Juridical Approach Research Articles

Kajian Yuridis Terhadap Perkawinan Beda Agama Setelah Keluarnya SEMA Nomor 2 Tahun 2023 Tentang Penolakan Permohonan Pencatatan Perkawinan Beda Agama

The aim of this research is to determine the impact of SEMA No. 2 of 2023 regarding the constitutional rights of people in interfaith marriages from the perspective of the principle of legal certainty. The trigger factor for the emergence of SEMA is because there is a legal loophole for couples who want to carry out an interfaith marriage, in Article 2 paragraph 1 of Law No. 1 of 1974 concerning Marriage, it is explained that to carry out a marriage they must adhere to their respective religious beliefs. In this article there is no explanation that interfaith marriages are prohibited, then the emergence of regulations regarding marriage registration in Article 35 letter a of the Population Administration Law explains in this article that marriages are carried out between religions. With this gap of uncertainty, the couple continued with an interfaith marriage, so the Supreme Court issued a circular for judges to reject the application for interfaith marriage and provide legal certainty.To achieve this goal, the author uses a normative juridical approach. The data used in this research is secondary data as the main data which includes primary legal material, secondary legal material and tertiary legal material. Data was analyzed qualitatively. Conclusion: the impact of the emergence of SEMA Number 2 of 2023 concerning rejection of requests for interfaith marriages, is a step to provide clarity on the confusion that occurs in society and as a guide for judges in rejecting requests for interfaith marriages. Then the emergence of SEMA gave rise to pros and cons in society. Rejection considers discrimination against personal rights in the context of marriage and limits the independence of judges in adjudicating trials. Keywords: Interfaith Marriage, SEMA Number 2 of 2023, Legal Certainty

Judicial Study: Parties' Opposition (Partij Verzet) in Proceedings to Execute Land Ownership Rights Under Civil Procedure Law

Court decisions that have legal force must be complied with, and execution carried out if the losing party does not voluntarily comply with the judgment. Issues arise when the losing party appeals or takes other legal actions, delaying execution and creating legal uncertainty. Execution is applicable only to condemnatory judgments and is often obstructed by respondent's resistance, a legal challenge from the party involved in the case. The researcher highlights three cases of legal resistance efforts: the South Jakarta District Court decision number 518/Pdt.G/1999/PN Jkt.Sel, Kendal District Court decision number 20/Pdt.Bth/2021/PN Kdl, and Kendal District Court decision number 9/Pdt.Bth/2022/PN Kdl. This study employs a normative juridical method, examining descriptive-analytical literature, and utilizes a qualitative juridical approach in analysis. The research reveals discrepancies between legal certainty theory and judicial practice, where cases may not align with facts or legal standing, leading judges to reject such requests. The study concludes that respondent's resistance is a legal recourse available to the executed party against execution, which does not automatically suspend execution unless there are clear and accepted grounds recognized by the court. The Indonesian Civil Code (HIR) and Civil Procedure Law (RBg) provide legal certainty and protect the rights of those aggrieved by court decisions through the mechanism of respondent's resistance.

Evaluation of the Implementation of Diversion and Restorative Justice in the Child Criminal Justice System in Jayapura City

This research aims to analyze the implementation of diversion and restorative justice in the Juvenile Criminal Justice System (SPPA) in Jayapura City. This research uses a sociological juridical approach with qualitative research methods. Data was collected through literature study and field research, including interviews with law enforcement officials and the community. The research results show that the public's understanding of diversion and restorative justice still needs to improve, while law enforcement officials' understanding is quite good. However, community satisfaction with implementing diversion and restorative justice is still low due to several factors, such as a lack of attention to victims, judge decisions that are considered unfair, and criminal sanctions that are considered too light. Apart from that, there are several obstacles in implementing diversion and restorative justice, such as difficulty presenting child witnesses, complicated statements from perpetrators, and limited space for child detention. This research concludes that implementing diversion and restorative justice in Jayapura City is yet to be optimal and needs to be improved through more intensive outreach, increasing the capacity of law enforcement officers, and improving supporting facilities.

