Law Approach Research Articles

PENOLAKAN TERHADAP KEGIATAN PENGADAAN TANAH MENURUT FIKIH DAN UNDANG-UNDANG INDONESIA

ABSTRAK Rejection to Land Procurement activities for public interest purposes are complex issues that require an in-depth understanding from both Islamic law (fiqh) and Indonesian legislative perspectives. This study aims to identify the reasons for land rights holders' Rejection to Land Procurement and analyze the approaches used in fiqh and national law to address these Rejection. A qualitative method with a literature study approach was used in this research. Data collected includes primary, secondary, and tertiary legal materials relevant to Land Procurement issues and the rights of landholders. The study results indicate that, in Islamic fiqh, there is no standardized rule governing Rejection to Land Procurement; however, the principle of maslahat (benefit) serves as a primary basis for considering public interest without neglecting landholders' rights. On the other hand, Indonesian Law No. 2 of 2012 on Land Procurement for Development for Public Interest provides detailed procedures for handling Rejection, including provisions on compensation and legal recourse. In conclusion, fiqh offers greater flexibility based on government policy to balance individual rights with public interest, whereas Indonesian law is more structured in its regulatory resolutions. The novelty of this study lies in its comparative analysis between the normative fiqh approach and the positive law approach in Indonesia. This study recommends the integration of the maslahat principle within national legal practices to achieve fair resolutions and enhance awareness regarding land rights and obligations in the Land Procurement process. Keyword: Rejection, land procurement, fiqh, law legal

ELECTION DISPUTES: A COMPARATIVE ANALYSIS OF THE JUDICIAL REVIEW PROCESS IN MALAYSIA AND INDONESIA

This paper uses Zweigert and Kötz’ classical functional approach in comparative law to compare judicial reviews relating to election disputes in Malaysia and Indonesia. It is seen here that even though Malaysia and Indonesia have similarities in their intent to settle election disputes and apply the method of judicial review to act as a means of check-and-balance, the judiciary in both systems has shown themselves rather unwilling in directly addressing the legality of these election petitions. There are variations in court structure and legal regulations governing the systems in Malaysia and Indonesia. Malaysia’s Election Court often dismisses cases based on technicalities, while Indonesia’s Constitutional Court adopts a wider approach, incorporating cultural norms and indigenous rules. Additionally, Malaysia’s judicial system benefits from a more mature application of judicial review, grounded in its common law practice and a robust body of case law. By employing a micro-comparison method, this paper enhances understanding of the socio-political and legal contexts that influence the handling of election disputes in both countries. It also demonstrates the importance of considering the distinct legal structures, political influences, and historical legacies that define the electoral systems in Malaysia and Indonesia. The classical functional approach involving micro-comparison is best suited for the current study due to the particular problem of election disputes forming its focus. This paper aims at enhancing the understanding and knowledge regarding the social, cultural, historical, and other factors that influence the legal systems in both countries.

Hubungan Hukum Kemitraan antara Driver Online dengan Penyedia Layanan

This study aims to find the best way out to realize legal protection for Online Drivers. This study uses a normative legal research type.(legal research, rechtsonderzoek),by emphasizing the implementation of law and conceptual approaches, especially related to partnership agreements. This study is not intended to verify the hypothesis testing. Thus, legal research is not known for hypotheses, and also does not recognize the term data. In legal research, the term legal material is used. The results of this study indicate that there are fundamental differences between partnership agreements and work agreements. Moreover,The partnership relationship between online drivers and application service providers is basically unique, considering that the legal and formal positions of the parties are equal (see Article 36).Law Number 20 of 2008).However, socially and economically online drivers are in a weak position. Therefore, the government as the sovereign should provide legal protection for online drivers in the form of laws and public policies. Legal protection for online drivers is basically intended to protect their rights. This is in line with John Rawls' principle of distributive justice.

