Critique of the Dominance of Public Law Over Private Law in the Application of the Principle of Freedom of Contract (A Study of Several Corruption Court Decisions)

Abstract

The dominance of public law over private law is often observed in several decisions of the Indonesian Corruption Court (TIPIKOR), where the original cases were civil matters involving agreements or contracts regulated under Article 1313 of the Indonesian Civil Code (KUHPerdata). This article defines an act where one or more persons bind themselves to one or more other persons, creating a legal relationship in the form of rights and obligations for the parties involved. In agreements/contracts commonly executed by the public, there are several principles, including the principle of consensualism, the principle of freedom of contract, the principle of pacta sunt servanda, the principle of good faith, and the principle of personality. This research focuses on Article 1338 concerning the freedom of contract. With the freedom of contract, various new agreements/contracts emerge within society, including those involving public officials and business actors. In cases where a party fails to fulfill any aspect of the contract, under private law (civil law), this is considered a breach of contract or unlawful act (PMH), which is regulated under Article 1365 of the Indonesian Civil Code (KUHPerdata). This article states that every unlawful act that causes harm to another person obliges the party responsible for the harm to compensate for the damage caused. However, in several TIPIKOR court decisions, parties who breach contracts or commit unlawful acts (PMH) have been convicted of corruption, despite the fact that the case originated from an agreement or contract. If the PMH relates to the non-fulfillment of a contractual term, it should be resolved under private law, not criminal corruption law. This research uses a normative legal research method, employing a legal principles approach, doctrine, and TIPIKOR court decisions.