ENSURING JUDICIAL INDEPENDENCE BY EVALUATING THE RECRUITMENT PROCESS AND LEGAL FRAMEWORK FOR JUDGES IN INDONESIA

As the highest judicial institution, the Supreme Court exercises its powers freely and independently. Judges must have morals, principles of justice, and adhere to a code of ethics. Judges must uphold justice in resolving disputes or legal cases and ensure that society receives justice. As state officials, the recruitment process for judges should be separated from the recruitment of civil servants. The position of judges as state officials should be regulated comprehensively by law. This research examines the recruitment process of judges as independent implementers of judicial power. The research method used is descriptive, using qualitative data analysis with a normative juridical approach. Supreme Court Regulation Number 1 of 2021 concerning Amendments to Supreme Court Regulation Number 2 of 2017 concerning the Procurement of Judges regulates the need for judges in General Courts, Religious Courts and State Administration through the acceptance of Candidates for Civil Servants that needs to be improved. This need arises because there are no legal provisions regarding the recruitment of judges as state officials. In the future, provisions for the recruitment of judges should be regulated through Government Regulations so as not to impact the independence of judges as implementers of judicial power.

Transformasi Tatanan Hukum dan Demokrasi: Analisis Perubahan Struktural Pasca Reformasi

This research aims to examine the transformation of the level of law and democracy after the Indonesian reformation, of course after independence Indonesia experienced many structural changes from the pre-Reformation era to the post-reformation era. At all times, Indonesia has always tried to develop and improve Indonesia’s structural order, so this research uses two problem formulations, namely how the legal order in post-reformation Indonesia is and how democracy is implemented in post-reformation Indonesia. This research is qualitative research with a normative juridical approach. The results of this research show that the legal order in Indonesia after the 1998 reform, Indonesia experienced significant changes in its legal order and democratic system. The following are the main points related to several things, namely the constitution, government system, elections and political parties, legal developments, human rights protection, and regional autonomy. Overall, post-reform, Indonesia has moved towards a more mature democratic system with improvements in the legal order, more open elections, and increased protection of human rights.

Juridical Review of E-commerce Selling and Buying on Consumers and Buyers in Indonesia

The use of e-commerce in the world of trade has had a huge impact on Indonesian society, this is related to very important legal issues. The importance of legal issues in the field of E-commerce, especially in providing legal protection for consumers who carry out buying and selling transactions via the Internet. This development emerged due to offers and acceptance from the public, as evidenced by the emergence of various online stores such as Kaskus, Tokopedia, Bukalapak, Shopee and Lazada. This research aims to find out and analyze legal protection for consumers in online buying and selling transactions (e-commerce) and to find out and analyze legal remedies that can be taken by consumers if there is a default in online buying and selling transactions (e-commerce). The approach method used in this research is a normative juridical approach. The specification of this research is descriptive analysis. The data source used is secondary data, which consists of primary, secondary and tertiary law. The data collection tool is library research. The data analysis technique used is qualitative analysis. The results of this research and discussion are legal protection for e-commerce users by upholding consumer rights in accordance with Law Number 8 of 1999 concerning Consumer Protection articles 19, 20, 21, 24, and 26 and regulations related to the implementation of online buying and selling (e-commerce) and the implementation of consumer protection is also supported by involving several parties such as the government, national consumer protection bodies and non-governmental consumer protection institutions. Legal efforts that can be taken to resolve defaults in Law Number 8 of 1999 concerning Consumer Protection are litigation and non-litigation.

Implementation of Indonesian Banking Legal Policy in Consumer and Creditor Protection

This article examines the implementation of Indonesian banking legal policy in the protection of consumers and creditors. The study employs a normative juridical approach to evaluate existing banking regulations and their effectiveness in practice. The primary focus is on the legal protections provided to banking consumers and creditors in cases of loan defaults and dispute resolution. The findings reveal that although Indonesia’s banking regulations have undergone several updates to enhance consumer and creditor protection, there remains a significant gap between the policies and their practical application. The article identifies several factors contributing to this gap, including insufficient regulatory oversight, the complexity of legal procedures, and a lack of consumer awareness regarding their rights. To improve protection, the article recommends strengthening the regulatory framework, enhancing the capacity of supervisory institutions, and intensifying public education on consumer and creditor rights in the banking sector.

