Criminal Law Commons^™

Pendanaan Pihak Ketiga (Third Party Funding) Dalam Penyelesaian Sengketa Melalui Arbitrase Dan Kemungkinan Penerapannya Di Indonesia, Carissa T.A. Temenggung, Yetty Komalasari Dewi

Jurnal Hukum & Pembangunan

The Third Party Funding (TPF) concept is an alternative method of funding usually applies in the dispute resolution process. Recently, the TPF concept has often been used in the process of resolving international arbitration disputes, both commercial and investment. This paper analyses the TPF concept and practices in several states, and its possible application in Indonesia. In particular, this paper discusses efforts made to regulate the TPF both in national law of several jurisdictions and in the international level, key issues within TPF in relation to the arbitration dispute resolution, and the TPF key provisions to be considered should Indonesia …

Instrumentation Of Ex-Officio Rights Of Religious Courts Judge Related To Fulfilling Children And Wife's Rights Due To Divorce, Adi Nur Rohman Uni, Sugeng Sugeng, Hesti Widyaningrum

Jurnal Hukum & Pembangunan

Most of divorce cases in Indonesia have a negative impact on divorced children and wives. This is due to the lack of public legal knowledge especially wives who are entangled in divorce cases so that their rights are often ignored. Judges of the Religious Court, in this regard, have a very important role in the protection of the rights of children and wives through the instrumentation of ex-officio rights which, because of his position, he has special authority in deciding the divorce case. This research is a combination of normative and empirical juridical research by connecting the case approach and …

Innocent Until Presented, Aristo Pangaribuan

Jurnal Hukum & Pembangunan

This paper analyzes a practice of presenting suspects, which is a ritual that displays a suspect before the media. Until now, although it is frequently used by the police, there has been no attempt to examine such practices in Indonesia. In the criminal procedure scholarship, there is no standard term to describe it. This article will refer to such ritual as a presentation of suspects. This ritual has also been practiced around the world with different methods and has a long history, especially in the United States. This article discusses the presentation of suspects and question whether such a ritual …

Penjatuhan Kebiri Kimia Bagi Pelaku Kejahatan Seksual Terhadap Anak Dalam Perspektif Falsafah Pemidanaan, Tunggal S, Nathalina Naibaho

Jurnal Hukum & Pembangunan

Sexual assault against children is an phenomenon that often occurs in Indonesia. The statistic shows that the number of sexual assault against children doesn't decrease significantly. Punishment is not the only way to control the number of sexual assault against children. Then, the goverment passed new regulation that regulating of chemical castration in hope of reducing the number of sexual crimes against children. However, the presence of chemical castration raises objections and differences of opinion in various circles. This research aims to determine the sentencing purpose of chemical castration and the proper sanction for imposing chemical castration in Indonesia. This …

Rgensi Meratifikasi Framework Convention On Tobacco Control (Fctc) Dalam Upaya Pengendalian Konsumsi Tembakau Di Indonesia, Fajar Kurniawan

Jurnal Hukum & Pembangunan

The current problem of tobacco consumption has become a global issue that covers almost all aspect of life, both economic, social and community welfare aspects, especially for the health aspects because of the impact of the healt losses they cause. Cigarette consumption in Indonesia continues to experience a significant increase. Indonesia is the thrid country with the highest number of smokers in the world. Global tobacco consumption control has been stated in Framework Convention on Tobacco Control (FCTC) since 2003, but until now Indonesia has not ratified that FCTC. As part of the civilization of the international community, it is …

Model Negara Kesatuan Republik Indonesia Di Era Reformasi, Mahmuzar Mahmuzar

Jurnal Hukum & Pembangunan

Article 1 Paragraph (1) of the 1945 Constitution stated that the state of Indonesia shall be a unitary state, with the form of a Republic and in article 37 paragraph (5) is affirmed that the form of the unitary state of the Republic of Indonesia may not be amended. There are two kinds of unitary state, namely unitary state with centralistic system and unitary state with decentralized system. The unitary state with decentralized system has five variants, namely; (1) unitary state with centralized decentralized system; (2) unitary state with decentralized system that decentralistic; (3), unitary state with proportional decentralized system; …

Contradiction Over The Application Of Corporate Liability In Corruption Court Decisions In Indonesia, Budi Suhariyanto, Cecep Mustafa

