Application of the Business Judgment Rule Doctrine and the Validity of Calculating State Financial Losses in Criminal Accountability for Corruption

Abstract

The conflation of business risks with criminal conduct can lead to the criminalization of corporate decisions, as illustrated by Decision No. 102/Pid.Sus-TPK/2025/PN.Jkt.Pst. This study examines the boundaries between business risks and corporate crimes under the Business Judgment Rule (BJR) and evaluates state loss calculation methods and causal evidence. Using doctrinal legal research with statutory, conceptual, and case approaches, the study finds that directors’ decisions made in good faith and with due care are protected under Article 97(5) of Law No. 40 of 2007 and the principle of ultimum remedium. State loss assessments must establish actual, quantifiable losses and account for economic benefits. Applying the total loss method without considering these benefits or establishing causation may undermine the validity of loss calculations. The study recommends harmonizing corporate, state-owned enterprise, and anti-corruption laws, developing judicial guidelines to distinguish business risks from criminal conduct, and adopting net loss calculations that reflect actual economic benefits and the substance over form principle.