ASAS LEX SPECIALIS DEROGAT LEGI GENERALI DALAM PENEGAKAN HUKUM PIDANA

SHINTA, AGUSTINA (2014) ASAS LEX SPECIALIS DEROGAT LEGI GENERALI DALAM PENEGAKAN HUKUM PIDANA. Doctoral thesis, Universitas Andalas.

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Abstract

The principle of lex specialis (fully stated as lex specialis derogat legi generali), as stipulated in Article 63 (2) of Indonesian Penal Code, becomes a guidelines in dealing with criminal offenses which are concurrent in nature, violating the provisions regulated in both general and special penal law at the same time. The practice of criminal law enforcement shows the existence of an offense amounting to the violation of two distinct offenses stipulated in two different acts, i.e. violating the Forestry Act and Corruption Eradication Act, or violating Banking Act and Corruption Eradication Act at the same time. The criminal procedure of this kind of offense shows inconsistency and discrimination, for in several cases, the perpetrators were only charged with violation of Banking Act or Forestry Act, while in other cases the perpetrators were charged with violation of both acts. Such implementation arouses injustice and legal uncertainty, as well as adverses the effort to eradicate corruption. The issues which are going to be discussed are: 1) the concept of special penal law in Indonesian criminal law system, 2) the implementation of the principle of lex specialis in Indonesian criminal law enforcement, 3) the concept of special penal law in Indonesian criminal law system in the future. This research is a normative juridical research which applies principle, statute, historical, and comparative approach respectively. The study of the concept and history of special penal law is conducted by comparing to those of the Dutch special penal law. In Indonesian criminal law system, special penal law is understood as the legislations apart from the Penal Code, penalizing certain offenses or applied for certain group of people, and concerning substantive and procedural rules distinct from those of the general criminal law. With regards to Article 63 (2) of Indonesian Penal Code, the special penal law provision is regarded as a special criminal provision logically and systematically/juridically. The criminal provision regulating qualified offenses (gequalifiseerde delict) and petty misdemeanor (geprivilegieerde delict) is a provision logical to the criminal provision regulating the principal offense. The criminal provisions in the statutes apart from the Penal Code are understood as a special criminal provisions systematical to those in the Penal Code. The statutes regarded as special penal laws are divided into two categories, that is first, the statutes concerning state authority to forbid and penalize (criminal laws), and the statutes concerning state authority to regulate certain objects and set certain criminal punishment of people who violate these laws (administrative penal law). This condition is different with that of the Dutch, of which the special penal law is that of the latter. Out of fourty Supreme Court judgments examined, only three of those stating explicitly the implementation of lex specialis principle, while in other judgments the implementation of it was implicitly derived from the model of the indictment and the provisions charged or implemented upon the accused. The models of the charges applied were those of subsidiary (special provision into primary indictment) and cumulative nature (special provision into first indictment). The re-examination of the implementation of lex specialis principle were conducted based on the examination of four criminal cases that unite two special criminal provisions systematically. Based on the doctrinal aspects of the Dutch Supreme Court jurisprudence of 1932, the lex specialis principle was not applied in such kind of case. Both special penal law provisions shall be charged upon the accused, until it is stated proven by the judge. In Indonesian criminal law system in the future, the concept of special penal law will be that of administrative penal law. For the sake of equitable, fruitful and certain law enforcement, there need to be guidelines on the implementation of lex specialis principle for law enforcement officers, concerning the offenses and the phases of its application, the indictment model, and the charging.

Item Type:	Thesis (Doctoral)
Subjects:	K Law > K Law (General)
Divisions:	Pascasarjana (Disertasi)
Depositing User:	Hj. Meiriza Paramita
Date Deposited:	13 Jun 2016 08:02
Last Modified:	19 Oct 2017 17:02
URI:	http://scholar.unand.ac.id/id/eprint/10694

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