ANALISIS YURIDIS PERTANGGUNG JAWABAN PIDANA PELAKU TINDAK PIDANA KECELAKAAN LALU LINTAS YANG MENGAKIBATKAN KORBAN MENINGGAL DUNIA PERSPEKTIF HUKUM POSITIF DAN HUKUM PIDANA ISLAM (Studi Pada Putusan Nomor :29/PID.SUS/2020/PT PDG)

Abstract

The existence of an incident commonly known as a traffic accident or
accident caused by a negligent motorbike reder, and causing the loss
of person’s life, includes the application of criminal liability under
Article 310 paragraph 4 of Law Number 22 of 2009 concerning
Traffic and Transportation and combined with the application of
Restorative Justice based on Article 54 and Article 70 of the
provisions of Law Number 1 of 2023 of the Criminal Code. The
research category is normative juridical with reference to literature
or normative juridicial library research which is based on existing
secondary data, into data in the form of primary law. For example,
the approach to law number 22 of 2009 cocerning Road Traffic and
Transportation. Article 310 paragraph 4. The results of the research
concluded that 1. Regarding the decision of the panel of judges in
Decision Number 29/PID.SUS/2020/PT PDG the panel of judges
considered juridically Article 310 paragraph 4 of Law Number 22 of
2009 LLAJ, in accordance with the single indictment of the Public
Prosecutor by imposing a lighter sentence than the demands of the
Public Prosecutor 2.
That the consideration of the Panl of Judges is not in accordance with
the theory of Criminal Individualization because it does not see objective reasons in lightening things for the defendant, in the from of
forgiveness from the victim’s family and the actions that carried out
by the Defendant without any intention form the Defendant, the panel
of judges should not apply Article 310 paragraph 4 of Law Number 22
of 2009 LLAJ, so that it is line with the implementation of legal reform
using the Criminal Individualization theory approach with the
application of Law No. 1 of 2023 Criminal Code 3 states that criminal
acts in Islamic law are categorized as qatlu al-khata as a reference to
mitigating circumstances, in the view of Islamic law it provides an
alternative space for forgiveness with criminal individualization for
perpetrators of criminal acts of negligence by cyclists motorbike that
caused the victim to die, which is known in Islamic law as Tahkim as
legal reform.