The current Criminal Code (KUHP), also known as the Wetboek van Strafrecht (WvS), is a legacy from the colonial era under Dutch rule. In order to realize criminal law of the Republic of Indonesia that is based on Pancasila and the 1945 Constitution of the Republic of Indonesia as well as the general principles of law recognized by the nations, it is necessary to formulate a new National Criminal Code (KUHP Nasional) to replace the current Criminal Code (KUHP) inherited from the Dutch colonial government. Based on the recital of the current Criminal Code (KUHP Nasional), the purpose of establishing a new National Criminal Law (KUHP Nasional) is to align it with legal politics, conditions, and development of social, national and state life which are intended to respect and uphold human rights, based on the belief in One and Only God, just and civilized humanity, unity of Indonesia, democracy led by the wisdom of the representatives of the people, and social justice for all Indonesian people.
The enactment of Law No. 1 of 2023 on the Indonesian Criminal Code (KUHP Nasional) as a new National Criminal Code (KUHP Nasional), which was declared on December 6, 2022, marks a concrete step towards the reform of Indonesian Criminal Law. The key differences between the current Criminal Code (KUHP) and the new National Criminal Code (KUHP Nasional) is studied in more depth through this article.
- Change in Paradigm:
During the public seminar held by Asosiasi Advokat Indonesia (AAI) DPC Jakarta Selatan Officium Nobile on October 11, 2024, with the topic “Menyongsong Penerapan UU No. 1 Tahun 2023 tentang Kitab Undang-Undang Hukum Pidana (KUHP Baru)”, Prof. Dr. Asep N. Mulyana, S.H., M.Hum (Jaksa Agung Muda Tindak Pidana Umum Kejaksaan Republik Indonesia) as one of the speakers, highlighted that the current Criminal Code (KUHP) follows a more retributive paradigm, also known as the Absolute Punishment Theory or Retributive Theory (Vergeldings Theorien). Under this theory, punishment is imposed on the offender as retribution for committing crimes that caused suffering to others or to society. Therefore, criminal punishment is viewed as an appropriate treatment or retribution for a crime that has been committed.
On the other hand, Prof. Dr. Asep N. Mulyana, S.H., M.Hum conveyed that the new National Criminal Code (KUHP Nasional) leans to an integrative approach (Verenigings Theorien), which not only takes into account the interests of the offender, society, but also considers the interests of the victim of crimes and their family. Based on Articles 51 and 52 of the new National Criminal Code (KUHP Nasional), it is evident that the provisions related to sentencing in the new National Criminal Code (KUHP Nasional) are aimed at:
| Article 51 new National Criminal Code (KUHP Nasional) | Article 52 new National Criminal Code (KUHP Nasional) |
| (a) prevent Crime being committed by enforcing legal norms for the sake of the protection and sanctuary of the community; (b) accustom the convicts by holding guidance and mentoring so that they become good and useful people; (c) resolve conflicts arising from Crimes, restore balance, as well as bring a sense of security and peace within the community; and (d) cultivate a sense of remorse and to absolve the convicted person of guilt. | Sentencing is not intended to degrade human dignity. |
- Qualification of Crimes and Structure of the Criminal Code:
In the current Criminal Code (KUHP), criminal actions were divided into 2 (two) categories: “Crimes” and “Misdemeanours”. The category of Crimes consisted of a total of 385 articles, while the category of Misdemeanours consists of 81 articles.
However, in the new National Criminal Code (KUHP Nasional), these distinctions are removed. The categories of Crimes and Misdemeanours have been consolidated into 1 (one) single category, “Criminal Acts”, which includes a total of 437 articles. Furthermore, the differences in structure between the current Criminal Code (KUHP) and the new National Criminal Code (KUHP Nasional) are as follows:
| Current Criminal Code (KUHP) | New National Criminal Code (KUHP Nasional) |
| Book I: General Provisions, which include general definitions, principles of criminal law, and provisions regarding the subjects of criminal law. Book II: Crimes, this section regulates the types of crimes and the corresponding criminal penalties for each. Book III: Misdemeanours, this section regulates the types of minor offenses and the corresponding sanctions for each. | Book I: General Provisions, include definitions, general principles, subjects of criminal law, types of penalties, and provisions regarding sentencing. Book II: Criminal Acts, this section provides a more detailed regulation of criminal offenses, such as crimes against the state, humanity, and other types of crimes. Book III: Minor Criminal Acts, this section regulates minor violations and the corresponding sanctions for each. |
- Criminal Sanctions:
In the new National Criminal Code (KUHP Nasional), there is a noticeable reform particularly regarding criminal sanctions, which are now more detailed. One significant update is the introduction of community service as a principal sentence. Additionally, the death sentence is no longer a principal sentence but rather an alternative sentence.
