Entrepreneurship and the Criminalization of Innovation: Reconstructing the Boundaries of Mens Rea in Disruptive Logistics Innovation

Abstract

This study examines the intersection between innovations in cross-border logistics business models, particularly commercial personal-shopping services (jasa titip) and digital logistics aggregators, and the customs criminal law regime. It addresses two principal issues: how the element of culpability, or mens rea, is constructed in customs offences relevant to logistics innovation, and how the boundaries of criminal liability and a regulatory sandbox framework for the sector should be reconstructed. Employing normative legal research, this study adopts statutory, conceptual, and case approaches. It analyses Articles 102, 103, 107, and 108 of Law No. 10 of 1995, as amended by Law No. 17 of 2006 on Customs; Article 36 and Articles 45–50 of Law No. 1 of 2023 on the Criminal Code; Supreme Court Regulation No. 13 of 2016; and regulations governing consignments and passengers’ personal belongings. The analysis also draws on North Jakarta District Court Decision No. 185/Pid.Sus/2016/PN.Jkt.Utr in conjunction with Supreme Court Decision No. 294 K/Pid.Sus/2018. The findings demonstrate that customs offences remain fundamentally grounded in culpability; thus, the perception that strict liability applies is attributable more to law-enforcement practice than to an explicit normative mandate. The principal problem instead lies in the absence of clear parameters for distinguishing administrative non-compliance arising from incompatibilities in documentary formats from intentional conduct aimed at evading state levies. This study proposes six parameters for delineating mens rea, together with a normative design for a logistics regulatory sandbox encompassing participant eligibility criteria, limitations on scale and duration, data-sharing obligations, limited legal safeguards, and exit policies. This framework is intended to reposition criminal law as an ultima ratio.