Journal of Administrative and Social Science
Volume. 5, Nomor. 2, Juli 2024
e-ISSN : 2828-6340; dan p-ISSN : 2828-6359; Hal. 01-08
DOI: https://doi.org/10.55606/jass.v5i2.2112

Available online at: https://journal-stiayappimakassar.ac.id/index.php/jass

The Existence of State Constitutional Incarnation on the Expansion of
Corporate Criminal Liability in Indonesia
Utari Debora1*, Yasmirah Mandasari Saragih2, Frenki Hamonangan Turnip3, Nora
Elida Manurung4, Gunawan Putra Manihuruk5
1-5
Universitas Pembangunan Panca Budi, Indonesia
Address: Jln. Jend. Gatot Subroto Km. 4,5 Sei Sikambing 20122 Kota Medan, Provinsi Sumatera
Utara, Indonesia.
Author's correspondence: utaridebora@gmail.com
Abstract: The development of corporate criminal law shows a paradigm shift from individual to collective legal
subjects, including legal entities. The Constitution as a fundamental norm in the Indonesian legal system becomes
the main foundation in legitimizing the expansion of criminal liability of corporations. This research aims to
analyze how the incarnation of the state constitution is present in strengthening corporate criminal liabilit y, as
well as assessing the effectiveness of existing regulations. By using a normative juridical approach, this research
emphasizes the importance of harmony between the constitution and legislation in ensnaring corporate crimes.
The results show that the recognition of corporations as subjects of criminal law is in line with constitutional
values, although there are still weaknesses in the implementation of law enforcement.
Keywords: Constitution, corporation, criminal law, incarnation.

1. BACKGROUND
In the national legal system, the existence of corporations as legal subjects has
experienced significant development, especially in the context of criminal liability. Reality
shows that corporations are not only the main actors in economic activities, but can also be
actors in various criminal offenses such as environmental crimes, corruption, and money
laundering. However, Indonesian criminal law has historically been oriented towards
individual subjects (natural persons), resulting in a legal vacuum when faced with offenses
committed by legal entities. In fact, corporations as legal entities have organizational structures,
internal policies, and the ability to act that can have broad legal consequences for society and
the state. This condition encourages the urgency of incarnating the state constitution into
regulations that provide space for the expansion of corporate criminal liability. As expressed
by Rachmad (2023), there are serious challenges in regulating corporate criminal liability
because national criminal law is still covered by the classic individualistic and retributive
approach.
Furthermore, the presence of corporations as a subject of criminal law is increasingly
recognized in various sectoral regulations, such as the Corruption Act, the Environment Act,
and the Consumer Protection Act. However, the regulation is still partial and fragmentary. This
has an impact on the weak effectiveness of law enforcement against corporations due to the
absence of standardized standards regarding proof of corporate guilt, appropriate types of
Received: Juni 19, 2024; Revised: Juni 21, 2024; Accepted: Juli 27, 2024; Published: Juli 30, 2024;

The Existence of State Constitutional Incarnation on the Expansion of Corporate Criminal Liability in Indonesia

criminal sanctions, and institutional accountability mechanisms. In addition, in the juridicalconstitutional context, corporate criminal liability still requires strong normative legitimacy so
as not to cause conflict with the applicable principles of criminal law. Putri (2022) emphasized
that without an integrative and constitutional criminal law system in regulating corporate
criminal liability, the state will continue to experience difficulties in dealing with corporate
crimes that are systemic in nature and have a broad impact on public rights.
The incarnation of the state constitution in the expansion of corporate criminal liability
also reflects Indonesia's commitment as a state of law that upholds the principle of substantive
justice. The 1945 Constitution guarantees equality before the law and social justice for all
Indonesians. Therefore, it is not appropriate for corporations that have economic and political
power to escape the law when committing criminal offenses. The Constitution must be a
normative footing in encouraging criminal law reform that places corporations as legal subjects
that can be held criminally liable. According to Lestari (2023), the expansion of corporate
criminal liability is not only a matter of legal-formal technicalities, but also part of the effort to
uphold a fair rule of law in a democratic state structure. Thus, constitutionally-based criminal
law reform is an urgent prerequisite to bring legal certainty and justice in the face of the
increasingly complex and transnational phenomenon of corporate crime.

2. THEORETICAL STUDY
Corporate criminal liability is one of the concepts in modern criminal law that develops
in response to the transformation of forms of crime in the era of globalization. Traditionally,
criminal law is built on the basis of individual responsibility that emphasizes the principle of
culpa (fault) inherent in a person. However, in practice, many crimes that occur are no longer
committed by individuals alone, but are committed systemically by legal entities, such as
companies or corporations. Therefore, the expansion of criminal law subjects to corporations
becomes a theoretical and practical urgency to answer the challenges of contemporary
criminality. In this context, the theory of corporate criminal liability develops through two main
approaches, namely vicarious liability which places responsibility on the corporation for the
actions of individuals within the corporation, and identification theory which identifies the
actions of the top leadership as the actions of the corporation itself. These two approaches
become the theoretical foundation for formulating forms of corporate criminal responsibility
in various legal systems, including Indonesia.

