Foreign Loan Deviation Parameters from a Criminal Law Perspective

Abstract

Reactions to the effectiveness of foreign loans are both negative and positive. There are initiatives to criminalize governmental financial losses from anomalies in foreign loans. There are elements of criminal behavior that are unique to state financial losses on international loans. Therefore, rules must be established to make behaviors that harm the state's finances when using foreign loans illegal. Through the use of a statutory approach, a conceptual approach, and an approach to Constitutional Court Decision Number 37/PUU-XVIII/2020, this research was carried out utilizing a normative juridical methodology. As for this research, the conclusions that can be drawn are: first, losses to state finances incurred on foreign loans can be categorized as a criminal act if they fulfill two elements cumulatively, namely an act against the law (wederrechtelijk) and an abuse of authority. Parameters of irregularities in foreign loans can be carried out using several instruments, including: 1. The legality of authority as stipulated in the provisions of Article 11 paragraph (2) of the 1945 Constitution of the Republic of Indonesia and Article 8 of the State Finance Law; 2. The principles in Article 2 of the Government Regulation concerning Procedures for Procurement of Foreign Loans and Receipt of Grants; and 3. loan planning as contained in the RPPLN, RPJPN, and RPJMN. Second, the idea of negative material law (negative materiele weterrechtelijk) should be incorporated into the idea of criminal acts for irregularities in foreign loans. This is consistent with the idea of breaking the law proposed in the 2023 Criminal Code and accommodates the concept of breaching the negative material law (negative materiele weterrechtelijk), which contains the principle of legality.

Keywords: Foreign Loan; Criminal Law; Criminal Act

DOI: 10.7176/JLPG/136-01

Publication date:September 30^th 2023