JRSSEM 2023, Vol. 02 No. 5, 844 – 851

E-ISSN: 2807 - 6311, P-ISSN: 2807 - 6494

DOI : 10.36418/jrssem.v2i05.341 https://jrssem.publikasiindonesia.id/index.php/jrssem

VICARIOUS LIABILITY IN CORPORATE CRIME CASES

AGAINST ENVIRONMENTAL CRIMES IN THE FORESTRY

SECTOR

Fitri Anugrah

1

Topo Santoso

2

1,2

Faculty of Law, University of Indonesia

*

e-mail: fitrianugrah79@gmail.com, toposantoso72@gmail.com

*Correspondence: fitrianug[email protected]

Submitted

: 30

th

November 2022

Revised

: 14

th

December 2022

Accepted

: 27

th

December 2022

Abstract: The concept of principle of error is born of the concept of no criminal without error

(geen straf zonder schuld beginsel). A person will be held accountable for his unlawful actions.

Vicarious liability is the legal responsibility of one person for the wrongful acts of another. In

this study, the author used a type of normative legal research, namely research that uses

secondary data consisting of primary legal materials, secondary legal materials and tertiary

legal materials as the main data. Based on the case examined in the judgment No. 927

K/Pid.Sus-LH/2021 Defendant PT. NATURAL PERSADA MANDIRI has committed a criminal act

of environmental corporation in the field of forestry and is obliged to carry out criminal liability

represented by Nico Fernandus Sinaga as the management/director of the company imposed

a fine as stipulated in Article 89 Paragraph (2) letter a juncto Article 17 Paragraph (1) letter b

of Law Number 18 of 2013 concerning Prevention and Eradication of Forest Destruction.

Keywords: Surrogate Liability; Corporate Crime; Environment.

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DOI : 10.36418/jrssem.v2i05.341 https://jrssem.publikasiindonesia.id/index.php/jrssem

INTRODUCTION

So far, criminal liability in Indonesia

adheres to the principle of guilt in addition

to the principle of legality which states that

a person is responsible for his own actions.

The concept of the principle of error was

born out of the concept of no criminal

without error (geen straf zonder schuld

beginsel). That principle is a very important

principle in accounting for the maker of a

criminal act for having committed a

criminal act. A person is considered

unpunishable if he has no wrongdoing,

either in the form of willfulness or

negligence. The principle is that the

principle departs from criminal liability

based on the principle of guilt (liability

based of fault) (Fines Fatimah And Barda

Nawawi Arief, 2020).

A person will be held accountable for

his unlawful actions. Criminal liability is

something that must be accounted for by

the maker for the actions he has done

(criminal acts) (Atmasasmita, 1989).

Vicarious liability is actually nothing

new, this concept of liability has become

known in the civil law environment. In civil

law vicarious liability is applied to cases of

loss (tort). Tort is the payment of

compensation for acts committed by

workers that harm third parties. In civil

liability Vicarious is regulated in Article

1367 of the Civil Code paragraph (1) which

reads "A person is not only responsible for

losses caused by his own actions, but also

for losses caused by the actions of those

who are dependent on him or caused by

goods under his supervision" (Candra,

2013).

Vicarious liability is the legal

responsibility of one person for the

wrongful acts of another. In short, vicarious

liability is often interpreted as substitute

liability. The substitute liability is

formulated in the Criminal Code in Article

37 paragraph (2) which states that in the

event prescribed by law, any person may be

held liable for a criminal offence committed

by another person." In Indonesia, the

concept of substitute criminal liability is

well known. However, it is only limited to

command liability and corporate criminal

liability (Atmasasmita, 2009).

The vicarious liability formulation

policy in Indonesia is currently more

focused on corporate crime. In the concept

of vicarious liability for corporate criminal

acts, if a person or corporate worker acts

within the scope of his work and with the

intention of benefiting the corporation, and

commits a crime, then his criminal

responsibility can be imposed on the

company. In reality, it is not so easy to

impose criminal sanctions on corporations.

This is due to the difficulty of determining

the presence or absence of guilt in a

corporation because the corporation as a

subject of the Criminal Law does not have a

psychiatric nature like a human being and

sometimes in a case the company cannot

be convicted of the guilt of a worker. This

paper will discuss and analyze related to

criminal liability to corporations that

commit environmental crimes (Tawalujan,

2012).

