Deferred Preferred Prosecution Agreement / Non-Prosecution Agreements: Ideas and Expectations.

In relation to business transactions and various corporate activities, the true function of law and law enforcement officers is not only to realize legal certainty but also to be able to integrate economic interests with various other social aspects. Law enforcement carried out by law enforcement officials must be able to accommodate the sense of justice of the community and realize legal certainty, which at the same time is able to provide benefits for the interests of the nation and the country as a whole. The embodiment of the three objectives of law simultaneously and in parallel are commonly known as sustainable justice as in contemporary theory, which requires that the legal process and law enforcement be able to realize certainty, justice, and prosperity.

Criminal law enforcement must have implications for other social aspects so that they are not placed face to face but the enforcement of criminal law should be able to support and support other aspects such as economic and development aspects. From this perspective, the ideal pattern of punishment is not limited to the definition of pure punishment, but there are other assessments such as politics and economics.

The basic concept of the Deferred Prosecution Agreement (DPA) initiated by Dr. Asep N. Mulyana is a law enforcement process regarding to business crime. Law enforcement officials are required to pay attention to the characteristics and nature of economic activities that are not only in contact with aspects of criminal law but often also intersect with aspects of administrative law as well as civil rights.

The idea of DPA going back to the Prosecutor’s authority to prosecute corporate and business crimes, but agreed to postpone or not prosecute provided the corporation is willing to meet the conditions and conditions set by the Prosecutor. The terms and conditions agreed between the Prosecutor and the report are subsequently set forth in an agreement called the Non-Prosecution Agreement (NPA).

During the DPA process, each corporation can still carry out business activities by including the assistance of prosecutors who carry out comprehensive improvements to the governance and business process of a corporation. As such, DPA acts as an effort to uphold criminal law, while still not eliminating the function of criminal law at the repressive level, but empowering it with orientation to the greatest benefit of society, economic growth and rule of law.

The spirit of the concept of DPA can be interpreted as a manifestation of the Restorative Justice System. The main principles of Restorative Justice generally aim that the perpetrators of criminal offenses are responsible for repairing the damage caused by their mistakes. Furthermore, it provides an opportunity for criminal offenders to prove their capacity and quality while overcoming constructive guilt. This can be done by involving the victim, family and other parties in solving the problem. Then create a forum to work together in solving problems. When this is achieved, it then establishes a direct and tangible relationship between what is deemed wrong or evil and a formal social reaction.

As an idea, DPA and NPA should be welcomed as a means of integrative law enforcement in filling the weaknesses of law enforcement models that are commonly used. As for the reasons, first, to overcome legal weaknesses in handling corporate criminal acts such as inefficiencies in time as well as efforts and costs. Second, in terms of economic analysis of law (EAL), prioritizing return on assets and revenue of state finances as the main principle of resolving legal issues.

According to Dr. Asep N. Mulyana, the mechanism of DPA and NPA as integrative law enforcement for corporate and business crime can be found as follows:

Thus, the application of DPA and NPA as actions of law enforcement officials does not merely focus on the aspect of punishment (repressive), but also pay attention to improving corporate governance and compliance, before the occurrence of violation (preventive), when crime occurs (corrective), and after the violation occurred (rehabilitative). The mechanism offered shows  there is a need to analyze changes in the culture and personnel of the company so law enforcement officials can provide recommendations to reposition corporate entities that are considered to be the cause of violations (fraud).

Part of : Business Law

Writer : Dr. Fajar Sugianto, S.H, M.H.
Editor : Marcomm