INTRODUCTION
Criminal
penalty is a sum of money to be paid by the convict based on court decisions.
Becker and Posner argue that the use of criminal penalties has several
advantages compared to imprisonment. The use of criminal penalties to avoid the
social costs incurred to maintain the prison, avoiding unnecessary detention, and
to avoid singing human capital that is not useful in the prison. In terms of
economics, Posner argued that the use of criminal penalties should be enhanced.
Criminal penalties that do not contain economic value owned by imprisonment.
With more forward than the penalty of imprisonment, Posner refers to the
maximization of wealth over the country. Wealth according to Posner described
in terms of economic wealth is not a simple monetary calculations, and from the
definition of this property, it must be used with respect to the law. Posner
reiterated that the facility is typically increase transaction law in various
ways. Therefore, the use of fines should be encouraged as a form of income for
negara.Hal this does not mean that the prison did not generate revenue for the
state not as a fine, but the social costs of imprisonment is much greater, if
the criminal fines collected of a defendant who can afford it. According R.A.
Duff and D. Garland, in the set and impose criminal penalties should apply the principle
of proportionality (proportionality theory). This principle means that the
sanction imposed shall be in accordance with the severity of the offense that
has been done. This is an effort to achieve justice.
With regard to criminal penalties, the justification for the use of this criminal, an attraction between the desire to reduce the crime rate, and the imposition of criminal that is comparable to the manufacturer's fault, and the prohibition to use criminal penalties to those that can not be proved guilty. Becomes a problem, when legislators questioned the size of the use of criminal, especially fine in the criminal provisions in any legislation. Execution of criminal penalties as a form of punishment for lawbreakers is also supported by the opinion of Beccaria said that palpable motive forces are the punishments ordained against breakers of the law. Background which confirmed the conviction of a violation of law. Between punishment and a violation of law has a close correlation. In fact, by Beccaria said to be a perfect syllogism. Mayor premise is the determination of the criminal legislation. Minor premise of the concrete events that taatbestand with restrictions on the content of such a crime. Conclusion is criminalization. Changes in the minor premise would certainly produce a different conclusion. The minor premise is a lack of concrete events that fill law's ban on an offense, will result in the release of the accused conclusion, and not a criminal prosecution. Beccaria thought, is an affirmation of the basic understanding of criminal law, the basic meaning of the principle of legality. No action can be convicted without the prior act is defined as a crime in law. Legality principle is contained in the Declaration des droits de l'homme et du Citoyen 1789. Earlier in the Bill of Rights 1776. This principle of Habeus Corpus Act from 1679. Explored further found in the Magna Charta (1215), developments in Europe. The principle of nulla Poena introduced by De l'esprit Montesqiue in des Louis (1748). Continued J.J. Rousseau in Du Contract Social (1761). Furthermore by Beccaria in e Delle Pene Delitti Dei (1764). Only law that should determine the penalty for each offense, and that the right to make criminal laws should be in the hands of lawmakers, that because the agreement represents the entire community. Judges should not be dropped criminal charges against a member of the community if not specified by law.Followed by Paul Johann Anselm von Feurbach (1775-1833), outlining for the first time regulations are now stated in Article 1 paragraph (1) of the Criminal Code, namely nullum crimen, nulla poena sine lege previa poenali sine praevia. Any criminal sentences imposed by judges should be in accordance with the laws of a law, which in turn required to maintain the rights which may be run by everyone. The law should be threatens offenders with a suffering that can be felt; that any use of the criminal can only be done under criminal law (poena sine lege noella). The use of the criminal is only possible if there are threatened with a criminal act by law (poena sine noella crimine). Acts punishable by a statutory legal consequences, that are threatened by a criminal statute that imposed (nullum crimen sine poena legali). Demonstrates understanding of the legal determination through legislation and criminalization have correlation and interrelation with each other. Therefore Morris and Howard said, punishment is only imposed, but also limited by law. This means, that the offense can only be held and applied to what extent are determined by legislation. As well as with criminal penalties, which can only be held and applied through the limits specified in the legislation. In the tradition of common law, it is somewhat different because first of all determined by precedent, by the doctrine of stare decisis, then based on legislation (Statute law). This conception, associated with the principle of legality, but keep in mind not merely as defined in Article 1 paragraph (1) of the Criminal Code. Legality principle nulla poena sine meaning lege, not a crime sine lege nullum. That is, the shape and number of the threatened imposition of penalty against the manufacturer must also be determined by law. Legality principle turns out to have a broader aspect than just defined in Article 1 paragraph (1) of the Criminal Code.
Criminal Fines In Progress
With regard to criminal penalties, the justification for the use of this criminal, an attraction between the desire to reduce the crime rate, and the imposition of criminal that is comparable to the manufacturer's fault, and the prohibition to use criminal penalties to those that can not be proved guilty. Becomes a problem, when legislators questioned the size of the use of criminal, especially fine in the criminal provisions in any legislation. Execution of criminal penalties as a form of punishment for lawbreakers is also supported by the opinion of Beccaria said that palpable motive forces are the punishments ordained against breakers of the law. Background which confirmed the conviction of a violation of law. Between punishment and a violation of law has a close correlation. In fact, by Beccaria said to be a perfect syllogism. Mayor premise is the determination of the criminal legislation. Minor premise of the concrete events that taatbestand with restrictions on the content of such a crime. Conclusion is criminalization. Changes in the minor premise would certainly produce a different conclusion. The minor premise is a lack of concrete events that fill law's ban on an offense, will result in the release of the accused conclusion, and not a criminal prosecution. Beccaria thought, is an affirmation of the basic understanding of criminal law, the basic meaning of the principle of legality. No action can be convicted without the prior act is defined as a crime in law. Legality principle is contained in the Declaration des droits de l'homme et du Citoyen 1789. Earlier in the Bill of Rights 1776. This principle of Habeus Corpus Act from 1679. Explored further found in the Magna Charta (1215), developments in Europe. The principle of nulla Poena introduced by De l'esprit Montesqiue in des Louis (1748). Continued J.J. Rousseau in Du Contract Social (1761). Furthermore by Beccaria in e Delle Pene Delitti Dei (1764). Only law that should determine the penalty for each offense, and that the right to make criminal laws should be in the hands of lawmakers, that because the agreement represents the entire community. Judges should not be dropped criminal charges against a member of the community if not specified by law.Followed by Paul Johann Anselm von Feurbach (1775-1833), outlining for the first time regulations are now stated in Article 1 paragraph (1) of the Criminal Code, namely nullum crimen, nulla poena sine lege previa poenali sine praevia. Any criminal sentences imposed by judges should be in accordance with the laws of a law, which in turn required to maintain the rights which may be run by everyone. The law should be threatens offenders with a suffering that can be felt; that any use of the criminal can only be done under criminal law (poena sine lege noella). The use of the criminal is only possible if there are threatened with a criminal act by law (poena sine noella crimine). Acts punishable by a statutory legal consequences, that are threatened by a criminal statute that imposed (nullum crimen sine poena legali). Demonstrates understanding of the legal determination through legislation and criminalization have correlation and interrelation with each other. Therefore Morris and Howard said, punishment is only imposed, but also limited by law. This means, that the offense can only be held and applied to what extent are determined by legislation. As well as with criminal penalties, which can only be held and applied through the limits specified in the legislation. In the tradition of common law, it is somewhat different because first of all determined by precedent, by the doctrine of stare decisis, then based on legislation (Statute law). This conception, associated with the principle of legality, but keep in mind not merely as defined in Article 1 paragraph (1) of the Criminal Code. Legality principle nulla poena sine meaning lege, not a crime sine lege nullum. That is, the shape and number of the threatened imposition of penalty against the manufacturer must also be determined by law. Legality principle turns out to have a broader aspect than just defined in Article 1 paragraph (1) of the Criminal Code.