Peran Panel dan Appellate Body dalam Penyelesaian Sengketa di WTO

The aim of the research is to determine the role of panels and the Appellate Body in resolving disputes at the WTO. The research method used in this paper is a research method with a normative juridical approach with descriptive-analytical research specifications. The dispute resolution mechanism in the WTO involves five main stages. The first stage is consultation, where the disputing countries try to resolve the problem directly. The second stage includes settlement efforts through good services, conciliation and mediation. The third stage is the establishment of a panel, where independent experts examine the dispute and prepare a report. The fourth stage is the appeals process, where the appeals body reviews the panel's decision if there is an appeal. The final stage is the implementation of the decisions and recommendations issued. The panel is formed within approximately 90 days of the application, consisting of independent experts selected by the DSB. The panel works based on the Terms of Reference (ToR) which regulate the procedures for resolving disputes and is tasked with carrying out an objective assessment of the problems faced, assisting the DSB in making recommendations. If consultations fail, the aggrieved country can request the formation of a panel from the Dispute Settlement Body (DSB). If the panel fails to reach a solution, they must submit a written report to the DSB. This process ensures dispute resolution within a certain time period to ensure legal certainty. In addition, there is an appeal mechanism through the Appellate Body which consists of seven international trade law experts. The appeal process must be completed within 90 days, and the Appellate Body report is final and must be adopted by the DSB.

Resolution Of Cases Of Alleged Malpractice Of Bidan In Supporting Birth In Hospitals By Penal Mediation (Case Study Of Alleged Midwife Malpractice In A Cirebon Regency Hospital)

Malpractice is an error of medical personnel in carrying out their profession that is not in accordance with professional standards and standard operating procedures, resulting in the patient receiving serious injuries, disabilities, and even death. This study aims to analyze the factors that cause the alleged malpractice of midwives in assisting childbirth and the settlement of cases of alleged malpractice with penal mediation. In this study, the method used is a normative juridical approach that involves analyzing the applicable laws related to malpractice cases by midwives as well as reviewing recent cases, with the use of secondary data collection techniques focused on literature review. The results of this study conclude that the main factor in the occurrence of malpractice in midwives is the existence of errors in the form of both negligence and culpa caused by carelessness. The settlement of alleged malpractice cases with penal mediation is a settlement of cases outside the court by bringing together the parties involved, one of the alternative solutions is Penal Mediation. These findings can provide a deeper understanding of the application of responsibility in the context of alleged malpractice by midwives and can contribute to the improvement of legal norms that are more effective in dealing with these problems. The implications of the results of this study are expected to serve as a guide for the authorities, legal practitioners, and the public in facing and understanding the challenges associated with alleged malpractice cases involving midwives.

Problems of Waqf Management in Indonesia: A Review of Positive Law

The implementation of waqf has been happening in many regions in Indonesia. The essence of waqf as a form of worship that brings great rewards and community welfare should be managed properly by professional nadzirs, not the other way around. Various problems have occurred in various regions, resulting in the management of waqf not maximizing and not achieving common goals. This research uses a normative juridical approach that is descriptive analytical by using various theories in legal science related to the process of implementing waqf within the framework of positive legal development in Indonesia. The problems of waqf management in Indonesia so far have been caused by the lack of socialization about waqf by a less aggressive government, waqf management and management that is not in accordance with the rules, limited human resources (nadzir) who meet the requirements and weak control systems in supervision to be less effective in its application in society. The problems that exist so far show that they arise from external factors, namely legal subjects who have not experienced limitations and sufficient knowledge in managing waqf properly and correctly according to the rules of law and Islamic religious law. For this reason, it is necessary to supervise the management of waqf by the government and society so that strict supervision is expected that waqf in Indonesia can be managed properly so that the results can be utilized to empower the quality of life of the people.

