Analisis Yuridis Penggunaan Undang-Undang Tindak Pidana Korupsi untuk Menjerat Pelaku Pelanggaran Prinsip Kehati Hatian Bank

Abstract

The application of the criminal act of corruption against violations of the precautionary principle in granting credit to BUMN / BUMD banks is still an issue of debate. Some consider the violation to be a violation that should be charged with the Banking Law because it is within the banking area, and others consider the violation to be a corrupt act that should be charged with the TIPIKOR Law because it harms State finances. This normative juridical research discusses the problem of setting the precautionary principle in granting credit to BUMN / BUMD banks and the legal certainty of the appropriate law to be used to ensnare perpetrators of violations of the precautionary principle that cause financial losses to the State. This normative juridical research discusses the problem of setting the precautionary principle in granting credit to BUMN/BUMD banks and the legal certainty of the appropriate law to be used to ensnare perpetrators of violations of the precautionary principle that cause financial losses to the State. The regulation of the prudential principle in granting credit to BUMN/BUMD banks based on the Banking Law, POJK, and SOP is an obligation to support public trust. In the Banking Law, POJK, and SOP, violations of the prudential principle by BUMN / BUMD banks in granting credit cannot be subject to criminal sanctions for corruption, but criminal sanctions in the form of banking crimes and administrative sanctions. But so far the application of corruption crimes against violations of the prudential principle in granting credit to BUMN / BUMD banks follows the APBN / APBD supervision mechanism, which according to this mechanism overrides administrative sanctions and other laws related to violations of the prudential principle if it meets the corrupt element and applies the TIPIKOR Law to ensnare the perpetrators of these violations. In order to create legal certainty against violations of the bank's prudential principles in providing credit to BUMN / BUMD banks, it is necessary to understand that there is a systematic lex specialis principle which explains that for acts that can be charged with two special laws, the law that regulates the problem in more detail is used. For example, if the personal subject, the object of the alleged violated act, and the delicti environment are in the context of banking, the Banking Law is the one that applies, even though other special laws such as the Anti-Corruption Law have elements of the offense that can cover it.