Generative artificial intelligence is not a mere tool: Revisiting Indonesian Copyright Law

AbstractGenerative artificial intelligence (GAI) is capable of creating original works with such a remarkable degree of autonomy that it makes no sense to be considered or analogized to traditional technologies that are merely used by humans. The human who provides the initial input (prompt) to the GAI does not make sense to be considered as the author of the GAI's self‐created works. The internal characteristics of GAI that enable it to create its own works and the works per se challenge the four prevailing justifications in Indonesian Copyright Law: the biological humans, the idea‐expression dichotomy, the Hegelian, and the Lockean justifications. This research finds the problem that there is a legal vacuum in the copyright regime in Indonesia regarding the legal status of GAI's self‐ created works. The research uses normative legal research method; with theoretical, symbolic logic legal interpretation––which assists in logical modeling of new legal provisions, comparative law, and conceptual approaches; this research aims to answer the legal lacuna which can be addressed with the proposed solution of placing GAI's self‐created works as sui generis and should be put into the public domain with attribution given to GAI which is logically coherent, efficient, and in line with existing justifications and principles of copyright. However, this research also found that the Indonesian copyright regime itself does not formally acknowledge the concept of public domain, which complicates it compared to the United States Copyright Law, hence the urgency to revise it by adopting and adding a concrete formulation of public domain––as elaborated in this article––which is different from public domain in the informal sense, and then adding the formulation of attribution provisions to GAI.

The Rule of Law Approach to Promote High-quality Development of Finance

The modernization of the law in finance of China has national strategic height, national interest dimension, financial inclusion and financial opening breadth, It has the characteristics of Chinese practice and benefits the people.At present, the construction of financial of law is faced with some difficulties, such as the supervision of digital finance, the prevention of financial risks, the coordination in the construction of foreign-related financial of law. In order to fully respond to the needs of construction of law in key areas, first, we will promote financial regulatory innovation and implement the inclusive and prudent regulatory concept on the track of marketization and law. The second is to implement departmental coordination, central-local coordination and social coordination in the prevention of systemic financial risks. Third, strengthening foreign-related financial legislation, justice and law enforcement in the context of high-level opening-up.

The Alignment of Internal and External Audit Agencies in Administering Public Sector Audits in Indonesia

The management of public finance to achieve national prosperity requires the effective, efficient, and integrated work of the existing audit boards. Therefore, continuous evaluation of the alignment of internal and external audit agencies is essential to ensure reliable public financial management and prevent corruption. This study describes the performance and coordination patterns between internal and external audit agencies by detailing their synchronization patterns in administering financial audits in the Indonesian public sector. Using a normative legal research method, the study incorporates legislative and conceptual approaches. The findings reveal that the performance of both internal and external audit agencies in safeguarding public finance from fraud shows varied degrees of effectiveness. However, a comprehensive regulatory framework governing the alignment of these agencies remains absent. Furthermore, synchronization in public finance audits is pursued through a unified regulatory framework, horizontal alignment among agencies, and the establishment of clear boundaries of authority and coordination mechanisms between the internal and external audit agencies. Further research should consider the potential for consolidating various regulations of public sector audits through an omnibus law approach.

The procedural legal status of migrants transported by smugglers in European jurisprudence

In this paper, we present the approach of criminology and criminal procedure law to migrant smuggling, a phenomenon that is also significant at the European level. The characteristics of migrant smuggling as defined by the UN Protocol are presented, followed by the responses at the European level and the most recent statistics. The procedural status of smuggled persons, their status as victims, witnesses or perpetrators (suspected or accused), and the approach taken by the different branches of law are also discussed. After that, we summarize the results of our research conducted in the spring of 2024 with the cooperation of EUROJUST and Legicoop members. The following research questions were formulated, concerning the procedural status of migrants transported by smugglers in their countries  In criminal cases of migrant smuggling, what is the procedural position of the person transported by the migrant smuggler? (victim, witness, instigator, abettor) Are there any individual criminal proceedings or other (i.e. administrative, misdemeanour) procedures against the person transported by the migrant smuggler?In most European countries, migrants are considered victims of migrant smuggling and in the criminal proceedings that have been initiated, they take the position of victims: at most they are questioned as witnesses. Due to illegal border crossing, no separate criminal proceedings are usually initiated against them, most of the time these cases are resolved within the framework of public administrative proceedings.

