Open Access at: http://lamlaj.ulm.ac.id/web/
Provisions for Criminal Acts in Banking In Banking Law Perspective
Rudy Indrawan
Faculty of Law, Airlangga University
Jl. Dharmawangsa Dalam Selatan, Airlangga, Kec . Gubeng , Surabaya City, East Java E-mail: [email protected]
Submitted : 19/06/2023 Reviewed: 31/08/2023 Accepted:10/09/2023
Abstract: This paper aims to provide information about criminal acts in the banking sector listed in Law No. 10 of 1998 concerning Amendments to Law No. 7 of 1992 concerning Banking. There are 5 types of criminal acts in the banking sector, namely crimes related to licensing; criminal offences relating to the disclosure of bank secrets; criminal acts related to bank supervision; Criminal acts of false listing, bribery, precautionary principles and criminal acts relating to shareholders. At the norm level, there are already sufficient rules governing criminal acts in the banking sector Law enforcement can be done through preventive and repressive countermeasures.
Keywords: Criminal Acts; Banking Law; Enforcement DOI: 10.32801/lamlaj.v8i2.420
INTRODUCTION
Banking crime (banking fraud) or also known as banking crime is basically an un- lawful act committed, either intentionally or unintentionally that has something to do with banking institutions, devices and products, so as to cause material and / or immaterial losses for the banking itself and for custom- ers or other third parties.Criminal acts in the banking sector 1can also be interpreted by any act that violates the provisions stipulated in the Banking Law or violates general crimi- nal provisions or other special criminal provi- sions related to criminal acts in the banking
1 Marfei Halim. Untangling Tangled Threads, Bank
sector.
Banking crime is often related to finan- cial transaction activities at banks, so that it can harm the interests of various parties. The party can be the bank as a business entity, de- pository customer, financing customer, share- holder, banking system, banking authority, government and the wider community. Bank- ing crimes and criminal acts in the banking sector can be differentiated in scope.
In terminology, criminal acts in the bank- ing sector are all kinds of unlawful acts related to activities in Running the Bank’s business, so that laws and regulations can be applied to these actions containing criminal provisions, both general and special crimes Criminal acts
in the banking sector involve acts related to banking and are threatened with crime, ei- ther violations of the Banking Law or Sharia Banking Law, and/or other laws and regula- tions. Examples of such laws and regulations include the Criminal Code (KUHP), the Law on the Prevention and Eradication of Money Laundering (TPPU Law), the Law on the Pre- vention and Eradication of Terrorism Financ- ing (TPPT Law), or the Corruption Eradica- tion Law (Tipikor Law) involving banks.
Meanwhile, banking crimes regulate un- lawful acts that are prohibited and threatened with crime are only limited to the Law regu- lating banking. Thus, the definition of bank- ing crime (hereinafter referred to as tipibank) is a criminal act that meets the elements as referred to in Articles 46 to d. Article 50A of the Banking Law or Articles 59 to d. Article 66 of the Sharia Banking Law.
The forms of banking crime take various forms. In Law No. 10 of 1998 concerning Amendments to Law No. 7 of 1992 concern- ing Banking (hereinafter referred to as the Banking Law), it is stated that what is includ- ed in banking crimes include licensing crimes (Article 46 &; Article 59 of the Banking Law), Bank Secret Crimes (Article 47 and Article 60), Bank Secret Disclosure Crimes (Article 47a and Article 61), Bank Supervision Crime (Article 48 and Article 62), False Record Crime, Bribery, Precautionary Principle (Ar- ticle 49 and Article 63), Criminal Compliance with Provisions (Article 50 and Article 64), Shareholder Crime (Article 50 letter a).
Regulations governing banking crimes have been deemed adequate, but in reality enforcement of banking crimes is still felt to have not fulfilled the elements of justice. It becomes a question whether the existing reg- ulations are not strong enough to crack down
on a banking crime or whether the enforce- ment of banking crime has not been able to
“deter” the perpetrators of banking crimes.