MATERIALS AND METHODS

1. Types of Research

The author uses a type of normative

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legal legal research, namely research

that uses library materials or

secondary data consisting of primary

legal materials, secondary legal

materials and legal materials.

2. Data Types and Sources

The source of the data used is the

judge's ruling Number. 927 K/Pid.Sus-

LH/2021, while regarding the type of

data, it is in the form of secondary data

obtained by collecting and reviewing

literature or documents related to this

writing. Where the data consists of

(Soekanto, 1986):

A. Primary Legal Materials

That is a binding legal material

consisting of basic norms or methods.

The primary legal materials used in this

study are:

(1) Law No. 8 of 1981 concerning the

Criminal Procedure Law.

(2) Law No. 32 of 2009 concerning

Environmental Protection and

Management.

(3) Law Number 19 of 2004 jo. 41 of 1999

concerning Forestry.

(4) Law Number 5 of 1990 concerning

Conservation of Biological Natural

Resources and Their Ecosystems.

(5) Judge's Ruling No. 927 K/Pid.Sus-

LH/2021concerning the criminal act of

environmental destruction in the

forestry sector.

B. Secondary Legal Materials

Namely legal materials that provide

instructions and explanations to the

primary law, the secondary legal

materials used include:

(1) Law Books.

(2) Results of research, seminars, scientific

discoveries.

(3) Other provisions that are directly and

related to the object of study.

C. Tertiary Legal Materials Namely, legal

materials that provide explanations of

primary legal materials and secondary

materials, including (Ali, 2009):

(1) Encyclopedia.

(2) Internet.

(3) Indonesian dictionary

3. Secondary Data Collection Techniques

Data collection begins with tracing

laws and regulations and positive legal

sources that are considered relevant to

the subject matter at hand (Ali, 2009).

1. Research Approach

To answer the problems in this study,

an approach was used, namely:

a. Statutory approach (statute apporoach)

Statutory approach relating to the

issues that the author will discuss.

b. The case approach to the case

approach is carried out by reviewing

cases related to the legal issues faced

that have become decisions in court

and have permanent legal force.

5. Data Analysis Techniques The

analysis of legal materials used in

writing a thesis or legal memorandum

is to use a qualitative data analysis

method, namely research that refers to

legal norms contained in laws and

regulations and court decisions and

legal norms that exist in society(Ali,

2009).

RESULTS AND DISCUSSION

A. The occurrence of Environmental

Pollution carried out by the Corporation

The environment has the ability to

absorb the waste discharged into it. This

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ability is unlimited. If the amount and

quality of waste discharged into the

environment exceeds its ability to absorb, it

is said that the environment is polluted. The

ecosystem of an environment can be

disturbed by its sustainability due to

pollution and destruction of the

environment. People often mix the

definitions of pollution and environmental

destruction even though there are

differences. Wirjono Prodjodikoro also

stated that the element of error is closely

related to the mental state. This mental

state will certainly not be found in the

subject of corporate law. Because this

element is an element found only in

humans as a subject of natural law

(natuurlijke persoon). This is certainly a

problem for corporations as legal subjects

in determining the element of guilt as the

basis for criminal liability (Hendra Wijaya,

2021).

In addition to the problem of the

element of guilt in the corporation as a

legal subject, actually against the

corporation as a legal subject, problems

arise in terms of determining who the

maker is. Barda Nawawi Arif stated that for

criminal liability, it must first be clear who

can be accounted for (Muladi, 2011).

According to the doctrine of "strict

liability", a person can already be held

accountable for a certain criminal offense

even though there is no wrongdoing in that

person (mens rea). Briefly "strict liability" is

defined as criminal liability without fault

"liability without fault". Meanwhile,

"vicarious liability" is a criminal liability

imposed on someone for the actions of

others. Such accountability, for example,

occurs in the event that the acts committed

by others are within the scope of their work

or position. So in general it is limited to

cases that concern the relationship

between the employer and the laborer,

helper or subordinate. Thus in this sense of

"vicarious liability", even if a person does

not commit a criminal act himself and has

no fault in the usual sense, he is still

appropriately accountable. When

compared between "strict liability" and

"vicarious liability" it is clear that the

similarities and differences. The apparent

equation is that neither "strict liability" nor

"vicarious liability" requires the existence of

"mensrea" or an element of guilt in the

person being criminally prosecuted. The

difference lies in the "strict liability" of

criminal liability directly imposed on the

perpetrator, while in "vicarious liability"

criminal liability is indirect (Hendra Wijaya,

2021).

