Criminal Actions Based on the Living Law in Draft-Criminal Code: Degradation of the Concept

Abstract

This article intends to analyze the degradation concept of the additional penalty of 'fulfillment of local customary obligations' of 'prohibited acts' based on 'laws living in the community (living law)’  compared to the principal penalty in  'criminal acts' based on ‘statute criminal law’. The legal materials analyzed include Article 1; Article 2; Article 64 letter b; Article 65 paragraph (1) and (2); Article 66 paragraph (1) and (2); Article 97; and Article 597 paragraph (1) and (2) Draft-Criminal Code. The research used is legal research with the type of doctrinal research. The formulation of the problem will be discussed using a statutory approach and a conceptual approach. Analysis of legal materials uses prescriptive analysis to find arguments about the degradation of the concept. Discussion of the formulation of the problem can be concluded that there has been a degradation in the concept of an additional penalty of ‘the fulfillment of local customary obligations’ and ‘prohibited acts’ based on ‘living law’ compared to principal and additional penalty and ‘criminal acts’ based on ‘statute criminal law’. ‘Prohibited acts’ based on ‘living law’ as a concept equivalent to criminal acts based on statute criminal law are subject to concept degradation, due to ‘fulfillment of local customary obligations’ for prohibited acts is only positioned as an additional and complementary punishment from a necessity to the level of the principal penalty.

Keywords: degradation; prohibited act; criminal act; living law; statute criminal law

DOI: 10.7176/JLPG/112-02

Publication date:August 31^st 2021