Criminal Indictment Research Articles

The History of Violence in Scotland Reconsidered: The Culture, Filtering and Treatment of Assault in Police Courts, c. 1829–1900

While recent scholarly attention has focused on serious, indicatable violent crime in Scotland, this article considers the more common offence of lower-level assault that was dealt with summarily in police magistrate courts in the nineteenth century. It explores the role that police courts played in conceptualising, categorising and processing such violence, the role assault played in Scottish urban communities and the culture that surrounded it. The article also examines how magistrates dealt with assault and what this might suggest about the impact of the police and the courts on violent behavioural patterns. It argues that interpersonal violence had a more important, complex and nuanced role to play in Scottish urban communities than conclusions based on criminal indictments suggest. Assault was a disturbingly accepted facet of conflict resolution, a means of exerting authority and patriarchy in communities and households and an ever-present threat with which a sizeable percentage of the urban masses had to live. The article stresses that the boundaries between lower-level assault that was dealt with summarily and more serious (or ‘aggravated’) assault that was tried in a higher court on indictment were determined not just by the nature of violence wielded or the injury sustained, but by a raft of social, cultural and practical factors. Indeed, the rise of summary justice in the form of police courts helped to lower indictment rates for serious assault, as magistrates often dealt summarily with assaults that warranted a more serious charge. This is a point that historians need to bear in mind when considering what indictment rates for serious assault reveal about violence in Scotland more broadly.

The role of DNA in criminal indictments in Israel.

In their investigations of criminal cases, law enforcement agencies rely heavily on forensic evidence. Numerous studies have examined the scientific and technological advancements of DNA testing, but little evidence exists on how the availability of DNA evidence influences prosecutors' decisions to move cases forward in the criminal justice system. We created a new database by juxtaposing data from the Forensics Division of the Israel Police, which recorded the presence (or not) of DNA profiles in criminal cases (n = 9862), and data on the indictment decision for each case (2008-2019). Rates of indictments are computed for each case, and trend lines are used to present variations in the rates of indictment decisions with and without DNA profiles. Approximately 15% of all criminal cases without DNA presented to the prosecutor's office are subsequently prosecuted, compared with nearly 55% of cases with DNA profiles. The presence of DNA evidence influences the prosecutor's decision to move a case forward in the criminal justice system. Utilizing a scientific approach to prosecute offenders is a welcome development; however, DNA evidence is not infallible, and caution must be exercised in regard to DNA's overuse in the legal system.

Insider Trading in the Clinical Trial Setting

The Securities and Exchange Commission’s enforcement agenda regularly includes charges of trading based on material nonpublic information about a clinical drug trial conducted to obtain FDA approval to market a new drug. Almost half of the recent cases have been accompanied by a criminal indictment. In an academic setting, researchers and those who advise them, unlike employees of public companies, are not generally given training about the risks of securities trading. Recent developments in the law might be applied in connection with clinical trial information in ways that would not have been foreseen until recently. It is time for a comprehensive analysis of how the law of insider trading may be applied to the important endeavor of clinical drug trials. Clinical trials should not be sullied by conflicts created by unlawful trading. This Article begins with the basic principles of insider trading, followed by a summary of how clinical trials are conducted and regulated. It then turns to the ways in which nonpublic information material to the stock price of the sponsor of the trial might be used to trade or tip. The analysis that follows identifies a number of situations where use or disclosure of material nonpublic information about a trial could be unlawful. Employees of sponsors of the trial, clinical investigators, and even the subjectsparticipating in a trial could run afoul of the prohibition on insider trading, such as when information has been used in breach of a confidentiality agreement or exchanged between an investigator and a trial participant, exchanged among trial participants, gleaned from attending medical conferences, and obtained in other settings specific to this industry. Presenting the full potential reach of the law facilitates taking steps to avoid violating the law. The analysis demonstrates that anyone involved in a clinical drug trial must be attuned to the risks of misusing material nonpublic information, including in scenarios not yet pursued by the SEC. By understanding the potential reach of the law, those involved in or who learn information about a specific trial can take steps to avoid or minimize the risk of liability. The Article concludes with recommendations to achieve this end. The Article thus presents a complete case study of an industry-specific application of insider trading law, with recommendations that can be applied to other industries.