Indonesia Law Review

This paper presents and critically analyses the application of corporate criminal liability in the decisions of corruption crimes in Indonesia from 1999 to 2019. Of the seven corporate cases that have been prosecuted and convicted in this period. We identify 4 (four) corporate criminal liability models as follows. First, the corporation is accused, prosecuted, and convicted after the management has been convicted through a final and binding decision. Secondly, the corporation is excluded from the indictment but included in the sentencing. Third, the prosecution of corporate crimes negates the criminal liability of its management. Fourth, a portion of corporate criminal …

Examining The Principle Of Ignorantia Facti Excusat, Ignorantia Iuris Non Excusat In The Corruption Case Nizzadro Fabio, Simplexius Asa

Indonesia Law Review

This study was designed as a normative research based on documentary research while the data is analyzed based on the court decisions and is presented in a qualitative descriptive manner, aiming to find out the essential meaning of the teachings of ignorantia facti excusat, ignorantia iuris non excusat, and to knowing the implementation of the principles of ignorantia facti excusat, ignorantia iuris non excusat. This is in the regulations and judicial practice in Indonesia through the views of the judges in decision Number 20/Pid.Sus-TPK/2022/PN. Kpg. The study found three main conclusions, namely first, the principle of ignorantia facti …

The Analysis Of Transitional Justice Initiatives And The Flaw Of Prosecution On The Past Human Rights Violation In Indonesia (Tanjung Priok Case), Junaedi Saibih, Elwi Danil, Kurnia Warman, Nani Mulyati

Indonesian Journal of International Law

The political transition from the New Order era to Reform Era has initiated questions to the transitional government about transitional justice initiatives. This chapter discusses the theoretical perspectives on transitional justice that have been developed by many scholars in their publications. Besides the theoretical perspectives about transitional justice, this chapter also discusses transitional justice elements, the forms, and the institution of justice in transitional regimes. The discussion in this chapter is important as a measurement of the transitional government initiatives to reach political stability and reconciling with the past. The explanation about the forms and the element of justice then …

Reversal Burden Of Proof In Process Of Proving Money Laundering Cases In Indonesia, Artha Febriansyah, Eva Achjani Zulfa, Muhammad Yusuf, Desia Banjarani

Indonesia Law Review

The implementation of reversal burden of proof in money laundering cases still faces obstacles that cause suboptimal and ineffective in legal enforcement. It raises a debate regarding the existence of reversal burden of proof in the proving system, particularly the proof of the crime of money laundering. Based on this background, the problems in this research are related to the regulation and implementation of reversal burden of proof in the process of proving money laundering cases and the steps that can be taken in optimizing the application of reversal burden of proof in the process of proving money laundering cases. …

Pelestarian Ekosistem: Urgensi Pengaturan Sanksi Pemulihan Bagi Spesies Dalam Kejahatan Terhadap Satwa Liar, Britha Mahanani Dian Utami

Jurnal Hukum & Pembangunan

Law Number 5 of 1990 concerning the Conservation of Natural Resources and Ecosystems has never been revised while the development of science and technology has influenced a paradigm shift in the protection of biodiversity. The proposal of Commission IV of the House of Representatives to propose a revision of Law Number 5 of 1990 was approved in the Plenary Session as a 2021 Priority Bill. However, in the draft Biodiversity Conservation Bill, recovery is still oriented towards the recovery of the area, while not yet regulating recovery for species that are victims of crime. This paper argues that the regulation …

Kepastian Hukum Penyelesaian Sengketa Dengan Klausula Arbitrase Di Mahkamah Agung, Devianty Fitri, Almaududi Almaududi

Jurnal Hukum & Pembangunan

Settling disputes in court can be a time-consuming and exhausting process. Therefore, the availability of arbitration as an Alternative Dispute Resolution (ADR) is one of the efforts to achieve faster solutions and dispute resolutions. However, in some cases in the Supreme Court, there are disputes that contain arbitration clauses in the agreement, yet they are still submitted to court and decided by the court. This research aims to examine the disappearing in-depth study of legal certainty in dispute resolution with arbitration clauses by analyzing several verdicts. The method used in this study is normative juridical with a legislative and case …

