Unlawful Nature of the Corruption

Element against the law in criminal law doctrine of nature there is against the law (SMH). SMH consists of formal and material. SMH formal, written law is the law of the legislation (wet). Fulfillment of nature against the law if the perpetrator violates or is contrary to the laws and regulations (onwetmatigedaad). SMH material, the law is not only the written law. But also unwritten law (unwritten law) law is recht. Fulfillment of nature against the law if the perpetrator violates or is contrary to law (onrechtmatigedaad).

SMH material consists of positive and negative functions. SMH negative material in its function as contained in the elucidation of Article 2 Paragraph (1) of Law 31/1999 Jo Law. 20/2001 on the Eradication of Corruption. '' What is meant by it against the law in this chapter include acts against the law in the formal and material sense.Namely, the act was not provided for in legislation if deemed reprehensible because it does not correspond to the sense of justice or social norms in society, then it can be imprisoned''.

Explanation of article 2, paragraph (1) has been repealed by the Constitutional Court decision No. 3/2006, so it does not adhere to the teachings of nature against the law of material in a positive function. Therefore, the fulfillment of an element of unlawful actions against the perpetrators of abuse or legislation.

Unlawful nature of the material in the negative functions contained in the jurisprudence. No Supreme Court decision that is. 42/KR/1965 which basically states that an act that meets the elements of corruption, may lose its legal fight nature, so that perpetrators can not be convicted if: 1. State is not harmed; 2. The defendant can not gain; 3. Public interest is served. Based on the above, it can be concluded that the elements are met in an unlawful act contrary to or violate the offender legislation (onwetmatigedaad). Element against the law is not fulfilled if 1.State is not harmed; 2. The defendant can not gain; 3. Public interest is served.

Case Study of Corruption

A corruption case which attracted attention as much about the nature of the legal fight over the corruption case allegedly committed by the former head of the Office of the BPN Tulangbawang. This case study is in relation to the presence or absence of the element against the law made by the concerned. Offender charged with violating provisions of the act of legislation of corruption as referred to in Article 12 letter (e) or Article 11 of Law no. 31/1999 Jo Law. 20/2001 on the Eradication of Corruption.

The chronology of the case is in March 2008 to October 2009 at the Office of the BPN Tuba crime as the articles mentioned above in a way as to Accelerate Implementation of the Program Executive Officer Land Registration in the Property Certificate Frame Creation Transmigration of Lampung Province, among others, officials with the task of surveying , counseling, monitoring, completion of the final decree of the right, the final completion certificate, certificate of delivery, coordination, physical examination of the location, and sign the certificate. Activities funded by a number of Rp2 DIPA 2008 budget, 52 billion. For the activities mentioned above, while the activities are not funded by DIPA or financed by each participant / applicant is a Customs Acquisition Land and Buildings (BPHTB) or income tax (VAT) from the transfer of land and buildings for the affected and the cost of materials for the right reasons leges. Because of the funds that are not financed DIPA, actors contacted seven village heads and village chiefs are collecting funds from the participant / applicant for a certificate. These funds have been handed over to his superiors offender.

Provisions of article 12 subparagraph (e) is the organizer of'' The civil servant or state that the purpose of enriching himself or others in contravention of law or abused his power by forcing someone to give something, pay, or accept a discounted payment, or to do something for himself own''.

The elements of Article 12 letter (e) are fulfilled, such as organizing elements of the civil service or the State, the offender is a civil servant / Office head of BPN Tuba.Therefore, the elements of civil servants or state officials met. But Profitable elements themselves or others, namely the collection of funds from the participant / applicant for a certificate is because there are the costs that are not contained in the DIPA and by virtue of Lampung Province BPN Regional Office stating participant / applicant for a certificate acquisition fees charged on Land Rights and Building (BPHTB) or income tax (VAT) from the transfer of rights to land and buildings for the affected and the cost of materials for the right reasons leges. The money raised has been submitted to his superiors as the costs are not funded by the DIPA. Thus, the element of enriching himself or others is not met. Definition of force contained in the Criminal Code, among others, in Article 285 and 289 of the Criminal Code.Considered an act of force, which must act in the form of acts of violence or threats of violence. Collection of funds by the village chief to the public participant / applicant for a certificate is voluntary, because the participant / applicant understands that there are costs not covered by the DIPA.

Elements against the law as understood in the legal fight has been described above, that an act meets the elements of unlawful acts if the defendant is contrary to or violate the regulations. Based on the cases, no perpetrator acts that violate laws and regulations, because based on the results of the CPC no findings of irregularities in the certificate of the project activities. Where all activities have been implemented, the entire community participant / applicant for a certificate has been certified that no state financial losses. With the implementation of good work will eliminate the element against the law as jurisprudence of the Supreme Court decision which declared an act of nature against the law missing when the state is not harmed, and the defendant can not benefit the public interest is served. While the elements to give something, pay, or receive payment at a discounted or doing something for himself: Not satisfied, because there is no evidence of the perpetrator commits acts as the element.

Provisions of Article 11 is:'' The civil servant or state apparatus who receives prize or promise when known or reasonably suspected, that the gift or promise is given because of power or authority associated with his position or the person who conceivably give a gift or promise is there a relationship with his position''.

The elements of section 11 are fulfilled as an element of civil servants or state officials: the perpetrator is a civil servant / served as Head of the Office of the District BPN Bone Onions. Therefore, the elements of civil servants or state officials met. But the element receives a gift or pledge: The collection of public funds participant / applicant for a certificate by the heads of the village is not a gift or pledge. The funds are collected as funds that are not financed by the DIPA and the perpetrators of these funds has been submitted to his superiors as an expense or income tax BPHTB of transfer of rights to land and buildings for the affected and the cost of materials for the right reasons leges. Therefore, the element receives a gift or a promise unfulfilled. While the elements are given as power or authority associated with his position or that according to the minds of people who give nothing to do with his post: The provision of funds or income tax BPHTB cost of transfer of rights to land and buildings for the affected and the cost of the base material for the leges are rights relating to the authority associated with the position of the accused, but because the provision is not a gift or a promise, then this element is not met.

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