THE uSE OF SCHIKKING IN TRAFFIC ACCIDENT CASE DuE TO
Such the condition was not always initiated by the accused, but the offering often comes from the law enforces to the accused.
It is these conditions that motivated the writer to study more in-depth this issue by writing an article entitled “THE USE OF SCHIKKING IN TRAFFIC ACCIDENT CASE DUE TO NEGLIGENCE LEADING TO LIFE TOLL”.
The problem statement is what is ideally the resolution of traffic accident case due to negligence leading to life toll?
mETHODOLOGy
There are five legal studies based on the difference of legal concept. This different type of study will also result in difference choice and use of research method, suggested in M=f(K) formula; the method used was concept function. These five studies are as follows.1
1. Legal Philosophy departing from a perspective that law is the principles of truth and justice that is given in nature and prevails universally.
2. Pure Legal Tenet studying “law as it is written in the books” departing from perspective that law is positive norms in national legislation system.
3. American Sociological Jurisprudence studying “law as it is decided by judges through judicial processes” departing from a perspective that law is what decided by the judge in concreto and systematized as “judge made law”.
4. Legal Sociology studying “law as it is in society” departing from a perspective that law is an institutionalized social behavior pattern existing as an empirical social variable.
5. Legal Sociology and/or Anthropology studying “law as it is in (human) actions” departing from a perspective that law is the manifestation of social actor’s symbolic meanings as apparent in their interaction.
The writer built this article one the fourth legal concept in which law is an institutionalized social behavior pattern existing as an empirical social variable. It is because in this writing the writer wanted to explore arguments, ideas, and thoughts from the event actor directly in order to get accurate information and data, and understanding on the law conceptualized as positive regulation or law.
This research employed juridical empirical approach as research method focusing on obtaining primary and secondary data deriving from literature and legislation implementation. Juridical empirical law research starts from written positive legal convention applied to legal events in concreto within society. Viewed from its nature, this research was descriptive qualitative. The approach employed was interactional/micro approach with qualitative analysis. Qualitative analysis was a research method resulting in descriptive analytical data; according to Whitney, descriptive method is the search for facts with appropriate interpretation. Descriptive research studies the problems within society and knows the way prevailing within society, and certain situations, including the relationship of activities, attitudes, perspectives, and processes proceeding and effects of a phenomenon.2
1 Soetandyo Wignyosoebroto, Penelitian Hukum: Sebuah tipologi, in Teguh Prasetyo and Abdul Halim Barkatullah, Ilmu Hukum & Filsafat Hukum; Studi Pemikiran Ahli Hukum Sepanjang Zaman, second edition, Pustaka Pelajar, yogyakarta, 2007, pp. 77-79. See also Bernard Arief Sidharta, Refleksi Tentang Struktur Ilmu Hukum: Sebuah penelitian tentang fundasi kefilsafatan dan sifat keilmuan Ilmu Hukum sebagai landasan pengembangan Ilmu Hukum Nasional Indonesia, second ed., Mandar Maju, Bandung, 2000, pp. 158-159.
2 Moh. Nazir, Metode Penelitian, Ghalia Indonesia, Jakarta, 1988, p. 64.
DISCuSSION
Traffic accident event cannot be independent of the perpetrator’s responsibility3. The ability of being responsible, according to Van Hammel4 is a condition of mental normality and maturity bringing about three abilities of:
1. Understanding the consequence of his/her own deed
2. Realizing that his/her deed is not allowed by the society (in contradiction with the society order)
3. Determining his/her wish to act.
The discussion of responsibility issue cannot be apart from that of fault. Fault, according to Simons5, is the presence of certain psychical condition within an individual who perpetrates crime and the presence of the relationship between such the condition and the deed committed, in such a way that the one can be insulted because of the deed mentioned earlier. Meanwhile, according to Moeljatno6, fault is that when an individual commits a crime, viewed from the society’s perspective he/she can be insulted because of it, why he/she committed a adverse deed to the society, while she/he can find out the (bad) meaning of such the deed.
The elements of fault are:
1. The perpetrator’s ability of being responsible, i.e. the perpetrator is in healthy and normal condition.
2. Mental relationship between perpetrator and his/her deed, either intentionally (dolus) or unintentionally/negligence (culpa)
3. No excuse eliminating his/her fault.
The difference of intentionality and negligence is as follows: 7 1. Intentionality:
a. Intention: intention to result in certain consequence.
b. Awareness of necessity or certainty: unexpected consequence (primarily) occurring surely.
c. Conditional intentionality (probability):
1) is unexpected consequence (primarily) occurring almost surely (awareness of high probability = Dutch: waarschijnlijkheidsbewustzijn)
2) is considered as non-ignorable but accepted probability (aware of probability)
3 There are two perspectives relating to human responsibility for his/her deed. Firstly, indeterminism is that human being can determine his/her wish freely, although such other factors as his/her personal condition and environment affect his/her wish determination, basically he/she has free wish. Secondly, determinism is that human being cannot determine his/her wish freely at all. Extremely, the proponents of determinism do not recognize the presence of ‘fault’ and for that reason human being “cannot be punished”. Soedarto then compromises in the term
2. Negligence:
a. Conscious negligence: unexpected consequence (primarily) considered haphazardly as unlikely occurring.
b. Unconscious negligence: the one does not think while he/she should do so.