Juridical Review of the Phrase "Unlawful" in Decisions on Corruption Crimes in State-Owned Legal Entities

In several court decisions in cases of criminal acts of corruption in State-Owned Enterprises (SOE), the phrase "against the law" is in Article 2 paragraph 1 of Law Number 31 of 1999 concerning the Eradication of Corruption Crimes as amended based on Law Number 20 2001 concerning Amendments to Law Number 31 of 1999 concerning the Eradication of Corruption Crimes (Anti Corruption Act) is interpreted broadly by referring to the explanation of these regulations. Because it relates to an offense, the phrase "against the law" should be interpreted by taking into account the principle of legality, the principle of nullum delictum nulla poena sine previa lege poenali. The use of a broad interpretation of the phrase "against the law" results in unclear differences between unlawful acts in the context of civil law and (onrechtmatige daad) and unlawful acts in the context of criminal law (wederrechtelijkheid). This results in the risk of criminalization of SOE officials, giving rise to fear in making business decisions. The formulation of the problem in this research is how to interpret the phrase "against the law" in article 2 paragraph (1) of the Corruption Law when it is related to cases of criminal acts of corruption in SOE and what is the judge's interpretation of the phrase "against the law" in decisions court for criminal acts of corruption in SOE. The research method used is a research method with a normative juridical approach. The results of the research show that the phrase "against the law" is interpreted broadly in the explanation of article 2 paragraph (1) of the Corruption Law, and judges in several corruption crime decisions interpreted the phrase "against the law" broadly, resulting in violations of the Standard Operating Procedure, Work Plan and The Company's Articles and other internal company regulations are interpreted as unlawful acts that can be considered a criminal act of corruption.

The Existence and Implementation of Customary Law in Acehnese Society Viewed from a Juridical Perspective

This research examines the existence and implementation of customary law in Acehnese society through a normative juridical approach. Aceh is a province whose capital is Banda Aceh, and is located at the northern tip of the island of Sumatra. Aceh has a long history as a center for the spread, culture and religion of Islam in Indonesia, so it is called the "Veranda of Mecca" which differentiates it from other provinces in Indonesia. Researchers use qualitative engineering research methods which aim to analyze the topics discussed and relate them to applicable cases or laws. Research findings reveal that customary law still has significant power and relevance in resolving conflicts, maintaining traditions, and regulating the social life of the Acehnese people. However, challenges in implementing customary law were also identified, including harmonization with national legal systems and social and economic changes. Therefore, this research presents a comprehensive picture of how customary law interacts with the modern legal system in Aceh and its juridical implications for Acehnese society.

The Interplay of Banking Development and Legal Reforms

The enforcement of mortgage rights plays a pivotal role in ensuring economic stability and protecting citizens' financial interests. Within the broader context of economic governance, the banking sector acts as a fundamental pillar, driving economic growth and safeguarding financial certainty. This study examines the regulatory framework governing the enforcement of mortgage rights in Indonesia, emphasizing its impact on financial security and the reduction of Non-Performing Loans (NPL). Through a normative juridical approach, this research analyzes the existing legal provisions in Indonesia and explores avenues for enhancing the mortgage enforcement process. In addition to legal analysis, philosophical discourse is employed to understand the practical challenges in enforcing mortgage rights. A comparative approach focuses on the Indian legal system, where mortgage rights can be executed without court intervention. India’s approach has effectively reduced Non-Performing Assets (NPA), offering valuable insights into Indonesia’s legal reform efforts. The study suggests adopting a comparable framework in Indonesia could streamline mortgage enforcement procedures, reduce litigation, and enhance financial stability. This research aims to contribute to Indonesia’s broader economic management and governance strategies by proposing legal reforms and promoting a more efficient, competitive, financial security, and equitable financial system.KEYWORDS: Legal Reform, Banking, Morgage Rights, Indonesia, India.