Criminal Fines In Progress
On
tracing the history of criminal penalties, it is known, that the way the
criminal conviction of a fine very old, but the road victory, started a hundred
years. About the history of the application of criminal penalties, there are
four periods to its application. First. In the early Middle Ages known as the
compensation system, or system in which all criminal acts, settled with the
payment of money, animals or the like, according to a predetermined list of
tariffs. In this period, prison is not known, and the main occupations are
pertania. Second. Occurred in the late Middle Ages, with a growing population,
there are many permaslahan social, economic decline, and an increase in crimes
against property, thus giving birth to a system to hurt criminals, through the
application of penal rough. Third. In the 1600s, until the industrial
revolution, which evolved at that time, the application of the criminal prison,
which has a variety of changes. Fourth. In the eighteenth century, marked by
the emergence of the death penalty, in an attempt to scare scare the poor, who
are immune to criminal deprivation of liberty. In Islam, known for property
offenses, ie offenses which can be dropped, due to the violation of law, which
is done by way of imposition, which relevant to pay, a certain liabilities from
its assets. According to the Qur'an, this obligation is referred to as diyat.
Restitution or fines. Indonesia as the largest Muslim populated country in the
world, a reconstruction of the development of national laws, which respect the
majority community by not rule out other communities of non-Muslim groups, in
the draft Criminal Code. The criminalization of a number of previous actions is
not an offense, has been constructed from Islamic law, such as criminal acts of
decency, witchcraft, "kumbul bed and board", and permukahan offense
(adultery) in the values of Islam has fused with the positive
law of Indonesia. is a type of criminal penalty in addition to imprisonment,
criminal cover, criminal and penal social work supervision. Penal Code in the
bill. Criminal penalties, in addition to developing and accepted in
international law, the legal system of Islam and apply customary criminal law
across the country, also has benefits in order to reduce the adverse effects of
imprisonment. In the Draft Criminal Code specifically about the purpose of
sentencing, the criminal penalties to be harmonious, in harmony with law
enforcement, Correctional inmates, conflict resolution and restoration of
balance and the release of guilt, so that implementation can avoid the vengeful
criminal penalties, and has usefulness in meeting the objectives of criminal,
based on the legal system of Pancasila.
Islam known criminal in the property, which can be dropped due to criminal violations of law committed, by burdening concerned to pay a certain liabilities of its assets. In Al-Quran is referred to as diyat obligation or penalty damages. Diyat is divided into two diyat for murder and diyat for injury, while the threat of assassination because diyat because the offense is not an element of negligence on purpose (al'amd) in the QS 4:92. declared: "And it is not feasible for someone who kills a Muslim believer, unless due to negligence (not intentionally), and whoever kills a believer by mistake, then he should be freed slave who believe and pay diyat delivered to the affected families, except if they were charity (sincerely forgive him). If the victim was from a hostile group, but he had faith, then let you liberate the faithful bondsmen. And if the victim is coming from the heathen that are bound in a peace treaty with you, then let you pay diyat presented to his family as well as free a believing slave. Anyone who does not get it (can not afford that) then he should fast two consecutive months as a condition of acceptance of repentance from Allah, and Allah is Knower, Wise. "Offense as intentional murder (syibhu al-amd), words of the Prophet declared penalties (murder) which is deliberately likened such as intentional killing but not murder in the death penalty and the way it is because the devil jump in the middle man and pass (shedding) is not due to blood vengeance nor for taking up arms (to kill ), that the Prophet once said: "Remember, the real victims of murder, but resembles a deliberate mistake, hit with a whip or a cane, then a hundred camels, forty of which is the tail of a camel who was pregnant". That it depends on the levels diyat urf (custom development) and to prisoners and their families can not afford to pay diyat. Such diyat be paid by the state treasury.
Islam known criminal in the property, which can be dropped due to criminal violations of law committed, by burdening concerned to pay a certain liabilities of its assets. In Al-Quran is referred to as diyat obligation or penalty damages. Diyat is divided into two diyat for murder and diyat for injury, while the threat of assassination because diyat because the offense is not an element of negligence on purpose (al'amd) in the QS 4:92. declared: "And it is not feasible for someone who kills a Muslim believer, unless due to negligence (not intentionally), and whoever kills a believer by mistake, then he should be freed slave who believe and pay diyat delivered to the affected families, except if they were charity (sincerely forgive him). If the victim was from a hostile group, but he had faith, then let you liberate the faithful bondsmen. And if the victim is coming from the heathen that are bound in a peace treaty with you, then let you pay diyat presented to his family as well as free a believing slave. Anyone who does not get it (can not afford that) then he should fast two consecutive months as a condition of acceptance of repentance from Allah, and Allah is Knower, Wise. "Offense as intentional murder (syibhu al-amd), words of the Prophet declared penalties (murder) which is deliberately likened such as intentional killing but not murder in the death penalty and the way it is because the devil jump in the middle man and pass (shedding) is not due to blood vengeance nor for taking up arms (to kill ), that the Prophet once said: "Remember, the real victims of murder, but resembles a deliberate mistake, hit with a whip or a cane, then a hundred camels, forty of which is the tail of a camel who was pregnant". That it depends on the levels diyat urf (custom development) and to prisoners and their families can not afford to pay diyat. Such diyat be paid by the state treasury.