Resolution of these legal problems can be started by understanding the concept of bank- ing crime to then formulate solutions to the banking crime.
ANALYSIS AND DISCUSSION
As already mentioned, banking crimes regulated in the Banking Law include, among others, licensing crimes, secret crimes Bank, Crime of Opening Bank Secrets, Crime of Bank Supervision, Crime of False Record- ing,, Bribery, Precautionary Principle, Crimi- nal Acts of Compliance with Provisions, and Criminal Acts of Shareholders. The following author will explain the concept of criminal acts that are part of banking crimes, as regu- lated in the Banking Law.
Criminal Licensing Act.
The Licensing Crime relates to the licens- ing of the establishment of a bank as a finan- cial institution. Everyone who wants to es- tablish a bank must meet the requirements as stipulated in the Banking Law. This licensing issue is regulated in Article 16 of the Bank- ing Law, that “Every party that carries out ac- tivities to collect funds from the public in the form of deposits must first obtain a business license as a Commercial Bank or BPR from the Chairman of BI, unless the activity of col- lecting funds from the community is regulat- ed by a separate law”.
A bank is a business entity whose main ac- tivity is to collect funds from the public and distribute funds to the community. This activ- ity is known as the intermediary function. Be- cause its main activity is to collect and distrib- ute funds from and to the community, in terms of establishing a bank, it should be regulated
and supervised by the State, in order to avoid losses that can be caused. The explanation of Article 16 states that the activity of collecting funds from the community by anyone is basi- cally an activity that needs to be monitored, considering that the activity is related to the interests of the community whose funds are deposited with the party who collected the funds. Therefore, in this article it is affirmed that the activity of collecting funds from the public in the form of savings and loans can only be carried out by parties who have ob- tained a business license as a Commercial Bank or as a People’s Credit Bank.
The granting of bank establishment per- mits by BI Leaders is an implementation of State supervision in order to avoid losses that can be caused. Losses that can arise include the flow of public funds to parties who estab- lish black banks or financial institutions under the guise of banks. To anticipate this situation, Article 46 of the Banking Law stipulates that:
“Whoever collects funds from the public in the form of deposits without a business li- cense from the Chairman of BI as referred to in Article 16, shall be punished with impris- onment of at least 5 (five) years and a maxi- mum of 15 (fifteen) years and a fine of at least Rp10,000,000,000.00 (ten billion rupiah) and a maximum of Rp200,000,000,000.00 (two hundred billion rupiah)”
1. Criminal Acts of Opening Bank Secrets, The scope of bank secrets includes every- thing related to depository and deposit cus- tomers and / or borrowing customers of funds and the amount of loans. In carrying out its intermediary function, the Bank should rely on the public trust given to the Bank in man- aging the funds they “deposit”, especially the trust of depositor customers who deposit their
funds in the bank. For this purpose, it is appro- priate for the bank to keep everything related to information about depository customers or creditor customers, especially about personal data and financial conditions of customers. If it is known that there are certain parties who unlawfully leak the secrets or financial condi- tions of depository customers or borrowers of funds, then they can be categorized as having committed criminal acts in the banking sector.
The basis for the legality of the Bank’s obligation to maintain public trust (which is implemented in the implementation of bank secrecy) is Article 40 of the Banking Law, which stipulates that “the Bank shall keep confidential information about the Depository Customer and its deposits, except in cases as referred to in Article 41, Article 41A, Article 42, Article 44, and Article 44A.”
