Kedudukan Harta Benda Terdakwa sebagai Barang Bukti untuk Pembayaran Uang Pengganti dalam Tindak Pidana Korupsi

Abstract

Corruption has an impact on the occurrence of large losses to state finances, so its handling needs to be carried out in an extraordinary manner. One of the efforts to counter corruption is through the return of state losses by paying replacement money. Article 18 paragraph (2) of the Law on Corruption Crimes, states: If the convict does not pay the replacement money as referred to in paragraph (1) b no later than 1 (one) month after the court decision that has obtained permanent legal force, then his property can be confiscated by the prosecutor and auctioned to cover the replacement money. The phrase of the sentence that his property can be confiscated by the prosecutor and auctioned to cover the replacement money, providing an opportunity for law enforcement in the investigation process to confiscate the Defendant's property that is not related to the crime of corruption as a guarantee for the payment of replacement money, while confiscation is needed to strengthen the suspicion of law enforcement against the Defendant's mistake as proof capital at trial. This study focuses on discussing (1) What are the criteria for the Defendant's property that can be confiscated as evidence (2) What is the relationship between Private Law and Public Law (Criminal) related to the Defendant's property confiscated as payment of State Compensation (3) What is the legal protection of the Defendant's property that is confiscated as evidence for the payment of compensation in a corruption crime. This research is a normative legal research with a Statutory approach, a case approach and a conceptual approach. Data collection was carried out through literature studies and field studies through interviews with google forms. The data analysis used is qualitative analysis. The theories used are Legal System theory, Law Enforcement Theory and Legal Protection Theory. The results of the study show that (1) The Defendant's property that can be confiscated as evidence in a case of corruption, is property that meets the provisions of Article 39 of the Criminal Code, because the principle of evidence is to support the proof of the Defendant's actions, not to be used as a guarantee for the implementation of punishment, as in civil cases(2) The relationship between private law and public law (criminal) in confiscation, shows that there is a meeting between two branches of law that have different functions, the state guarantees and protects the ownership of the defendant's property in private law, but when the property is related to a criminal act, then, the state through public law can confiscate the property for the benefit of the state (3) Although juridically there is legal protection for the confiscated property of the Defendant as evidence through: Pretrial, Civil Lawsuit and Enforcement of Confiscation rules, but the practice of confiscation that exceeds the limits of authority still occurs due to the disharmony between norms and legal practices weak judicial oversight mechanisms, and the law enforcement paradigm that focuses too much on the interests of restoring state losses