Customary
law before the law entered Islam, partly derived from religious norms. This
religious norms have been first spread over the archipelago as well as once
stood the great kingdoms under the influence of various religious teachings.
Islam is the largest religion before the arrival of the colonial West, who
co-introduced religion has left a new religion in Indonesia. Customary law
derived from the words of Islamic law. Law of al-'adat (h) is based on the law
of al-' adat (h). This word (from the Arabic verb 'exists, ya'udu (re)) means
the ad-daydan (looping), all that happened repeatedly. It is something often
done so that it becomes a habit that is known. Therefore, al-custom is also
called al-'urf (known as a community because it is often done). Custom becomes
law, namely customary law, because he has usually done so that a measure. In
the system of customary law, there are circumstances for the victim to act as
judges. For example, if a runaway girl or commit adultery, steal, and the act
is caught, then the affected person may enforce it according to customary law.
In Batak land, the affected party mengukung the guilty with the wood, until his
family paid a fine as required by custom. In the famous Minangkabau adat
Tarikh, the affected party has the right to take something the guilty party
goods and hold it until the guilty party to meet his punishment. Similarly,
theft of or damage to goods or darken the ancestral origin is heavier than
skimming or damage ordinary worldly goods.
Development
of criminal penalties in criminal law reform Indonesia, prescribed sentencing
range of models, namely: Criminal fines system uses categories, so it is easier
to adjust the exchange rate is always changing. Criminal penalties are always
worn with a high number. Threats to imprisonment, it is always possible with
the threat of criminal penalties. Penalty provisions in the legislative,
regulatory regions tend to be very high through the hundreds of billions of
dollars, but the Criminal Code that applies to criminal penalties, setingginya
only Rp 350000, - (three hundred fifty thousand rupaiah). The judge thus tend
not to use criminal penalties in its decision.
Some
criminal settings in several countries as a comparison. The United States have
used several alternative criminal sanctions and no longer refers only to
imprisonment. United States has historically had a high level of prison
population that is often the cost of prison maintenance spending of public
funds available. From 1970 to 1980 the prison population reached 330,000. On
June 30, 1992, that number increased to 856.000. Therefore, to avoid the higher
rate of population in prison, the United States began to use some alternative
to criminal sanctions. In Oregon, for example, the state is implementing an
alternative to criminal sanctions in the form of community service hours for
detention for 30 days, whereas, Minnesota using the guidelines of local sanctions
for cases of non-custodial penalty.
Daily
fine in the People's Republic of China, not determined the exact number of how
much should be paid by the convict, submitted to the judge to examine the state
of the convict, the state at the time of the offense, the judge can not impose
fines if convicted could not afford. In the United States judges were given the
freedom to impose a fine of as much as twice the loss caused by the act of the
defendant. In addition, the trial judge in the United States are also given the
freedom to determine the amount of fines for some form of specific offenses.
Basis for determining the penalty is not yet clear whether the imposition of
fines is based on the amount of offenses committed or is based on the
defendant's economic capacity. In the United States the imposition of a fine of
not looking at a person's economic status. It is contained in the Fourteenth
Amendment, which states the statutory ceiling placed imprisonment for any
substantive offense be the same for all defendants irrespective of Their
economic status.
In Scandinavian countries, Germany, Austria, France, and Portugal fines calculated by the day, so the amount of fines to be paid is as much as daily revenue per convict. Unpaid fines could be replaced by imprisonment, and even can be calculated on a daily basis according to the balance, then it is less fair if the fine is imposed equal between the rich with the poor.
In Scandinavian countries, Germany, Austria, France, and Portugal fines calculated by the day, so the amount of fines to be paid is as much as daily revenue per convict. Unpaid fines could be replaced by imprisonment, and even can be calculated on a daily basis according to the balance, then it is less fair if the fine is imposed equal between the rich with the poor.
Portugal
gives the minimum length of a daily fine is 10 (ten) days and the maximum is
300 (three hundred) days, while the minimum daily amount of fine 200 Escudos,
2000 Escudos per day maximum. Thus the smallest daily fine Escudos 2000. In
Germany also limit the number of daily fines, the minimum 100 mark, and a
maximum of 10 000 shillings per day. Daily fine system is rather difficult to
replicate in Indonesia, because many of the unemployed who have no fixed
income, making it difficult to make a calculation of how much the fines to be
paid the convict, unless specified that kurunganlah imposed on offenders who do
not have a fixed income, as in Article 504 Unlike the Criminal Code in the
Scandinavian countries are preparing for the social benefits to the unemployed,
so that the unemployed still have income. In Spain, the fine fines are divided
into light and heavy fines. The division is based on the large amount of fines
imposed. Fines are more than 30.000 pesetas are heavy fines, and penalties are
less than 30.000 pesetas a mild penalty. In Germany the penalty formula found
on the actions of correctional, criminal fines as principal. Article,
additional criminal fines. Considered in the application and establishment of
economic circumstances and to pay compensation based on that offense can be
imprisoned, the number must be in accordance with the principal offense. In the
Netherlands, judges are given the freedom to impose criminal penalties against
the offense in general is imprisonment for not more than three months or
imprisonment for both offenses are punishable by fines or otherwise, shall be
punished by criminal penalties. Maximum of 10 000 guilders or 2000 guilders for
the offense is imprisonment for not more than three months or imprisonment,
20,000 guilders or 4000 guilders for the offense which carries more than three
months in prison. For the offense-heavy offense punishable in the light of
public interest which is threatened with imprisonment, the provisions do not
apply. Now these improvements in the Criminal Code of the Netherlands where an
alternative penalty to imprisonment in almost every chapter. The results of a
fine collection destined for state coffers. Similarly, the cost for replacement
imprisonment borne by the state, now a fine set by the categorization I to VI.
This category system is in accordance with the high inflation countries, in the
event of changes in exchange rate, just one article that changed the course of
the list of categories.