Exceptions to the provision of bank se- crets include: a. for tax purposes as stipulated in Government Regulation in Lieu of Law (Perpu) Number 1 of 2017 concerning Access to Financial Information for Tax Purposes, which is stipulated into Law Number 9 of 2017; b. for the purposes of criminal case jus- tice, with the permission of the Chairman of the OJK Board of Commissioners; c. in civil cases between the Bank and its Customers, on information from the Bank’s Board of Direc- tors to the Court about the financial condition of its customers; d. in the context of exchang- ing information between banks, on informa- tion from bank directors to other banks about the financial condition of their customers; e.
upon request, approval, or power of attor- ney from the depository customer or investor customer made in writing; f. at the request of the legal heirs of the depository customer or investor customer who has passed away; g.
for the purposes of examination in cases of
money laundering or terrorism as stipulated in the Law TPPU and TPPT Law; and h. for judicial purposes regarding joint property in divorce cases based on Constitutional Court Decision Number 64/PUU-X/2012; b. Crimi- nal Provisions Criminal provisions relating to bank secrets are regulated in Article 60 of the Sharia Banking Law, namely: “Any person who intentionally without carrying a written order or permission from Bank Indonesia as referred to in Article 42 and Article 43 forces a Sharia Bank, UUS, or affiliated party to pro- vide information,
1. Bank Supervision Crime,
Provisions related to bank supervision are mentioned in Article 48 of the Banking Law, namely:
1. Members of the Board of Commis- sioners, Board of Directors, or bank employees who deliberately fail to provide information that must be ful- filled as referred to in Article 30 para- graph (1) and paragraph (2) and Ar- ticle 34 paragraph (1) and paragraph (2), shall be threatened with impris- onment of at least 2 (two) years and a maximum of 10 (ten) years and a fine of at least Rp.5,000,000,000.00 (five billion rupiah) and a maximum of Rp.100,000,000,000, 00 (one hundred billion rupiah).
2. Members of the Board of Commission- ers, Board of Directors, or bank em- ployees who fail to provide information that must be fulfilled as referred to in Article 30 paragraph (1) and paragraph (2) and Article 34 paragraph (1) and paragraph (2), shall be threatened with imprisonment of at least 1 (one) year and a maximum of 2 (two) years and or a fine of at least Rp.1,000,000,000.00
(one billion rupiah) and a maximum of Rp.2,000,000,000, 00 (two billion ru- piah)”.
Criminal Acts of False Recording, Bribery, Precautionary Principle,
Criminal acts related to business activities, including making or causing false records, eliminating, not entering, causing non-re- cording, changing, obscuring or eliminating records in books or business activity reports, transaction reports or accounts, or chang- ing, obscuring, eliminating, hiding or dam- aging bookkeeping records, not carrying out prudential principles in accordance with the provisions that Apply, request and/or receive rewards from customers who obtain facilities from the Bank. Based on research on cases in the banking sector that occur, most of them are caused by imprudent lending, especially credit to parties related to bank owners and / or administrators. These loans almost all end up being non-performing loans, thus bringing the bank in a situation of financial difficulties.
In addition, there are several other deviations in Various variations of modus operandi, such as window dressing, bank fee mark-up cases, utilizing bank facilities or creating facili- ties for the benefit of parties related to banks, and embezzling bank funds through various means.
In addition, there are criminal acts related to bank business activities in the form of dis- tributing funds, for example requesting and/or receiving rewards from customers who obtain facilities from the bank, regulated in Article 49 paragraph (2) letter a of the Banking Law.
Meanwhile, Article 49 paragraph (2) point b of the Banking Law is generally applied if banks do not implement steps to ensure bank compliance with applicable regulations, so it is often seen as an article that can be used to
criminalize perpetrators of violations of bank- ing regulations, especially those related to prudential regulations, including legal lend- ing limit (BMPK) provisions.
In many criminal cases, CDO documents are very important evidence and are needed by investigators. With the CDO document, especially related to BMPK violations, the in- vestigator will check whether or not the per- son concerned is carrying out the things out- lined in the CDO document. In the event that the perpetrator does not carry it out, it may be subject to Article 49 paragraph (2) point b of the Banking Law. Without CDO, BMPK vio- lations at commercial banks can only be sub- ject to administrative sanctions as stipulated in the Banking Law.
