Judge's understanding of unlawful elements in the verdict of corruption cases in indonesia

Abstract

Corruption is a crime with far-reaching consequences for state finances, national development, and public trust in the administration of government. One of the essential elements that must be proven in corruption cases is the element of unlawfulness (melawan hukum), which determines whether an act may be classified as a criminal offense and whether the perpetrator may be held criminally liable. This study aims to analyze the concept of the unlawfulness element in the crime of corruption and to understand how judges interpret and apply it in court decisions. The research method used is normative legal research with a statutory approach and a case approach, through the analysis of various court decisions. The results show that the concept of unlawfulness in corruption offenses can be understood through two approaches: formal unlawfulness and substantive (material) unlawfulness. However, developments in the law particularly Constitutional Court Decision No. 003/PUU-IV/2006 have limited the application of the substantive-unlawfulness concept in corruption cases. In addition, Constitutional Court Decision No. 25/PUU-XIV/2016 changed the understanding of the state-loss element from a potential loss to an actual loss. Nevertheless, in judicial practice judges still take substantive considerations into account such as the public interest, benefit to society, and state losses in determining criminal liability. Clear regulation of the unlawfulness element is therefore needed so that the enforcement of corruption law can provide legal certainty while also reflecting a sense of justice.