Argentina
convicted in the Criminal Code can be exempted from payment of fines by
calculating the equivalent period of time already served in custody and will be
deducted from the fine. This is of course adjusted to the length of fines and
compensation rules. Argentina fines in the Penal Code and a maximum of at least
50 Peso 2000 Peso.Pengaturan about criminal penalties in the Penal Code of Japan,
can be known, that a man who can not afford to pay the fine, either in whole or
in part, can be arrested and placed on a work program at least one day and a
maximum two years or Work House. This is where they acquire skills education as
a preparation after the escape, while producing something useful for the
country. Maximum penalty amount is not more than 5000 (five thousand) yen and
at least no more than 6 yen, or criminal detention or a fine light. Austrian
Criminal Code, a fine imposed for this type of criminal for a minor and major.
In determining the fines, the economic condition of the accused will be
considered. In addition, the fines are also some exceptions. First, if the
fines would be very disruptive economic conditions or the convict or his family
livelihood. Secondly, if for length of imprisonment set by law convicted or
family income will be worse or at least become chaotic. The second exception to
the above it will be subject to fines instead of imprisonment equal to the
offense committed. For imprisonment may be reduced to less than the minimum set
by the criminal law. Austria minimal penalties in the Penal Code at least 50
Schilling, and a maximum of 1,000,000 (one million) schilling. Malaysia
Criminal Code on offenses other than dikumulasikan imprisonment with fines, for
violations of various offenses specified in Penal Code of Malaysia. Criminal
Code of the Republic of Korea to set criminal penalties in the classification
pidan. Generally will be subject to a fine of as much as 500 (five hundred) or
more hwan. Fines will be charged as much as no less than 50 (fifty) hwan and
not more than 500 (five hundred) hwan. Penalties and fines will be paid within
30 (thirty) days from the day the decision becomes final. If the penalty
imposed is imprisonment in a house instead of a fine work can be set in unison
until the fine is fully paid. Someone who does not pay the full penalty will be
held in a house of work and work for a period of not less than one month and
not more than 3 (three) years. In the case of small fines, not less than one
day and not more than 30 (thirty) days. If a person pays only a fine or fines
imposed to him, then the number of days equal to the amount paid will be
calculated from the period of detention in accordance with the comparison to
all penalties or fines for the full period of detention.
Penal
Code classification of offenses in the Philippines consists of capital
punishment, criminal afliktif, criminal correctional, criminal fines and bonds
to maintain order / peace, as well as additional criminal. Criminal penalties
can be classified again into afliktif criminal, criminal correctional, or a
misdemeanor. A criminal penalty, if imposed as the only criminal offense or as
an alternative, is considered a criminal afliktif, if the penalty of a fine
that exceeds 6,000 (six thousand) pesos. A criminal penalty is called
correctional, if the fine does not exceed 6,000 (six thousand) pesos but not
less than 200 (two hundred) pesos. A minor penalty is called, if the fine is
less than 200 (two hundred) pesos. If the convict has no property to satisfy
fines imposed to him, then the convicted person subject to personal liability
at the rate of subsidiary imprisonment one day for every 8 (eight) pesos. The
imposition of criminal penalties, the court may determine the amount within the
limits prescribed by law, in determining the amount given in each case, not
only pay attention to the reasons for the ease and burdensome, but particularly
in property and property inmates.
In
Thailand the Penal Code shall be fined more carefully. If the fine is not paid,
the court may decide to confiscate their property. After that new measures such
as confinement following a fine substitute. For fines instead of imprisonment
will be counted an average of five baht per day, and if the case consists of
one or more offenses, such confinement must not exceed the knowledge, except in
the case that the court has imposed a fine of 10,000 (ten thousand) baht to the
top , the court may order a fine instead of imprisonment for more than one year
but not more than two years. In calculating the period of time, the day of the
cage instead of a fine will be counted and counted as a full day, regardless of
the number of hours. In the case where a person is sentenced to a fine which
the court held before the decision, the day in custody will be deducted from
the amount of fines for calculating the average of five baht a day, unless the
person is sentenced to imprisonment and criminal fines. If the number of days
in custody should be deducted from the period of imprisonment, then
imprisonment is reduced first, while the remainder is subtracted from the
amount of fines. If the fines instead of imprisonment has been completed, then
the release will happen the next day after the period was completed. If the
fine is paid in full, then release immediately performed. In this Code provided
that a minimum fine of not less than 1,000 (one thousand) baht or imprisonment
not exceeding one month. While the maximum fine of up to (forty thousand) 40
000 baht.
Dutch Penal Code, provides that the maximum fine that may be brought against the offense which does not include criminal penalties, provided for in Article 23 paragraph (5). The provisions of Article 9 paragraph (2) is well contained sentencing guidelines for judges, although the formulation is integrated within the rules of the criminal. Minimal amount of penalty is 5 (five) Gulden. Penalties imposed shall not exceed the maximum fine set for the category of offense in question. 6 categories of offenses specified category. If the fine is not specified then the judge can impose fines of up to a maximum of one category for all three categories of offenses and the maximum for the crime. Criminal fines for corporations is the next highest category. In imposing a fine, the judge must consider the ability of wealth so that the decision of a criminal defendant the right worthy and without affecting the income of the defendant is not commensurate with the time limit to determine the mortgage repayments should not be less than 1 (one) month and not more than 3 (three) months.
Dutch Penal Code, provides that the maximum fine that may be brought against the offense which does not include criminal penalties, provided for in Article 23 paragraph (5). The provisions of Article 9 paragraph (2) is well contained sentencing guidelines for judges, although the formulation is integrated within the rules of the criminal. Minimal amount of penalty is 5 (five) Gulden. Penalties imposed shall not exceed the maximum fine set for the category of offense in question. 6 categories of offenses specified category. If the fine is not specified then the judge can impose fines of up to a maximum of one category for all three categories of offenses and the maximum for the crime. Criminal fines for corporations is the next highest category. In imposing a fine, the judge must consider the ability of wealth so that the decision of a criminal defendant the right worthy and without affecting the income of the defendant is not commensurate with the time limit to determine the mortgage repayments should not be less than 1 (one) month and not more than 3 (three) months.
In
the Danish Criminal Code, the penalty (fine / Bode) may be imposed in the form
of at least one daily newspaper and a maximum fine of 60 daily fine, but if
there are multiple offenses then a daily fine may be accumulated without limit.
