Percobaan, Permufakatan Jahat Dan Persiapan Perspektif Fiqh Jinayah

Abstract

The purpose of this study is to determine the development of the regulation of attempts, conspiracy, and preparation in the Indonesian Criminal Code and its comparison with as-syuru' fi al jarimah in fiqh jinayah. The type of research used is normative research with a conceptual, legislative, and comparative approach. The results of this study are as follows. First, from the regulatory aspect. In principle, the regulation of attempts between the Penal Code and the Indonesian Criminal Code has undergone significant changes or developments, except for the issue of criminal punishment for attempts. Criminal punishment for attempts remains the same, although the wording is different. Significant changes are also apparent in the issues of conspiracy and preparation, which are included in Book I. In the Penal Code, conspiracy is regulated in Book II, and preparation is not regulated at all. Second, from the aspect of meaning. It is necessary to distinguish between conspiracy (samenspanning) and preparation (voorbereiding), which are applied to very serious criminal acts, and “agreement” (meeting of mind) in participation/complicity (deelneming), attempts with participation, and preparation in attempts. Third, the principle of as-syuru’ fi al-jarimah (attempt) follows the general principles of criminal acts and ta’zir punishments, which also regulate imperfect crimes (jarimah ghairu tammah). Fourth, a comparison of as-syuru' with attempts in the Indonesian Criminal Code. In general, the principles of the two are in line, except on the issue of the elements of attempts with the stages of criminal acts, the second element concerning the commencement of implementation, and the third element concerning implementation. The general principle of as-syuru’, regardless of the form and reason for the incompleteness of the attempt (unfinished, unsuccessful, no consequences, not/of one’s own volition), including criminal conspiracy and preparation, is that if there is an actual malicious intent in the form of the commencement of the execution of the crime, the perpetrator should be punished, except in cases of voluntary incompleteness due to repentance. Meanwhile, the Indonesian Criminal Code still details attempts. If the attempt is not completed at the initial stage of implementation due to voluntary will, the perpetrator is not punished. If it is not of their own volition, they are punished. Furthermore, in the event that the attempt is unsuccessful due to the tool or object being fundamentally flawed, the perpetrator is not punished, even though in subjective theory the perpetrator is punished. Meanwhile, conspiracy and preparation for very serious crimes are punishable.