Default and the Crime of Fraud in Business Contract in Indonesian Laws

In a business case when a company had a legal problem to distinguish between fraud and default, the company need further legal analysis to see the difference between the two. This study aims to identify default and the crime of fraud in business contract in Indonesian laws. The results showed that every action that is categorized as a criminal case must have an act (actus reus) and malicious intent (mens rea). If actus reus is an act against the law, then what is meant by mens rea are things that include elements of the criminal act. There are 2 indicators to distinguish whether the act committed in the context of the agreement constitutes default or fraud. First, when, that is, if there is a situation that is not right before the agreement is closed/agreed upon, it is fraud, on the contrary if after the agreement is closed then it is default. Second, there must be a series of lies spoken before the agreement is closed before it can be said as fraud is not enough with one lie.


23) and Criminal Code (Wetboek van
, the decisions made are Supreme Court Jurisprudence No. 133 K/Kr/1973dated 15-11-1975and Supreme Court Jurisprudence No. 1601.K/Pid/1990dated 26 July 1990 Another example showed a case of default become criminal. A and B enter into an agreement in which A borrows funds from B in the amount of IDR.40,000,000.00 with an interest of 0.5% per month. The funds will be returned with an instalment scheme every month and payment every 15th. In the first six months, A carried out his obligations in accordance with the agreement that was agreed by both parties at the beginning. However, in the following month, A was unable to fulfil his obligations and continued into the following months. Feeling aggrieved, B decided to take the matter to court. In principle, the accounts payable agreement made by A and B is a civil relationship. This is in accordance with the provisions contained in Article 1754 of the Civil Code concerning the meaning of lending and borrowing, "An agreement in which one party gives the other party a certain amount of goods that are spent due to use on the condition that the latter party will return an amount of the same type and quality". However, cases of violation of the agreement committed by A can be processed criminally if there are elements of fraud and malicious intent in it. If the elements mentioned in Article 378 of the Criminal Code are fulfilled, then the case can be tried on the basis of a criminal offense. In this case, for example, from the beginning, A had indeed had malicious intent to commit fraud using a false name or status, deceived the purpose of using loan funds, or learned that from the beginning he would not be able to fulfil his obligations but still agreed to fulfil his obligations by creating a series of lies (gimmicks) or other things.
However, the case will be different if it turns out that A did an accident. When making the initial agreement, A provides real data and knows that he has funds and is able to do what is his obligation as a borrower. Unfortunately, on the way, something happened that caused him to be unable to carry out his obligations properly such as serious illness, layoffs, or other factors that were completely unexpected and deliberate. As long as A has good intentions to carry out what is his obligation, then B cannot sue this case as a criminal offense. This is done based on the provisions contained in article 19 paragraph (2) of Law no. 39 of 1999 concerning Human Rights which reads, "no one on a court decision may be sentenced to prison or imprisonment based on reasons of inability to fulfil an obligation in a debt agreement". This means that the court cannot convict someone because of their inability to pay debts.
Furthermore, Civil Cases that Become Criminal of Embezzlement. Apart from fraud cases, civil cases that often have the potential to become criminal cases are embezzlement. In Indonesian Criminal Code article 372, it is stated that "anyone who deliberately and illegally owns something that belongs wholly or partly to another person, but is under his control not because of a crime, is threatened with embezzlement, with a maximum imprisonment of four years or a maximum fine nine hundred rupiah.
Related to this, Soesilo (1994) also explained in his book the Criminal Code and its Complete Comments Article by Article that, embezzlement is a crime that is almost the same as theft in article 362 of the Criminal Code. What is the difference between embezzlement and theft is in the fact that theft, the goods that are owned are still not in the hands of the thief and must still be taken, while in embezzlement, the goods are already in the hands of the perpetrator. That is information about criminal and civil law and when a civil case becomes a criminal. Basically, any party who feels aggrieved can report to the authorities to carry out a criminal process even though the party who violates the agreement does not have bad intentions. However, law enforcers must still be observant and wise in deciding whether the case can be followed up as a criminal or not.
