SARI MANDIANA, 091070539 (2017) MELAWAN HUKUM KHUSUS/FACET DALAM TINDAK PIDANA KORUPSI PASAL 2 AYAT (1) UNDANG-UNDANG NOMOR 31 TAHUN 1999 juncto UNDANG-UNDANG NOMOR 20 TAHUN 2001 TENTANG PEMBERANTASAN TINDAK PIDANA KORUPSI. Disertasi thesis, Universitas Airlangga.

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Abstract

The purpose of this research is finding and analyzing the philosophy, yuridis, sociology and theology aspect for the word “unlawfulness” as it is written in Article 2 Sub section (1) Corruption Law. As a part/bestanddeel of corruption formulation “unlawfulness self enrichment or other person or corporation” where it is called facet unlawfulness. Meaning value of “facet unlawfulness” concealed in what meaning the law makers aims to restricting the criminal provision. So the meaning in various criminal act has the value relating with its function. As a doctrinal legal research, this study applied statute approach, conceptual approach, and case approach. In accordance with the nature of normative legal research, the source of legal material used are the primary legal materials and secondary law. Focused on deductive analyses and interpretation of legal materials were conducted to answer the issues discussed in this research. The finding of this study indicate as follow: Particularly facet unlawfulness in corruption criminal act Article 2 sub section (1) Corruption Law has the function of the notion of legal justification by implementing materiil unlawfulness with negative meaning, as justification defence outside the Penal Code. This legal justification write-off the unlawfulness criminal act by placing the act in the social context. Indeed, it is known as the principle “No crime Without Materiil Unlawfulness”, continuously with the principle “No Penalty Without Fault” . Legal justification as criminal defense outside Penal Code which has a basic materiil unlawfulness with negative function, simultaneously with proportionality principle, subsidiary principle, and non subsociality principle as the parameter or examining norm (toetsingnormen),which has dissolved case by case. The reality fact showed how inconsequent and inconsistency The Supreme Court decicion in terms of interpreting unlawfulness writen elemen in corruption criminal act article 2 sub section (1) Corruption Law. They have different meaning with as shown in the implicit unlawfulness or unwritten requerement in criminal act formulation commonly known as “element”. Whilst the explisit unlawfulness stated in criminal act formulation known as “facet unlawfulness”. In this circumstance, that unlawfulness is no longer as an elementen, but has become part/bestanddeel of the criminal formulation which has to be put in the indictmentand has to be proven upon the court through the pure interpretation and function on above. It is urged to shift “daad-dader-strafrecht” which oriented to “monoistis” theory to “dualistis” philosophy with emphasizing on criminal act based on unlawfulness and blameworthness as an obyective requirement.

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