As the person who runs the company, a director must bear a large burden of liability for all tasks that require his/her approval. This often leads to a criminal act, when the act is arguably violating the law. Although the basic theory for criminal act is the malicious intend (mens rea) followed by the act (actus reus), in practice we are still facing the issue where a director is prosecuted for doing a criminal act without any intention (mens rea). The issue here is whether the law has the test to determine the act of Director is considered as the criminal act or the Director is doing his/her obligation that it should be protected by the law.
The classic case here is where the Director signs a document for a transaction, and the transaction is examined by the court as a criminal case. Although the main suspect for the crime is not the Director, but in Indonesia, the Director shall be liable for his act of signing the document. The prosecutor can easily use the theory of participation in the Indonesian Criminal, which regulates co-perpetrators of criminal offenses. However, in many cases, the prosecutor ignores the fundamental requirement to determine “co-perpetration”, as follow:
- between the participants there is a conscious cooperation; and
- the participants have jointly committed.
The meeting of mind among the defendants, and a significant or substantial quality of contribution in the criminal act shall be proven when the prosecutor accuses a Director, who only signs a document, involves in a criminal act. Under the Decision Number 80 K/Pid.Sus/2015 jo. Decision Number 35/Pid.Sus/TPK/2013/PN.Jkt.Pst., the court provided the test and held that:
- The act of the Defendant (Director) signing a letter/document that must be signed due to his position as the Director as conducted by the Defendant, is not an act that is against the law or abuse of authority;
- That the Judex Facti‘s (District Court) opinion cannot be justified because criminal liability for a criminal offence is personal and individual, which means that a person cannot be held criminally liability for criminal acts committed by another person, so the Defendant cannot be held criminally liability in the case (see page 59 of Decision Number 80 K/Pid.Sus/2015).
Also, the court held that “the Defendant as a director only signed these documents because his duties were related to his position as a director. Based on these facts, the court considers that the Defendant’s actions are difficult or even cannot be assessed at all as having abused authority. Therefore, the element of abusing the authority, opportunity or means available to him because of his position or position is not proven (see page 35 Decision No. 80K/Pid.Sus/2015).”
In light of the above, the law enforcement shall do the test above before accusing a director in a criminal act. The act taken by a Director, which only giving an approval for actions that require his approval as the leader of the company without any intention to commit a crime, should be considered as a form of corporate liability that has become his obligation in running a company. Only a Director that has malicious intent (mens rea) and significant participation/contribution in criminal act that should be held a criminal liability.
Written by: R. Bayu Perdana, Nadya Hanifah, David Nathanael Maruhawa, and Soraya Firmansjah
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