Strategi Burden & Salvage: Formula Yuridik Untuk Terapi Doktrinal, Phobia Pajak Karbon, Herman Bakir

Jurnal Hukum & Pembangunan

This text introduces the burden & salvage doctrine, a formula providing an alternative path to develop a solid lex specialis within the realm of Pigouvian tax. It promotes a type of “juridical therapy” for the Indonesian government to overcome their excessive “fear” of carbon taxes, which had led them to surrender and revoke the program until the end of President Joko Widodo’s tenure Method: Data was gathered online using the World Wide Web’s search features to their fullest potential. Findings: Carbon tax should ideally be established by the legislation of the lex specialis type, characterized by the burden and salvage …

Pandangan John Finnis Mengenai Hukum Yang Tidak Adil, Petrus Ckl Bello

Jurnal Hukum & Pembangunan

Contemporary natural law thinker John Finnis in his book Natural Law and Natural Right published in 1980 differentiates between legal obligations and moral obligations. According to Finnis, legal obligations cannot change, while moral obligations can change, in the sense that when it comes to unjust laws, only the moral obligation to obey the unjust law is extinguished, while the legal obligation to obey the unjust law remains and is binding. For Finnis, natural law theory does not focus on the view that the law is wrong or against moral principles that cannot be called law (lex injusta non est lex), …

Efektivitas Pelaksanaan Pemberian Pendidikan Formal Bagi Anak-Anak Pengungsi Luar Negeri Di Kota Batam, Rina Shahriyani Shahrullah, Heru Susetyo, Lu Sudirman, Rendi Sahputra

Jurnal Hukum & Pembangunan

The entire responsibility for all children in Indonesia lies with the government, and it extends to all children in Indonesia, not only those who are Indonesian nationals but also includes children who are refugees from foreign countries. One of the fundamental rights regulated by the laws and the Convention on the Rights of the Child ratified by Indonesia is the right to receive appropriate education (formal, non-formal, and informal education). This research aims to analyze the implementation of formal education fulfillment for refugee children in Batam City, especially those accommodated at Hotel Kolekta. Therefore, the research questions are as follows: …

Kepastian Hukum Kantor Perwakilan Badan Usaha Jasa Konstruksi Asing Dalam Melakukan Kegiatan Usaha Di Indonesia, Emy Mutia Zahrina

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Representative offices are present in Indonesia in order to meet the needs of global economic growth in all countries. Multinational companies expand their business to other countries through relocation policies. The aim is none other than an effort to reduce production costs through a number of comparative advantages possessed by Indonesia as well as seizing such a large market for these products, and through this way multinational companies benefit. The presence of representative offices in Indonesia is regulated by Presidential Decree Number 90 of 2000 concerning Representative Offices of Foreign Companies. Through the Presidential Decree, the government limits the scope …

Cross-Border Transfer Pricing Sebagai Tindakan Tax Avoidance, Elleanor Rigby Bangun

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Transfer Pricing refers to pricing transaction within and between enterprises situated in different countries and belong to the same multinational group. Cross-border transaction inevitably affects international taxation, especially when multinational enterprises encounter two or more countries that apply different tax collection systems. Consequently, a Tax Treaty (Perjanjian Penghindaran Pajak Berganda/P3B) is made to resolve issues involving double taxation. However, since the Tax Treaty’s benefits vary by country, the investors or companies tend to abuse the agreement in order to gain the most profitable benefits or incentives. Abusing the benefits of Tax Treaty (P3B) could be categorized as an act against …

Resentralisasi Kewenagan Pengelolaan Pertambangan Mineral Dan Batura, Muhammad Salman Al Farisi

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Amendments to Law No. 4 of 2009 became Law No. 4 of 2009 withdrawing almost all local government authority into central authority. Leaving room for delegation of some of the authority of the Central Government to provincial regional governments for the issuance of IPR and SIPB, even district-city governments no longer have space for authority over coal mineral mining matters. the authority of provincial or district/city regional governments in mining affairs, is a concurrent matter which in its handling involves the central government and regional governments, withdraws most of the authority and does not involve regional governments, of course it …

Analisis Terhadap Penerapan Asas Formil Dan Materiil Pembentukan Rancangan Undang-Undang Tentang Penghapusan Kekerasan Seksual, Siti Sharhana Drajat

