Comparison Act 3 Th 71 & Act 31 Th 99

8/3/2019 Comparison Act 3 Th 71 & Act 31 Th 99

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ComparisonComparisonAct No.3/1971 &Act No.3/1971 &

Act No.31/1999 jo. ActAct No.31/1999 jo. Act

No.20/2001 regardingNo.20/2001 regardingCorruption EradicationCorruption Eradication

By: Flora Dianti, SH, MH.By: Flora Dianti, SH, MH.


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OBJECTIVES:OBJECTIVES:

The Distinctions betweenThe Distinctions between1.1. Act No.3/1971Act No.3/19712.2. Act No. 31/1999 jo. 20/2001Act No. 31/1999 jo. 20/2001

Review and DiscussionReview and Discussion


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the Brief History of Antithe Brief History of Anti

Corruption LawCorruption LawDistinguished into:Distinguished into:

Before Old DecadeBefore Old Decade

Old Decade: SoekarnoOld Decade: Soekarno

New Decade: Soeharto Act.New Decade: Soeharto Act.No.3/1971No.3/1971

Reformation Decade: Act No.Reformation Decade: Act No.31/1999 jo. Act No.20/200131/1999 jo. Act No.20/2001


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New Decade: SoehartoNew Decade: Soeharto

Year Regulations Agencies

1967 Press Decree to Fight CorruptionThrough Prevention andRepression

CorruptionEradication Team(General Attorney)

1970 Press Decree to AssessCorruption matters and itssolution(BUMN, Pertamina, Bulog, illegalLogging).

Commission of Four(M. Hatta)

1971 Corruption Eradication Act No.3Year 1971(No Transparency, Only Lowerlevel Official offender, Military

Domination)

Coordination:Investigator andProsecutors +Special Commission


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Anti Corruption Measures:Anti Corruption Measures:

19981998--nownowYear Regulations Content

1999 Clean Government LawNo.28/99

Mandatory wealth declarationfor public officials

Periodic Audits

Commission to audit theWealth of State Officials

1999

2001

Law on the Eradication ofCriminal Acts of CorruptionNo.31/1999

Amendment (Law20/2001)

Outlines charges andprocedures for prosecution

Broadens and clarifiesdefinition of corruption andincreases penalties

Defines criminal Corruption


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ComparisonComparison

1. Formulation of Causalitet doctrine1. Formulation of Causalitet doctrine

Act No. 3/1971 Act No. 31/1999 jo. .

Art. 1 (1) sub a & b: Direct andindirect causeWhich directly and indirectlycreates

Art. 2 & 3: Direct Causewhich creates losses to thestate finance or state economy

Direct and Indirect cause: Von

Buri theory: Conditio sine quanon.

Father-kid-taxi driver?Police-heart attack-people

Direct Cause: adequaat causa.

Von Kries Theory.

Father-kid-taxi driver=?


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2. Formulation of formal & Material2. Formulation of formal & Material

sensesense

Act No. 3/1971Act No. 31/1999 jo. .

Art. 1 (1) sub a & b: illegally =formal sense.

See Constitutional CourtDecision No. No.003/PUU-IV/2006>< Art. 28D (1) RI Constitution.

Illegally should be= formalsense!

Art. 2 & 3: illegally=formal and/ormaterial sense

the word illegally covers acts that are

against the law in theformal and material sense, namelyalthough the actions are not governedinlaw, in the event that the actions areconsidered as being punishable because

they are not in line with the sense ofjustice or social life norms, the actionscan be sentenced.


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3. Formulation of formal & Material3. Formulation of formal & Material

offenceoffence

Act No. 3/1971 Act No. 31/1999 jo. .

Art. 1 (1) sub a & b: material

offence

No word can=materialoffence

Art. 2 & 3: Formal Offence

In this provision, the word canbefore the phrasecreating losses to state finance orstate economy indicates that thecorruptact is a formal offence, namely thecorrupt acts existence is adequatelymetwith rules that have beenformulated without consequence

Easier to be proven


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4. Formulation of intention &4. Formulation of intention &

NegligenceNegligence

Act No. 3/1971 Act No. 31/1999 jo. .

Art. 1 (1) sub a & b: should be

known as illegal.

Art. 2 & 3: Eliminate Should be

known

Meaning= with deliberateintention

Meaning= with/withoutdeliberate intent=negligence


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5. Punishment5. Punishment

Act No. 3/1971 Act No. 31/1999 jo. .

Most articles:

Capital punishment of-Life imprisonment or-maximum imprisonment-& or maximum fine of Rp.30Million

Most articles:

Capital Punishment of: Light imprisonment Life imprisonmentMinimum & Maximumimprisonment

& or max fine of Rp. 1 Billion

See:Art. 2: 4 years + 200 MArt. 3: 1 year + 50 MArt. 5-12: AND/OR?Art. 12 A?


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6. Extent of Civil Servants definition6. Extent of Civil Servants definition

Art. 1 (2) jo. Art. 92 PCArt. 1 (2) jo. Art. 92 PC2. Civil servants include:2. Civil servants include:

a. civil servants as referred to in Law on Manpowera. civil servants as referred to in Law on Manpower

b. civil servants as referred to in the Criminal Codeb. civil servants as referred to in the Criminal Code

c. people receiving salaries or wages from the statec. people receiving salaries or wages from the statefinance or regional finance;finance or regional finance;

d. people receiving salaries from a corporation thatd. people receiving salaries from a corporation thatreceives assistance from state finance or regionalreceives assistance from state finance or regional

finance, orfinance, ore. people receiving salaries or wages from othere. people receiving salaries or wages from other

corporations which use capital or facilities fromcorporations which use capital or facilities fromthe state or from the public.the state or from the public.


