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VOL. 11, ISSUE 5 (2025)
Reformulation of banking criminal law in handling problematic credit
Authors
Mohamad Syahnez Welden Aditya Cono, Fence M. Wantu, Dian Ekawaty Ismail
Abstract
This paper addresses the discord in the
enforcement of criminal law with problematic loans within the banking sector, particularly
at the intersection of Banking Law and the Corruption Eradication Law
(Tipikor). Loans deemed problematic at state-owned banks (BUMN/BUMD) are often
classified as criminal acts of corruption due to their perceived harm to public
finances, while analogous situations in private banks are just governed by the
Banking Law or settled by civil means. This presents significant issues with
the concepts of legal certainty and equal treatment under the law, and it may
lead to the overcriminalization of banking professionals who have not shown
malevolent intent (mens rea). This study underscores the necessity of upholding
the principle of lex specialis derogat legi generali, asserting that the
criminal provisions in the Banking Law or Law Number 4 of 2023 regarding the
Strengthening and Development of the Financial Sector (UU P2SK) should function
as special laws in addressing infractions in banking operations. The paper
employs a normative legal approach using conceptual and legislative analytic
tools and analyzes several court rulings that reveal inconsistencies in law
enforcement regarding problematic credit issues. This study's findings reveal
that the extensive implementation of the Corruption Law in cases of credit
irregularities within state-owned banks has engendered legal ambiguity and
overlooked the established special banking legal framework that meticulously
delineates the components of the offense, legal entities, and punitive
measures. Consequently, normative norms and ius constituendum are required in
the form of rules or collaborative guidelines among law enforcement authorities
to delineate the distinctions between financial offenses and corruption
offenses. This stage is crucial for establishing an
equitable and proportionate legislative framework that guarantees the stability
of the national banking sector.
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Pages:51-56
How to cite this article:
Mohamad Syahnez Welden Aditya Cono, Fence M. Wantu, Dian Ekawaty Ismail "Reformulation of banking criminal law in handling problematic credit". International Journal of Law, Vol 11, Issue 5, 2025, Pages 51-56
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