarta, Journal Yure Humano vol. 4 of

2014, ISSN: 02167646, p . 1-19, published by Faculty Law Mpu Tantular.

4. Responsible Advocate in the Bankruptcy Process Case No. 04 / PAILIT /

2012 / PN.NIAGA.JKT.PST between Ratna Agustin Tdja and Lestari

Simanhendali towards PT. CITRA KARYA SERBA GUNA, Journal "

Inkracht " law , V ol. November 1, 2014, p . 57-72 .

5. Analysis Decision Free to Action Criminal Narcotics by Court Agung (study

case : Supreme Court decision No. 417K / Pid.Sus / 2011. Journal Yure

Humano . Vol. 5, July-December in 2014, ISS: 0216-7646, p . 49-71 .

6. Protection Child In the Judicial Process Penalty that is not Accompanied by

by Advisor Law, Law Review Journal, vol. XIV No. 2, November 2014.

ISSN: 14120-2561, p. 169-a88, issued by Faculty Law University Pelita

Harapan.

7. Protection Consumer in Sell Buy Online Through Electronic Media (e-

commerce), Journals Research De Jure Law , vol. June 15 year 2015 USSBL:

1410-5632, p . 185-198 .

8. Action Criminal Forgiveness in Accident Traffic on Line Busway, Journal

Yure Humano , vol. June 16 in 2015, ISSN: 0216-7646, p . 46-66 .

9. Protection To Child that requires Protection Special Consequence Lapindo

mudflow, Journals Research De Jure Law , Vol. 15, No. 4, December In

2015, ISSN: 1410-5632, p . 561-573 .

10. Protection Child in the Judicial Process Penalty that is not Accompanied by

by Advisor Law , Journal law Review, No. XIV November 2014, ISSN:

1412-2561, p. 169-188 .

11. Application Legitime Vortie ( Part Absolute ) inside Division Waris, Journal

Science Law Faculty Law University of Riau Vol. February 5 - July In 2015,

ISSN: 2087-8591, p . 123-130 .

12. Prospect Approach Legal Protection Act Violence in House Ladder (PKDRT

Law), Human Rights Journal , Vo. 7 No. 1, July 2016 .

13. Aspect Protection Law Patient Victim Malpractice Seen from Indonesian

Legal Perspective, Vol. VI No. July 1 , 2016 .

14. Review Application Sanctions Criminal To Abortion Provacatus on Victim

Rape, Journal Paradigm Huk U m Development, Vol. 1 / No. 2 / May -

August 2016, http://ojs.atmajaya.ac.id/index/php/jfh/index .

15. Analysis Action Criminal Forgiveness in Accident Then Cross on Line

Transjakarta, Journal estuary Science Social, Humanities and Art (ISSN:

L.2579-6356), website: snrm.untar.ac.id

16. Htttp : www.trijurnal.lemlit.trisakti.ac.id/ - scholar

Proceedings of the National Seminar Scholars

"TERMINATION OF THE EDUCATION AND DUE TO THE LAW

ACCORDING TO KUHAP " .

17. Journal Bina Law Environment , Vol 1, No. 2 (2017): ENVIRONMENTAL

ENVIRONMENTAL LAW -

" STUDY OF THE LAW OF DECISION OF PTUN SEMARANG

NUMBER: 67 / G / 2013 / PTUN.SMG CONCERNING EXPLORATION

MINING CONCERNING ENVIRONMENTAL LAW "

(url. http://bhl-jurnal.or.id/index.php/bhl/search/authors/view? firstName =

Sabungan & middleName = & lastName = Sibarani & affiliation = Faculty%

20 Law% 20 University% 20Borobudur & country = ID

18. Proceedings of the National Seminar Scholars 4th 2018 "Study Law About

Appointment of Constitutional Judges by President Reviewed from Principle

Transparency and Participation " indexed by IPI and Google Scholar. (Url : https://www.trijurnal.lemlit.trisakti.ac.id/index.php/semnas/article/view/3495 )

19. Proceedings of the National Seminar and Call for Papers " Building Indonesia

in the Revolutionary Era Industry 4.0 ", Postgraduate Program Indonesian

Christian University .

