The Indonesia House of Representatives (DPR) passed the New Indonesian Criminal Code -Law No. 1 of 2023 on Criminal Code (the “New KUHP”)-, replacing the previous Criminal Code. The New KUHP will be implemented on January 2, 2026. The New KUHP includes the test in determining whether a corporation has committed a criminal act or not, which previously stipulated under Supreme Court Circular Letter (SEMA).
This article will suggest the key elements of corporate criminal liability under the New KUHP:
- A corporation is a subject of a criminal offense; A corporation includes limited liability company, foundation, koperasi, state/regional-owned enterprises, any associations -both as a legal entity or not-, firm, commanditaire vennootschapor or equal with those entities (See Article 45 of the New KUHP).
- A crime is defined as a corporate crime if committed by (i) an executive with a position in a corporation; or (ii) any individuals with an employment relationship or other relationship who act for and on behalf of a corporation or for the interest of a corporation; (iii) anyone who can give order, control, or beneficial owner who is not part of the corporation, but has an ability to control a corporation (See Articles 46 and 47 of the New KUHP).
- A corporation may be held liable for a crime if:
- Within the corporation’s business or activities as stipulated in the relevant articles of association or other corporation provisions;
- Unlawfully benefit the corporation;
- Accepted as the policy of corporation;
- The corporation failed to take measures to prevent or minimize the criminal act and ensure the corporate compliance with the relevant laws to prevent the crime; and/or
- A corporation allows a crime to occur (See Articles 48 of the New KUHP).
In light of the above, the New KUHP has provided clear rules that corporations can be held criminally responsible for crimes committed by its executive(s), any individuals with an employment relationship or other relationship or anyone who has an ability to control a corporation. Criminal liability by corporations here can be imposed on corporations, administrators who have functional positions, give orders, control, and/or corporate beneficial owners.
Written by: R. Bayu Perdana and Ghea Aurellia
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