Positive Law Research Articles

Establishing Usufruct Rights under Statutory Basis in Vietnamese Law

The usufruct rights is a legal right that was imposed on the property of another person, and can only arise based on legal events prescribed by law, called the basis for establishing usufruct rights. The basis for establishing usufruct rights according to the laws of different countries is not entirely the same. In Vietnam, usufruct rights are established based on three legal bases: the basis prescribed by law, the basis of the agreement of the parties, or the basis of a will. This article studies the basis for establishing the right of usufruct according to the statutory basis, in current Vietnamese law (specifically the 2015 Civil Code). By using the methods of written law analysis, historical method, comparative legal method, and survey of the practical application of Vietnamese law, the article provides the content of positive law in Vietnam on the basis for establishing usufruct rights according to the law, aiming to introduce readers to the current legal status, point out the advantages and disadvantages of these regulations, select practical experiences of foreign law, and contribute to building solutions to improve the regulations on the basis for establishing usufruct rights according to the law in Vietnam today.

Comparative Law and Natural Law in the UAE Constitutional Adjudication

Abstract Unlike other comparative jurisdictions that may remain silent on the possibility for supreme courts to use comparative law and natural law, the UAE legislator has allowed the Federal Supreme Court to invoke these two sources in its adjudication since the Court was established in 1973. This paper examines the legal framework that supports this permission, especially in light of Decree-Law Number 33-2022, which brought about a revision affecting it. The paper aims to define the space given to comparative law and natural law vis-à-vis UAE positive law. Furthermore, through an empirical approach, this paper examines the Federal Supreme Court case law to analyse the extent of its recourse to comparative law and/or to natural law in constitutional adjudication.

PRAKTIK JUAL BELI BIBIT LELE DENGAN SISTEM TAKARAN PERSPEKTIF HUKUM ISLAM DAN HUKUM POSITIF

The growing public interest in catfish farming has resulted in an increased demand for catfish fingerlings. This trend has led many individuals to engage in the trade of catfish fingerlings, either as a primary source of income through the establishment of fisheries groups or as a supplementary means of generating additional revenue. This study aims to investigate the implementation of the catfish fingerling trading system based on volume measurement from the perspectives of Islamic law and positive law. Utilizing a qualitative research approach, primary data were collected through interviews and documentation. The primary data sources include informants from fisheries business groups and individuals involved in the trade of catfish fingerlings using the volume-based measurement system. The findings reveal that the volume measurement system is employed to simplify the calculation process, although the initial reference measurement is not consistently aligned with subsequent measurements. Nonetheless, both parties agree to add an additional volume as compensation for potential mortality of the fingerlings. From the perspective of Islamic law, the catfish fingerling trading practices in Gunung Sembung Village, Pegaden Subdistrict, Subang Regency, fulfill the essential elements and conditions required for lawful transactions under Islamic law and are deemed valid according to positive law, as they conform to existing legal regulations.

The rights and obligations of consumers, banks and developers in the home purchase agreement through the home ownership loan facility (STUDY PT.PILAR WAHANA SEJATI)

This study aims to (1) Examine and analyze the legal relationship between consumers and developers due to the Home Purchase Agreement. (2) reviewing and analyzing the legal protection of Home consumers due to the obligations of the developer due to the house sale and purchase agreement. The research method used is juridical normative by using conceptual (conceptual approach). Data analysis is done qualitatively by utilizing relevant positive theories and laws. Legal protection of consumers is regulated in law No. 8 of 1999 on consumer protection this law is expected to protect consumers in buying and selling homes through home ownership credit facilities. Based on the rules of law ,then in making the sale and purchase of houses must be made in the form of an authentic deed that is a deed that is made in the form specified by law and made before the competent public officials. Deed of sale and purchase under Article 617 of the Civil Code Kepmenpera number 09/1995 and PP24 / 1997, The Deed of sale and purchase must be signed by the seller and buyer in the presence of PPAT.

Arbitration as a Medical Dispute Resolution Method under Indonesian Positive Law

Medical disputes arising from conflicts between patients and doctors/dentists can be addressed through litigation or non-litigation channels. Law Number 17 of 2023 concerning health mandates that all medical disputes must first be resolved through Alternative Dispute Resolution (ADR) outside of court. The aim of this paper is to analyze ADR as a method of resolving medical disputes in Indonesia and to examine the legality and potential of arbitration as a dispute resolution method under Indonesian law. The benefits of this study include providing a juridical understanding of medical dispute resolution according to Indonesia’s positive law and contributing to the field of health law. The study addresses the ambiguity and conflict of norms related to medical dispute resolution by employing normative legal research with a statute approach, supported by descriptive and evaluative analysis. The results indicate that, according to Article 310 of Law Number 17 of 2023, medical disputes must be resolved through non-litigation channels. Among the available ADR methods, arbitration offers advantages over mediation due to its binding final decision, making it more efficient for both parties. The legal foundation for arbitration in medical dispute resolution is outlined in Law Number 30 of 1999 concerning arbitration and alternative dispute resolution. Consequently, arbitration presents a new paradigm for resolving medical disputes in accordance with Indonesian positive law.