“Can you ban the bees from the honey?”: exploring an integrated labour law and geographical indications approach for protecting the rights of forest-dwelling communities over non-timber forest produce

ABSTRACT In this article, we study the fragmented approach of two Indian statutes, namely, the Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act 2006 (“FRA 2006”) and the Geographical Indications of Goods (Registration and Protection) Act 1999 (“GIA 1999”). The article critically examines the labour law approach under the FRA 2006 and intellectual property ownership under the GIA 1999 with a specific focus on the production and commercialization of non-timber forest produce. The analysis leads to an argument for an integrated approach that starts with recognizing the agency of the communities, followed by guaranteeing protections under the labour rights approach and integrated protection through GIs. The integrated approach would facilitate cooperative experiments that go beyond strict private and public law distinctions. This can offer sustainable livelihood opportunities for forest-dwelling communities.

FROM THE TRAFFICKERS TO THE OUTSKIRTS: DOMINATION, RESISTANCE AND STRUGGLE

This article examines the subordination of the black population in Brazil from the colonial period to the present day, highlighting the persistence of racist legislation in the Brazilian legal system and the marginalization of Afro-Brazilian voices in literary historiography. Using the interdisciplinary approach of Law and Literature, the research analyzes divergences and convergences in the treatment of Afro-descendants throughout Brazilian history, focusing on the short story A escrava, by Maria Firmina dos Reis. It is argued that Firmina's exclusion from canonical historiographies is a reflection of a political-ideological project rooted in Brazilian Romanticism, whose purpose was to sustain an elitist and Eurocentric national identity. The study concludes by defending the implementation of an anti-racist education, based on Law 10.639/2003, as a way to decolonize knowledge, promoting representation and recognition of Afro-Brazilian contributions in the literary, historical and cultural spheres.

Unstable Delamination Growth in Stiffened Composite Panels Under Cyclic Loading Conditions.

Aeronautical structures can be damaged by objects during operation and maintenance. Indeed, foreign object impacts (FOIs) affect the overall performance of composite structural components. Delamination is the most critical damage mechanism as it is undetectable and develops silently. This phenomenon can be worsened by cyclic loading, as residual strength and stiffness can decrease rapidly, potentially leading to collapse. Unstable delamination growth is critical because it can occur without an increase in the applied load, threatening the integrity of the structure. Predicting this behaviour under fatigue loading is challenging for standard non-linear finite element methods (FEMs), which often face convergence problems when simulating the dynamic nature of delamination growth. This paper presents an efficient alternative methodology for analysing the propagation of delamination under cyclic loading in composite structures, with non-linear static analyses. This new methodology has been shown to be able to correctly account for the decrease in load carrying capacity during growth by performing ad hoc iterations with alternating force and displacement-controlled FEM simulations. To achieve this objective, the Paris law approach has been implemented in the ANSYS FEM code together with an enhanced virtual crack closure technique (VCCT)-based method. The model correctly predicted delamination growth in stiffened aeronautical panels with artificial delaminations subjected to cyclic compression loading.

EU digital law and the digital platform economy—an inquiry into the co-evolution of law and technology

