The Implementation of Corporate Criminal Liability in a Corruption Crime impacting

State’s Financial Losses in Indonesia (Case Study of Central Jakarta District Court
Judgment No. 81/Pid.Sus/Tipikor/2018/PN.Jkt.Pst)
Written by: Damar Noviansyah Tomanyira

I. Background
The Recognition of a Corporate as a subject of Crime is one of the Facts of Criminal Law Development.
As Henry N. Pontell & Gillbert Geis had explained in their article with the title of “International
Handbook of White-Collar and Corporate Crime”, they said, “Corporate crime is hardly new”. In
Indonesian Criminal Code, a Corporate has not been recognized as the Subject of Crime due to the
Principle of societas delinquere nonpotest1 yet in several Indonesian Laws except Indonesian Criminal
Code, a Corporate has been recognized as the subject of crime. Thus, The Recognition of a Corporate
as the subject of crime is a new thing and the fact of the development of Criminal Law.
There were some reasons stated by some criminal law expert to recognize a corporate as the subject
of crime which is as follows:
1. Just sentencing the management of the corporate is not sufficient to conduct crime repression
conducted by or with the corporate. Therefore, it is required to be able to sentence a corporate, with
its management, or just its management.2
2. Criminal law should have a function to protect and enforce any norms and any prevailing regulation
in the middle of society. If Criminal Law could just sentence a human, the Purpose of Criminal Law
will be ineffective. Therefore, there is no reason for not sentencing a corporate.3

Glanville Williams, a Rouse Ball Professor of English Law at the University of Cambridge, had explained
that “the Liability of Corporation, like strict liability exemplifies utilitarian theory in the criminal law. It
is based not on the theory of justice but upon the need for deterrence”4.

Not in every Indonesian Law is a corporate recognized as the Subject of Crime. There are just a few
Indonesian law recognizing a corporate as a subject of crime. One of the Indonesian Law providing
Corporate Crime is Law No. 31 of 1999 on the Eradication of the Criminal Act of Corruption and Law
No. 20 of 2001 on the Amendment of Law No.31 of 1999 on the Eradication of the Criminal Act of
Corruption (“Law on Corruption”). It is proven with the provision of article 20 paragraph (1) Law on
Corruption stating as follow:

1 Muladi and Dwidja Priyatno, Pertanggungjawaban Pidana Korporasi, (Jakarta: Kencana Prenada Media Group, 2010), Page. 54
2 J.M. van Bemmelen, Hukum Pidana I Hukum Pidana Material Bagian Umum, translated by Hasnan, (Bandung Binacipta, 1986),
Page 239.
3 Delivered by D. Schaffmeister in “Penataran Nasional Hukum Pidana Angkatan 1, on August 6 th – 28th, 1987, Legal Cooperation

Indonesia – Netherland in Faculty of Law, Universitas Diponegoro

4 Glanville Williams, Textbook of Criminal Law, 2nd Edition, (London: Stevens & Sons, 1983), Page 974
 “(1) In the event the corruption crime is conducted by a corporate, the sue and the sentence shall be
burdened to the corporate and/or its management”

Therefore, based on Law on Corruption, a Corporate could be a subject of criminal act of a corruption.

In 2018, there was a corporate proven for committing a corruption. The Corporation was known as PT
Duta Graha Indah, Tbk / currently known as PT Nusantara Konstruksi Enjiniring, Tbk (“PT NKE”). The
Judges had convicted that PT NKE was proven for breaching the article 2 paragraph (1) jo. Article 18
paragraph (1) point b Law on Corruption jo. Article 55 paragraph (1) point 1 jo. Article 64 Indonesian
Criminal Code that caused state financial losses with the amount of IDR 25,953 Billion as explained in
The Court Judgment No. 81/Pid.Sus/Tipikor/2018/PN.Jkt.Pst (“The Court Judgment”). It makes the
writer wonder how The Implementation of Corporate Criminal Liability in that case is.5

II. Regulations
- Law No. 31 of 1999 on the Eradication of the Criminal Act of Corruption;
- Law No. 20 of 2001 on the Amendment of Law 31 of 1999 on the Eradication of the Criminal Act of
Corruption;
- Indonesian Criminal Code;
- Supreme Court Regulation No. 13 of 2016 on the Procedure to Handle Criminal Acts Committed by
Corporation; and
- President Regulation No. 80 of 2003 and its amendments