Last example was given by that it is a fraud crime that begins with defaults paid by a check that does not have funds in the sale and purchase agreement (Case Study of Sri Handayani and Prapto Hadi). Starting from an incident about a criminal act of fraud which began with a default paid by a check that had no funds in the car sale and purchase agreement. The non-performing act paid by a check with no funds was carried out by Sri Handayani categorized as a criminal act of fraud. Regarding the car BPKB that was guaranteed to PT. SMAC It is known that Sri Handayani's action cannot be categorized as a default. This is because Sri Handayani as a debtor has committed acts against the law within the scope of civil law, which is then due to lies, giving a blank check, and the delivery of a vehicle without a Motor Vehicle Owner's Book (BPKB), causing losses to Prapto Hadi, so that acts against the laws that were originally within the scope of civil law become the scope of criminal law, namely fraud. Central Jakarta "Against rights" here can be exemplified using fake names, false speeches, etc. In fraud there is an element of intent in the perpetrator. Meanwhile, people who are accused of default may not have the intention to commit default. It is possible that he could not carry out the agreement because of things beyond his ability. For example, in the agreement, on the 4th, A had to hand over a batch of rice to B. However, because the village where he lived was hit by a flood, A could not hand over the rice. In this case A has defaulted against B.
There are 2 cumulative indicators to distinguish whether the act is fraud or default in the context of the agreement: First: if there is an untrue situation before the agreement is closed/agreed upon then it is fraud, conversely if after the agreement is closed then it is default. Second: Way, there must be a series of lies that are spoken at the time before the agreement is agreed to be said as fraud is not enough with one lie. Simply put, there are 2 indicators that are cumulative both must be met to distinguish whether a case is default or fraudulent in the context of its relationship with the agreement. The characteristics of default and fraud are rooted in the legal relationship that occurs between the parties, which is always "preceded" by a contractual legal relationship. The location of the boundary between default and fraud in the context of the agreement at the "tempus delicti" or when the agreement/contract is closed/agreed upon by both parties (Deigo, & Tawang, 2020;Astuti, 2013;Seba, 2017). If after (post factum) the contract is closed it is known that there is a trick, a series of lies or a false condition from one of the parties, then that act is default. If before the (ante factum) contract/agreement is closed there is a trick, a series of lies or a false condition from one of the parties, the condition or trickery has been hidden by one of the parties, then that act is fraud. The existence of a series of false words or false circumstances before or after the contract is closed/agreed upon determines a person's "intention", if before the contract is closed from the beginning there has been bad intentions then this is a fraud. Conversely, if after the contract is closed someone's bad intentions arise, then this is an act of default. II. Deception and a series of lies can be proven untrue since the act/statement was made, while breaking a promise must be proven untruthful at a certain time after the promise was made. Deception and a series of lies can be done to conditions in him or circumstances outside him, while the promise is always dependent on his ability even though that ability is intended to make others do or not do something. Apart from what has been described above the element of "a series of lies" or according to Soesilo (1994) is referred to as "fabrication of lies" in Article 378 of the Criminal Code is translated as a form of "several lies" or a lot of lying words must be used in such a manner. such that one lie can be covered by another lie and the whole story is something that seems true. To be able to fulfil the element of "a series of lies" it is not enough to just have one lie, but it must be an accumulation of several lies that support and complement each other so that they are able to move people to surrender goods, create debts or write off receivables. Supreme Court Jurisprudence dated 26 July 1990 No. 1601.K/Pid/1990 states: "The main element of the delict of fraud (Article 378 of the Criminal Code) lies in the methods/efforts that have been used by the perpetrator of the delict to move other people to hand over something." The basic principle of the criminal act of fraud is a dishonest way to acquire property, namely by means of fraud. Also, dishonest in obtaining benefits or benefits through trickery so that the victim feels cheated.

Conclusion
The results showed that every action that is categorized as a criminal case must have an act (actus reus) and malicious intent (mens rea). If actus reus is an act against the law, then what is meant by mens rea are things that include elements of the criminal act. Some also can be included as crime if they have indeed malicious intent to commit fraud using a false name or status, deceived the purpose of using loan funds, from the beginning they would not be able to fulfill the obligations but still agreed to fulfill his obligations by creating a series of lies. In the criminal act of fraud, malicious intent can be identified from the start by comparing what is said or done contrary to one's objective conditions and abilities, besides the intention that can be known from the start is its unlawful nature Based on the description, it can be understood that there are 2 indicators to distinguish whether the act committed in the context of the agreement constitutes default or fraud. First, when, that is, if there is a situation that is not right before the agreement is closed/agreed upon, it is fraud, on the contrary if after the agreement is closed then it is default. Second, there must be a series of lies spoken before the agreement is closed before it can be said as fraud is not enough with one lie.