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Civil Servants DefinitionCivil Servants Definition

1. Art. 2(1) ActNo. 43/19991. Art. 2(1) ActNo. 43/1999

2. Art. 92 Penal Code2. Art. 92 Penal Code

3. Art. 1(2) ActNo. 31/19993. Art. 1(2) ActNo. 31/1999

Act. No.43/1999 Civil Servants:Act. No.43/1999 Civil Servants:

1. PNS (District & Central)1. PNS (District & Central)2. TNI2. TNI

3. POLRI3. POLRI


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Corporation as a SubjectCorporation as a Subject

Art. 1 (1)Art. 1 (1)

Corporation constitutes an organizedCorporation constitutes an organized

collection of people and/or wealth. It cancollection of people and/or wealth. It canbe in the form legal bodies and non legalbe in the form legal bodies and non legalbodiesbodies


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7. Additional Punishment7. Additional Punishment

Act No. 3/1971 Act No. 31/1999 jo. .

No AdditionalPunishment.

Why?Bill of Penal Code:No light imprisonment

Article 18 (1), (2) (3) :1. In addition to the additional sentence asreferred to in the Criminal Code,

the additional sentences are:a. confiscation of mobile goods or immobilegoodsb. the compensation paid shall be to amaximum of twice the wealthobtained from the criminal act of corruption.

c. whole or partial closing of the company formaximum period of 1 (one) year.d. revocation wholly or partially of rights orabolishment wholly.. which have been or canbe given by the government to the accused.


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Act No. 3/1971 Act No. 31/1999 jo. .

No AdditionalPunishment.


Article 18 (1), (2) (3) :2. In the event that the accused does not pay thecompensation as referred

to in paragraph (1) letter b in maximum period of1 (one) month after theverdict of the court has obtained legal permanentpower, the wealth can beconfiscated by the prosecutor and auctioned tocover compensation.


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Act No. 3/1971 Act No. 31/1999 jo. .

No Additional Punishment.


Article 18 (1), (2) (3) :

3. In the event that the accused does nothave adequate wealth to pay thecompensation as referred to in paragraph (1)letter b, the accused ismerely sentenced to a period that does notexceed the maximum sentencethe main crime, in accordance with theprovision in this law, with the periodof the sentence having been determined inthe court verdict.


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8. Coordination of Investigation8. Coordination of Investigation

Act No. 3/1971 Act No. 31/1999 jo. .

No Coordination ofinvestigation.

Article 39:

The Attorney General coordinatesand controls the indictment,interrogationand prosecution of the corruptact, which are conducted jointly

with otherpersons, who abide by the PublicJustice and Military Justice.


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9. Public Participation9. Public Participation

Act No. 3/1971 Act No. 31/1999 jo. .

No Public Participation

See:Endin Case=whistleblower?

Article 41 & 42:

Article 411. The public can play a role and assist withthe efforts to avoid and eradicatecorrupt acts.2. Public participation as referred to inparagraph (1) is realized in thefollowing forms:a. the right to seek, obtain and provideinformation on the allegation that acorrupt act has taken place.


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Act No. 3/1971 Act No. 31/1999 jo. .


See:

Endin Case=whistleblower?

Article 41 & 42:Article 412b. the right to obtain services in viewing,

obtaining and providinginformation on the allegation that a corruptact has taken place, to thelaw enforcers who handles the corruptioncase.2c. the right to convey recommendationsand opinions responsibly to lawenforcers who handle the corruption case.2d. the right to obtain replies to theirquestions to law enforcers within amaximum period of 30 (thirty) days.


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Act No. 3/1971 Act No. 31/1999 jo. .


See:


Article 41 & 42:2d. the right to obtain replies to theirquestions to law enforcers within a

maximum period of 30 (thirty) days.2e. the right to obtain legal protection in thefollowing matters:(1) exercising the rights as referred to inletters a, b and c.(2) asked to be present in the processes of

indictment and interrogationin the court session as whistleblowers,witnesses, or expertwitnesses in accordance with me existinglegislations.


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Act No. 3/1971 Act No. 31/1999 jo. Act No.20/2001


See:


Article 41 (2e):(3) The public as referred to in paragraph (1) hasthe right and

responsibility in the efforts to prevent anderadicate corrupt acts.(4) The right and responsibility as referred to inparagraphs 2 and 3 areexercised by adhering to the principles orprovisions governed in

the existing legislations and by abiding to thenorms of society.(5) The provision on the procedure for the publicparticipation inpreventing and eradicating corrupt acts asreferred to in this Article,

is further governed by a GovernmentalRegulation.


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Act No. 3/1971 Act No. 31/1999 jo. Act No.20/2001


See:


Article 42:1. The government gives tokens of appreciationsto members of the

community who has assisted the efforts toprevent and eradicate corruptacts.2. The provision on the appreciation as referred toin paragraph (1) is furthergoverned in the Government Regulation.

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Comparison Act 3 Th 71 & Act 31 Th 99

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