The amount of daily fines determined based on average earnings per-day and
taking into account special circumstances such as sources, capital property,
and obligations to the family. Would also establish penalties and fines as a
criminal offense subject can be combined with a conditional. Within certain
limits, prosecutors and police may impose a fine to avoid criminal prosecution.
The public prosecutor may postpone the case because the offender to pay a
specified sum of money for sure. In Sweden, the prosecutor has the discretion
to determine the amount of criminal fines in accordance with existing rules.
Claimant can only give a maximum penalty fine of 300 kroner daily for 60 days.
While the court may impose a fine of up to 500 kroner a daily fine for 120
days. The prosecutor in a case can not force the suspect to admit guilt, if the
suspect pulled a report that has been made in court then the case will still be
brought to justice.
In
the French Penal Code, criminal penalties may be imposed for crimes and
offenses since June 10, 1983 imposed a daily fine, and can not be used in
criminal child, and only applied to criminal offenses punishable in prison.
Daily criminal offense is intended as an alternative to short jail. Maximum
daily penalty amount is 360 (three hundred sixty), while the number of daily
penalty set by the judge to consider the defendant's income and expenditure.
The maximum daily amount of each fine is 2,000 (two thousand) francs. Unpaid
fines imposed detention. Criminal replacement is intended to force the
convicted person to pay the fine. The length of detention depends on the amount
of fines and a maximum 2 (two) years more than 8,000 (eight thousand) francs.
If the daily fines imposed, the criminal substitute (detention), should not
exceed half of the daily amount of unpaid fines. The maximum is 180 (one
hundred eighty) days. Greek Penal Code which is money set penalties and fines,
unless otherwise stipulated by special legislation. There are offenses that can
be punished only by pecuniary penalty or a custodial penalty, such as bribery
and forgery offenses. Forcible action to implement the penalty is confiscation
of property, foreclosure real estate, as well as detention. Portugal in the
Criminal Code, criminal penalties of imprisonment is used as a substitute for
short, and also as a stand-alone crime. Since 1983 all criminal penalty is
calculated as a daily fine, because it must take into account the ability of
inmates. Criminal fine of at least three hundred ten and a maximum daily fine.
Payment of fines may be delayed up to one year or in installments within two
years. If the fine is not paid may be reimbursed from the goods or convict
labor in the conversion of the obligation. One working day is equivalent to a
daily fine. Fines into state property, but the judge may award all or part of
the fine to the injured party or victim. When he suffered serious financial
losses and the defendant can not pay back. At the request of the aggrieved
party, the goods seized or the proceeds of crime and also the benefits derived
from crime may be given or awarded to him.
Provisions
of laws against criminal determination, is also determined by the model used.
According to Reid, there are three sentence models. First, the legislative
model, in this model the shape and duration of the penalty for any crime must
be determined by the legislature and set forth in the criminal legislation.
Discretion at all closed, so-called determinate sentence. Second, the judicial
model, which is good when the laws fully devolved to the shape and length of
criminal judges, as well as minimum and maximum specified in the criminal law
and sentencing judge decides on the actual concrete cases. The second model is
the reverse of the first model, so often referred to as inderteminate sentence.
Third, the administrative model of the actual number of offenses is determined
by the implementing administrative punishment. The law determines the shape and
number of offenses, the judge is then based on that determine the shape and
number of offenses in cases of concrete, and then some of his old crime can be
reduced or eliminated through various mechanisms that have executive.
Therefore, called the executive model. Given each community know-how to
establish his own law, the determination of the sentencing models differ from
one society to another. For the people of Indonesia, the third sentence seems
kombinatif the model used, which is dominated by the legislative model. This is
because, the people of Indonesia with the structure of the civil law system is
thick, the role of the legislature to be very important and dominant.
Development and legal reform more colored by the role of the legislature.
Motivation of law and not legal (political, economic, social, cultural and
defense and security) in the formation of legislation to determine the use of
criminal law, particularly the determination of criminal penalties in his
works.
Theoretically, as Vicenzo Ruggiero said there are three stages of the criminal law intervention in people's lives. The first is the stage when the legislative enactment of statutory provisions concerning the minimum and maximum penalty for a particular offense. The second is the judicial stage, when the judges determine the quantity determining the degree of criminal law by moving between the minimum and maximum limits set by law. The third is the executive stage, ie at the time the prison officials, together with the judge overseeing the implementation of the crime and determine the quality of a particular sentencing regime which must be condemned. In line with this, even more extensive in nature. Muladi said there are three stages of the policy that should be a concern in this matter, are as follows: Stage formulations, namely the rule of law in abstracto stage by the legislature. This stage can also be called stage of legislative policy; application stage, the stage of the application of criminal law by law enforcement officers, from police to court. This second stage can also be called the stage of judicial policy; execution stage, the stage of concrete implementation of the criminal law by the officers executing the criminal. This stage can also be referred to the executive or administrative policy stage.
Theoretically, as Vicenzo Ruggiero said there are three stages of the criminal law intervention in people's lives. The first is the stage when the legislative enactment of statutory provisions concerning the minimum and maximum penalty for a particular offense. The second is the judicial stage, when the judges determine the quantity determining the degree of criminal law by moving between the minimum and maximum limits set by law. The third is the executive stage, ie at the time the prison officials, together with the judge overseeing the implementation of the crime and determine the quality of a particular sentencing regime which must be condemned. In line with this, even more extensive in nature. Muladi said there are three stages of the policy that should be a concern in this matter, are as follows: Stage formulations, namely the rule of law in abstracto stage by the legislature. This stage can also be called stage of legislative policy; application stage, the stage of the application of criminal law by law enforcement officers, from police to court. This second stage can also be called the stage of judicial policy; execution stage, the stage of concrete implementation of the criminal law by the officers executing the criminal. This stage can also be referred to the executive or administrative policy stage.
Fined
in Indonesia is still in a secondary position, when compared to a maximum of
freedom, with respect to the Criminal Code and the laws outside the Penal Code,
criminal penalties are always in second place. In the Criminal Code, criminal
offenses are distinguished in the main and additional offenses. The principle
is the death penalty, imprisonment, criminal fines and imprisonment. Additional
offenses is the removal of some specific rights, confiscation of certain goods,
and the announcement of the verdict. Currently, criminal penalties in the Penal
Code provided for in Article 10 are placed in the main criminal groups as the
final sequence, after the death penalty, imprisonment, and criminal
confinement. Criminal Code does not recognize the cumulative system of the
principal offense. In the sense that for the same crime to the perpetrators do
not apply more than one principal criminal, such as imprisonment and criminal
fines.