If the bank violates criminal provisions in the implementation of its business activities, the perpetrators may be subject to criminal sanctions as stipulated in the provisions of Article 49 of the Banking Law, namely:
“(1) Members of the Board of Commis- sioners, Board of Directors, or employees of a bank who knowingly: a. make or cause false records in the books or in reports, or in docu- ments or reports of business activities, trans- action reports or accounts of a bank; b. omit or do not include or cause non-recording in the books or in reports or in documents or re- ports of business activities, transaction reports or accounts of a bank; c. alter, obscure, hide, delete, or eliminate the existence of a record in the books or in reports, or in documents or reports of business activities, transaction re- ports or accounts of a bank, or intentionally alter, obscure, eliminate, hide or damage such bookkeeping records, punishable by impris- onment of at least 5 (five) years and a maxi- mum of 15 (fifteen) years and a fine of at least Rp.10,000,000,000, 00 (ten billion rupiah)
and a maximum of Rp.200.000.000.000,00 (two hundred billion rupiah).
(2) Members of the Board of Commission- ers, Board of Directors or bank employees who knowingly: a. request or receive, per- mit or agree to receive a reward, commis- sion, additional money, services, money or valuables, for his personal benefit or for the benefit of his family, in order to obtain or attempt to obtain for others in obtaining ad- vances, bank guarantees, or credit facilities from the bank, or in the course of the pur- chase or discounting by the Bank of money orders, promissory notes, cheques, and trade papers or other evidence of obligation, or in order to give consent for another person to make a withdrawal of funds in excess of his credit limit with the Bank; b. failure to carry out the necessary steps to ensure the bank’s compliance with the provisions of this Law and other laws and regulations applicable to the bank, shall be punished with imprison- ment of at least 3 (three) years and a maxi- mum of 8 (eight) years and a fine of at least Rp.5,000,000,000.00 (five billion rupiah) and a maximum of Rp.100,000,000,000.00 (one hundred billion rupiah)”.
1. Shareholder Crime
Banking crimes related to owners/share- holders are regulated in Article 50A of the Banking Law which reads: “Shareholders who intentionally instruct the Board of Com- missioners, Board of Directors, or employees of the bank to do or not take actions that re- sult in the bank not carrying out the necessary steps to ensure the bank’s compliance with the provisions of this Law and other laws and regulations applicable to the bank, shall be punished with imprisonment of at least 7 (sev- en) years and a maximum of 15 (fifteen) years and a fine of at least Rp.10,000,000,000.00
(ten billion rupiah) and a maximum of Rp.200,000,000,000.00 (two hundred billion rupiah)”.
This is the explanation of normative defi- nitions related to criminal acts in the bank- ing sector contained in the Banking Law. The Banking Law has basically comprehensively regulated the provisions on criminal acts in the banking sector. The sanctions given, both imprisonment and fines are adequate, so that law enforcement against criminal acts in the banking sector can be carried out as the actual legal function.
In the function of law as the protection of human interests, law has a purpose. The law has a goal to achieve. The main purpose of law is to create an orderly society, to create order and balance. With the achievement of order in society, it is hoped that human inter- ests will be protected.
In achieving this goal, the law is tasked with dividing rights and obligations between individuals in society, dividing authority and regulating how to solve legal problems and maintain legal certainty.
Stated by Sudarto2, in essence the law regulates society properly and beneficially by determining what is required or allowed and vice versa. The law can qualify and act ac- cording to the law or discuss it as against the law. Actions that comply with the law are not a problem and do not need to be questioned;
The problem is unlawful acts. Even what is noticed and worked on by the law is pre- cisely this last mentioned act, both unlawful acts that actually occur (onrecht in actu) and unlawful acts that may occur (onrecht in po- tentie). The attention and cultivation of deeds is what constitutes law enforcement. Against
2 Sudarto, 1996, Capita Selecta of Criminal Law,
unlawful acts sanctions are available.