The Fifth amendment to the US Constitution as one of the fundamental norms for the protection of human and citizen rights

The article is devoted to a comprehensive study of the legal norms contained in the Fifth Amendment to the Constitution of the United States of America and their significant importance for a number of fundamental human rights and freedoms. The author analyzed the genesis of the formation of constitutionalism in the USA, starting from the adoption of the Declaration of Independence in 1776 and the US Constitution in 1787 until now. Since the original version of the Constitution had a number of shortcomings, in particular, it emphasized the separation of powers, the formation and functioning of state institutions, but described the rights and freedoms of citizens in a somewhat general way, 27 amendments were introduced to the Constitution, 26 of which are still in effect today. In 1791, the first 10 amendments were adopted, which later became known as the Bill of Rights, which was actually mainly devoted to human rights.
 The author focused on a more detailed analysis of the Fifth Amendment to the US Constitution. It is indicated that, first of all, this amendment regulates the procedure for bringing a person to justice for serious crimes, namely with the participation of the Grand Jury. It has been established that the Grand Jury requirement applies only to criminal indictments in the federal court system. The author highlights that the next provision of this amendment is devoted to the prohibition of double prosecution of a person for the same crime. The article proves that it is very significant, given the two-tiered system of American legislation, according to which a person's actions can be subject to the legislation of several states, federal legislation, etc. at the same time. The author substantiates that the ban on forcing to testify against oneself, which is declared in the studied amendment, is of great importance in the protection of the rights of suspects and the inadmissibility of illegal actions by the police. And, finally, the author defined the concept of «due legal procedure», without which state authorities have no right to deprive anyone of life, liberty or property.

A failure in the medication delivery system-how disclosure and systems investigation improve patient safety.

A recent medication error at Vanderbilt University Medical Center contributed to the death of a patient. The ensuing criminal indictment of the administering nurse has shaken the medical community. This has led to clinical staff questioning whether they can disclose patient safety incidents without fear of criminal prosecution. However, because of the publicity of this case, hospitals can benefit from the lessons learned and mitigate the risk of this and similar events at their facilities. To uncover the most impactful and relevant safety recommendations, the Vanderbilt case is examined from a systems investigation perspective using the available public information gathered from media reports, the Tennessee Bureau of Investigation report, and Vanderbilt's corrective action plan submitted to CMS. We present an example of how hospitals can benefit from disclosure: Henry Ford Health used the Vanderbilt case study as part of its medication safety continuous improvement initiatives, which are underpinned by available medication safety recommendations from the Institute for Safe Medication Practices. Using this experience and the lessons learned from the Vanderbilt case, a proactive action plan is presented for hospitals nationwide to prevent the recurrence of this medication error. Without disclosure, these analyses and safety recommendations would not have been possible.

Valproate Teratogenicity: A Moving Target.

Within several years after receiving U.S. Food and Drug Administration (FDA) approval in the late 1970s, valproate was shown to increase the risk for major congenital malformations and learning disabilities in the offspring of women who used the drug during pregnancy. Nonetheless, its use in pregnant women has persisted for more than four decades, recently resulting in numerous lawsuits and, in countries other than the United States, criminal indictments of the manufacturers of valproate. The use of valproate in pregnancy persisted and extended beyond its original indication for the treatment of epilepsy. Several recent studies indicate that the drug is more often prescribed to treat pregnant women with bipolar depression and migraine than for seizure control. Especially concerning is the absence of valproate from the list of more than 60 drugs for which the FDA has implemented Risk Evaluation and Mitigation Strategies to prevent or limit untoward consequences associated with specific drugs. Until this step is taken, avoidance of the teratogenic effects of valproate will rely on the vigilance of those caring for women and people with the potential to get pregnant.

Spoofing: Law, materiality and boundary work in futures trading

Spoofing (canonically: ‘bidding or offering with the intent to cancel the bid or offer before execution’), once a valued skill in face-to-face trading, has become a crime punishable by jail. Echoing Riles’s call for greater attention to law in research on finance, this paper analyses the interwoven processes of this dramatic shift, including trading’s changing material form, contingencies such as the Congressional response to the global financial crisis, and, above all, the use of criminal (not just civil, administrative) law. Criminal law's particularly strong boundary work – specifically the first criminal indictment and jail sentence for spoofing – rendered earlier ambivalent attitudes and inconsistent enforcement untenable. Nevertheless, drawing a boundary between spoofing and legitimate trading remains work-in-progress, with simultaneously legal, material and moral dimensions.

Bibi and Mr. Prime Minister: do different Facebook identities imply different messages for political leaders?

