Pencurian yang Dilakukan Anak di bawah Umur Menurut Hukum Islam dan Hukum Positif

Abstract

Enforcement of a theft sentence has a number of terms and conditions that must be met. A thief can be sentenced if he falls into the category of terms and conditions that have been established both in positive law and Islamic law. In this study, the author examines the problem for children who commit theft in positive law and Islamic law. This research includes qualitative research with the type of research used is library research that is by collecting research materials from several books both books from print and online mass media. The results of the study revealed that, cases of theft committed by minors under positive law could be ensnared under Article 362 of the Criminal Code in criminal law provisions could be threatened with a five-year prison sentence or a maximum fine of nine hundred rupiahs or could be erased by punishment due to the holding of diversion in a familial manner. between the victim and the perpetrator. Based on Islamic law as implied by a hadith which states a child to reach puberty baligh, marked by the emergence of “dreams” (ihtilam) in men and menstruation for women. If a child steals, or even kills, he cannot be subject to any punishment. But even though the stipulations on how old baligh are in Islam are so broad, because there is no Qur’anic text that specifically explains how old the baligh is. However, it can be concluded that the age of 15 years becomes the standard and basis for a judge or a ruler to impose sanctions on children who perform Jarimah.Keywords: Theft, children, Islamic law, positive law