The application of accident case due to negligence leading to life toll was imposed with Article 359 of KUHP formerly, but now with Article 310 of Law No. 22 of 2009 about Traffic and Road Transportation. The enactment of the two articles often harms the feeling of justice within society. That is, it is enacted too rigidly. For example, let us take the examples above in which the defendants were victim families, or there was negotiation between the defendant and the law enforcers related to the case encountered.
European countries are generally very disappointed with condemnation rehabilitation model so that Germany and Austria8 apply clinical treatment. Alfons Wohl9 states that the reformation of criminal legal system can be carried out by means of releasing the delict (legal offense) maker as soon as he/she and society can accept it well.
German Penal Code divides delict (legal offense) conventionally into felony, misdemeanor, and violation10. Article 153 of German Penal Code governs the cease of prosecution made by public prosecutor. It can be committed when the court and the defendant agree with certain imposition, for example damage recovery, money distribution to government body, or public service. In Netherlands there is schikking in settling the economic crime. Schikking is peace or peaceful fine.
Sudarto has mediated the contradiction between determinism and indeterminism, although human being does not have free wish, it does not mean that the one committing crime cannot be responsible for. He/she still can be accountable for and receive reaction to the deed committed, but that reaction can be action for society order rather than punishment in the sense of “misery as a fault”.
The condition of criminal justice, particularly against traffic accident, limited to applying procedural justice or more extremely resulting in improper practice between the accused or the defendant and law enforcers, should find the solution. The traffic accident, according to Law No.
22 of 2009 is an unexpected and unintentional event on the road involving vehicles with or without other road users leading to life toll and/or material loss.
In negligence theory, there are two types of negligence. Traffic accident due to negligence is threatened with Article 310 of Law No. 22 of 2009. This accident, according to the writer, belongs to unconscious negligence. This application of Article 310 should be reconstructed in criminal law reformation frame.
The intended reconstruction is that the accused or the defendant in accident case was given the right to implement schikking with the victim family. It should be attempted first before it was filed to the court. However, schikking could be implemented limited to Article 310 of Law No. 22 of 2009, rather than Article 311. It was because Article 311 belonged to “conscious negligence”. The restriction of schikking attempt to this Article 310 is intended to prevent ‘misuse’ from occurring due to the violation against Article 311. Article 311, among others, includes: driving motor vehicle inconsiderately due to illicit drug effect or illegal race.
8 Andi Hamzah, Perbandingan Hukum Pidana, Sinar Grafika, Bandung, 2008, p. 16.
9 Ibid., p. 17.
10 Germany Penal Code considers the violation beyond the scope of Penal Code. In Latin words crime delit contravention. So that violation is not a delict. See ibid., p. 18.
The process of achieving schikking between the accused or the defendant and the victim family should be attempted seriously. Criminal law should be put as ultimatum remidium. The use of criminal sanction, according to Muhammad Topan, should also meet the following principles11:
1. Benefit principle, aiming to benefit not only the victim, but also the public as the preventive attempt against crime.
2. Justice principle, not absolutely protecting the victim of crime only, but also giving the crime perpetrator the feeling of justice.
3. Balance principle, restoring the balance of disrupted society order to the original condition (restitutio des integrum)
4. Certainty principle, generally giving protection to the victim of crime, even the presence of distinctive law governing the protection of crime victim, if necessary.
The principles of imposing criminal sanction give a very detailed condition. However, considering Soerjono Soekanto’s law function theory, the detailed condition cannot be surely realized well. It is because there is a factor affecting it, the role of law enforcer. The role of law enforcers in accident case in negative sense is to make schikking illegally. It means that the law enforcers do anything indeed not governed yet in the law. This deed belongs to strafbaarfeit.12
The use of schikking in settling the accident case will give more benefit, justice, certainty and balance. Such the imposition of sanction is the restituting (restitutive) in nature, prioritizing the condition restoration. The use of schikking in the frame of criminal law reform should be legalized in the form of legislation in order to prevent multi-interpretation from occurring, particularly by the law enforcers.
The achieved schikking should be legalized with the Chairman of District Court’s stipulation. It is intended as the evidence for both parties and as the law certainty for the accused or the defendant.
This Chairman of District Court’s stipulation could be the starting point for the restoration of condition occurring because of accident. The function of restituting sanction is achieved and the transparent law enforcement can be realized.
CONCLuSION
The application of Article 310 of Law No.22 of 2009 should be reconstructed in order to provide substantive justice. It means that the sanction against the accused or the defendant can be imposed with restituting sanction, schikking, with the victim family. In addition to providing substantive justice, it aims to prevent illegal schikking practice from occurring by the legal enforcers.
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