The Nature of Criminal Responsibility on Distribution Policy of Social Assistance Awarding for the Society in East Kalimantan

Abstract

The preambule of the Indonesia Constitution 1945 (hereinafter referred to UUD 1945) states that “the state of Indonesia shall protect the people of Indonesia and to improve public welfare, to educate the life of the people in order to embody docial justice for all the people of Indonesia. Some laws govern of the social asssistance are The Law No. 40 of 2004 Concerning System of National Social Guarantee (The State Gazette of 2004 No. 150, Supplement to the State Gazette No. 4456); The Law No. 24 of 2007 Concerning Disaster Management (The State Gazette of 2007 No. 66, Supplement to the State Gazette No. 4723); and The Law No. 11 of 2009 Concerning Soscial Welfare (The State Gazette of 2009 No. 12, Supplement to the State Gazette No. 4967). If the official represents its position and out of the “purpose and intention”, it means that it is misuse of the position. The position misuse must be interpreted that it is against to the laws as a basic argumentation of giving the authority. The misuse of it then is connected to responsibility matter, which is the official in doing governemntal action must be burdened to legal responsibility (geen bevoegheid zonder verantwoor delijkheid atau there is no authority without responsibility). In the context of subject of delict, the criminal responsibility is not only referred to the official “person”, but also to “corporation”. The basic difference between “everybody” and “corporation” as the subject of delict is its responsibility particular in terms of sueing and sentencing. If “everybody” is the subject of delict, the criminal responsibility will be put to “the person”. Whereas, if “corporation” is the subject of delict, the criminal responsibility will be put to “its management or corporation”. The subject of delict then must be put the responsibility in the term of “function’ and “position”.

Keywords: Criminal responsibility, Social Assistance Provsion, East Kalimantan