PurposeSocial media has been widely adopted by politicians and political parties during elections and routine times and has been discussed before. However, research in the field has so far not addressed how a political leader's private or official social media account affects their message, language and style. The current study examined how Israeli Prime Minister Benjamin Netanyahu uses his private Facebook account, compared to his use of his official Facebook page “Prime Minister of Israel.”Design/methodology/approachIn this study, the author identified the differences between these two digital entities using in-depth content analysis based on all posts (N = 1,484) published on the two pages over a 12-month period between 2018 and 2019.FindingsThe study’s findings indicate that Netanyahu regularly uses his personal page to address topics that are not represented on his official page, such as mentioning and attacking political rivals, presenting political agenda, and criticizing Israeli journalists and media organizations. Netanyahu's private Facebook account is also used to comment on personal events such as the criminal indictments he is facing and family affairs.Originality/valueThe findings highlight the need to investigate the different identities that politicians maintain on social media when they use personal or official accounts, sometimes on the same platform. The medium matters, yet the author also discovered that a leader's choice of account and its title are also important.Peer reviewThe peer review history for this article is available at: https://publons.com/publon/10.1108/OIR-01-2021-0004.

Medicolegal Sidebar: A Fast Route To A Criminal Indictment-Violating Fraud and Abuse Laws.

Medicolegal Sidebar: A Fast Route To A Criminal Indictment-Violating Fraud and Abuse Laws.

Penegakan Hukum Terhadap Penyalahgunaan Narkotika Di Indonesia

This study aims to analyze law enforcement against narcotics abuse in Indonesia and and inhibiting and supporting factors as well as efforts to overcome barriers to law enforcement in law enforcement against narcotics crime in Indonesia. The pre-emptive done as early as possible in form of informal seminar and local counseling to the society about the dangerous effect of illegal drug use. The preventive effort was implementing through series of Routine Police Operation and Special Police Operation. While the repressive efforts were law enforcement action through criminal investigation and indictment which rooted within legality aspect. Each effort still encounters several problems, such as lack of personnel, insufficient equipment, breach of information and lack of operational funds. The type of research used is qualitative research, with the type of research being descriptive. Data collection techniques are carried out by means of observation, and study of documents.

The Request for Postponement of the Blashphemy Case Criminal Charge Reading by Police and Prosecutors

This research aims to evaluate the police's request to postpone the criminal charge reading of the blasphemy case at the North Jakarta District Court, which was not based on Indonesia's positive law. The request to postpone a trial by the police without a legal basis could be considered a form of police intervention against the trial process, which has legal criminal consequences based on Article 3 Paragraph 2 and 3 of Law Number 48 of 2009 concerning Judicial Power. Meanwhile, the request for a two-week trial postponement by the public prosecutors due to their inability to complete the criminal indictment, as well as considering the request from the police, has created an impression that the public prosecutors have complied with the request of the police. It also injured public trust that demanded a fair and transparent law enforcement process.

When Politics Meets Pandemic: How Prime Minister Netanyahu and a Small Team Communicated Health and Risk Information to the Israeli Public During the Early Stages of COVID-19.

BackgroundThe coronavirus brought the world’s leaders to the center of the media stage, where they not only managed the COVID-19 pandemic but also communicated it to the public. The means they used to communicate the global pandemic reveal their strategies and the narratives they chose to create in their nation’s social consciousness. In Israel, the crisis broke out after three election cycles, such that the government in charge of the crisis was an interim government under the leadership of Prime Minister Benjamin Netanyahu, who was operating under three criminal indictments. This study sought to examine the ways in which Prime Minister Netanyahu and two senior Israel Ministry of Health officials—Director General Moshe Bar Siman Tov and Prof. Sigal Sadetsky, Head of Public Health Services—communicated information about the health crisis in Israel during what has been termed the first wave and the beginning of the second wave.Methods and SampleThe research adopted qualitative methods (discourse, content and thematic analysis) to analyze the communication strategies and compare them to health and risk communication. Triangulated data collection from different data sources was used to increase the credibility and validity of the results. The research sample comprised the following sources from March 3 through June 21, 2020: transcripts of 19 press conferences and 12 press interviews, 95 emergency regulations signed by Prime Minister Netanyahu, and 52 articles in major Israeli newspapers.ResultsNetanyahu and the Health Ministry Director General used an apocalyptic narrative to communicate COVID-19 to the public. The main strategies used in constructing this narrative were intimidation, lack of information transparency, giving the public conflicting instructions contrary to the health and risk communicating approach, and using a health crisis to promote political intentions and actions.ConclusionCommunicating health crises to the public, particularly ongoing crises like COVID-19, requires that leaders implement the health and risk communication approach and create a cooperative narrative that does not rely on a strategy of intimidation, but rather on empathy and on fact-based and transparent information.