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Sexual violence in Indonesia has caused a public’s worry. The bill on the elimination of sexual violence (RUU PKS) is considered very important to be passed. Purpose of this article is to analyze the suitability of the principles in the RUU PKS with Indonesian act of Formulation of Laws and Regulation Number 12 of 2011 (UU P3). The method used in writing this article uses the normative legal research. Results of this study are formal principles in the anti sexual violence bill is appropriate with the UU P3 except the principle of openness. Likewise with the material principles in the …

Analisis Kritis Mengenai Percepatan Waktu Penagihan Utang Dalam Sengketa-Sengketa Kepailitan, Siti Rahmah Sari Ramadhani

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Law Number 37 of 2004 (UUK-PKPU) is a refinement of the old bankruptcy regulation of Faillissementsverordening (Fv) and Law Number 4 of 1998 (UUK). Completion is done in order to meet the needs and solve problems that arise in connection with bankruptcy. However, despite the changes and improvements to the regulation, there are still problems that arise, especially in accelerating the timing of debt collection (acceleration). In the UKK and Fv acceleration is not regulated normatively. So the judge has the discretion to make the discovery of the law differently in each case. In UUK-PKPU acceleration found in the explanation …

Tinjauan Hukum Penerapan Hak Mendahulu Utang Pajak Dalam Perkara Kepailitan Pt Industries Badja Garuda Berdasarkan Undang-Undang Nomor 37 Tahun 2004 Tentang Kepailitan Dan Penundaan Kewajiban Pembayaran Utang, Siti Fatimah Citra Nurislamiati

"Dharmasisya” Jurnal Program Magister Hukum FHUI

This paper discusses the application of pre-emptive rights over tax debt collection in bankruptcy disputes regulated in Article 41 paragraph (3) of Law Number 37 of 2004 concerning the Bankruptcy and Deferral of Debt Payment Obligations displayed by the Directorate General of Taxes. Tax debts outside the bankruptcy process for compulsory taxes are being filed for bankruptcy by requesting the Commercial Court to return all tax liabilities that would harm the interests of the country. In the event that a taxpayer has been declared bankrupt, the Directorate General of Taxes still has the right to overtake and is privileged, requesting …

Kedudukan Bukti Tidak Langsung (Indirect Evidence) Dalam Penyelesaian Praktik Kartel Di Indonesia, Siti Aminah

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The purpose of this paper is to find out and analyze the position of Indirect evidence used by KPPU in the completion of cartel practices in Indonesia and to analyze indirect evidence in terms of systems of verification in Indonesia. The research method used in this writing is a method of legal research that is prescriptive. The position of Indirect Evidence or evidence in the process of evidence can be accepted as evidence in proof of a cartel case and is evidence that must support the occurrence of alleged cartel practices in terms of price fixing and this indirect evidence …

Tinjauan Resi Gudang Sebagai Lembaga Jaminan, Savitri Islamiana Putri

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Warehouse Receipt System is expected as a solution to overcome the fall in commodity Warehouse Receipt System is expected as a solution to overcome the fall in commodity prices at harvest by storing farmers' harvests in the warehouse. The building manager will issue a Warehouse Receipt as proof of ownership of the goods stored as collateral for the debt that can be transferred by the inventory collateral. Therefore, the government Act No. 9 of 2011 concerning Amendment to Law No. 9 of 2006 concerning the Warehouse Receipt System (SRG Law). This research seeks to answer can the warehouse receipt provisions …

Analisis Hukum Terhadap Perlindungan Nasabah Dalam Menggunakan Internet Banking Di Indonesia (Studi Kasus Bank X), Salsabila Putrianda

"Dharmasisya” Jurnal Program Magister Hukum FHUI

With the present development of technology and the internet, everything has been made easier. One sector that is affected by the development of information and communication technology is Banking, an economic sub-sector that mobilizes public funds. Behind the convenience obtained from the use of Internet Banking, there are also risks that can be used in the use of this service, among others, many violations of law regarding personal data via the Internet and also regarding financial risks suffered by bank customers in the use of Internet Banking The IT criminals cause the Banking industry to be able to prepare security …