AbstractEU digital policy is currently one of the most ambitious and far-reaching endeavors to regulate the digital economy. Online platforms in multisided markets with digital ecosystems lie at the heart of digital technologies and business models. Among others, they pose new challenges with regard to the abuse of a dominant market position, thus ultimately reducing competition and innovation. This paper outlines an evolutionary approach to the co-evolution of law and technology with collective cognitive constructs and wealth effects as essential drivers (Eckardt (2001, 2008). It is then applied to the evolution of EU law in this field. After an overview of the evolution from telecommunication monopolies to the current digital platform economy, a case study presents firstly the Google Search (Shopping) case (2010–2024). Based on traditional EU competition law, it resulted in gradual judge-made legal innovation. It also generated new knowledge about the shortcomings of the ex post approach of EU competition law when applying it to the digital platform economy. As a consequence, secondly, the introduction of the Digital Markets Act (DMA) (2020 onwards) as a radical statutory innovation is discussed. The DMA introduced a novel ex ante regulation for large online platforms to overcome the problems of traditional EU competition law. Finally, the paper reflects on the impact of wealth effects and the (co-evolving) cognitive constructs of the relevant players as drivers in this current example of the co-evolution of law and technology. The paper concludes with an outlook on further areas of empirical and conceptual research that can provide a better understanding of the co-evolution of law and technology and allow for better policies in regard to disruptive technological innovation.

The attribution of empirical desert in complex contexts: an experimental criminal law approach to voluntary intoxication

The attribution of empirical desert in complex contexts: an experimental criminal law approach to voluntary intoxication

Commutative and Retributive Justice in the Administration of Disgorgement in Insider Trading Cases—the Case for the Common Law Approach to Damages

Using Zambia as a case study, this article examines the efficacy of the Zambian regulatory and institutional framework for public distribution of securities in ensuring commutative justice in the administration of disgorgement by the Securities and Exchange Commission. Using the doctrinal and non-doctrinal approaches to examining the effectiveness of regulatory rules and institutions, the main findings of the study are: When it is applied to non-corporate insider traders, the statutory formula for disgorgement which is provided in the Zambian Securities Act 2016 tends to under-regulate by leaving some of the insider trading gains with the insider trader—a commutative injustice to the public; When it is applied to juristic persons (companies and other styles of bodies corporate), the formula for disgorgement which is provided in the Zambian Securities Act 2016 tends to over-regulate by taking away from the insider trader more than they actually gained from insider trading—a retributive and commutative injustice to the insider trader. The central argument of this article is that regulatory rules and institutions which promote retributive and commutative justice are likely to inspire social willingness to pay the cost of socioeconomic exchanges and regulation, and as such, are efficient. As a possible way of promoting commutative and retributive justice in the administration of disgorgement in insider trading cases, the article makes a case for the application of ‘the common law approach to the award of damages’ in the determination of the amount which is to be disgorged. The article also makes proposals for the repeal of the statutory formula, and its replacement with the standard formula for disgorgement which has been proposed.

On the issue of the effectiveness of the civil law method in the regulation of health protection relations

The subject of the study is the rights of citizens to health protection, as well as the possibility of their transformation in the direction of strengthening the legal nature of these relations. In the context of the dominance of the sectoral approach in law, the author develops ideas about subjective law as an effective regulator of patient behavior. The opinion is expressed that the responsibility of the subject's independent choice can give a new impetus to improving the level of quality indicators of medical care, ensuring the timeliness, qualification and comprehensiveness of examinations. An attempt has been made to shift the focus in the process of streamlining relations from the subject of legal regulation to methods. New opportunities have been identified to increase the level of the legal nature of court decisions that can take into account the objective need to expand the scope of private law (civil) ways of influencing the patient on the medical process. The dialectical method has become the main research method. The conditions for improving medical care are revealed, taking into account the differences between public law and civil law regulatory methods in solving problems of law enforcement practice. The scientific novelty is that the examples of legal practice have provided new knowledge necessary for the development of existing doctrinal approaches in legal science. The limitations of the sectoral approach in law, due to the high degree of dynamism of society, are convincingly argued. It has been established that orientation to the subject of legal regulation, as an unconditionally dominant factor in choosing a strategy and tactics for streamlining relations, does not always ensure the completeness of the legal nature of judicial acts. The emphasis of legal regulation in health protection is focused on the priority use of public law (or "organizing") methods that guarantee the mass provision of medical care designed for everyone. The possibility of providing quality indicators of care to a specific patient with special health characteristics and conditions for receiving it is still secondary. It is necessary to actively apply civil law methods of protecting the right to health protection, while skillfully using the resource potential of the law.

