ANALISIS YURIDIS NOODWEER DALAM TINDAK PIDANA KHUSUS PEMBUNUHAN OLEH ANAK DI BAWAH UMUR (Studi Putusan Nomor 4/Pid.Sus.Anak/2016/PN.Ban)

Abstract

In criminal cases, especially murder, there is an indication of noodweer (forced defense). Often the indication of noodweer in a criminal offense cannot be raised and the verdict is independent of the existence of noodweer, so many people think it is unfair. This research is intended to analyze and obtain an overview of how noodweer decisions are created and find out how the judge's consideration in making noodweer decisions, in this case, is Court Decision Number 4/Pid.Sus.Anak/2016/Pn.Ban. This research applies normative juridical research, using the Legislation Approach, Comparative Approach, and Case Approach using primary, secondary, and tertiary legal material collection techniques. The analysis carried out is qualitative. Based on the results of this study, first, the application of Article 338 of the Criminal Code is appropriate and has fulfilled all the elements in the article. The judge is very deep into the case and has a broad perspective by considering juridical and non-juridical facts so that the resulting decision can be said to have created justice. Second, all of the requirements of Article 49 Paragraph (1) of the Criminal Code can be fulfilled. This is the basic foundation for the realization of Noodweer. However, from the other side, the author notes that other elements influence the judge's consideration, including (1) the Intention/Background of the Act of the Defendant, (2) the Age of the Defendant., and (3) the Response of the Defendant's Parents. So from the analysis that has been done, noodweer is considered as a justification reason, in this case, is indeed appropriate and correct, and also appropriate so that it does not contradict the Law or positive law.