KRIMINALISASI DAN DEKRIMINALISASI DALAM KUHP BARU: TELAAH NORMATIF ATAS TINDAK PIDANA TERTENTU DALAM UNDANG-UNDANG NOMOR 1 TAHUN 2023

Abstract

This study normatively examines specific criminal acts that underwent substantive reformulation in Law No. 1 of 2023 on the Criminal Code (New Criminal Code), which will take full effect on January 2, 2026. The study focuses on three clusters of criminal acts that are most academically controversial: offenses against the dignity of the President and state institutions (Articles 218–220), sexual morality offenses particularly cohabitation and adultery (Articles 411 and 415), and contempt of court (Article 281). Normative legal research methodology is employed with statutory, conceptual, and case approaches (Constitutional Court Decision No. 013-022/PUU-IV/2006). Two principal normative tensions are identified: first, the tension between the harm principle as a modern criminalization principle recognized in criminal law doctrine and the legal moralism approach that characterizes several provisions of the New Criminal Code; second, the tension between the lex certa principle and provisions using overly broad formulations susceptible to abuse. The study also identifies that the article on presidential dignity presents a constitutionality problem not fully resolved by the prior Constitutional Court ruling due to differences in normative formulation.

Keywords: New Criminal Code, Criminalization, Harm Principle, Legal Moralism, Legal Certainty