There are three law enforcement systems, namely the civil law enforcement system, the criminal law enforcement system and the ad- ministrative law enforcement system. In line with that, there are successive civil law sanc- tions systems, criminal law sanctions systems and administrative law (state administration) sanctions systems. The three law enforcement systems are each supported and implemented by state equipment or commonly called law enforcement apparatus, which has its own rules as well.3
Law enforcement in a country according to Satjipto Raharjo, should be seen in the lens of an interactive process, that what is shown to us as a result of law enforcement 4should not be accepted as a result of law enforce- ment itself, but rather the result of the work of an interactive process that affects each other among various existing components, such as law enforcement itself, existing regulations, community members, available physical fa- cilities and so on.
Efforts to combat crime according to G.P.
Hoefnagels can be achieved by the application of criminal law (criminal law application);
prevention without punishment; and influenc- ing views of society on crime and punishment (mass media).5
Efforts to overcome crime can be broadly divided into two, namely through penal chan- nels (criminal law) and through “non-penal”
channels (not / outside criminal law). Associ- ated with the concept of division of crime re- duction efforts according to G.P. Hoefnagels
3 Ibid.
4 Satjipto Raharjo, 1999, Law, Society and Development, Bandung: Alumni, p. 141.
5 Barda Nawawi Arief, 1996, Potpourri of Criminal
above, prevention efforts without crime and influencing public views on crime and pun- ishment through mass media are categorized in non-penal groups, while crime reduction through penal channels focuses more on re- pressive nature (suppression or eradication or eradication) after crime occurs. The non- penal path focuses more on the preventive nature (prevention or deterrence or control) before a crime occurs.
In relation to the doctrine of the experts mentioned above, in terms of criminal law en- forcement in the banking sector, crime coun- termeasures should be applied by stakehold- ers.
When drawn in a wider frame, there is a very strong correlation with the country’s economy. Banking activities are one of the pillars of the country’s economy which is a very important driving force of the economy.
The growth and development of a bank, very dependent on public trust, namely the trust of banking service users or customers, and oth- ers are the main capital that must be firmly held by banks6, This correlation is the main factor that if the countermeasures against banking crime do not get the appropriate por- tion, the country’s economy will be disrupted.
CONCLUSION
The forms of banking crimes in the Banking Law are regulated in Articles 46 to Article 50 A. In the provisions of the Banking Law there are 5 types of criminal acts in the banking sector, namely crimes related to li- censing; criminal offences relating to the dis- closure of bank secrets; criminal acts related to bank supervision; Criminal acts of false
6 T. Darwini, Legal Protection for Banks and Their Customers, Legal Magazine Vol. 8 No. 2 August 2003
listing, bribery, precautionary principles and criminal acts relating to shareholders. Bank- ing crimes or crimes that occur in banking practices, including credit, such as granting credit to fictitious or mask debtors; funding, for example the use of bank funds for the ben- efit of the family of the bank commissioner;
report engineering, for example window dressing bank financial statements; abuse of authority; not recording, for example the bank does not record customer funds in the bank’s books; mark-up, for example mark-up of the purchase of a building for additional depos- its of the owner’s capital; and embezzlement, against collateral belonging to the debtor.
Law enforcement efforts through countermeasures against banking crime in- clude preventive and repressive efforts. Im- plementation Preventive efforts can include increasing cooperation between policy stake- holders, such as Bank Indonesia and related work units, while the implementation of re- pressive efforts can be carried out by estab- lishing cooperation in handling tipibank with law enforcement officials such as the Police and Prosecutor’s Office of the Republic of Indonesia, the Corruption Eradication Com- mission and PPATK and conducting sociali- zation on banking crimes to law enforcement officials.
BIBLIOGRAPHY
Marfei Halim. Untangling Tangled Threads, Bank Indonesia, Jakarta, 2002.
Sudarto, 1996, Capita Selecta of Criminal Law, Bandung: Alumni.
Satjipto Raharjo, 1999, Law, Society and Development, Bandung: Alumni.
Barda Nawawi Arief, 1996, Potpourri of Criminal Law Policy, Bandung Citra Aditya Bakti,
T. Darwini, Legal Protection for Banks and Their Customers, Legal Magazine Vol. 8 No. 2 August 2003 FH USU North Sumatra Medan,: 232-246.