20. GOOGLESCHOLAR - Justitia Et Fax, Faculty Law University Atmajaya

Yogyakarta - "LEGAL PROTECTION ASPECT OF MALPRACTIC

VICTIMS PATIENTS SEEN FROM THE LEGAL VIEW IN INDONESIA"

(url: http: //ojs.uajy.ac.id/index.php/justitiaetpax/article/view/1417 )

While for journal international is

21. Court Verdict Anomaly That Dropped Punishment Against Children Under 12

(Twelve) Years Old

Jurnal Dinamika Hukum Vol 15, No 3

url: http://dinamikahukum.fh.unsoed.ac.id/index.php/JDH/article/view/477

22. International Journal or Business Marketing and Management (IJBMM),

volume 2 , 7 August 0217, pp 24-32, ISSN: 2456-4559, www.ijbmm.com .

"CONSUMER PROTECTION IN TRANSACTION OF ELECTRONIC

TRADING ESPECIALLY ON SOCIAL MEDIA (E-COMMERCE) "

(URL: HTTP://WWW.IJBMM.COM/PAPER/AUG2017/1322393478.PDF )

23. American Journal of Engineering Research (AJER02017), e-ISSNH: 2320-

0647 p-ISSN: 230-0936, volume-6, Issue-12, pp-34-348. www.ajer.org . open

access research paper

" TIN FOLK MINING IN WEST BANGKA DISTRICT OF BANGKA

BELITUNG ISLAND AND THE IMPACT OF LIFE ENVIRONMENT. " (URL: HTTP://WWW.AJER.ORG/PAPERS/V6%2812%29/ZY0612344348.PDF )

24. IOSR Journal of Engineering (IOSR-JEN)

ISSN (e): 2250-3021, ISSN (2278-8719)

"LAW REVIEW ON BETWEEN BIORE AND BIORF TRADEMARK

DISPUTE BASED MARKS LAW IN INDONESIA. "

(url : http://iosrjen.org/Papers/vol8_issue1/Version-1/J0801016674.pdf )

25. Number of publication is ISSN: online (2623-3517)

Print 623-3525 indexed in many international SCOPUS databases.

"THE RESPONSIBILITY OF AVIATIO N COMPANY LAWS AMGAUNT

COMPENSATION BENEFITS FOR AIRASIA ACCIDENT VICTIM

QZ8501 TO INDONESIAN CITIZENS. " (URL: http://repository.uki.ac.id/707/1/ICABE_2018_CONF_PROCEEDINGS.pdf )

26. European Research Studies Journal Volume XXI, Issue 3, 2018

"LEGAL PROTECTION FOR FRANCHISEES AFTER TERMINATION

OF FRANCHISE AGREEMENT"

(SEMINAR IN HOTEL MATRAMAN, JAKTIM)

27. Advance in Economics, Business and Management Research, volume 59

International Conference on Energy and Mining Law (ICEML 2018)

"LAW ENFORCEMENT TO THE MINING CRIME OF CLASS OF C

WITHOUT PERMISSION UNDER LAW NO. 4 YEAR 2009 ON

MINERAL MINING AND COAL "

(url:https://www.atlantis-press.com/proceedings/iceml-

18/articles?q=LAW+ENFORCEMENT+TO+THE+MINING+CRIME+OF+

CLASS+OF+C+WITHOUT+PERMISSION+UNDER + LAW + NO. + 4 +

YEAR + 2009 + ON + MINERAL + MINING + AND + COAL )

28. Brawijaya Law Journal, Journal of Legal Studies, Vol. 5 No. 2, October 2018.

"STATE CONTROL OVER NATURAL RESOURCES OIL AND GAS IN

INDONESIA"

(url : https://lawjournal.ub.ac.id/index.php/law )

(url : file: /// C: /DOCUME ~ 1/user/LOCALS~1/Temp/166-750-1-PB.pdf )

29. "Effort of Medan Mayor in Realizing Clean Government (Study About the

Practice of Administration in Medan City To Prevent and Acts Criminal

Actors of Corruption)" JURNAL CITA HUKUM [Online], Volume 5 Number

2 (December 2017) Jurnal Cita Hukum. Vol. 5 No. 2, December 2017. P-ISSN: 2356-1440. E-ISSN: 2502-230X

url: http://journal.uinjkt.ac.id/index.php/citahukum/article/view/4952