Support vector machine based on the quadratic unconstrained binary optimization model

Abstract Support vector machine (SVM) is a powerful supervised machine learning model that is often used in binary classification algorithms. As Moore’s Law approaches its theoretical limits and the demand for machine learning to handle large-scale, high-dimensional data analysis intensifies, the necessity of adopting non-traditional computational approaches becomes evident. Quantum computing, in particular, emerges as a vital solution for the effective training of SVM models, providing capabilities beyond those of classical computing systems. To solve the above problems, a QUBO (quadratic unconstrained binary optimization) model is proposed to transform the SVM machine learning model into a quadratic unconstrained binary optimization problem so that they can be effectively trained on the D-Wave platform using adiabatic quantum computer. The results show that the QUBO model can transform the SVM model into a simple quadratic programming problem, which makes it suitable for adiabatic quantum computer processing. When processing large-scale and high-dimensional data, this transformation shows a natural advantage and significantly improves computational efficiency. The application potential of this transformation technology is huge in the medical field.

PROTECTION OF THE ENVIRONMENT – INTERNATIONAL HUMAN RIGHTS AND INTERNATIONAL HUMANITARIAN LAW PERSPECTIVES

This review essay outlines, examines and compares two approaches to the environment – the international human rights law approach and the international humanitarian law approach. International community is in the middle of a climate emergency, facing societal collapse and the possible extinction of our species in the future. Hence, we might or we should use any legal weapon we can – including international human rights law and international humanitarian law – to confer as much protection on the environment as we can. The main research questions are: Which of these approaches better protects the environment? Which is closer to the idea that the environment should not only be protected but should have its rights? Where the environment is protected for its value for humans and where for its inherent value? The research methods used in the paper are content analysis of the relevant literature and legal analysis of human rights law and international humanitarian law treaties. The authors conclude that human rights law approach is more progressive and would offer better protection to the environment, even though it is still anthropocentric. Consequently, a human right to a clean, healthy and sustainable environment has to be anthropocentric. As to international humanitarian law, international policy has a long way to go before the welfare of the whole ecosystem is adequately recognised and protected in armed conflicts. While international humanitarian law is also anthropocentric and generally neglects to safeguard nature, some principles can be inferred to offer nominal protection in times of conflict at all levels: custom, general principles and treaties.

Kepastian Hukum Transaksi Dengan Menggunakan Mata Uang Dinar Dan Dirham Dalam Pendekatan Hukum Pidana Di Indonesia

Legal certainty related to transactions using Dinar and Dirham currencies in the criminal law approach in Indonesia. Based on Law No. 7 of 2011 on currency, Rupiah is the only legal tender in Indonesia. The use of currencies other than Rupiah, including dinars and dirhams, is not legally recognized and has the potential to violate criminal provisions, such as those related to fraud or forgery. However, this phenomenon also involves social and cultural dimensions, especially in communities based on sharia economics, where dinars and dirhams are considered as means of transaction that are more in line with Islamic principles of justice and ethics. Overly repressive law enforcement can generate resistance in society, so more inclusive legal reforms and adjustments are needed. By promoting dialogue and collaboration between policy makers, business actors, and the community, it is expected to create a legal system that is fair and responsive to social needs and is able to maintain legal stability in Indonesia . From the research results, the transfer of receivables by Cessie by the creditor in the event that the debtor fails to pay the third party mortgage guarantee does not comply with the applicable provisions as regulated in Article 613 of the Civil Code and Law of the Republic of Indonesia Number 4 of 1996 concerning Mortgage Rights. Form legal protection for third parties by filing a lawsuit before or during the execution process. The government, stakeholders and related parties are expected to make changes to Law of the Republic of Indonesia Number 4 of 1996 concerning Mortgage Rights over Land and Objects related to Land, by accommodating third party protection which is explicitly regulated in guaranteeing rights to land, these regulations do not clearly regulate the rights and obligations of third parties so they cannot provide legal protection for collateral owners. The results of this study that legal certainty related to transactions using dinars and dirhams, as done by Zaim Saidi, in the approach of Indonesian criminal law is a violation of Article 9 of Law No. 1 of 1946 on Criminal Law regulations in conjunction with Law No. 7 of 2011 on currency. Enforcement of these transactions can be carried out through the application of criminal sanctions, since the use of currencies other than Rupiah for payment purposes is not justified by law. In addition, the low legal awareness of the public in using the Rupiah as a legal tender also became an important factor in this case.

