Implications Of Abuse Of Authority In State Administrative Law On The Legal Certainty Of Corruption

Authors

  • Aliansyah
  • Elwi Danil, Yuslim
  • Nani Mulyati

Abstract

In Law No. 20 of 2001 on Combating Corruption and Law No. 30 of 2014 on Government Administration, there is a fundamental difference between unlawful acts and abuse of authority. In unlawful acts there is an element of error in a person who has the intention to enrich themselves or others or corporations to harm the state finances, while in the abuse of authority tends to lead to personal losses with categories of violations of an administrative nature.

The problem in this study is; (1) What is the conception of abuse of authority in the law of the State Administration? (2) How is the arrangement on the abuse of authority as a crime of corruption?, (3) How is the Element of abusing authority in the crime of corruption as the Absolute competence of the State Administrative Court? The approach method used in this study is normative juridical method. Normative legal research is conducted (especially) on primary, secondary, tertiary legal materials, as long as they contain legal rules.

Based on the results of the study found that (1) Parameters that limit the free movement of the authority of the State apparatus (discretionary power) in the perspective of state administrative law are detournement de povouir (abuse of authority) and abus de droit (arbitrary). (2) Understanding and regulating abuse of authority or abusing authority in the Criminal Code as well as in Law No. 20 of 2001 on Combating Criminal Acts of Corruption is not found understanding expressis verbis, this confirms that the abuse of "abuse of authority" in the criminal law of corruption does not have an explicit understanding of its nature. (3) Abuse of authority is one of the elements contained in Article 3 of Law No. 31 of 1999 on Combating Criminal Acts of Corruption jo. Law No. 20 of 2001 on Amendments to Law No. 31 of 1999 on Eradication of Criminal Acts of Corruption (Law No. 20 of 2001 on Eradication of Criminal Acts of Corruption). Elements in the crime of corruption listed among others in Article 3 of Law No. 20 of 2001 on Combating The Crime of Corruption, are distorted, since the presence of Article 21 paragraph (1) of Law No. 30 of 2014 on Government Administration which basically states the court is authorized to accept, examine, and decide there is or is no element of abuse of authority committed by government officials. For law enforcement, especially in the criminal law, the Presence of Law No. 30 of 2014 should be a benchmark for KPK investigators not to make arrests of investigations against defendants before a verdict from the State Administrative Court, considering the authority of state officials who carry out their duties if committing violations then to the concerned if the case is still in the judicial process of the KPK State Administration cannot withstand  The accused first awaits the release of the TUN verdict which has permanent legal force. This is as mandated in Article 21 of Law No. 30 of 2014 on Government Administration. Then the Supreme Court needs to socialize the Supreme Court of Indonesia Regulation No. 4 of 2015 concerning Guidelines for Speech in Testing Abuse of Authority.

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Published

2023-02-16