B. Corporate criminal liability for

environmental pollution crimes (Case

of PT. NATURAL PERSADA MANDIRI in

Judgment No. 927 K/Pid.Sus-LH/2021)

1. Position Case

The defendant carried out mining

activities located in Morombo Village

Pantai, Lasolo District, North Konawe

Regency, Southeast Sulawesi Province

based on an oral agreement between the

Defendant and PT. Bososi Pratama since

2018 with a contract that the Defendant is

a contractor of PT. Bososi Pratama which

mines Ore Nickel PT. Bososi Pratama will

pay a down payment of IDR

2,500,000,000.00 (two billion five hundred

million rupiah) while PT. Bososi Pratama will

pay USD 9 per tonnage for each shipment

made. That the basis of the Defendants

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conducting nickel ore mining in

cooperation with PT. Bososi Pratama is a

Defendant who has a Mining Service

Business License (SIUJP) and a Trade

Business License (SIUP) as well as PT. Bososi

Pratama is the holder of a Production

Operation Mining Business Permit (IUP OP)

so that it shows the location where the

Defendant conducted mining in the IUP op

area of PT. Bososi Pratama. Bososi Pratama

is the Head of Mining Engineering (KTT),

namely Witness Darwis by showing the

coordinate points and a map of the location

of the coordinate points.

That initially the Defendants obtained

permission orally to conduct mining in area

1 UP OP PT. Bososi Pratama with the

coordinate points shown at that time, but

because the drilling results were not good,

then PT. Bososi Pratama through PT. Bososi

Pratama shows a new location according to

PT. Bososi Pratama is an expansion area of

1 UP OP PT. Bososi Pratama so that the

Defendant only followed the orders of the

PT. Bososi Pratama, however, it turns out

that there are already large former

openings and there are already 4 to 5

companies that Joint Operation with PT.

Bososi Pratama. Bososi Pratama so that

because of the position of the Defendant

who is only a contractor from PT. Bososi

Pratama, then the Defendant continued to

be asked to shift until finally at the last

location that the Defendant himself knew

that the location was an area outside the

IUP op PT area. Bososi Primary.

That the Defendant did not object to

being told to shift because the Defendant

was only a Mining Contractor who only had

the obligation to do mining under an order

from PT. Bososi Pratama while several other

companies are Joint Operations that are

authorized to mine and sell nickel ore and

have clear boundaries of mining work

areas. In addition, even though it has been

reported to PT. Bososi Pratama, Andi Uci as

President Director of PT. Bososi Pratama

conveyed to the Defendant that the last

area or location outside the IUP OP area

had been released, which means that it had

been paid so that mining could be carried

out in the area and also assured the

Defendant that

The location is an expansion of the

IUP OP area owned by PT. Bososi Primary.

Thus the Defendants continued to mine on

the basis of what had been agreed between

the Defendants and the PT. Bososi Primary.

That then a field examination was

carried out and the taking of coordinate

points at the last location of the

defendant's mining with the conclusion

that the location was outside the area of

IUP OP PT. Bososi Pratama is 1.7 kilometers

away and turns out to be included in the

protected forest area according to the

Decree of the Minister of Environment and

Forestry Number SK.8115 / MENLHK-PKTL

/ KUH / PLA.2 / II / 2018 dated November

23, 2018. Thus, the defendant's actions

have fulfilled the criminal element of Article

89 Paragraph (2) letter a juncto Article 17

Paragraph (1) letter b of Law Number 18 of

2013 concerning Prevention and

Eradication of Forest Companies, That the

fine imposed on the Defendant is the

minimum crime as stipulated in Article 89

Paragraph (2) letter a juncto Article 17

Paragraph (1) letter b of Law Number 18 of

2013 concerning Prevention and

Eradication of Forest Destruction.

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In addition, based on the facts

revealed in the trial that the Defendant

earned a profit of Rp. 100,000,000.00 (one

hundred million rupiah) to Rp.