III. Legal Analysis

A. Corporate Criminal Liability in Criminal Act of Corruption under Indonesian Law
Before discussing Corporate Criminal Liability, we must comprehend the Requirements to sentence
a perpetrator. Sudarto, a criminal law expert from Universitas Diponegoro, explained that the
requirements to sentence a person are explained as follows6 :

Sentence

Action Perpetrator

1. It Has Occupied the 3. Guilty:

element of crime a. Able to be liable for a
crime
2. It is unlawful b. Has a deliberation or
(No reason to forgive negligence
the act)

5
Central Jakarta District Court Judgement No. 81/Pid.Sus/Tipikor/2018/PN.Jkt.Pst
6
Sudarto, Hukum Pidana I Edisi Revisi, (Semarang: Yayasan Sudarto d/a Fakultas Hukum Universitas Diponegoro Semarang,
2013), Page. 84
 We could see above that Guilty is the determining factor of criminal liability. As Prof.Dr. Muladi, S.H.
said “Guiltiness is the fundamental thing for criminal liability”.7 Geen straf zonder schuld (there
is no sentence without a guiltiness) is also the Fundamental Principle of Criminal Liability. Therefore,
Criminal Liability is closely related to the guiltiness of the perpetrator.

In order to determine the Guilty, Sudarto also stated that there are several elements that must be
satisfied. The elements are as follows8:
 The perpetrator has an ability to be liable for a crime;
 There is a connection between the perpetrator and his crime whether it is deliberation or
negligence; and
 There is no cause to remove its guiltiness acceptably.
If those elements have been satisfied, the perpetrator could be considered guilty or has criminal
liability that causes the perpetrator could be sentenced.

In Law on Corruption, the provision of corporate criminal liability is regulated under the article 20
paragraph (1) and (2) stating as follows:
“Article 20
(1) In the event that the criminal act of corruption is committed by or on behalf of a corporation, the
indictment and the sentence can be addressed and imposed to the corporation or its
management
(2) The criminal act of corruption is taken to be committed by a corporation in the event that
people who are based on work commit the act and other relations, act in the corporate
environment, either personally or collectively ”
Those provisions adopted the doctrine of identification9 and the doctrine of aggregation10. The
doctrine of identification is reflected with the sentence of “based on work commit the act”. The
doctrine of aggregation is reflected with the sentence of “act in the corporate environment either
personally or collectively”. The meaning of “people based on work commit the act” is people having

7
Muladi and Dwidja Priyatno , Op. Cit., Page. 70
8 Sudarto, Op.cit, Page 155
9
The Doctrine of Identification is based on the principle of “the corporate management is the organ of the corporate, the corporate
management’s mind is the corporate’s mind, the corporate management’s body is the corporate’s body”. The approach of
identification doctrine also applies the vicarious liability doctrine to the corporate over the crime committed by the management of
the corporate. Moreover, that principle could be applied as long as the corporate management satisfies several requirements as
follows:
1. The corporate management in committing the crime should be in accordance with the corporate’s purpose and objective as
stated on its article of association;
2. The crime committed by its management must be in the authority of the management (Sutan Remy Sjahdeini, 2017: 173)
10
The Doctrine of Aggregation enables to aggregate or combine the actus reus and the mens rea of several people to be attributed
to a corporate causing a corporate could be burdened criminal liability. According to this doctrine, every actus reus and mens rea
of several related people could be considered that those actus reus and mens rea have been done by one person (Sutan Remy
Sjahdeini, 2017: 182)
 a work relation as the management of the corporate or as the employee11. Therefore, those relations
are based on as follows:
1. Based on The article of association of the relevant corporate and its amendments;
2. Based on The Circular Letter of the Employee;
3. Based on The Work Agreement of The Employee containing any authorities of The
Employee; and
4. Based on The Power of Attorney entrusting The Employee to act representing a corporate
with the Authority Boundaries12
In addition to Article 20 Law on Corruption, The Judges are also engaged with the Supreme Court
Regulation No. 13 of 2016 on the Procedure to Handle Criminal Acts Committed by Corporation
(“SCR 13/2016”) in determining the guilty of a corporate as regulated under Article 4 paragraph (2)
SCR 13/2016 stating as follows:
“(2) in burdening the sentence to a corporation, Judges shall assess the guiltiness of the
corporation as referred to paragraph (1) as follows:
1. The corporation shall receive any profit or any benefit from the crime or the crime is
committed for the corporation’s interest;
2. The corporation omits the occurrence of the crime;
3. The corporation dooes not any required deterrence step for conducting a deterrence,
deterring the bigger impact and ensuring compliance on the prevailing law in order to avoid
the occurrence of the crime”.