Dampak Ketiadaan Perda Penetapan Ukl/Upl Pada Kepastian Hukum Dalam Pelaksanaan Desentralisasi Di Bidang Lingkungan Hidup, Puteri Amirillis

"Dharmasisya” Jurnal Program Magister Hukum FHUI

The case of mangrove damage on the South Coast of West Sumatra in 2016-2017 where the defendant was a Deputy Regent who owned land in the Nagari Mandeh area, Pesisir Selatan, West Sumatra. The land was built without an environmental permit. The absence of an environmental permit has emerged because of the mangrove damage. This paper focuses on the absence of environmental permits because there is no stipulation on the types of businesses that are required to have UKL / UPL which should be stipulated by a regional regulation (Perda) by the Regional Government of the Pesisir Selatan Regency. This …

Penegakan Hukum Lingkungan Hidup Oleh Pemerintah Daerah Dalam Kerangka Otonomi Daerah, Prahesti Sekar Kumandhani

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Environmental law enforcement by regional governments in the context of regional autonomy is an important part of realizing quality environmental protection and management through the formation of regional legal policies. Regional legal policies regarding the protection and management of life-based on statutory regulations at the central level also influence the functioning of environmental law enforcement in the regions. This article aims to review the pattern of environmental law enforcement based on the Law on Environmental Protection and Management, the Regional Government Law, and the Job Creation Act, and discusses the relationship between the functioning of environmental law enforcement in the …

Disharmonis Penyelenggaraaan Sistem Jaminan Sosial Nasional Bagi Aparatur Sipil Negara Di Indonesia, Prima Anindya Kartika

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Social security system is made to actualize prosperity, welfare, and justice to Indonesian society. When Law No. 24 Year 2011 published, the existence of social security system cause discrimination, especially for government employee, because the healthcare security is merged. Moreover, the other insurance is also going to be merged with other sector such as private sector, businessman or investor, even an unemployment. It is stated in Article 65 Law No. 24 Year 2011, that PT ASABRI and PT TASPEN (PERSERO) which is now manage the pensions and retirement benefits of military and civil servants the transfer the program of Insurance …

Kausalitas Penegakan Hukum Tindak Pidana Korupsi Terhadap Stabilitas Keuangan Negara, Nur Ghenasyarifa Albany Tanjung

"Dharmasisya” Jurnal Program Magister Hukum FHUI

Corruption is an extraordinary crime because it touches various lines of life. One of the fundamental elements in corruption is the loss of the country's economy and finance. So far, various efforts have been made for criminal law enforcement, through various criminal sanctions, as well as the existence of an independent institution specifically tasked with conducting criminal law enforcement. However, corruption continues to be massive in Indonesia, which will also affect state losses. This article will discuss the causality of law enforcement on corruption against state financial stability. There is a causality between law enforcement of criminal acts which has …

Perlindungan Bagi Umkm Terhadap Persaingan Usaha Tidak Sehat, Nadia Feby Artharini

"Dharmasisya” Jurnal Program Magister Hukum FHUI

This journal discusses the protection of Micro, Small and Medium Enterprises (MSMEs) against unfair business competition. This research uses literature study on secondary data. The result of the research is the identification of regulations regarding unfair business competition, especially for MSMEs. Regarding the protection for Micro, Small and Medium Enterprises or MSMEs against unfair business competition, there are several aspects, namely the reasons why protection for Micro, Small and Medium Enterprises or MSMEs should be held against unfair business competition and the form of protection provided by the KPPU to MSMEs in unfair business competition.

Keywords: UMKM, protection, unfair business …

Penanganan Situs Internet Bermuatan Negatif Menurut Undang Undang Nomor 11 Tahun 2008 Dan Peraturan Menteri Komunikasi Dan Informasi Nomor 19 Tahun 2014, Muhammad Farhansyah Hamid

"Dharmasisya” Jurnal Program Magister Hukum FHUI

This paper discuss about the concept of a internet sites that is defined to be negative and how’s the Indonesian law regulates it, and about the mechanism of negative site handling based of peraturan menteri komunikasi dan informasi nomor 19 tahun 2014. Furthermore, it will be discussed about the human rights to have access to the information and how negative content handling related to it. This legal research uses normative juridical approach with secondary data from national, regulations, books, and interview with sources. The result of this research is that content handling is so related to limitation of human rights …