Highlights of the Judge's Interpretation of Illegal Control of a State House Is Associated with Material Unlawful Characteristics

Housing and Settlements causes a person to have the status of a defendant on the basis that the occupant of the house is not the owner, which is only valid if there is the owner's approval or permission. Meanwhile, there is the Law Number 1 Year 2011 concerning housing and settlements, which revokes The Law Number 4 Year 1992. Judges' considerations are drawn up after linking the changes to the validity of the law based on Article 1 paragraph (2) of the Law Number 1 Year 1946 concerning the Indonesian Criminal Code (KUHP). It becomes odd when the judge's decision is associated with the unlawful nature of a case. The purpose of writing is to show the inaccuracy of the judge's interpretation of Article 1 paragraph (2) of the Criminal Code and the nature of the material law against a case. The results show that the Law Number 4 Year 1992, in conjunction with the RI Law Number 1 Year 2011, has a different point of view on the meaning of handling a case, so the case is not included in the category of fulfilling the elements of Article 1 paragraph (2) of the Criminal Code. The judge has interpreted the validity of Article 1 paragraph (2) of the Criminal Code incorrectly because the judge only prioritizes the principle of legality by Article 1 paragraph (1) of the Criminal Code but overrides the nature of violating material law.


Introduction
Until now.The judge's interpretation is a problem that always arises in the judge's decision, include to the methods of interpretation, it is normal to leave to the judge a wide latitude and not to impose on him the "straight jacket" of a given method1 .Another is criticism of the judge's decision on regulations in Indonesia 2 .Interpretation is not a mechanical process, the judge as interpreter has a certain amount of discretion or choice in determining the meaning of words and the outcome that follows 3 .The Realist Vision of statutory interpretation is so similar to the teachings of microeconomics.Proponents of the Realist Vision of statutory construction share the economists' view that the courts' interpretation of legal language is a value-laden process 4 .
Regulations regarding the judge's interpretation can be studied through rules in the form of Regulations regarding the judge's interpretation can be studied through rules in the form of Law Number 4 Year 1992 concerning Housing and Settlements, in the future referred to as The Law Number 4 Year 1992, Article 12 paragraph (1) reads that occupancy of a house by a non-owner is only valid if there is consent or permission from the owner.Meanwhile, Article 36 paragraph (4) of Law Number 4 Year 1992 states that Article 12 paragraph (1) is a prohibited provision accompanied by criminal sanctions.Some time ago, the Central Jakarta District Court declared in Decision Number 2002/Pid.B/20011/PN.Jkt.Pst that the defendant (H.Danas Dalimunthe) was an employee of PT Angkasa Pura I (Persero) and received a residence starting in 1999 and starting in 2001, so he had to return the facilities that had been given.The judge's consideration was to formulate the defendant's actions following Article 12 paragraph (1) in conjunction with Article 36 paragraph (4) of Law Number 4 Year 1992 and state that the violation of the article occurred from December 1, 2001 to December 7, 2011.The judge's decision stated that the defendant who occupied the official residence and was not the owner was legally proven to have committed a criminal act in accordance with Article 12 paragraph (1)

Method
The type of research is normative juridical with an approach that refers to the applicable laws and regulations.This research is doctrinal research.Doctrinal legal research can be interpreted as research on law based on doctrine developed in the study of legal science.Doctrinal research in Indonesia is usually called normative research, this is because the Indonesian state is more inclined to positivism which conceptualizes law as positive norms in statutory regulations.
The legal materials used in this research are primary legal materials and secondary legal materials, primary legal materials in the form of laws and regulations regarding Law Number 1 Year 1946 concerning criminal law regulations in Indonesia, and Law Number 4 Year 1992 concerning Housing and Settlements, and Law Number 1 Year 2011 concerning housing and settlements, while secondary legal materials are in the form of books, articles and reports related to the topic of this research.
Legal research uses a statute approach and conceptual approach.The statutory approach is used in researching and examining the material or content of legislation and or certain regulations related to the theme under study.Data collection with literature studies as basic material to be researched by conducting searches in the form of primary legal materials and regulations and other literature related to the problems studied5 .

Result and Discussions
The first and foremost principle in discussing criminal offenses is the principle of legality.There are three meanings of the principle of legality, namely as follows: that the law must be formulated in detail and carefully, or known as the lex certa principle.The principle of lex certa is the principle that requires the formulation to be precise and careful and not cause multiple interpretations 6 .This principle is also known as bestimmtheitsgebot, that the formulation of legal provisions that are unclear and too complicated will only lead to legal uncertainty and hinder the success of criminal prosecution efforts because citizens will always be able to defend themselves that such provisions are not helpful as guidelines for behavior 7 .Machteld Boot's statement means that every legal norm requires interpretation, as well as Van Bemmelen and Van Hattum that every written Available online at https://journal.unnes.ac.id/nju/index.php/digeststatutory rule requires interpretation, and it is also impossible to apply legislation without using interpretation8 , and the law will only work with interpretation because the law requires further interpretation in order to become fairer and more grounded.Making law is a right, and interpreting the law that has been made is the next necessity 9 .
Efforts to apply legal regulations to concrete events require interpretation in criminal law.The general principles in interpretation are as follows: Two main principles in the principle of regulation are closely interrelated, namely the principle of proportionality and the principle of subsidiarity.The principle of proportionality is a balance between the means and ends of a law.Meanwhile, the principle of subsidiarity is used when facing a complex problem that raises several alternative solutions, so the solution that causes the least harm is chosen 10 .