Regarding additional sentences, the new National Criminal Code (KUHP Nasional) has introduced new provisions, such as the confiscation of certain goods and/or invoices, payment of compensation, revocation of certain licenses, and the fulfillment of local customary obligations. Comparatively, the sanctions in the current Criminal Code (KUHP) and the new National Criminal Code (KUHP Nasional) can be summarized as follows:
| Current Criminal Code (KUHP) | New National Criminal Code (KUHP Nasional) |
| Article 10 (a) Principal Sentence: 1. Death Sentence (Article 11). 2. Imprisonment (Article 12). 3. Light Imprisonment (Article 18) 4. Criminal Fines (Article 30) | Article 64 – Article 67 (a) Principal Sentence: 1. Imprisonment (Article 68) 2. Custody. 3. Criminal Supervision. 4. Criminal Fines (Article 71). 5. Community Services (Article 85). |
| (b) Additional Sentences: 1. Deprivation of certain rights (Article 35, 36, 37, 38). 2. Forfeiture of specific goods (Article 39, 40, 41). 3. Publication of judicial verdict (Article 43). | (b) Additional Sentences: 1. Revocation of certain rights (Article 86, 87, 88, 89, 90). 2. Confiscation of certain goods and/or invoices (Article 91, 92, 93). 3. Publication of judicial verdict 4. Payment of compensation (Article 94) 5. Revocation of certain licenses (Article 95) 6. Fulfilment of local customary obligations (Article 96, 97). |
| (c) Special Sentence for certain crimes stipulated under the law: – Death sentence which is always threatened as an alternative sentence (Article 67, 98, 99). |
Another important aspect in the new National Criminal Code (KUHP Nasional) that was not regulated in the current Criminal Code (KUHP) is provisions related to Prison Sentence Exemption. This provision is regulated in several articles, particularly in Article 70 of the new National Criminal Code (KUHP Nasional), which is as follows:
| Article 70 paragraph (1) new National Criminal Code (KUHP Nasional) | |
| Imprisonment should not be imposed if any of the following conditions are discovered: | |
| (a) the defendant is a Child; the defendant is over 75 (seventy-five) years old; (b) the defendant committed a Crime for the first time; (c) the loss and suffering of the Victim are not severe; (d) the defendant has paid compensation to the Victim; (e) the defendant is not aware that the Crime committed will result in a large loss; (f) the Crime occurs due to very strong incitement from another person; (g) the Victim of a Crime pushes or encourages the occurrence of said Crime; | (i) the Crime is the result of a situation that is impossible to repeat; (j) the personality and behaviour of the defendant ensure that he/she will not commit another Crime; (k) the imprisonment will cause great suffering to the defendant or his/her family; (l) guidance outside of correctional facilities is expected to be successful for the defendant; (m) the imposition of a lighter sentence will not reduce the seriousness of the Crimes committed by the defendant; (n) Crimes occur within the family; and/or (o) Crimes occur due to negligence. |
However, the provisions regarding Prison Sentence Exemption as described above does not apply to:
| Article 70 paragraph (2) KUHP Nasional |
| (a) Crimes which are threatened with imprisonment for 5 (five) years or more; (b) Crimes which are threatened with special minimum sentence; (c) certain Crimes which are very dangerous or detrimental to the community; (d) or Crimes which are detrimental to state finances or economy. |
The introduction of Prison Sentence Exemption grants judges a flexibility to consider alternative punishments other than imprisonment for offenders. With this option, not all offenders will necessarily receive a prison sentence. The approach in Article 70 of the new National Criminal Code emphasizes restorative justice so that the aim of punishment is not merely retribution for the perpetrator’s mistake but also has a beneficial purpose in bringing peace and justice to the society.1
- Corporations as Subjects of Criminal Acts
The new National Criminal Code (KUHP Nasional) now includes provisions regarding legal entities or corporations as subjects of criminal acts. These provisions are stated in Articles 45 to 50 of the new National Criminal Code (KUHP Nasional). In Article 45, paragraph (2) of the new National Criminal Code (KUHP Nasional), it is stated that corporations include:
- Legal Entities (Limited Liability Companies, Foundations, Cooperatives, State-Owned Enterprises (BUMN), Regionally-Owned Enterprises (BUMD) or the equivalent);
- Associations for both incorporated and unincorporated;
- Business Entities (Firm, Limited Partnership, or the equivalent in accordance with the provisions of laws and regulations).