From Competition to Conspiracy: Accessing the Federal Trade Commission’s Merger Policy in the Pharmaceutical Sector

Prescription drugs safeguard Americans from numerous life-threatening maladies. Competition in pharmaceutical R&D, and for generic entry, produces essential drugs and ensures that medications are accessible and affordable. That promise is fading. There is mounting evidence that connects high market concentration and high drug prices. Price gouging for important drugs, conspiracies to fix generic drug prices, and ever more innovative schemes by branded drug manufacturers to keep generic rivals out of the market put merger control at center stage.The AAI White Paper “From Competition to Conspiracy: Accessing the Federal Trade Commission’s Merger Policy in the Pharmaceutical Sector” examines a major root of this problem—the Federal Trade Commission’s (FTC’s) policy of settling virtually all challenged horizontal pharmaceutical mergers with consent orders requiring divestitures. This stands in contrast to agency decisions to seek injunctions to stop highly concentrative, harmful mergers—arguably the most effective remedy for fully restoring competition. AAI’s macro-analysis of pharmaceutical mergers challenged by the FTC between 1994-2020 (to date) reveals that many drug makers engaged in serial mergers and/or repeatedly went to the till to purchase divestiture assets in other challenged mergers. Many of these firms were subsequently acquired by other pharmaceutical manufacturers, sometimes shortly after purchasing divestiture assets.The effect of the FTC’s policy has been the swapping of assets within a relatively small group of large and increasingly powerful firms. Just under 20% of all unique branded and generic firms that engaged in repeated mergers and acquisitions (M&A) and/or purchases of divestiture assets account for almost 45% of pharmaceutical assets “changing hands” from 1994-2020. Many of the very firms that were the most active in M&A, and as purchasers of divestiture assets, appear as defendants in private, state, and federal non-merger antitrust litigations and in federal criminal indictments. These accumulating lawsuits serve as powerful evidence that something has gone awry with merger policy in the pharmaceutical sector, leading to the exercise of market power by dominant firms and oligopolies.The FTC’s role in managing the allocation and ownership of important pharmaceutical assets through its extraordinary approach toward merger control has unduly involved it in shaping the industry. This resembles a form of “industrial planning” rather than antitrust law enforcement, which is designed to deter future anticompetitive conduct and relies on market forces to determine market structures. The FTC’s policy has also deprived the antitrust community and public of important transparency. Because no challenged merger between 1994-2020 was litigated in federal court, there is no judicial record detailing how highly concentrative mergers were likely to have survived a presumption of illegality. There is thus no way to evaluate claims that pharmaceutical mergers were likely to have delivered lower prices through claimed cost savings or consumer benefits due to improved quality and innovation.This White Paper begins with background on drug pricing and competition in the pharmaceutical supply chain. It then turns to the drug mergers themselves and the asset divestitures required in FTC consent orders. Next is an assessment of private, state, and federal antitrust cases against the companies involved in M&A and as buyers of divestiture assets. It concludes with policy recommendations on reframing competition policy in the pharmaceutical sector. The FTC, which has devoted considerable resources and expertise to understanding the pharmaceutical sector, should take the lead in reforming its own policy on merger control.Competition problems in pharmaceuticals now rise to the level a public policy concern, addressable only through a coordinated policy response, of which stronger antitrust enforcement and legislative reform should be central components. The imperative for wholesale change in the FTC’s merger policy in the pharmaceutical sector is more pressing than ever. Only robust competition among drug makers will result in the availability and affordability of drugs more generally, but also essential drug therapies and vaccines relating to the COVID-19 pandemic.

Análisis: control de la acusación. Sentencia del 11 de diciembre de 2018, corte Suprema de Justicia