A. Unlawfulness in criminal law
Every criminal act is against the law.The law in the phrase against the law includes first, written law or objective recht, second subjective recht or a person's right.Third, without power or authority 11 .Whether the criminal act is in the formulation of the offense or not.
There are four types of unlawfulness.First, general unlawful nature, namely against the law as an element of criminal acts can be said to be general unlawful nature (generale wedeterrechtelijkheid), because the elements of criminal acts consist of fulfilling the offense against the law and can be reproached 12 .
Second, the nature of the particular law (speciale wedeterrechtelijkheid).Usually, the word against the law is included in the formulation of the offense.Thus, unlawfulness is a written requirement for the criminalization of an act.However, according to Schraffmeizer, that against the law should not be mentioned in the offense formulation 13 .
Third, the nature of being against the formal law (formeel wederrechtelijkheid) means that all parts (elements) of the offense formulation have been fulfilled.That it violates formal law is clear because it contradicts the law.However, not in harmony with formal law and is also against material law, among the accurate understanding of the law, not only based on written positive law, but also based on general principles of law, also rooted in unwritten norms.As stipulated in Article 1 paragraph (1) of the Criminal Code, the punishment of every act adheres to the nature of formal law against the law 14 .
Fourth, there are two views on the nature of material law (materieel wederrechtelijkheid). First, the material unlawfulness is seen from the point of view of the act.It implies that the act violates or endangers the legal interests that the legislator intends to protect in formulating certain offenses.Second, from the point of view of the source of law, this means that it is contrary to unwritten law or the law that lives in society, the principles of decency, or the values of justice and social life in society 15 .
In its development, there are two characteristics against material law, namely the nature against material law in its negative function and its positive function.The nature against material law in its negative function means that even though the act fulfills the elements of the offense but is not contrary to the sense of justice in society, the act cannot be punished.In contrast, the nature against material law in its positive function means that even though the act is not regulated in the legislation, if the act is considered contrary to the sense of justice and the norms of social life in society, the act can be punished 16 .Judges' interpretation of the enactment of Article 1 paragraph (2) of the Criminal Code on legislative changes associated with Law Number 4 Year 1992 regarding unauthorized control of state land.
The role of judges is following Article 5 of Law Number 48 Year 2009 concerning Judicial Power.Judges must explore, follow, and understand the values of law and a sense of justice in society.Another duty of judges is as agents of legal literacy, namely realizing the essential knowledge and skills needed by citizens and the foundation for mastering other life skills.In order to achieve the goals of law in the form of legal certainty, expediency, and justice, the public must be introduced to the law.
Providing understanding to the public is not only the duty of judges but also the duty of society in general.Especially with the legal fiction that "everyone is deemed to know (the rules) of the law" and also associated with Jeremy Bentham's statement that "through this publicity alone justice becomes the mother of security."Discussion of changes in legislation based on Article 1 paragraph (2) of the Criminal Code That if after the act is committed, there is a change in 14 J.E. Jonker, Dutch East Indies Criminal Law Manual (Jakarta: Literacy Development,  1987). 15Unifikasi Dan Konsep Ajaran Sifat Melawan Hukum Materiil Barda Nawawi Arief.2005.Masalah Kodifikasi, Dalam Bukunya Eddy OS.Hiariej.Prinsip-Prinsip Hukum Pidana.(Yogyakarta.: Universitas Atmajaya., 2014). 16Eddy OS.Hiariej, op.cit, hal.199.
The Digest: Journal of Jurisprudence and Legisprudence 4 (2) (2023) 179-188 185 Available online at https://journal.unnes.ac.id/nju/index.php/digest the legislation, the most lenient rule for the defendant is used.The application of this rule in criminal law enforcement is significant.The judge's consideration of a case is a criminal offense and fulfills the elements in Article 12 paragraph (1) of Law Number 4 Year 1992.When this case was processed, it turned out that Law Number 1/2011 was issued, which stated that Law Number 4 Year 1992 had been revoked and could not be applied.Judges should not necessarily state that something cannot be determined in general (in abstract) but rather in each case (in concreto).It means that each case has different characteristics, and judges view a case from a different perspective.Year 1992, which reads, "Occupancy of a house by a non-owner is only legal if there is consent or permission of the owner," containing elements against the law.The elements against the law are against one's rights (subjective recht) and without power or authority.Meanwhile, based on the division of the four characteristics of unlawfulness.Therefore, the article fulfills the elements of a criminal offense and contains the general unlawful nature after there is no inclusion of the unlawful element.
The facts in the decision were that the defendant, as an employee of PT Angkasa Pura I (Persero), had repeatedly received three warning letters to hand over the state house in his possession, and he also knew that there was a prohibition to occupy the house.In the presence or absence of such rules, the occupancy of a house by a non-owner without the consent or permission of the owner is an act that does not reflect the personality of the nation, as well as a despicable act that tore the conscience of the Indonesian people in general.A house is a primary need of a human being, which includes the universality of the right to own something.This right must be respected and appreciated by others.
The reason for the conviction of the defendant is reasonable.The basis for this conviction is that the act is against material law, namely against material law in its positive function.It means that even though the act is not regulated in the legislation, if it is considered contrary to the sense of justice and the norms of social life in society, the act can be punished.
It is also contained in the decision of the Supreme Court of the Republic of Indonesia in its decision number 275K/Penal/1982, which gives the meaning of material lawlessness, namely according to the propriety in society, if a civil servant receives excessive facilities and other benefits from another person with the intention that the civil servant uses his power or authority attached to his position in a deviant manner, it is already an act against the law, because according to propriety, the act is a reprehensible act or an act that pierces the feelings of many people 18 .Thus, the material tort that functions positively is fundamentally contrary to the principle of legality.Meanwhile, the analysis of the judge's interpretation in Decision Number