The
role of judges in imposing capital is very important. After knowing the purpose
of sentencing, the judge shall consider the circumstances that surround the
crime maker, what and how the influence of criminal acts committed, the effects
of crime on victims and the many circumstances that need to pay close attention
and consideration of the judges in imposing capital. There is a provision that
in the case of someone committing a criminal act punishable with imprisonment
only, but if the judge found no need to impose imprisonment after notice and
consider the things that a sentencing objectives and guidelines for the
application of imprisonment, the judge may impose a fine. Criminal penalties
are used carefully and objectively.
Criminal
Penalties in the Penal Code of Indonesia.
By considering the central role of the legislature in determining the use of criminal law, the role of the legislature ought to pay attention to things that are selective and limitatif use of the criminal provisions in the legislation, and there should be an opportunity for judges to apply. Selectively imprisonment and legislative policies to avoid a penalty that is imperative, then it should be identified a number of motivations and reasons why the legislators to use the criminal law, especially criminal penalties, in a particular legislative product. With regard to criminal penalties, should be also understood the basics that are used in determining the amount of fine legislators who threatened in a particular offense, and motivation make it as an alternative to other crimes and acts. Application of criminal penalties can not be separated from the context of the implementation of the criminal justice system.
By considering the central role of the legislature in determining the use of criminal law, the role of the legislature ought to pay attention to things that are selective and limitatif use of the criminal provisions in the legislation, and there should be an opportunity for judges to apply. Selectively imprisonment and legislative policies to avoid a penalty that is imperative, then it should be identified a number of motivations and reasons why the legislators to use the criminal law, especially criminal penalties, in a particular legislative product. With regard to criminal penalties, should be also understood the basics that are used in determining the amount of fine legislators who threatened in a particular offense, and motivation make it as an alternative to other crimes and acts. Application of criminal penalties can not be separated from the context of the implementation of the criminal justice system.
Thus,
the true meaning of the application of criminal penalties is how judges use it,
to achieve the sentencing purposes. In connection with sentencing, it can be
seen as important as the meaning of justice is a continuous debate and
assessment in a variety of perspectives, the development of the theory of
punishment, would be based on the philosophy that people living in Indonesia,
which saw a high sense of justice through the precepts social justice for all
people of Indonesia . Criminalization has spawned the development of ideas or
principles condemn a principle building. Make the convict is no longer as an
object, but is the subject, so to see the convict as a whole person. J.E.
Sahetapy argued that the goal is the liberation or Correctional criminal and
guidance to a just and civilized humanity as explicit and implicit in the
principles of Pancasila. Muladi expressed his view about the purpose of
sentencing, was held to fix the damage to individuals or society as a result of
criminal acts. It consists of a set of objectives to be met with punishment
records; that the purpose of which is the point berpautnya kasustik.
Criminalization of the destination device is general prevention, protection of
society; maintaining community solidarity, and / or development. That view is
referred to as an integrative sentencing purposes (in the system of Pancasila).
BARDA Nawawi Arief, claimed that the purpose of criminal and penal law is the
protection of society, which is a general purpose, broad with berinduk on all
the theories about the purpose of sentencing that are interconnected, detailing
and identifying the need for protection of the general purpose of the public
against anti-social act, the nature dangerous offender, a reaction against the
violators of law, maintaining a balance or harmony of interests. Therefore, it
can be said of criminal purpose is to maintain or restore the balance of
society. With regard to enforcing the law and justice based on Pancasila, the
fairness in sentencing need attention, to understand the perspective of
retributive justice and restorative justice. According Mudzakir, that the
subjects of criminal purpose is retaliation, preventing, deterring and
rehabilitation. In sentencing, the state is the only one who has the authority
to impose criminal. Retributive model of punishment by ignoring the aspirations
of the interests of the victims in the sentencing process. Victims of crime
before the court only as an instrument of punishment, as a witness or proof
tool, while the state rejected the idea of restorative
justice as the only one entitled to convict. Element of justice is
compensation, mediation, reconciliation, healing and utilization, while the
retributive element is retribution, punishment, isolation, stigmatization and
penjeraan. It is important in the perspective of restorative justice is the
acceptance of restitution as a kind of criminal in the criminal law. Muladi
describes restorative justice that is, crimes defined as a violation of a
person against another person. Point of attention in solving the problem of
accountability and liability in the future; normative nature is built on the
basis of dialogue and negotiation; Restitution as a means of improving the
parties, reconciliation and restoration as a primary goal; Justice defined as
right relationships, assessed on the basis of the results; Crime recognized as
a conflict; Target attention to the improvement of social disadvantage; Society
is a facilitator in the restorative process; Promote mutual assistance; The
role of victims and perpetrators of crime is recognized in both problems and
settlement needs of victims' rights are recognized, encouraged to criminal
responsibility; Accountability offender is defined as an act of understanding
the impact and to help decide which is best; Offence understood in the context
of a comprehensive, moral, social and economical; sin or debt, and
accountability to the victims recognized; reactions and responses focused on
the consequences of criminal acts ; Stigma can be removed through restorative
measures; There is a possibility that is helping the attention devoted to the
liability resulting from his actions. Restorative approach to crime in which the
settlement centered on the balance of the victim, which allows victims,
perpetrators, and representatives from the community to deal damage or loss
caused by criminal acts, which should be supported through the concept of
restitution to facilitate a peace. In a similar vein is the view Andi Hamzah,
of restorative justice (restorative justice), which means a state of recovery
necessitated due to the crimes. As is known to in Article 82 of the Criminal
Code (otherwise known as schiking afcoop in economic crime) that says if a
criminal offense punishable only by fine, then it can be avoided prosecution by
paying the maximum fine immediately. As also set forth in the Book of the Law
of Criminal Law (Criminal Code) Russian Federation, 2004, if the defendant confessed
in front of the judge before the trial and pleaded not need his case to trial,
the judge can immediately make a decision to hear the public prosecutor, the
criminal should not be imposed more than ⅔ (two thirds) the maximum threat. In
the Russian Federation Article 76 of the Criminal Code, the transaction can be
done for the offense is punishable by imprisonment of 10 (ten) years and under,
if it is mild or moderate and casualty losses are replaced by a defendant is
not prosecution. This is similar to Article 41 paragraph (1) and (2) Criminal
Code of France. Furthermore, in a Dutch Penal Code Article 74, states that a
fine is imposed or expulsion or giving gifts to the monastery. Restorative
justice in Indonesia in particular, in severe cases in Islamic law, including
offenses of murder victims' families and offender is at peace where offenders
compensate. In Buddhism, also known restotrative justice, Aung San Suu Kyi and
the Dalai Lama said that the evil of a crime more likely to fight with
forgiveness to tyranny.
