CORPORATE CRIMINAL LIABILITY

CHAPTER I
INTRODUCTION

In the day-to-day life, people eager to meet life, usually in meeting the needs of people will not loose any other party any other party, the people can bind themselves from each other to achieve a particular goal in meeting their needs, then the relationship among those mentioned as a treaty.

The existence of timbulah perutangan agreement between the parties, namely the legal relationship of two people or more are located in the field of property law, and thus of the deal raises a perutangan, or in other words it is a source perutangan agreement. In addition perutangan can also arise because the laws, meaning the emergence of a perutangan because of the provisions of laws.

If someone entered into an agreement to reach an agreement where achievement and contra held together, for example in the agreement to borrow money, credit or an agreement to achieve a job that counts with a certain amount of money, then for more menyakin namely the achievement undertaken. By borrowers, lenders usually require a specific collateral, commonly called a special warranty, in addition to already be guaranteed of a general nature that have been granted by law.

Bank guarantee letter today many kinds, because it affected the various needs of the bank guarantee for each specific transaction. Such a situation is not strange, because today's business world is growing, in order to attempt to be smooth and runs well then it is necessary assurances and they generally choose the bank as guarantor. With the bank as a guarantor they feel safer and more secure because the position of the bank which has a strong and practical in its implementation if the debtor defaults.
Although the types of bank guarantees and often very much needed by most people in the business world, but in practice has not been established already running properly or has been used by its customers.

CHAPTER. II
BANKING INSTITUTIONS

Banking institution is a financial institution that mediates between parties who have excess funds (surplus of funds) with those who need or lack of funds (lacks of funds), would require no small amount of money in running its business or operations.
Basically, financial institutions are all entities whose activities through its activities in the financial sector to withdraw money from and channeled into the community. As a financial institution, the bank has its main business in the form of the community to raise funds and then distribute it back to the people who need funds in the form of credit or financing based on Sharia Principles. Functions for searching and collecting funds from society in the form of deposits play an important role against a growth of a bank, because the volume of funds that have been collected or stored would also determine the volume of funds that can be developed by the bank in the form of investments that produce, for example in the form granting of loans, purchase securities, or securities in the money market.

From what dikemukn yng above, means that the fund is needed in the management of banks do not solely rely on capital owned by the bank only, but shall be such as to memobilitasi and motivate people to save its own funds in the bank, either in the form deposits or other forms, and through kerjsama with financial institutions. However, the funds coming from the community is the most important funding source for banks in operation.

In order memobilitasi and collecting funds from society it is certainly the bank shall be such as to know the sources of funds contained in the various layers of society with different shapes.
Sources of bank funds into three kinds, namely:
a. Funds sourced from the bank itself.
b. Funds sourced from the public.
c. Funds sourced from financial institutions, both banks and nonbank shaped.

CHAPTER III
CREDIT AND BANK GUARANTEE

A. FUNCTION AND ROLE OF BANKS
Banks as financial institutions much-needed presence in the midst of the community in its efforts to assist in various fields of business, thereby greatly once possible with the position of Bank Indonesia as the central bank which has a function as the "Banker Bank" of state banks and banks private sector especially in terms of supervision, guidance and also Chas supply.
Chas supply is given by Bank Indonesia to banks as credit liquidity, which helps banks acquire dropping Chas for banks operating in need.

B. UNDERSTANDING CREDIT
Etymologically the term loan comes from the Latin, credere, which means trust. Suppose a debtor customers who obtain credit from banks is certainly someone who gets the trust from the bank. This shows that the basic lending by banks to customers debtor is trust.
According to Big Indonesian Dictionary, one definition of credit is borrowing money to repay pembayaraan or loan repayment for up to a certain amount of permitted by the bank or other entity.
In Article 1, point 11 of Law No.10 of 1998 was formulated that the credit is the provision of money or bills can be equated with that, based on agreements persetuan or borrowing and lending between banks and other parties that requires the borrower to repay the debt after a certain period with interest.

Based on the definition above shows that the achievement that must be performed by the debtor under the credit given to him is not merely to pay off its debts but also accompanied by the interest in accordance with the agreement previously agreed upon.

Related to the above credit terms, according to the provisions of Article 1 point 5 of Bank Indonesia Regulation. 7/2/PBI/2005 about Commercial Bank Asset Quality assessment, is the provision of money or credit is a bill that can be equated with that, based on the consent or the borrowing and lending between banks and other parties that requires the borrower to repay the debt after a period certain time with interest included: (a) bank overdrafts (overdraft), which is a negative balance on current account customers that can not be paid in full at the end of the day, (b) for the purposes of the takeover bill factoring-receivables, and (c) acquisition of credit purchases from other parties.

C. THE ROLE OF CREDIT IN THE ACTIVITIES OF THE BANK
The operations are commonly done by commercial banks invest their funds in the provision of credit, securities investment fund international trade transactions, the placement of funds with other banks, investments in capital stock. All activities of the fund invested in the above can not be separated from risk is not paid back, either partially or wholly. In most countries in the world, of all bank funds invested in the above four types of business, credit is the biggest part of the operational assets and property of the bank as a whole. The number of bank funds in various countries who planted credit, ranging from about 50 to 75% of all properties.

