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KESENGAJAAN (DOLUS) DALAM TINDAK PIDANA

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KESENGAJAAN (DOLUS) DALAM TINDAK PIDANA

 

Dalam Crimineel Wetboek (Kitab Undang – Undang Hukum Pidana) tahun 1809 dijelaskan pengertian,”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 (kemudian menjadi Kitab Undang – Undang Hukum Pidana tahun 1951), dimuat antara lain bahwa kesengajaan itu adalah dengan sadar berkehendak untuk melakukan suatu kejahatan tertentu (de bewuste richting van den wil op een bepaald misdrijf).

Menurut Prof. SATOCHID KARTANEGARA, yang dimaksud dengan “opzet willens en weten”  (dikehendaki dan diketahui) adalah “Seseorang yang melakukan suatu perbuatan dengan sengaja harus menghendaki (willen) perbuatan itu serta harus menginsafi atau mengerti (weten) akan akibat dari perbuatan itu”.

“Kehendak” dapat ditujukan terhadap:

  1. Perbuatan yang dilarang;
  2. Akibat yang dilarang.

Pengertian “kesengajaan” dalam hukum pidana dikenal 2 (dua) teori, yaitu:

  1. Teori Kehendak (Wilstheorie)
  2. Teori Membayangkan (Voorstellingstheorie);

Teori Kehendak (Wilstheorie) dikemukakan oleh VON HIPPEL  dalam bukunya Die Grenze Vorsatz und Fahrlassigkeit tahun 1903, yang menyatakan kesengajaan adalah kehendak membuat suatu tindakan dan kehendak menimbulkan suatu akibat dari tindakan itu. Akibat dikehendaki apabila akibat itu yang menjadi maksud dari tindakan tersebut.

Teori membayangkan (Voorstellingstheorie) dikemukakan oleh FRANK dalam bukunya Festschrift Gieszen tahun 1907 yang menyatakan bahwa manusia tidak mungkin dapat menghendaki suatu akibat; manusia hanya dapat mengingini, mengharapkan dan membayangkan (voorstellen) kemungkinan adanya suatu akibat.

Teori tentang kehendak terbagi menjadi 2 (dua) ajaran, yaitu:

  1. Determinisme, berpendapat bahwa manusia tidak mempunyai kehendak bebas. Manusia melakukan suatu perbuatan didorong oleh beberapa hal, baik yang berasal dari dalam dirinya maupun dari luar dirinya;
  2. Indeterminisme, aliran ini muncul sebagai reaksi dari aliran determinasi, yang menyatakan bahwa walaupun untuk melakukan sesuatu perbuatan dipengaruhi oleh bakat dan milieu, manusia dapat menentukan kehendaknya secara bebas.

Aliran Determinisme tidak dapat diterapkan dalam hukum pidana karena akan menimbulkan kesulitan dalam hal pertanggungjawaban terhadap seseorang yang diduga melakukan suatu Tindak Pidana atau kejahatan (criminal act). Efek domino dari “Aliran Determinisme“ kemudian muncul “Determinisme Modern”  yang menyatakan bahwa, “Manusia adalah anggota masyarakat, dan sebagai anggota masyarakat apabila melanggar ketertiban umum, maka ia bertanggungjawab atas perbuatannya”. Menurut pendapat Penulis, dengan adanya frasa “melanggar ketertiban umum”, maka perbuatan orang tersebut dapat dikualifikasikan sebagai melawan hukum menurut konsepsi hukum pidana (wederrechttelijkheid) karena bertentangan dengan kepantasan dalam masyarakat dan bertentangan dengan kewajiban hukum anggota masyarakat yang ditentukan dalam undang – undang.

Secara umum, para ahli hukum pidana menyebutkan adanya 3 (tiga) macam bentuk kesengajaan (opzet), yaitu:

  1. Kesengajaan sebagai maksud (opzet als oogmerk);
  2. Kesengajaan dengan keinsafan pasti (opzet als zekerheidsbewustzijn);
  3. Kesengajaan dengan keinsafan kemungkinan (dolus eventualis).

Sengaja sebagai maksud menurut MvT adalah dikehendaki dan dimengerti. Kesengajaan dengan keinsafan pasti yaitu si pelaku menyadari bahwa dengan melakukan perbuatan itu, pasti akan timbul perbuatan lain. Kesengajaan dengan keinsafan kemungkinan (dolus eventualis) disebut juga “kesengajaan dengan kesadaran kemungkinan”, bahwa seseorang melakukan perbuatan dengan tujuan untuk menimbulkan suatu akibat tertentu.

Created  and Posted By:
Appe Hamonangan Hutauruk, SH., MH.
Lecturer, Advocate and Legal Consultant
Handphone: 0818964919, 085959597919, 081213502002

 

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About Author: Appe Hamonangan Hutauruk

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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