The completion of the crime through restorative approaches according to Van Ness. postulated a model of the unified system approach, the dual track system, safeguard systems, and hybrid systems. In connection with the idea of justice in a particular contextual framework, as argued by Budiono Kusumohamidjojo, namely distributive justice (iustitia distributiva) He explained that as a justice with regard to the division title, payment of taxes and so forth. The legal justice (iustitia legalist) are matters relating to the implementation of the common law. Justice exchange (iustitia commutativa) is related to the transaction such as sale and purchase, revenge and justice (iustitia vindicativa), which applies in criminal law.
The completion of the crime through restorative approaches according to Van Ness. postulated a model of the unified system approach, the dual track system, safeguard systems, and hybrid systems. In connection with the idea of justice in a particular contextual framework, as argued by Budiono Kusumohamidjojo, namely distributive justice (iustitia distributiva) He explained that as a justice with regard to the division title, payment of taxes and so forth. The legal justice (iustitia legalist) are matters relating to the implementation of the common law. Justice exchange (iustitia commutativa) is related to the transaction such as sale and purchase, revenge and justice (iustitia vindicativa), which applies in criminal law.
According
to John Rawls justice is the primary virtue of social institutions and the
subject is not only legal justice and social systems and institutions alone,
but also certain actions and social justice related to the basic structure of
society. The main idea of the theory of justice said, referring
to the concept of justice based on social contract theory propounded by Locke,
Rousseau, and Kant. The principle of justice is the result of approval and a
fair bargain. Justice can only be understood if it is positioned as a state to
be realized by the law. Efforts to realize it is a dynamic process that takes
time and is dominated by forces that fought in the political order. Plato
considers justice as an idea, while Hegel assumes that knowledge and
understanding of justice can only be obtained and partially through a very
difficult philosophical effort. The purpose of justice can only be achieved by
fair means, including elements of the certainty of rules, institutions,
mechanisms and even the certainty of the time. In this regard, the application
of criminal penalties in the courts, especially the judicial corruption,
depends on the understanding of judges regarding the criminal justice system
model. So far there are theoretically nine (9) models that emphasize different
sides of the workings of the criminal justice system. First, the Due Process
Model was first put forward Herbert L Packer. Second, the Crime Control Model
was originally put forward Jerome Skolnick. This model is dichotomous then the
Packer faced with the Due Process Model. Third, the Family model pioneered by
John Griffith. Fourth, the Rehabilitative Model or Medical Model.
Thus, the criminal justice system must form a structure that is able to rehabilitate or treat maker. Based on this model a variety of considerations noted at each stage of the examination to find the best way to face the individual offender, assuming criminal behavior can be reduced through an approach that is rehabilitative. This view has also led police to further avoid offense makers of the next process in the criminal justice system, especially the younger Offender, in circumstances where it can be concluded there is no boondoggle forward to the prosecution. Police have the power to warn makers offense and put them to social work agencies. Social workers and probation officers into the sentencing phase, to prepare pre-sentencing reports on the circumstances of everyday maker penal offense and outline more of counseling and guidance rather than punishment or pembalasan.Kelima, Bureaucratic Model. This model ensures that the defendant be examined and punished quickly and efficiently as possible. Sixth, Denunciation and degradation model. Seventh, the Power Model. Countries in this model is seen as the executor of the interests of community groups who use criminal law to the interests of its largest.
Fourth to seventh model of the model, first suggested King. King also acknowledged the existence of models of the criminal justice system as proposed by Packer. Eighth, The Just Desert model developed by Davies, Croal and Tyrer. This model brings together the makers consider to be a man with a variety of rights, the need to promote the manufacturer's liability for the actions of the criminal act, so shall be punished if found guilty, and the right of people to avenge the certainty of those who have errors. Punishment and crime becomes a moral issue and control. Ninth, Balance Model Muladi expressed interest. Also presented along with principles of substantive criminal system, the underlying principle is developed and formulated the substance of the Criminal Code bill oriented principal balance of thought and the basic ideas that include: a. balance between the interests of morality associated with the state, public interest / community and the interests of the individual / individuals; b. balance between the protection of public interests, the interests of the criminal (criminal individualization of ideas), and the interests of crime victims (victim of crime); c. balance between the elements / objective factors (action / physical) and subjective (the person / spiritual / mental attitude) idea dader Strafrecht Daad-d. balance between formal and material criteria, e. balance between legal certainty, flexibility, elasticity, or flexibility, and fairness; f. balance between local knowledge or wisdom particularistic (local wisdom) or unwritten law, national values and the values of global / international / universal. The basic idea of balance was embodied in the three main issues in criminal law, namely the problem: first, setting a criminal act or acts that are against the law (criminal act); Second, the setting error or criminal liability (criminal responsibility); Third, setting stelsel and criminal actions (punishment and treatment system).
The diversity of models of the criminal justice system, does not mean there is a very significant difference with each other. But generally should be viewed as a developmental process. Tendency to minimize imprisonment and fined maximization can be based on a model of the criminal justice system, namely a model of balance of interests, but in it is a combination of various other models, such as due process model, the crime control model or a model family. The use of criminal penalties would be seen as an attempt to bring together the various interests in the conduct of law enforcement. Interests of the state, society and the victims on the one hand and the interests of different actors on the side. Threats of criminal penalties in the formulation of laws and freedoms that exist in the judge for sentencing, which is a container that can fit with the interests of dimaksud.Dalam determine the justification for the establishment and application of criminal penalties, retaliation is not only supported the theory or the theory- utilitirian-based theory, but is required by the RA theory Duff and D. Garland is unitary theory.