D. PART CREDITS AND MARKETING
The share of credit and marketing officials, including credit and marketing division head, division head of credit control officer, a big responsibility in maintaining the quality of credit extended. They act as the first agency in the organization in charge of filtering requests bank credit proposed by the prospective debtor, whether corporate or individual debtor. Furthermore, they continuously monitor the credit quality developments that have been given, one by one as well as a whole.

In the bank's organization, accoun officer is the spearhead of lending activity. One of their main tasks is to help leaders get the debtor a decent bank and maintain good relations with them. At the same time, account officer also assigned to provide security and profitability of banks that lent funds. To perform these tasks well they perform a variety of Activities, namely:
• Collect a healthy debtor as much as possible, analyze the feasibility of their loan request and submit proposals to the ownership lending credit committee or direct supervisor.
• Develop an archive of each debtor's loan documents are complete, neat and fresh (up to date) including various kinds of reports and records concerned with the development of business debtors and their achievement in meeting the content of credit agreements, as well as correspondent banks with the debtor.

• Monitor development of business and financial condition of borrowers.
• Detect early as possible symptoms that would lead to credit problems.
• Maintain good relationships with the debtor.
• Prepare periodic reports on the results of their work.
• Liaise closely with other departments involved in marketing activities, guidance and supervision of credit.

CHAPTER IV
NON-PERFORMING LOANS

A. UNDERSTANDING THE BASIS OF NON-PERFORMING LOANS
In the case of non-performing loans is a part of the banking business life, where the debtor denies their promise to pay interest and / or parent loans that have matured, resulting in late payment or no payment at all. Thus the declining credit quality. In the case of problem loans, there is the possibility of creditors forced to take legal action, or suffer a loss in numbers far greater than the amount estimated to be tolerated. Therefore, the concerned bank should allocate attention, effort, money, time and effort enough to resolve the case.

In the world of international banking, credit can be categorized into the troubled credit when:
• There was delay in payment of interest and / or parent loans more than 90 days from the date of the fall dates.
• Not paid at all
• Necessary negotiations back on loan repayment terms and interest rate stated in loan agreements.

In Indonesia, non-performing loans was categorized into three groups:
• Credit substandard.
• Credit is questionable.
• Loan loss.

B. CORRECTIONS AS A CAUSE OF NON-PERFORMING LOANS
Debtor's bank consists of two groups, namely individuals and companies or corporations. Source of fund interest payments and installment loans most individual debtors (consumer debtors) is their regular income, eg salary, wages, honoraria and so forth. Any type of disruption to their financial sustainability resulting ketidaklancaran interest payments and / or installment credit. Cause of problem loans of other individuals closely associated with the disruption of the debtor's personal self, such as accidents, illness, death and divorce.

The cause of a credit crunch there are several factors, namely that there are three main factors causing non-performing loans, are mismanaged (mismanagement), lack of experience and company experience in the field of business they run, fraud.

B. IMPACT OF NON-PERFORMING LOANS
Nonperforming loans in large numbers to bring adverse impact to both creditor banks, the banking sector in general, as well as on the lives of economic / monetary state.

C. IMPACT ON THE WORLD BANK
Large amounts of nonperforming loans faced by a bank will lower the level of the operating health of the affected banks bad credit problems. If the decline in credit quality and profitability of the bank concerned so much so that affects their financial liquidity and solvency, the Care trust fund will draw their funds from banks, with the result that the financial liquidity of the bank concerned to be worse, so the level of their health declined to the level of the troubled bank . When the number of banks in one country is big enough then the level of public trust in banks in general will decrease, so that inevitably the banking system in each country will be disrupted.
Completion by successfully performing credit is very important for the banking system in every state and in this world. That's because of operational difficulties faced by a bank, can bring adverse impact to other banks operating in the country concerned.

Credit is a source of revenue and profits of the largest banks. The ability of banks to manage credit that they have channeled a major influence on the stability and success of their business as a whole. On the other hand, credit is a type of banking business risks. In the short term, credit can bring big losses. Nonperforming loans in large numbers to bring unfavorable impact on the health of the bank operating loans, the banking sector in general and economic life / monetary state.


D. EARLY SYMPTOMS OF NON-PERFORMING LOANS
Credit quality can not be broken away without giving prior signs, thus, non-performing loans also do not appear suddenly. In most instances, a variety of symptoms gradually decline in credit quality has emerged long before the case itself of nonperforming loans emerge onto the surface. The bankers are carefully monitoring the development of their credit quality could medeteksi these symptoms. Then they can decide what action should be taken to save money they had credited to the debtor.

There are so many types of symptoms would be the emergence of a credit crunch. However, common symptoms that often arises is:
• Deviations from the provisions of credit agreements,
• Decrease in debtor's financial condition,
• Presentation of reports and other inputs are not true.
• Reduced co-operative attitude of the debtor,
• Decline in value of collateral provided,
• High staff turnover frequency of the core,
• The emergence of family problems or serious personal debtor,

E. BANK GUARANTEE
Bank guarantee can be movable and immovable property such as:
1. Immovable property: land
2. Moving objects: motor vehicles, cars, ships, aircraft etc.