150,000,000.00 (one hundred and fifty

million rupiah) per shipment in the mining

activity so that the total profit obtained by

the Defendant was Rp. 2,000,000,000.00

(two billion rupiah). based on the facts

revealed that there were already many

companies that were mining before the

Defendant so that the environmental

damage could not be immediately charged

to the Defendant, and also PT. Bososi

Pratama himself who was the party who

ordered and got the greater benefit was

not made a Defendant at all until the

appeal was filed.

2. Analysis

In corporate crimes, the management

in doing its actions is for and on behalf of

the corporation and is intended to provide

profits or avoid losses to the corporation. If

only the corporation can be held criminally

liable, while the administrator does not

have to bear responsibility, this system

provides a great opportunity for the

administrator to take refuge behind the

body of the corporation so that he will

always escape the bondage of

responsibility. Corporations can also be

held accountable based on identification

theory, where mens rea administrators are

considered to be corporate children. The

board is considered the same as the

corporation. So, in addition to

corporations, administrators must also be

responsible. Thereby it would close the

opportunity for the management of a

corporation to act without taking into

account the possibility of being held from

itself criminal liability as well (Hendra

Wijaya, 2021).

That every person and corporation

can be the subject of environmental crimes

and can be accounted for. That way, in the

case of a corporation that should be subject

to criminal liability in the event that a

criminal act is committed by a corporation,

then according to Article 116 paragraph (1)

of Law Number 32 of 2009 concerning

Environmental Protection and

Management, criminal liability may be

imposed on, (1) Business entities; and/or,

(2) The person who gave the order to

commit the crime or who acted as the

leader of the activity in the crime.

Based on the case of corporate

crimes regarding the environment in the

forestry sector researched by the author

that in the Southeast Sulawesi High Court

Decision Number 96 / PID. B/LH/2020/PT

KDI dated October 19, 2021 which

corroborates the Decision of the Unaaha

District Court Number

114/Pid.B/LH/2020/PN Unh dated

September 9, 2020, As the defendant was

sentenced to a criminal offense based on

Article 89 Paragraph (2) letter a juncto

Article 17 Paragraph (1) letter b of Law

Number 18 of 2013 concerning Prevention

and Eradication of Forest Destruction.

Defendant PT. NATURAL PERSADA

MANDIRI in this case has committed a

corporate crime and is obliged to carry out

criminal responsibility in this case The

criminal liability committed by the

defendant is to impose a criminal penalty

of fine represented by NICO FERNANDUS

SINAGA, S.T., therefore with a fine of

Rp2,000,000,000.00 (two billion rupiah).

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Make a return for compensation to the

owner, namely 3 (three) piles of nickel ore

from PT. NPM with coordinate points and

made ba measurement at the crime scene

and made to check the results of the Nickel

Ore Testing laboratory, and 1 (one) stretch

of nickel ore mining area mined by PT. NPM

covering an area of + 2.6 Ha, in Morobo

Pantai Village, Lasolo District, North

Konawe Regency, Southeast Sulawesi

Province in a Protected Forest area.

CONCLUSIONS

Vicarious liability has been

accommodated in at least three laws that

regulate criminal acts outside the Criminal

Code, namely Law Number 20 of 2001

concerning Amendments to Law 31 of 1999

concerning Corruption Crimes, and Law

Number 26 of 2000 concerning Human

Rights Courts and Law Number 32 of 2009

concerning Environmental Protection and

Management.

Based on Article 116 paragraph (1) of

Law Number 32 of 2009 concerning

Environmental Protection and

Management, criminal liability may be

imposed on business entities; and/or The

person who gave the order to commit the

crime or who acted as the leader of the

activity in the crime.

Defendant PT. NATURAL PERSADA

MANDIRI in this case has committed a

corporate crime and is obliged to carry out

criminal charges then imposed a criminal

fine on the Defendant represented by NICO

FERNANDUS SINAGA, S.T., therefore with a

fine of Rp2,000,000,000.00 (two billion

rupiah) as stipulated in Article 89 Paragraph

(2) letter a

juncto

Article 17 Paragraph (1)

letter b of Law Number 18 of 2013

concerning Prevention and Eradication of

Forest Destruction.

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for possible open access

publication

under the terms and conditions of the

Creative Commons Attribution (CC BY SA)

license

(https://creativecommons.org/licenses/by-

sa/4.0/).