Perlindungan Hukum bagi Anak Luar Nikah di Indonesia; Studi Komparasi Putusan Mahkamah Konstitusi Nomor 46/PUU-VIII/2010 dan Hukum Islam

Ideally, legal protection for children born out of wedlock should ensure that they receive civil rights equivalent to those of legitimate children without discrimination. In reality, there are still differences in treatment between positive law in Indonesia, especially after the Constitutional Court Decision No. 46/PUU-VIII/2010, and Islamic law, which holds differing views on the status of children born out of wedlock. The challenge lies in how to harmonize legal protection for these children amidst the differing perspectives between positive law and Islamic law, ensuring that their civil rights are upheld while also minimizing negative social impacts, such as fornication. The purpose of this study is to analyze and compare legal protection for children born out of wedlock according to the Constitutional Court Decision and Islamic law and to seek solutions that can integrate both perspectives to create fair and dignified legal protection. The methodology used in this study is a normative juridical approach, examining various laws, court decisions, and related Islamic legal literature. The results of the research indicate that although there are differences in views between the Constitutional Court's decision and Islamic law, the integration of both approaches can provide more comprehensive legal protection for children born out of wedlock. By balancing both perspectives, it is hoped that it will guarantee the civil rights of these children while also preserving societal morality by minimizing the practice of fornication.

Pemidanaan Terhadap Pelaku Kekerasan Dalam Rumah Tangga (Putusan Nomor 129/Pid.Sus/2021/PN.SdaP)

Physical violence is defined as an act causing the victim pain, suffering, or significant losses. An example of domestic physical violence is found in Decision No. 129/Pid.Sus/2021/PN. Sda. This study investigates two key issues: 1) Whether the criminalization of perpetrators in Decision No. 129/Pid.Sus/2021/PN. Sda meets the provisions of Article 44 Paragraph (1) of Law Number 23 of 2004 concerning the Elimination of Domestic Violence? 2) Whether the punishment in Decision No. 129/Pid.Sus/2021/PN. Sda fulfills the objectives of criminal law? Using a normative juridical approach and library research method, the findings indicate that, per Article 44 Paragraph (1) of Law No. 23 of 2004, the perpetrator should have received a five-year prison sentence. However, the decision did not comply with this legal requirement. The study concludes that the punishment given does not align with the legislative model theory, suggesting a need for a five-year prison sentence. Moreover, the combined theory on the purpose of punishment, which includes providing a deterrent effect and offering guidance to the perpetrator, was not met in this decision. This highlights the necessity for a stricter application of the law to ensure both justice and rehabilitation.

Consumer Data Protection In Electronic Transaction Practices In E-Commerce

Online transactions provide huge benefits for buyers and sellers. For buyers, the convenience of shopping without having to go to a physical store is the main benefit. They can compare prices and products from various sellers, saving time and transportation costs. For sellers, online transactions open up wider market opportunities, increase product exposure, and increase sales and distribution efficiency. However, the risk of personal data leakage always lurks in online transactions. This issue is serious and can compromise consumers' privacy and information security. Data leaks can occur when personal information such as names, addresses, telephone numbers, emails, credit card details and other personal data falls into unauthorized hands. The research aims to explore the protection of consumers' personal data and examine the responsibility of marketplaces in dealing with data leaks. The author uses a normative juridical approach, which includes primary and secondary legal analysis, as well as descriptive analysis to summarize applicable regulations and legal theory related to practice. The results show that Indonesia has Law Number 27 of 2022 concerning Protection of Consumer Personal Data to protect personal data. Marketplaces that violate these rules may be subject to administrative sanctions in accordance with applicable regulations, while consumers have the right to file a lawsuit for marketplace negligence in accordance with Article 1366 of the Civil Code.

Review Of Intellectual Property Law On Micro, Small, And Medium Enterprise Products Of Selar Fish Crackers In Warnasari Village, Cilegon City

Micro, Small, and Medium Enterprises (MSMEs) activities in Cilegon City are one of the growing business sectors to support the national economy.. For business actors starting a business, they need to think about the concept of business and intellectual property protection. In the business world, Intellectual Property can be one of the important elements because it can give the owner an advantage over the results of his invention. This study aims to determine the concept and product innovation of Micro, Small, and Medium Enterprises (MSMEs), Selar Fish Crackers in Warnasari Village, Citangkil District, Cilegon City, and to determine the legal protection of intellectual property for Micro, Small, and Medium Enterprises (MSME products), Selar Fish Crackers in Warnasari Village, Citangkil District, Cilegon City. This research uses qualitative methods and empirical juridical approaches. Where the research is conducted by looking at the law as a norm or das sollen and as a socio-cultural reality or das sein obtained directly from the research location. The data analysis technique uses descriptive analytical techniques. The results showed that the concept and innovation of MSMEs is the first step taken to develop the Akbar Jaya Fish Crackers business and protect intellectual property in its products, one of which is by registering the brand to the Directorate General of Intellectual Property to obtain legal certainty.