Pese a que el control que se le hace a la acusación criminal supone un medio para proteger los derechosfundamentales de los acusados, en tanto limita la discrecionalidad de la Fiscalía para que se ciña a los hechos jurídicamente relevantes y a las pruebas obtenidas legalmente, este no se lleva a cabo en el procedimiento penal colombiano porque no hay un precepto legal que lo regule o lo instituya.
 Para llenar ese vacío legal y garantizar el derecho al debido proceso y a la recta administración de justicia, la Corte Suprema de Justicia propone que el control sea ejercido por un juez de conocimiento. Este artículo analiza si la postura adoptada por la Sala de Casación Penal, en la Sentencia de 11 de diciembre de 2018, se ajusta a los presupuestos del Estado social y democrático de derecho y a los fines del derecho procesal penal. Se concluye que la respuesta ofrecida por la Corte para la resolución de problemas que acarrea la ausencia de control a la acusación es insuficiente, pues, si el juez de conocimiento ejerce tal control, se contamina con los hechos y las pruebas que estructuran los cargos de la Fiscalía, antes del juicio oral y de que la defensa exponga su teoría del caso. Con ello se violenta la imparcialidad del mismo, al brindar una segunda oportunidad a la Fiscalía para que corrija sus errores, lo cual elimina la igualdad de las partes en el proceso.

Espionage, the First Amendment, and the Case Against Julian Assange

In May 2019, a federal grand jury returned an eighteen-count criminal indictment against WikiLeaks founder Julian Assange. 1 Charges include conspiring to obtain national defense information, obtai...

From Competition to Conspiracy: Assessing the Federal Trade Commission's Merger Policy in the Pharmaceutical Sector

Prescription drugs safeguard Americans from numerous life-threatening maladies. Competition in pharmaceutical R&D, and for generic entry, produces essential drugs and ensures that medications are accessible and affordable. That promise is fading. There is mounting evidence that connects high market concentration and high drug prices. Price gouging for important drugs, conspiracies to fix generic drug prices, and ever more innovative schemes by branded drug manufacturers to keep generic rivals out of the market put merger control at center stage.The AAI White Paper “From Competition to Conspiracy: Accessing the Federal Trade Commission’s Merger Policy in the Pharmaceutical Sector” examines a major root of this problem—the Federal Trade Commission’s (FTC’s) policy of settling virtually all challenged horizontal pharmaceutical mergers with consent orders requiring divestitures. This stands in contrast to agency decisions to seek injunctions to stop highly concentrative, harmful mergers—arguably the most effective remedy for fully restoring competition. AAI’s macro-analysis of pharmaceutical mergers challenged by the FTC between 1994-2020 (to date) reveals that many drug makers engaged in serial mergers and/or repeatedly went to the till to purchase divestiture assets in other challenged mergers. Many of these firms were subsequently acquired by other pharmaceutical manufacturers, sometimes shortly after purchasing divestiture assets.The effect of the FTC’s policy has been the swapping of assets within a relatively small group of large and increasingly powerful firms. Just under 20% of all unique branded and generic firms that engaged in repeated mergers and acquisitions (M&A) and/or purchases of divestiture assets account for almost 45% of pharmaceutical assets “changing hands” from 1994-2020. Many of the very firms that were the most active in M&A, and as purchasers of divestiture assets, appear as defendants in private, state, and federal non-merger antitrust litigations and in federal criminal indictments. These accumulating lawsuits serve as powerful evidence that something has gone awry with merger policy in the pharmaceutical sector, leading to the exercise of market power by dominant firms and oligopolies.The FTC’s role in managing the allocation and ownership of important pharmaceutical assets through its extraordinary approach toward merger control has unduly involved it in shaping the industry. This resembles a form of “industrial planning” rather than antitrust law enforcement, which is designed to deter future anticompetitive conduct and relies on market forces to determine market structures. The FTC’s policy has also deprived the antitrust community and public of important transparency. Because no challenged merger between 1994-2020 was litigated in federal court, there is no judicial record detailing how highly concentrative mergers were likely to have survived a presumption of illegality. There is thus no way to evaluate claims that pharmaceutical mergers were likely to have delivered lower prices through claimed cost savings or consumer benefits due to improved quality and innovation.This White Paper begins with background on drug pricing and competition in the pharmaceutical supply chain. It then turns to the drug mergers themselves and the asset divestitures required in FTC consent orders. Next is an assessment of private, state, and federal antitrust cases against the companies involved in M&A and as buyers of divestiture assets. It concludes with policy recommendations on reframing competition policy in the pharmaceutical sector. The FTC, which has devoted considerable resources and expertise to understanding the pharmaceutical sector, should take the lead in reforming its own policy on merger control.Competition problems in pharmaceuticals now rise to the level a public policy concern, addressable only through a coordinated policy response, of which stronger antitrust enforcement and legislative reform should be central components. The imperative for wholesale change in the FTC’s merger policy in the pharmaceutical sector is more pressing than ever. Only robust competition among drug makers will result in the availability and affordability of drugs more generally, but also essential drug therapies and vaccines relating to the COVID-19 pandemic.