CHAPTER V
ISSUES

A. ISSUES
In banking practice there are many problems. With these problems is to be marked with the initial symptoms. These early symptoms can be caused or unknown because of the weaknesses, especially on the part of borrowers who can no longer carry out its obligations to orderly conduct on the installment payments that should be done.

One example of the emergence of fictitious credits which become the culprit is the internal world of banking itself, as well as the perpetrators are outside the banking system that is external (the customers) and internal (bank), in which external and internal factors are interrelated and work together (collusion and corporate ), where internal factors and ektern the crimes that are part of a collection of people together or a corporation for a particular purpose.
According to Utrecht or moh. pious djindang in books written by Prof. koorporasi criminal liability. Dr Muladi, SH, and Prof. Dr.Dwidja PRIYATNO, SH, MH (Page 25. About the Corporation) is:
"Is a combination of people in the association hukumbertindak together as a separate legal subject or personification. Koorporasi is a legal entity whose members, but has its own rights and obligations separate from the obligations of each member. "

Similarly, according to AZ Abidin states that koorporasi seen as the reality of a given set of human rights as a legal unit, which provided the legal person, for a particular purpose (the criminal accountability of books written by Prof. koorporasi. Dr. Muladi, and Prof. SH. Dr. Dwidya Priya, SH, MH).
In banking practice, there are two examples of cases of irregularities and illegal banking, namely:
1. Non-performing loans / credit fictitious.
2. The transfer of the books of accounts.

The explanation is as follows;
1. Non-performing loans between the customer (debtor) to establish a relationship and cooperation, in terms of the loan application within the framework of credit disbursement. The existence of these relations and cooperation was born irregularities or violations committed by both sides together.
In practice, that:
a). The customer (debtor fictitious), either by the banks and the applicant, arranged in such a way to earn and collect people who are willing to co-operation that will serve as as if as a customer, whose job it just came and faced bank officials and mendatangani credit agreements in exchange for giving money, which they basically do not know anything and do not understand.
b). Fictitious data about the identity of its customers, which was not the penghadap requesting the credit and not the ones who will use the money from the credit application.
c). The letters of land used as collateral is not comparable with the value being applied for credit.
d). The letters of land used ASPHALT (real or fake) false, meaning the land there but pisiknya letter no.
e). Who received and who take the money from the credit application is not the customer of record and written in the loan agreements, but parties and actors collector fiktip customer's own bank officials from the start of directors / managers, to the lowest credit bureaus / credit analysis.

The act could cause a legal problem and resulted in financial losses. Actions can be categorized as acts of the corporation, and the corporation can be held accountable as well, because it is done jointly for a particular purpose.

In the book by Prof. Dr. Muladi, S.H and Prof. Dr. Dwidja Priyanto, SH, M.H. "Corporate criminal liability." Chapter III, section E page 120, that the corporation as a criminal has been recognized in positive law, that corporations can be criminally accountable and can be dropped criminal.

The existence of collusion between players and officials credit applicant bank in terms of fictitious credits, it will cause problems in the banking world.
Fictitious credit can be known after the credit being applied to banks going bad debts and nonperforming loans included in the class.
To find bad credit criteria can be determined as follows:
1. No smooth customer / debtor in making payments.
2. The inability of our customers by certain causes. For example: permanent sickness, death, natural disasters, war.

3. The lack of attitude kooperatifnya clients in settlement of its obligations.
Once the loan is classified into non-performing loans and troubled, and based on these criteria, it was held calling on customers and conducted the examination the following customer data collateral data, and thus the results can be known that these credits can be regarded as fictitious credit.
The conclusion that can be known after the fictitious credit loans as bad debts and has been classified as nonperforming loans.

2. Book-entry account customers.
Book-entry account on behalf of customers or savers to pilgrim fare (ONH) is, by unscrupulous employees of the bank by order of the director / head of the bank as a supervisor, ordered that the names of account holders are to be transferred to private accounts in the name of the person as a bank clerk subordinates, whose purpose;
1. To enjoy the bank interest each month.

2. To control the money of customers for the purpose and specific objectives together.
The occurrence of the practice of book-entry accounts for cost Naik Haji (ONH), known by its customers when questioned on the banks of the registration itself has not got the seat numbers for the departure as a prospective pilgrims. Apparently all these customers have not received as a candidate for the seat number of pilgrims because of the book-entry account on behalf of clients (prospective pilgrims) to the above name individual employees of a bank account, so terbongkarlah game and violations committed by the unscrupulous bank employees concerned.
Therefore, such actions can be called a corporate act which may be subject to criminal liability.
If we look at two examples mentioned above, there is the equation because of the actions and responsibilities carried out jointly.

CLOSING
Banking crimes can cause huge financial losses and affect the development of the banking sector itself. Hopefully in the future can be prevented and can be minimized.

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