BUSINESS banking contains many risks, including credit, market, operational, liquidity, strategic, reputation, legal and compliance risk. For there are two Islamic banks more risk, ie the risk of investment and risk for hasil.Untuk Indonesia, banks also face a political risk, because the behavior of politicians who sometimes detrimental to the bank. Compliance risk is the risk faced by banks because they do not abide by the laws and regulations as prescribed by the banking authorities after it was found that the deviation by the bank. Compliance risks may include administrative sanctions and criminal sanctions as regulated banking laws. This paper discusses the criminal sanctions to the commissioners, directors, and employees of banks that do not obey the commands of the banking regulatory authority of Bank Indonesia.
Incomes of Indonesia Predicted to Reach USD11.000Memahami Price MinyakChinese criminal EffectSanksi Numerology is arranged in the criminal provisions that are broom universe set forth in article 49 paragraph (2) letter b of the Banking Law No. 7 of 1992 concerning Banking (Conventional) as amended by Act No. 10 of 1998 (the Banking Act) and Article 63 paragraph (2) b of Law No. 21 of 2008 concerning Banking Syariahyang subject of commissioners, directors, and employees bank.Ketentuan the same also applies to affiliated parties and shareholders , The application of criminal provisions are often applied indiscriminately, causing many innocent victims in banking circles. How the actual application of these provisions are fair and provide legal certainty so as not to cause innocent victims? Conditions BerlakuPasal 49 paragraph (2) b of the Banking Act Conventional reads commissioners or bank employees who deliberately do not implement the measures necessary to ensure bank observance of the provisions of this law and the provisions of other laws and regulations shall be punished with imprisonment of minimum 3 (three) years and maximum of 8 (eight) years of imprisonment and a fine of between five billion and at most 100 billion rupiah.Ketentuan Act conventional banking was wider (more broom universe) of the Islamic Banking Act provisions. Islamic banking law violations only associate with Sharia Banking Law, Banking Law Conventional while associating with violations of the Banking Act (Conventional) and the provisions of the legislation lainnya.Administrative ultimium RemediumAdministrative Penal Law and Penal Law (APL) is all the legislation in the sphere of state administration have criminal sanctions for example Act No. 41 of 1999 on Forestry and Law No. 7 of 1992 as amended by Act No. 10Tahun1998. UUPer-banking are administrative reinforced by criminal sanctions, so it is also called the admistrative penal law. In addition, the provisions of the Banking Law adheres to the principles ultimum remedium. This means that criminal law as a last resort in the enforcement hukum.Kalau a case can be resolved by other means such as administrative action, a settlement with the enforcement of criminal law is not necessary. In this case, the criminal provisions contained in the Banking Act is not directly applicable in case of criminal offenses. Prior to the application of criminal provisions, do administrative efforts. It should be stated explicitly in the Act, for example, in Article 100 of Law No. 32 of 2009 on the Environment. Penal administrative nature is not regulated clearly in the trunk and not also in the explanation of the Banking Act, so many are not understood by the search keadilan.Bahkan, not everyone understands bank supervision and guidance system also understand the application of administrative penal in the Banking Act based on the principle ultimumremedium , Dalamhalini, criminal provisions in the Banking Act is ultimum remedium, the application of criminal provisions made after various administrative effort done first. On the contrary, the criminal provisions of banking, premium bukanbersifat remedium are directly applied without waiting for prior administrative action dahulu.UU Banking using the formulation did not implement the measures necessary to ensure compliance with the bank which is general and broad is often misinterpreted, that the reference to measures is the system operating procedures (SOP) owned by banks. If interpreted Thus, any violation of banking regulations SOP or administrative nature will dianggapsebagai criminal offense. For example a bank violates the provisions of Statutory, The NOP or no or late in submitting reports to the authority of the banking / Bank Indonesia.Penafsiran is dangerous, because any violation of SOP although there are no significant internal regulations and still be considered a criminal offense, so it is easy once a bank clerk criminalized. Supposedly measures defined as the steps that should be done or not done bank, to correct the irregularities that occurred in the context of the development bank. Steps is included on the action plan, letter of guidance or treatises meeting meeting between the authorities and the bank, which is known by the name of cease and desist orders. So the steps are specific, for their violation must be corrected and not standard measures contained in the Criminal SOP.Subjek TerbatasSalah the limitations of the criminal provisions of Article 49 paragraph (2) b Article of the Banking Act is the subject of the law is limited, that the commissioner , directors, and employees of the bank. So if there are people outside the banks involved (participation in a criminal act) can not be charged with this article. Subject to limited offenses can be detrimental to commissioners, directors and employees of the bank. Also detrimental to the enforcement of criminal offenses subject hukum.Keterbatasan is also one of the characteristics of banking regulations that are lex. Thus the provisions of this article may be applied to commissioners, directors and employees of any bank. With this reason also the general hukumterutamajaksapenuntut enforcement tends to ensnare commissioners, directors and employees of the bank and not the other actors from outside the bank. In addition, the subject of criminal offenses are limited mengakibatkanpenegakhukum, using legislation like the more common UndangHukumPidana Criminal Code, the Law on the Eradication Korupsi.YurisprudensiAda some jurisprudence as the implementation of Article 49 paragraph (2) letter b. There is jurisprudence that implement these provisions correctly, there are also wrong. The correct application is seen in the West Jakarta District Court No. 001 / PID / B / 1998 / PN.JKT.BAR, 13April1998denganterhukum Ahmad Febby Fadhillah, commissioner of PT Bank Citra and Chandra W, director of the Bank Citra.Majelis led by Andar Purba SH convict two defendants to jail terms of three months each and forty million fines for not performing the steps requested in writing by Bank Indonesia as a supervisor and bank supervisors to correct deviations dilakukannya.Penyimpangan yangdilakukan is not implementing the measures ordered by Bank Indonesia through four letters during 1997 to improve violations, such as buying bonds on behalf of the bank, however, the bond is not recorded in the bank, PT Bank Citra using the money to the defendant company. On the other hand, there is a court decision to apply Article 49 paragraph (2) b is less precise, such as the decision of South Jakarta District Court that sentenced imprisonment for three years and a fine of five billion rupiah for three employees of Bank Rakyat Indonesia, which does not apply SOP fully at the time of accepting gold as collateral to pledge for loans granted to customers. Then, gold is pawned it was counterfeit without thorough checking sebelumnya.SolusiPenerapan banking regulations that are ultimum remedium is indeed broad in scope, but its application is not sertamerta. Prior to the application of the criminal provisions of banking, administrative actions should be done by the authorities to ask the bank’s commitment to make improvements in order to comply with the applicable regulations. If the bank does not comply with its commitments, then it can diterapkan.Selanjutnya penal provisions to prevent any more casualties, banking authorities and the banking industry to do the same perception with law enforcement officials and academics and others, so there is no application of hukumyangkeliru. Untukjangka length of the Banking Law needs to be revised, so that it becomes more clear arrangement on the principle of ultimum remedium in Law tersebut.YUNUS HUSEINKepala PPATK 2002-2011 & Banking Law Lecturer FHUI