The Sentence of a corporate is also different with the Sentence of a human. In accordance with
Article 25 SCR 13/16 stating as follows:

“(1) The Judges shall sentence a corporate with a basic sentence and/or an additional sentence
(2) Basic Sentence that could be imposed to a corporate as referred to paragraph (1) is the sentence
of fine
(3) Additional Sentence that could be imposed to a corporate is according to the prevailing law”

B. The Implementation of Corporate Criminal Liability in Central Jakarta District Court Judgment
No. 81/Pid.Sus/Tipikor/2018/PN.Jkt.Pst
Based on the Court Judgment, The Brief Chronologic of the Case is elaborated as follows:
- According to the Deed of the Shareholder Meeting of PT NKE, No. 6 January 8th, 2009 (“the
Board of Director Selection Deed”), The Structure of the Board of Director of PT NKE was as
follows:
 Dudung Purwadi as the President Director (“PT NKE’s President Director”)
 Johanes Adi Widodo as the Director of Marketing I (“PT NKE’s Marketing Director”)
 Laurentius Teguh Khasanto as the Director of Finance (“PT NKE’s Finance Director”)

11
Sutan Remy Sjahdeini, Ajaran Pemidanaan : Tindak Pidana Korporasi & Seluk-beluknya, ( Depok : Kencana, 2017 ), Page.
243
12 Ibid.,Page. 244
- In 2009, there was a meeting held by Mr. Nazarudin, the owner of Anugerah Grup, attended by
several construction companies, including PT NKE, to discuss that Anugerah Grup was still in
negotiation with the House of Representatives of The Republic of Indonesia (“HOR”) to obtain
an opportunity to be involved in several construction projects in HOR and the Company that will
be the Contractor of the HOR’s construction project will be selected in an Auction (“The
Auction”);

- After that Meeting, Muhammad El Idris met Mindo Rosalina Manullang in the Anugerah Group’s
Office. In this meeting, Mindo Rosalina Manullang explained that Anugerah Group would drive
every auction to win PT NKE as long as PT NKE gave fees with the amount of 15% of the
amount of contract. After hearing that offering, Muhammad El Idris informed PT NKE’s President
Director and PT NKE’s President Director approved the offering;

- on May 29th, 2009, the Auction Committee announced that PT NKE was selected as the winner
of the Auction for the Project of “Pengadaan Sarana dan Prasarana Pendidikan Khusus
Penyakit Infeksi dan Pariwisata T.A 2009, Universitas Udayana” (“The First Project”) and on
September 21th, 2010, PT NKE was also selected as the Winner of the Auction for the second
phase of the First Project (“The Second Project”);

- On September 17th, 2009, The PT NKE’s President Director signed the contracting collective
work agreement of The First Project with the worth of IDR 46.745.000.000.000, 00.

- PT NKE had received 100% payment with the amount of IDR 41.220.590.909,00 due to stating
on the Minutes of Work Delivery and Acceptance that PT NKE had done 100% of the work
whereas just implementing 67,03 % of the work ;

- On October 1st, 2010, PT NKE’s President Director signed the contracting collective work
agreement of The Second Project with the worth of IDR 91.978.000.000,00

- PT NKE had received 100% payment with the amount of IDR 81.107.872.727,00 and stated that the
work was completely finished based on Minutes of Work Delivery and Acceptance of provided by PT
NKE while just implementing 57,49% of the Work.
- Because of those actions, The state suffered financial losses explained as follows:

No Project PT NKE’s Fees according to Work Percentage State Financial Losses

the contract for completing that PT NKE
100% work have done
1 I IDR 41.220.590.909,00 for 67,03% 36,97% of work or
100% Work IDR 7.837.004.150,81
2 II IDR 81.107.872.727,00 for 57,49% 42,51% of work or
100% Work IDR 18.116.780.429,76
The Total of State IDR 25.953.784.580.51
Financial Loses
- The Amount of the State Financial Loses was transferred to several parties involving in the
crime that will be explained as follows:

 For the First Project, M Nazarudin received the money towards several parties to manipulate
the Companies with the details as follows:
No Companies Name The Amount of Money
1 PT Anak Negeri IDR 1.183.455.000,00
2 PT Anugerah Nusantara IDR 2.681.600.000,00
3 Permai Group IDR 5.409.389.000,00

 For the Second Project, M Nazarudin received the money from The PT NKE’s President
Director through Yulianis (Finance Officer of Permai Group) in the form of a cheque with the
amount of IDR 1.016.500.000, 00

 For both projects, PT NKE had received the money with the amount of IDR
15.662.840.580,00

In the Brief Chronologic above, The Element of “based on work commit the act and other
relations” as referred to the Article 20 paragraph (2) Law on Corruption should be proven with the
Board of Director Selection Deed explaining the Connection between PT NKE’s President Director
and PT NKE meaning that PT NKE’s President Director had relationship as the Management of PT
NKE. The Amount of Money received by PT NKE from the First and the Second Project is also the
Fundamental Reason for burdening PT NKE criminal liability.

According to the Court Judgment, The Action of Controlling the Auction to select PT NKE as the
Winning Bidder was the Unlawful Action of the Crime. That action breached several principles of
Goods and Services Supplying as regulated under the President Regulation No. 80 of 2003 and its
amendments that the principles are as follows:
1. Disclosure and competing
2. Transparent
3. Fair and not discriminative
4. Accountability
Not only that, but also the Action of Manipulating the Minutes of Work Delivery and Acceptance
committed by PT NKE’s President Director should be one of the Fundamental Action of the Crime.
Because of The Manipulation of Work Delivery and Acceptance committed by PT NKE’s President
Director, the State must suffer financial losses.
IV. Conclusion

1. Criminal Liability is closely related to guiltiness of the subject of crime. With the aim of determining
a guilty, there are several requirements that should be satisfied as explained in the 1 st part legal
analysis of this writing. Nevertheless, not in every Indonesian law is a corporate recognized as the
subject of crime due to the issue of corporate guiltiness. One of the Laws recognizing a corporate
as the subject of crime is Law on Corruption. The provision of Article 20 Law on Corruption is the
fundamental to burden a corporate with criminal liability adopting the Doctrine of Identification and
the Doctrine of Aggregation. In addition, judges is also engaged with SCR 13/2016 in determining
the Guiltiness of a corporate and in sentencing a corporate.

2. PT NKE is one of the case of burdening a corporate with criminal liability. The Involvement of the
PT NKE’s President Director is one of the fundamental reason to burden PT NKE with criminal
liability. PT NKE’s Director with M. Nazarudin are jointly involved in controlling the Auction
subjectively and manipulating the work as stated in the Minutes of Work Delivery and Acceptance
of the First and the Second Project. PT NKE should have finished 100% of the work while just
finishing 67.03 % for the First Project and 57.49% for the Second Project. Due to that crime, The
State had suffered state financial losses for IDR 25.953.784.580.51.

V. Bibliography

Sutan Remy Sjahdeini, Ajaran Pemidanaan: Tindak Pidana Korporasi & Seluk-beluknya, (Depok : Kencana,
2017)

Sudarto, Hukum Pidana I Edisi Revisi, (Semarang: Yayasan Sudarto d/a Fakultas Hukum Universitas
Diponegoro Semarang, 2013)

Muladi and Dwidja Priyatno, Pertanggungjawaban Pidana Korporasi, (Jakarta: Kencana Prenada Media Group,
2010)

J.M. van Bemmelen, Hukum Pidana I Hukum Pidana Material Bagian Umum, translated by Hasnan, (Bandung
Binacipta, 1986)

Glanville Williams, Textbook of Criminal Law, 2nd Edition, (London: Stevens & Sons, 1983), Page 974

Schaffmeister, D. Het Dederschap van de Rechtspersoon. Bahan Penataran Nasional Hukum Pidana Angkatan
I, Cooperation between Netherland-Indonesia, August 6th – 28th, 1987, in the Faculty of Law, Universitas
Diponegoro (Semarang: Penyelenggaraan kerja sama hukum Belanda-Indonesia, 1987)