PENAFSIRAN HAKIM TERHADAP UNSUR TINDAKAN MENGANCAM DALAM PENERAPAN PASAL 49 AYAT (2) KITAB UNDANG-UNDANG HUKUM PIDANA PADA KASUS MENGHILANGKAN NYAWA ORANG LAIN

Abstract

Forced defense (noodweer) is an effort to protect oneself or others that is carried out
because an attack or threat against the law comes suddenly. The regulations in the legal
system in Indonesia are in Article 49 paragraphs (1) and (2) of the Criminal Code regarding
forced defense (noodweer) and forced defense that exceeds the limit (noodweer excess).
However, in reality, perpetrators of forced defense whose actions should be protected and
forgiven by law are instead sentenced to criminal penalties by the judge. Therefore, the aim of
this research is to determine the judge's interpretation in applying Article 49 paragraphs (2)
of the Criminal Code regarding forced defense regarding the criminal act of taking another
person's life.
This type of research can be classified as normative legal research which uses
secondary data, carried out by using library materials as the main focus based on library
research by examining and citing reference books related to the problem to be researched.
For this research, the data source is secondary data consisting of primary legal materials,
secondary legal materials and tertiary legal materials. Apart from that, this research uses
qualitative data analysis and produces descriptive data using deductive thinking methods.
From the results of this research, there are two main points that can be concluded,
first, the regulation of forced defense in Article 49 paragraphs (2) of the Criminal Code is
expected to explain in more detail each element or limitation contained in this Article so that
it does not conflict with other criminal offenses such as the crime of taking another person's
life. Second, related to the judge's consideration that the judge should have given more
consideration to the existing rules because the perpetrator of the defense should have been
forced to avoid criminal sanctions because he was trying to protect himself, his honor and his
property. This is also because there are reasons that can eliminate the criminal element
against perpetrators of forced defense, one of which is forgiveness.
Keywords : Noodweer Defense-Forgiving Reasons-Taking Another Person's Life