By: Prof. Andre Yosua M

I. The Collapse of the Societas Delinquere Non Potest Doctrine

In the history of classical criminal law, the adage societas delinquere non potest—that legal entities cannot commit crimes—has long been a rigid dogma. However, the complexity of modern crime, particularly white-collar crime, demands a paradigm shift.

Law Number 1 of 2023 concerning the Criminal Code (hereinafter referred to as the New Criminal Code) marks a new era of criminal law unification in Indonesia. One of the fundamental breakthroughs in this policy is the codification and harmonization of corporate criminal liability, which was previously scattered fragmentarily across various special laws (criminal administrative law). The New Criminal Code positions corporations as subjects of criminal law (legal persons) equal to humans (natural persons).

II. Legal Construction of Corporations as Subjects of Criminal Acts

The recognition of corporations as legal subjects is expressly regulated in Article 45 paragraphs (1) and (2) of the New Criminal Code. The definition of a corporation in this law is broad, including: Legal entities (PT, Foundation, Cooperative, BUMN/BUMD).
Associations (both incorporated and unincorporated).
Business entities in the form of firms, limited liability companies, or other civil partnerships.

This demonstrates that legislators adhere to the principle of a functional approach, where entities with separate organizational structures and assets can be held accountable, regardless of their formal legal status.

III. Attribution of Liability

The most crucial aspect of corporate liability is how to link individual actions (“the hands”) to the corporate intent (“the brain”). The New Criminal Code adopts an expanded Identification Theory.

Based on Article 46, a corporate crime occurs if it is committed by: Management: A person holding a functional position within the organizational structure.

Ordering Person: A person who, despite not holding a formal position, acts as a beneficial owner or controller.
Related Party: A person acting for and on behalf of the corporation.

Critical Analysis Points

This article emphasizes that corporate criminal acts do not always have to be committed by the Board of Directors. If a mid-level employee commits a crime within the scope of their employment and for the benefit of the corporation, then the act can be attributed as a corporate act.

Corporate Misconduct Parameters (Article 48)

A corporation can be held liable if:
The crime falls within the scope of the corporation’s business or activities.
The crime unlawfully benefits the corporation.
The crime is accepted as corporate policy.
The corporation fails to take preventative measures (failure to prevent) or fails to ensure legal compliance.

Point 4 is crucial because it introduces the principle of Organizational Fault. This means that fault is not solely determined by the individual’s malicious intent, but also by the failure of a culture of compliance within the organization.

IV. Penalty System: Double-Track System

The New Criminal Code implements a sanction system oriented toward economic recovery and deterrence, considering that the primary motive for corporate crime is economic.

1. Principal Penalty (Article 121)
   Unlike humans, who can be sentenced to imprisonment, the principal penalty for corporations is a fine.

If the law does not specify a minimum limit, the minimum fine is Category IV (Rp 200,000,000.00).
The maximum fine is determined by the category of crime or specific provisions in sectoral laws.

2. Additional Penalties (Article 122)
   To provide a real deterrent effect, judges are given the authority to impose additional penalties in the form of: Payment of compensation (restitution).
   Remedial action. Revocation of certain permits. Corporation dissolution (death penalty for corporations).
   Confiscation of profits obtained from criminal acts.

V. Implications for Law Enforcement and Due Process

The biggest challenge in the New Criminal Code regime is procedural law. Who represents corporations in court? Article 49 states that prosecution can be brought against corporations and/or their directors.

This opens up three possible prosecution scenarios:
Only the Corporation is indicted.
Only the Management is indicted.
Both are indicted simultaneously (splitting).

The implications for the business world are clear: Compliance Programs are no longer merely administrative operational standards, but rather legal defenses. Corporations that can demonstrate that they have an adequate prevention system in place can avoid attribution of fault under Article 48(d).

Conclusion

Law No. 1 of 2023 has laid a solid and modern foundation for corporate criminal liability in Indonesia. The shift from individual-based liability to organizational fault requires corporations to act proactively.

For law enforcement officials, this is a powerful tool to reach the masterminds and primary beneficiaries (beneficial owners) of economic crimes who have traditionally hidden behind the corporate veil.

The Author is a Legal Researcher and Professor of Law at the Police Science College