Estimating the effectiveness of different environmental law enforcement policies on illegal C&D waste dumping in Israel

Illegal dumping of construction and demolition (C&D) waste is a major concern for environmental policy-makers. Three different environmental law enforcement policies, aimed at the reduction of illegal C&D waste dumping, are enforced in Israel. These policies include fines (F), vehicle impoundment (V), and criminal indictment (I) by the court. Although, the scope of illegal C&D waste dumping in Israel appears to decline, little is known which of the above policies has been effective in combating the phenomenon. In an attempt to answer this question, we use data on F-V-I instances, recorded between July 2007 and December 2016, and compare them with monthly changes in the ratio between the amount of waste brought to authorized waste dumping sites and the estimated amount of C&D waste generated in the country each month. As the study shows, only the V-sanction was found to be significantly affecting the ratio (t = 3.083; p < 0.01), while the effect of other policy was found insignificant. We explain low efficiency of other law enforcement policies by relatively small fines imposed on the offenders, long court proceedings, combined with a relatively low chance of being caught. By contrast, the V-sanction may be more effective because it results in immediate and severe economic losses to the offenders, causing C&D waste transporters to haul their load to authorized sites. As we argue, for an environmental enforcement policy to be effective, it should be adequate to the severity of the offense and applied swiftly.

Legal liability, good engineering judgment and adaptation

AbstractHurricane Harvey's devastation resulted in flooding and fire, as well as criminal indictments and civil litigation arising from the fire at the Arkema facility. This current litigation is just part of a recent trend in civil litigation, from citizen suits to common law actions, that is redefining causes of action and defenses in the context of climate change. This trend is creating greater concern among engineering and management professionals regarding litigation risk and potential liability arising from individual or managerial actions undertaken on behalf of an employer or client. These concerns are exacerbated by greater ability to forecast anticipated impacts from storm events in hurricane prone areas, which lends support to allegations that such events are foreseeable, and that engineers have a duty to prevent harm resulting from such events. In this context, chemical engineers should read the Chemical Safety Board's Arkema Final Report, especially focusing on the CSB's recommendations for further action by AIChE's Center for Chemical Process Safety, and brush up on the basics of professional liability.This article, developed specifically for AIChE members and presentation at the 15th Annual Global Congress on Process Safety, by an AIChE Fellow, senior environmental attorney and Fellow of the American College of Environmental Lawyers, does not constitute legal advice but provides a brief overview of legal process and concepts regarding professional liability, including classes of defendants such as plant managers, employees, licensed and unlicensed professionals, and independent contractors, types of civil and criminal claims, standing and other threshold issues, general defenses and immunities, and evidentiary issues at trial.

Indicting a President

Although it is clear that the Chief Executive may be impeached while in office, it is generally thought that a sitting President cannot suffer criminal indictment while in office. There are two general arguments in support of this position. The first argument notes that criminal indictment of the President would so interfere with the duties of the office as to constitute a violation of the Constitution. The second argument simply refers to the express language of the Constitution providing that the remedy for intolerable occupation of the office is impeachment and conviction. While the Constitution does not expressly preclude indictment and prosecution, it is argued that the Constitution only so allows upon impeachment and conviction. This essay aspires to more fully explore the two alleged constitutional prohibitions against the criminal indictment of the occupant of the Office of the President and to argue that each suffers sufficiently to render each doubtful as a ground for guaranteeing Presidential immunity.

PENYALAHGUNAAN INSTRUMEN KEPAILITAN ATAU PKPU OLEH DEBITOR SETELAH MEMPEROLEH FASILITAS KREDIT DARI LEMBAGA KEUANGAN

The 5C principles are important for creditors to give loan to debtors. However, nowadays especially collateral cannot be the guarantee for debtor’s debt if the debtor is breaching the contract, because many of the financial institutions are dare to take a risk by giving higher loan than its collateral’s worth. This condition can bring a risk if there were bankruptcy happened to debtor; therefore, it is not rare that there is clause in loan agreement to protect creditors, by not allowing debtor voluntary asked self-bankruptcy petition, although this kind of clause is contradicts with the nature of bankruptcy law. The concept in Law number 37 years 2004, categorize as simple to be granted by commercial court. Unfortunately, the bankruptcy’s instrument often misused by parties who have bad faith and also for the suspension of payment. Moreover, the creditors will get impact from the parties that have a bad faith. As the legal protection, it can do some legal efforts such: suspension of debt’s payment, lawsuit, cassation, judicial review and criminal indictment.