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Philosophically, the recognition of corporations as subjects of criminal law reflects the
expansion of the meaning of legal subjects in criminal law that was previously
anthropomorphized. Corporations are seen as fictitious entities that have wills and goals, which
can be elaborated through the collective actions of its managers. Thus, although the corporation
does not have a physical body, the actions and decisions made by people within the
organizational structure of the corporation can be considered as the actions of the corporation
itself. In legal theory, this view refers to the theory of corporate personality, which states that
a legal entity has a separate legal identity from its owners and managers. This theory provides
the basis of legitimacy for the state to impose criminal sanctions on corporations because their
actions are considered to have fulfilled the elements of a criminal offense. Therefore, in the
context of Indonesian criminal law that adopts the principle of legality (nullum crimen sine
lege), explicit regulation in the law becomes an absolute requirement to impose criminal
sanctions against corporations.
The framework of the state constitution, the existence of corporations as subjects of
criminal law also has a juridical dimension that cannot be ignored. The Indonesian Constitution
as the highest source of law provides a normative basis that every citizen and entity living and
operating in the jurisdiction of Indonesia is subject to the rule of law. The principle of the rule
of law (rechtsstaat) as stated in Article 1 paragraph (3) of the 1945 Constitution emphasizes
that no entity is immune to the law. In this context, the expansion of criminal liability against
corporations can be seen as an embodiment of the state constitution into the criminal law
system. The recognition of corporations as perpetrators of criminal offenses is not only a logical
consequence of the development of society, but also a form of affirmation of the principles of
justice and equality before the law. Therefore, the incarnation of the state constitution in
positive criminal law is an important prerequisite in organizing a legal system that is responsive
to the dynamics of modern crime.
The theoretical discussion regarding the forms of criminal sanctions that can be
imposed on corporations has become a separate debate. Unlike individuals who can be
sentenced to imprisonment or other corporal punishment, corporations as fictitious entities do
not have a physical body to receive corporal punishment. Therefore, modern criminal law
formulates types of non-bodily punishment, such as fines, revocation of business licenses,
suspension of business activities, and dissolution of the corporation. These sanctions are both
corrective and preventive in nature so that corporations will no longer commit criminal acts in
the future. In practice, the effectiveness of criminal sanctions against corporations is largely
determined by the clarity of norms, law enforcement mechanisms, and the competence of law

The Existence of State Constitutional Incarnation on the Expansion of Corporate Criminal Liability in Indonesia

enforcement officials in handling corporate criminal cases. Theoretically, the formation of
criminal norms against corporations must consider the principle of ultimum remedium,
proportionality of sanctions, and constitutional values so as not to conflict with the principles
of justice and protection of basic rights.
In addition, in the perspective of progressive legal theory, criminal law reform must be
directed at creating substantive justice and protecting the public interest. The law should not
be subject to the interests of corporations alone, but must side with the wider community who
are victims of harmful corporate actions. In this context, corporate criminal liability becomes
a state tool to control economic power so as not to exceed legal and moral boundaries. The
progressive legal theory proposed by Satjipto Rahardjo underlines the importance of laws that
live in society, not just rigid normative texts. Therefore, this theory is very relevant in
underlying the argument for the need to expand criminal liability of corporations, while still
prioritizing the principles of justice, certainty, and legal benefits within the framework of a
democratic state of law.

3. RESEARCH METHOD
This research uses a normative juridical approach, which is a legal research method that
relies on literature study and review of applicable legal norms, both in legislation, legal
doctrine, and relevant court decisions. The main focus of this approach is to examine how the
state constitution is incarnated into the criminal law system, especially in terms of the
expansion of corporate criminal liability. This approach is chosen because the problem studied
is directly related to normative arrangements, legal principles, and constitutional interpretations
that are systematic and conceptual in nature.
The type of data used in this research is secondary data consisting of primary legal
materials, secondary legal materials, and tertiary legal materials. Primary legal materials
include the 1945 Constitution of the Republic of Indonesia, the Criminal Code (KUHP), and
sectoral laws such as Law No. 31/1999 on the Eradication of Corruption and Law No. 32/2009
on Environmental Protection and Management. Meanwhile, secondary legal materials include
scientific journals, criminal law textbooks, and academic articles that review the topic of
corporations and criminal liability. Data collection techniques were conducted by literature
study and documentation.
Data analysis is conducted qualitatively, namely by interpreting and reviewing the
content of legal materials that have been collected and then arranged in a systematic
argumentative structure. The qualitative approach is used to find, describe, and construct an

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understanding of the incarnation of the constitution in the context of corporate criminal liability
arrangements. This analysis technique allows researchers to understand the relationship
between legal norms, constitutional principles, and criminal law enforcement practices as a
whole.