Conclusion
18 Komariah Emong Supardjaja., Ajaran Sifat Melawan Hukum Materiel Dalam Hukum  Pidana Indonesia (Studi Kasus Tentang Penerapan Dan Perkembangannya Dalam  Yurisprudensi. Based on the tempus delicti (time of the criminal offense), the case fulfills the elements of Article 36 Paragraph (4) of Law Number 4 Year 1992 concerning Housing and Settlements.It is based on when the criminal offense occurred, from 1999 to 2001.The criminal provisions applied in that period are UURI Number 4 Year 1992, complemented by Government Regulation Number 40 Year 1994 concerning State Houses.Moeljatno 17 , States that it must be seen first what encourages the legislator to make changes.It is what is meant by someone who uses another perspective in deciding cases.In the academic paper on the 2011 Housing and Settlement Bill, it is stated that the reason for the drafting of the 2011 Housing and Settlement Bill is the interest in regulating the use and management, as well as supervision and control, and aims to regulate all aspects of housing and settlement substance.So, the conclusion that can be drawn is that UURI Number 4 Year 1992 and UURI Number 1 Year 2011 have different perspectives and have never been equated, so the case is not classified as fulfilling the elements of Article 1 paragraph (2) of the Criminal Code..B/20011/PN.Jkt.Pst is associated with the nature of the material law.The principle of legality stated in Article 1 paragraph (1) of the Criminal Code can direct the discussion to Article 12 paragraph (1) of Law Number 4 Analysis of the judge's interpretation of the enactment of Article 1 paragraph (2) of the Criminal Code on the amendment of Law Number 4 of 1992 regarding unauthorized control of state land shows that Law Number 4 of 1992 and Law Number 1 of 2011 have different perspectives in interpretation.The case is not classified as fulfilling the elements of Article 1, paragraph (2) of the Criminal Code.The judge has interpreted the applicability of Article 1 paragraph (2) of the Criminal Code incorrectly.

Some Thoughts Towards the Development of Law' became
Available online at https://journal.unnes.ac.id/nju/index.php/digestconjunction with Article 36 paragraph (4) of Law Number 4 Year 1992.The fact that Law Number 1 Year 2011 on Housing and Settlements revoked and replaced Law Number 4 Year 1992 on Housing and Settlements, hereinafter referred to as Law Number 1 Year 2011, in Article 166 states that Law Number 4 Year 1992 was revoked and declared invalid and Article 167 states that the validity began on January 12, 2011.revoked and declared invalid, and Article 167 states that the validity began on January 12, 2011.The judge questioned the prosecutor's indictment, which stated that on August 1, 2011 The Law Number 4 Year 1992 was still in effect, while at the time the indictment was drafted, The Law Number 1 Year 2011 was in effect.The prosecutor's replication of the judge criticized the override of the principle of nullum delictum nulla oiena sine praevia legi poenali and Law Number 1 Year 2011 could not be applied retroactively.The judge considered the process of changing the law by applying Article 1 paragraph (2) of the Criminal Code, which states that if, after the act is committed, there is a change in the legislation, the most lenient rule for the defendant is used.The rationale in the book 'the basis for the judge's conclusion that the provisions of Article 12 paragraph (1) in conjunction with Article 36 paragraph (4) of The Law Number 4 Year 1992 were not found or not regulated, or that there was no equivalent in Law The Number 1 Year 2011.Year 1992 to be declared no longer considered a criminal act, and this has been in effect since 2011.Based on the background described above, the purpose of this study is to determine the accuracy of the judge's interpretation of the applicability of Article 1 paragraph (2) of the Criminal Code to Law Number 4 Year 1992