TINDAK PIDANA KORUPSI PENYALURAN DANA BANTUAN SOSIAL COVID-19 DITINJAU DARI FIQH SIYASAH

This study aims to determine the accountability for the criminal act of corruption in the Covid-19 social assistance fund, efforts to overcome the criminal act of corruption in the Covid-19 social assistance fund, and review of fiqh siyasah against the criminal act of corruption in the Covid-19 social assistance fund. The type of research used is normative legal research, with a normative approach and a juridical approach (siyasah dusturiyah). The data collection technique used is library research technique. The results of this study indicate that accountability for criminal acts of corruption in the Covid- 19 social assistance fund is included in the category of forms of corruption that are detrimental to the state with the intention of enriching themselves so that perpetrators of corruption can be charged with criminal sanctions or even threatened with the death penalty as stated in Article 2 of Law No. 20 of 2001 amendments to the Law of the Republic of Indonesia No. 31 of 1999. To minimize the occurrence of corruption in the Covid-19 social assistance funds, preventive and repressive efforts were carried out. The criminal act of corruption in the Covid-19 social assistance fund can be categorized as an act of betrayal of the mandate and is also an unjust act because it is a form of deviation from the objectives of sharia maqasid such as religious protection (hifdz ad-din), protection of the soul (hifdz an-nafs), protection of of reason (hifdz aql), protection of offspring (hifdz an-nasab), and protection of property (hifdz al-mal).

Legal Certainty Of Advocate Organizations Authorized To Carry Out The Appointment And Swearing-In Of Advocates

Highlighting significant issues within the Indonesian legal system, particularly concerning the profession of advocates. After the enactment of Law Number 18 of 2003 concerning Advocates (the Advocate Law), the Indonesian Advocates Association (PERADI) was initially mandated as the sole organization authorized to appoint and swear in advocates. This was intended to create legal certainty and establish uniform standards for the legal profession. This situation has been complicated by varying court rulings, with some decisions recognizing the authority of organizations other than PERADI to appoint and swear in advocates, while others adhere to the Advocate Law, which exclusively grants this authority to PERADI. The diversity of court rulings reveals sharp differences in legal interpretation, leading to doubts about legal validity. This research aims to examine and analyze the legal certainty regarding which advocate organizations are authorized to carry out the appointment and swearing-in of advocates. The research employs a normative juridical approach. The findings suggest that any actions taken by advocate organizations other than PERADI, which appear to utilize one of the eight powers granted to PERADI by the Advocate Law, including proposing the Advocate Oath to the High Court, constitute unlawful acts that harm PERADI as the sole entity entitled to such authority. These actions can be subject to legal accountability in both criminal and civil domains. This research is expected to provide comprehensive recommendations for improving the advocate legal system in Indonesia.

Resolution Effort of Electricity Theft Crimes at PLN UP3 Sorong

This study aims to investigate the impact of electricity theft on PLN and the state and analyze the out-of-court resolution system for electricity theft by PT PLN UP3 Sorong Branch. The method used is an empirical juridical approach focusing on case analysis and field data. The results showed that PLN uses the additional bill, Tagihan Susulan (TS) as the fine, as an out-of-court resolution for electricity theft cases. However, there is an option to settle through the court if the customer objects. Although the number of cases is decreasing, challenges in addressing the problem of electricity theft still exist, and its resolution requires a holistic approach that considers the principles of justice and applicable law. In conclusion, electricity theft violates the law that must be addressed effectively to maintain the sustainability of the electricity sector and justice for all parties involved.