KESENGAJAAN (DOLUS)

Secara redaksional dalam Crimineel Wetboek (Kitab Undang – Undang Hukum Pidana) Tahun 1809, disebutkan bahwa: “Kesengajaan adalah kemauan untuk melakukan atau tidak melakukan perbuatan – perbuatan yang dilarang atau diperintahkan oleh undang – undang”.

 

Dalam Memorie van Toelichting (MvT) Menteri Kehakiman pada waktu mengajukan Crimineel Wetboek Tahun 1881 (yang kemudian menjadi Kitab Undang – Undang Hukum Pidana Indonesia Tahun 1915), diuraikan bahwa KESENGAJAAN adalah dengan sadar berkehendak untuk melakukan suatu kejahatan tertentu (de buweste  richting van den wil op een bepaald misdriff).

 

Prof. Satochid Kartanegara berpendapat bahwa yang dimaksud dengan opzet willens en weten (dikehendaki dan diketahui), yaitu: “Seseorang yang melakukan suatu perbuatan dengan sengaja harus menghendaki (willen) perbuatan itu serta harus menginsafi atau mengerti (weten) akan akibat dari perbuatan itu”.

 

Sebahagian ahli hukum membuat rumusan pengertian “de wil” sebagai “keinginan, kemauan, atau kehendak”. Sehingga dapat dikatakan bahwa “perbuatan merupakan pelaksanaan dari kehendak”. Sedangkan, kehendak dapat berupa: 1) perbuatan yang dilarang, atau 2) akibat yang dilarang. Pada masa lampau dikenal istilah “dolus malus” yang diartikan sebagai kesengajaan (opzet) dari suatu perbuatan yang dikehendaki dan si pelaku menginsafi bahwa perbuatan itu dilarang serta diancam dengan hukuman.

 

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Dr. (Cand.) Appe Hamonangan Hutauruk, SH., MH.
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Appe Hamonangan Hutauruk selaku Penulis tunggal pada Website: "Law Firm Appe Hamonangan Hutauruk & Associates" adalah seorang "Pegiat Penegakkan Hukum dan Hak Asasi Manusia" serta "Pemerhati Sosial Kemasyarakatan" yang berprofesi sebagai Advokat (Advocate), Konsultan Hukum (Legal Consultant) dan Dosen (lecturer) pada salah satu Universitas swasta di Jakarta, selain itu juga menduduki jabatan sebagai Ketua Umum pada Lembaga Swadaya Masyarakat (LSM) bernama "Komunitas Masyarakat Anti Korupsi dan Penggelapan Pajak (KOMAKOPEPA). youtube.com/c/BeritaHukumKebijakanPublik

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