4. RESULT AND DISCUSSION
The Constitution as the Highest Source of Law
Based on the results of the normative study, it can be concluded that the recognition of
corporations as subjects of criminal law in Indonesia has gained legitimacy in several sectoral
laws. This can be seen in various regulations that explicitly mention that corporations can be
subject to criminal charges, such as in Article 20 of the Anti-Corruption Law and Article 116
of the Environment Law. However, these provisions have not been integrated in the Criminal
Code as a general criminal law, which shows that there is still a gap between sectoral criminal
law and national criminal law. This lack of integration creates legal uncertainty and makes it
difficult for law enforcement officials to ensnare corporations that commit criminal offenses.
In this case, the constitution as the highest source of law provides direction that criminal law
must be able to reach every criminal, including corporations, in order to maintain justice and
social order.
The Existence of State Constitutional Incarnation
When viewed from a constitutional aspect, the expansion of corporate criminal liability
can be seen as a concrete form of the principle of the rule of law that upholds the principle of
equality before the law. Article 28D paragraph (1) of the 1945 Constitution guarantees the right
of every person to recognition, guarantees, protection, and fair legal certainty. Therefore,
corporations, as economic entities that have great power, should not be free from legal traps
when they commit acts that harm the wider community. The incarnation of the state
constitution into the criminal law system is a necessity in order to expand the scope of criminal
law subjects so that it is not discriminatory and remains relevant in the face of complex social
dynamics.
In the practice of law enforcement, a number of obstacles are still found in proving the
criminal guilt of corporations. Proving the element of guilt becomes a major issue because
corporations do not have mens rea in the classic sense. Therefore, the development of legal
constructions such as the corporate culture model, aggregate knowledge theory, and strict
liability approaches are alternatives used in the legal systems of other countries, such as the
United States and the United Kingdom. The government can take action in the form of public

The Existence of State Constitutional Incarnation on the Expansion of Corporate Criminal Liability in Indonesia

laws, which are based on its special powers. But it cannot take action in the form of regulatory
policy because this cannot be examined closely. This is because the government action does
not form a legal basis for the decisions that the policy regulates. In Indonesia, harmonization
between theoretical approaches and juridical practices is still needed so that corporate criminal
liability can be effectively enforced. In this regard, court decisions that provide precedents for
corporate liability, such as in the cases of PT Giri Jaladhi Wana and PT Chevron Pacific
Indonesia, show that although not yet ideal, judicial practice has begun to recognize the
existence of corporations as perpetrators of criminal acts.
Practice of Law Enforcement
Furthermore, it is important to note that the incarnation of the state constitution in this
case also includes the establishment of regulations that are responsive to the development of
modern criminal law. The plan to update the national Criminal Code that has accommodated
the subject of corporate law is a positive step that must be implemented immediately. However,
this implementation requires not only adequate regulations, but also a paradigm shift among
law enforcement officials. Legal education, technical training, and the preparation of technical
guidelines for handling corporate criminal cases are important prerequisites to support the
effectiveness of the policy. This is in line with the view that law is not only a text, but also a
living and developing social practice.
Thus, the study results show that the existence of the state constitutional incarnation of
the expansion of corporate criminal liability in Indonesia is an ongoing process. This process
requires harmonization between constitutional values, renewal of criminal law norms, and the
establishment of adaptive and professional law enforcement institutions. In the midst of
increasing corporate crime on a national to transnational scale, the state must not lose control
over deviant corporate power. Therefore, the application of constitutional principles in the
criminal law system against corporations is very important to ensure the upholding of justice
and the rule of law in Indonesia.

5. CLOSING
Conclusion
1. From the results of the study that has been conducted, it can be concluded that the
existence of the incarnation of the state constitution in the expansion of criminal
liability against corporations in Indonesia is a form of actualization of the principle of
the rule of law that guarantees equality and justice for all legal subjects, including legal
entities in the form of corporations. The development of corporate crime that is

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increasingly complex and has a major impact on society and the environment
encourages the urgency of strengthening the position of corporations as subjects of
criminal law.
2. In a constitutional context, this is in line with the spirit of the 1945 Constitution which
guarantees fair legal protection for every citizen and legal entity. Improvement of the
National Criminal Code: The government and legislators need to immediately realize
the renewal of the Criminal Code by including explicit and comprehensive
arrangements on corporate criminal liability. This is important to create a unified
criminal law that not only applies sectorally, but also systemically and nationally.
Capacity Building of Law Enforcers: Continuous training and legal education are
needed for law enforcement officials, including police, prosecutors, and judges,
regarding the doctrine of corporate criminal liability, the corporate guilt proof model,
and other modern criminal law approaches.

LITERATURE
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Hakim, A. R., & Prasetya, M. (2023). Urgency of KUHP reform in regulating corporate
criminal liability. Journal of Indonesian Legislation, 20(1), 142–160.
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