WHO IS HELD LIABLE FOR THE CORPORATE CRIME?
"Corporate crime is crimes committed by individuals, based on empolyment or ohter relationships, either individually or jointly acting on behalf of corporation, within or outside of the corporation."
Late in 2016, the Supreme Court has issued Supreme Court Regulation No. 13 of 2016 on Corporate Crime Case Handling ("Perma No. 13/2016"). (See also: The Stages of Handilng Corporate Crime Case). One of the issues addressed in Perma No. 13/2016 is the subject who is liable for the corporate crime.
Dalam Pasal 23 Ayat 1 dan Ayat 3 Perma No. 13/2016 berbunyi:
Article 23 paragraph (1) and (3) of Perma No. 13/2013 states:
“(1)The judge may impose criminal sanction against the corporation or its Board, or the corporation and its Board;
(3)The imposed criminal sanction against the corporation and/or its Board as stated in paragraph (1) does not rule out the possibility for imposing criminal sanction against other criminals, who, under the provisions of Laws, proven to be involved in the crime."
From those provisions, it can be concluded that the legal subjects who are liable for the corporate crimes are:
- The corporation or its Board; or
- The corporation and its Board;
- Other parties who are proven to be involved in the corporate crime.
Therefore, if there is corporate crime committed, not only the corporation itself who held liable, but also its Board or other parties, such as: shareholders who are proven to be involved in the corporate crime. This is because corporation is basically a legal subject that is physically absent and requires real person assistance to run the corporation.
Furthermore, Law No. 40 of 2007 on Limited Liability Companies has divided the organs of the corporate that can act on behalf of the corporation, consist of Board of Directors and Commissioners. Article 1 number 10 of Perma No. 13/2016 states:
“Boards are organs of the corporate that run the corporation in accordance with the articles of association or provisions of law, authorized to act on behalf of the corporation, including those who have no decision-making authority, yet in fact, can control or influence the corporate policy or decides the corporate policy, which may be qualified as a crime."
Hence, Boards are directors and commissioners as listed in the article of association of a corporation. To ascertain whether the directors or the commissioners may be held liable for the committed corporate crime, it is necessary to look at what extend have the directors or commissioners invovled in the corporate crime, in this case, are malice (mens rea) and bad deeds (actus reus) done by the directors or commissioners.
Based on the explanation above, the parties who may be held liable for the corporate crime are:
- Only the corporation, usually in the civil claim;
- Boards of Corporation (Directors and Commissioners) personally and other parties who are involved in the corporate crime;
- Boards of Corporation (Directors and Commissioners) and the Corporation.
We hope this article is useful.
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Dalmy Nasution, S.H. /Ali Imron, S.H.I.