4.a. Criminal Liability for Corporations
Based on Article 46 of the new National Criminal Code (KUHP Nasional), criminal acts committed by corporations that can be held accountable are criminal acts carried out by:
- management who has functional positions within the Corporation’s organizational structure; or
- persons who, based on work relationships or based on other relationships, acting for and on behalf of the Corporations;
- persons acting in the interests of the Corporations, within the scope of said Corporations’ business or activities;
- either individually or collectively.
In addition to the provisions above, Article 47 of the new National Criminal Code (KUHP Nasional) also provides an expansion of corporate liability, namely criminal acts committed by:
- the person giving order;
- the person in control; or
- beneficial owners of Corporations who are outside of the organizational structure, but may control the Corporations.
However, there are requirements that needs to be satisfied related to the accountability of corporations, which can be seen from Article 48, namely:
- within the scope of business or activity as determined in the articles of association or other provisions applicable to Corporations;
- it benefits the Corporations unlawfully;
- it is accepted as a Corporate policy;
- Corporations fail to take the necessary measures to implement mitigation, prevent a greater impact, and ensure compliance with the prevailing legal provisions in order to avoid the occurrence of Crimes; and/or
- Corporations allow Crimes to occur.
4.b. Criminal Sanctions for Corporations
Regarding criminal sanctions for corporations, it is regulated in the new National Criminal Code (KUHP Nasional), namely based on Articles 118 to Article 123 of the new National Criminal Code (KUHP Nasional), as follows:
| Principal Sentence: – Criminal Fines (Article 121) | Additional Sentences: (a) Payment of Compensation; (b) Remedy for the consequences of Crimes; (c) Implementation of obligations which have been neglected; (d) Fulfilment of customary obligations. (e) Financing of job training; (f) Confiscation of Goods or profits obtained from Crimes; (g) Announcement of court decision; (h) Revocation of certain licenses; (i) Permanent ban on certain actions; (j) The closure of all or part of the places of business and/or activities of Corporations; (k) Suspension of all or part of the business activities of Corporations; and (l) Dissolution of Corporations. |
| In the event that Corporations fail to implement the additional sentence as referred to in the additional sentences table above, (specifically for letter a to letter e), the assets or income of the Corporations may be confiscated and auctioned by the prosecutor in order to fulfil the additional sentence which is not fulfilled. | |
- Living Law
Living law holds an important position because it is ingrained in social life. In the new National Criminal Code (KUHP Nasional), in addition to the juridical foundation as the basis for the reform of criminal law to achieve legal unity (Legal Unification), there is also a sociological foundation based on cultural values and societal needs. This is reflected in the new provisions of the new National Criminal Code (KUHP Nasional), which include regulations on living law in Articles 2, paragraph (1) and (2) of the new National Criminal Code (KUHP Nasional), which essentially governs the enforceability of the laws that are rooted in the community which determine whether a person should be sentenced even though such act is not regulated in this Law, as follows:
| Article 2 paragraph (1) and (2) new National Criminal Code (KUHP Nasional) | |
| (1) Provisions as referred to in Article 1 paragraph (1) shall not diminish the enforceability of the laws that are rooted in the community which determine whether a person should be sentenced even though such act is not regulated in this Law. | (2) The laws that are rooted in the community as referred to in paragraph (1) shall be applicable at the place where the laws are ingrained and as long as not regulated in this Law and in accordance with the values contained in Pancasila, the 1945 Constitution of the Republic of Indonesia, human rights, and general principles of law recognized by the nations. |
Therefore, living law, or the law that exists in society, applies in specific regions and is still adhered to by the local community. Articles 2, paragraphs (1) and (2) of the new National Criminal Code (KUHP Nasional) does not explicitly mandate that living law must be written down. However, Article 2, paragraph (3) implicitly directs that the procedures and criteria for the determination of laws that are rooted in the community shall be regulated through government regulations, which serve as guidelines for regions in drafting local regulations. This means that there is an implicit requirement that living law, as a basis for criminal sentences or abolition, must be defined further and formalized through regulations.
- Fanisa Luthfia “The Shift in Concept of Punishment Post the Enactment of Law Number 1 of 2023 and Its Impact on Anti-Corruption Law Enforcement” Recidive Journal. ↩︎