Политический процесс и формирование государственности в Донецкой Народной Республике

The article analyzes the political process and formation of statehood in the DPR in the context of international law and historical background. It examines the issues of balancing the principle of territorial integrity and the right to self-determination, the evolution of representative bodies in the DPR, and the institutionalization process of the results of the independence referendum. Special attention is paid to historical, cultural, and political factors that have contributed to the region's desire for autonomy. The reasons for the escalation of ethno-political conflict and the role of state-building in protecting the rights of the population of Donbass are explored. The article emphasizes the complexity of assessing the legality of self-proclaimed states and the need to develop a balanced approach in international law to such situations.

Phenomenological Study of Wali's Tomb Pilgrimage

Even though it is still a long-standing debate within Muslims, visiting the wali’s tomb is still a routine ritual. Pilgrimages to the graves of saints in Indonesia and Malaysia present an interesting phenomenon, because both have different principles in applying the law, Malaysia applies sharia law while Indonesia does not. This research seeks to explore the construction of religious piety identity in the tradition of grave pilgrimages, pilgrim behavior and forms of government intervention in the management of saints' graves in Indonesia and Malaysia. This research is a qualitative-phenomenological research, which will reveal the awareness of experiences, social interactions, motives, actions and meanings of the phenomenon of visiting wali’s tomb in Indonesia and Malaysia. The results of this research are; First, the identity of religious piety in the practice of visiting saints emerged as a result of resistance from the religious purification movement which often condemned the practice of visiting wali’s tomb. Second, religious pragmatism can be seen from the motives of pilgrims who use the wali’s tomb as a means of speeding up the fulfillment of their wishes, as well as syncretic behavior by using the burial ground as a means of carrying out all their affairs. In contrast to Malaysia, in Indonesia, the government tends to be responsive to the management of guardian graves by designing them as part of business and tourism. Third, Malaysia uses a sharia law approach to stem deviant behavior from pilgrimage (khurafat), whereas in Indonesia it does not.

When Socialist Chinese Law Meets Common Law Interpretation: Mandatory Sentencing and Mitigation Under the Hong Kong National Security Law

Abstract In HKSAR v Lui Sai Yu [2023] HKCFA 26, the Hong Kong Court of Final Appeal (CFA) delivered its first judgment on the mandatory sentencing regime under the newly introduced National Security Law (NSL). Adopting a common law approach to interpreting the NSL, the CFA held that mitigating factors not listed in the NSL cannot bring about a sentence below the minimum prescribed by the relevant provision. In this article, we propose an alternative approach to interpreting the NSL. We argue that, contrary to the CFA’s rejection of any reference to Mainland Chinese laws in constructing the NSL, both a common law purposive approach and the principle of ‘convergence, compatibility and complementarity’—one of the working principles in the enactment of NSL—would support such reference. The implications of our proposed approach would be to (i) recognize that the sui generis nature of the NSL, being a Chinese national law applied in its Special Administrative Region of Hong Kong, necessitates the consideration of relevant Chinese legal norms; and (ii) allow for a broader range of mitigating factors—those recognized by both Hong Kong common law and Mainland Chinese law—to be applied to the minimum sentencing regime in the interest of fairer and more principled outcomes for defendants.