Criminalization of Gratification

By: Bon@_190708

It was told at the time of the Prophet Muhammad have an official charity collector in the district of Bani Sulaim named Ibn al-Lutbiyyah. In practice he took little treasures collected zakat which he claims as a gift. Hearing this, the Prophet gave the reaction, as narrated by Abu Daud, that people who have been raised as an officer so if he receives anything beyond his salary is an act of corruption.

Black's Law Dictionary gives the sense of gratification as "a voluntarily given reward or recompense for a service or benefit" that can be interpreted gratification is "a gift given for obtaining any aid or benefit."

Criminalization of Gratification.

Gratuity is different with prizes and charity. Gifts and alms are not related to the interest to obtain a specific decision, but the motive is based on sincerity alone. Gratuity provision to obtain certain advantages over the decision issued by the recipient of gratification. Thinking that is the basis of article criminalization of gratification. Article punishment gratification, Article 12B paragraph (1) of Law no. Law No. 31/1999 yo. 20/2001, which reads each of the gratification to civil servants or state officials considered a bribe, if it relates to his position and that contrary to obligations or duties. From the formulation of articles, means that not all gratuities to be bribes. gratification that a bribe which resulted in criminal penalties (punishment gratuity) (article 12B (2)).

Crime Authentication Process Gratification.

From the formulation of Article 12B paragraph (1) of Law no. Law No. 31/1999 yo. 20/2001, elements of criminal acts or bribery Gratuity there are two, first, the giving and acceptance of gratuities (handover); second, which is associated with the position and contrary to what has become an obligation or duty. In this second element, appearing juridical construction derivative (derivative element) element of the second of two things, namely from office issued a decision contrary to the obligations or duties. And, this decision benefit the giver of gratification. This means, in the second element, there are positions that the decision of the decision is contrary to the obligation or duty (against law) and there are benefits from this decision to the giver of gratification.

The first element and second element, bound by the formulation of the word "when associated with". This shows a causal relationship (qondite sine quanon) between the first element with the second element. The word "if" indicates that the legislature recognizes that not all the gratification associated with the position (second element.) Without a causal relationship of two elements of the crime gratuities or bribes can not be integrated into the crime gratuities or bribes.

If evidence of criminal acts of gratification means indicates the existence of two elements mentioned above and show a causal link between the two elements. Operationally, which must be proven by the Prosecutor General, first, the handover of gratification, second, a decision that gives advantage to the graft recipient, the third, the existence of cause and effect of these two things.

Catch Hand Against Perpetrators of Gratuity?

The arrest perpetrators of gratification in criminal law relating to when the graft into the crime so that law enforcement agencies or the investigator can take legal action, including arrest at the time of receiving gratuities or commonly referred to as catching hand. Authority officials do catch the hand only on the legal actions that qualify the crime.

According to the Act in force, essentially gratification does not automatically become a terkualifisir acts as criminal acts. This can be seen from the formulation of article 12 C (1) which reads; provisions referred to Article 12B (1) does not apply if the recipient receives gratification gratification report to the KPK. Graft recipients still have 30 days to report to the Corruption Eradication Commission (KPK) (Section 12C (2)). Article 12C Paragraph 1 and Paragraph 2 delete gratification as punishment provisions in Article 12B paragraph 1. This means, gratuity is not automatically a crime because the law still provides the opportunity to report to the KPK. So, the KPK within 30 days after receiving the report shall specify gratification gratification can become state property. (Section 12C (1)).

Gratuity as a symbol.

Based on the construction of Article above, by law or the formulation of the above article actually catching hand gratification can not be justified because it is contradictory to Article 12C (1). However, on the other hand, the arrest of gratification is very useful to reveal the existence of an agreement acts of corruption. This is because the gratification to be artifacts or symbols or agreement. Gratuities are at the end of the game face criminal conspiracy is catching hand korupsi.Tanpa gratification is impossible or difficult to reveal the existence of a conspiracy of corruption.

Therefore, if the Commission should have caught the hand of the events of gratification, then do not dwell on gratifikasinya but should make catching the hand of gratification as a way of capturing the hands of a corrupt conspiracy act. Do not get caught accepting gratuities criminal processed, while those dikonspirasi (initial conspiratorial game) is not touched by the criminal process. It could be caught in the act is just one of two men of conspiracy in which participants other participants more likely to be able to enjoy and benefit from material that acts conspiracy