In this case the justification for the establishment and application of criminal penalties based on a value or set of values that support each other. Justification for requiring a whole theory of punishment that can be formed in a single value or a set of values that are not contradictory. In Hart's terms this is a mixed theory of punishment philosophy. Philosophy of punishment by Hart is that punishment should always be based on the attempt to formulate a crime with a punishment in which contact with the justice, forbids punishment against those that can not be proved guilty, and forbid not to convict the error is proportional to the creators. Harkristuti Harkrisnowo citing Penal Code bill drafting team has to rank the seriousness of the crime is divided into five levels of the very mild to very serious. Note that a very minor criminal offense not subject to deprivation of liberty, is a very serious crime is a crime punishable by imprisonment for more than 7 (seven) years. It is not only necessary in determining the size of the offenses only. but as far as possible also for other types of offenses, including criminal penalties.
Thus, the criminal justice system must form a structure that is able to rehabilitate or treat maker. Based on this model a variety of considerations noted at each stage of the examination to find the best way to face the individual offender, assuming criminal behavior can be reduced through an approach that is rehabilitative. This view has also led police to further avoid offense makers of the next process in the criminal justice system, especially the younger Offender, in circumstances where it can be concluded there is no boondoggle forward to the prosecution. Police have the power to warn makers offense and put them to social work agencies. Social workers and probation officers into the sentencing phase, to prepare pre-sentencing reports on the circumstances of everyday maker penal offense and outline more of counseling and guidance rather than punishment or pembalasan.Kelima, Bureaucratic Model. This model ensures that the defendant be examined and punished quickly and efficiently as possible. Sixth, Denunciation and degradation model. Seventh, the Power Model. Countries in this model is seen as the executor of the interests of community groups who use criminal law to the interests of its largest.
Fourth to seventh model of the model, first suggested King. King also acknowledged the existence of models of the criminal justice system as proposed by Packer. Eighth, The Just Desert model developed by Davies, Croal and Tyrer. This model brings together the makers consider to be a man with a variety of rights, the need to promote the manufacturer's liability for the actions of the criminal act, so shall be punished if found guilty, and the right of people to avenge the certainty of those who have errors. Punishment and crime becomes a moral issue and control. Ninth, Balance Model Muladi expressed interest. Also presented along with principles of substantive criminal system, the underlying principle is developed and formulated the substance of the Criminal Code bill oriented principal balance of thought and the basic ideas that include: a. balance between the interests of morality associated with the state, public interest / community and the interests of the individual / individuals; b. balance between the protection of public interests, the interests of the criminal (criminal individualization of ideas), and the interests of crime victims (victim of crime); c. balance between the elements / objective factors (action / physical) and subjective (the person / spiritual / mental attitude) idea dader Strafrecht Daad-d. balance between formal and material criteria, e. balance between legal certainty, flexibility, elasticity, or flexibility, and fairness; f. balance between local knowledge or wisdom particularistic (local wisdom) or unwritten law, national values and the values of global / international / universal. The basic idea of balance was embodied in the three main issues in criminal law, namely the problem: first, setting a criminal act or acts that are against the law (criminal act); Second, the setting error or criminal liability (criminal responsibility); Third, setting stelsel and criminal actions (punishment and treatment system).
The diversity of models of the criminal justice system, does not mean there is a very significant difference with each other. But generally should be viewed as a developmental process. Tendency to minimize imprisonment and fined maximization can be based on a model of the criminal justice system, namely a model of balance of interests, but in it is a combination of various other models, such as due process model, the crime control model or a model family. The use of criminal penalties would be seen as an attempt to bring together the various interests in the conduct of law enforcement. Interests of the state, society and the victims on the one hand and the interests of different actors on the side. Threats of criminal penalties in the formulation of laws and freedoms that exist in the judge for sentencing, which is a container that can fit with the interests of dimaksud.Dalam determine the justification for the establishment and application of criminal penalties, retaliation is not only supported the theory or the theory- utilitirian-based theory, but is required by the RA theory Duff and D. Garland is unitary theory.
In this case the justification for the establishment and application of criminal penalties based on a value or set of values that support each other. Justification for requiring a whole theory of punishment that can be formed in a single value or a set of values that are not contradictory. In Hart's terms this is a mixed theory of punishment philosophy. Philosophy of punishment by Hart is that punishment should always be based on the attempt to formulate a crime with a punishment in which contact with the justice, forbids punishment against those that can not be proved guilty, and forbid not to convict the error is proportional to the creators. Harkristuti Harkrisnowo citing Penal Code bill drafting team has to rank the seriousness of the crime is divided into five levels of the very mild to very serious. Note that a very minor criminal offense not subject to deprivation of liberty, is a very serious crime is a crime punishable by imprisonment for more than 7 (seven) years. It is not only necessary in determining the size of the offenses only. but as far as possible also for other types of offenses, including criminal penalties.
Conclusion
Criminal
penalty is paid and the amount of money, based on judicial decisions. In the
Criminal Code pdana whose position is known as a very secondary, because it is
under the death penalty, imprisonment, confinement. Penalty value is sweat has
several times adjusted to economic conditions, tetepi still considered very
low. Although the invitation of the administration of laws, penal provisions,
which used to be very high, reaching number Trillions of dollars, but, still
jarangf criminal judge can use it, and prefer stelsel imprisonment. It thus is
of concern, by legal and political experts to continue to initiate, to use
criminal penalties, the punishment system in Indonesia.
Criminal
penalties, in the span of its long history, has been used as a type of crime is
a popular, well known in religious law and religion, custom or law known as
customary law in different countries, but since the enactment of criminal laws
of the colonial Dutch in Indonesia, in the 18th century. Then shift the use of
criminal penalties, have experienced decline, and the effect until now. Whereas
in the development of the philosophy of punishment, criminal fines have been
getting the attention and the reason why, in order to avoid excessive use of
criminal sanctions, and excellent as an alternative to the use of long-term
imprisonment in particular. Even criminal penalties can generate revenue for
the state, or local government.
Recent
developments (2012). No. The Supreme Court of the Republic of Indonesia. 02 In
2012. Determines that a fine adjustment value, as determined under section
364.373, 379, 384, 407 and Article 482 of the Criminal Code, to Rp.
2,500,000.00 (two million five hundred dollars), the case against theft, fraud,
fencing of the public prosecutor, the chairman of the court shall take into
account the value of goods or money which is the object case. last previous
adjustment in 1960, the maximum penalty is only Rp.2.50000, - (two hundred
fifty thousand Rupiahs),