Legal Review Of Death Penalty Sanctions And Asset Forfeiture In Corruption Crimes Reviewed From The Perspective Of Justice

The crime of corruption in Indonesia is regulated by Law Number 31 Year 1999 on the Eradication of Corruption, which was later updated by Law Number 20 Year 2001. This research aims to legally discuss the application of death penalty and asset forfeiture in corruption cases, by considering the principle of justice. The research uses a normative juridical method, in which data is collected from various applicable legal regulations, and the results are presented descriptively-analytically. Although the death penalty is regulated in Indonesian positive law, until now its implementation in corruption cases has never been realized. As a result, the applicable law has not fully provided an adequate sense of justice for the state and the people harmed by acts of corruption. On the other hand, the Asset Forfeiture Bill (RUU) as an effort to recover state losses has been proposed. Asset forfeiture as an additional criminal offense is already regulated in Article 10 letter (b) of the Criminal Code. While the death penalty is the main punishment, both have different implementation procedures, but both aim to realize justice. Both the death penalty and asset forfeiture are expected to have a deterrent effect on perpetrators of corruption and reduce the number of corruption crimes in Indonesia.

Economic Program Policy BUMNIn Increasing Economic Growth In Indonesia

Economic program policies towards state-owned enterprises (BUMN) in economic growth in Indonesia have become commonplace in various countries. The main reason for implementing economic program policies is to improve and streamline the performance of BUMN so that it can achieve its founding targets, namely the provision of public services for the community and profits for the state. However, this policy is often rejected due to concerns that the role of the state is minimal and the role of the private sector is too dominant, which refers to a free market system so that the interests of society are not guaranteed. The method used in this research is qualitative research with a descriptive-analysis method using relevant secondary data and normative/literature assessment using a statutory approach and a conceptual approach. The aim of this research is to provide a comprehensive understanding of economic program policies by BUMN in Indonesia, both from a historical perspective and applicable positive law. The research object is BUMN (State-Owned Enterprises). This research concludes that the majority of listed BUMNs are able to improve business performance and profit generation. Economic programs are not the only solution for state company management, but they must always be able to reform and innovate in terms of future BUMN business strategies.

Evaluating Whether Indonesia Should Maintain or Revise Its Local Incorporation Requirement for Foreign Investors

The article reviews the locally incorporated company requirement for foreign investors in Indonesia. It uses a normative juridical method, focusing on examining positive law through a statute approach. It involves analyzing relevant laws, regulations, cases, and literature and includes interviews with law scholars and an official from Indonesia’s Investment Coordinating Board to gather expert opinions. The data obtained is analyzed using qualitative techniques. It discusses the advantages and disadvantages of the requirement in international foreign investment law and Indonesia concluding that its advantages outweigh the disadvantages, and some of the disadvantages have been resolved. Hence, the article argues that the requirement remains appropriate for Indonesia and should be maintained. However, certain investment treaties have weakened the requirement as a defense against legal action by locally incorporated companies in international arbitration. To overcome this problem, the country should renegotiate its bilateral investment treaties (BITs) that give the companies direct legal action rights and develop new BITs that contain balanced rights between foreign investors and Indonesia. Additionally, the locally incorporated company requirement should be reinforced by Indonesia’s negative list policy, prioritizing specific sectors for local investors.

Իրավունքի հնարավորությունից իրականություն վերածման կառուցակարգը իրավահասկացողության հիմնական տիպերի համայնապատկերում / The Mechanism of Transforming Law from Possibility into Reality within the Framework of the Main Types of Legal Understanding

The elucidation and understanding of the mechanism of transforming law from possibility into reality are largely determined by legal understanding. Therefore, the author considers it necessary to comprehensively analyze and interpret this mechanism within the framework of the main concepts (approaches) of legal understanding. In particular, the discussed mechanism is examined from the standpoint of two main types of legal understanding: first, the legalistic-normative type, and then the jural type. During the analysis from the standpoint of jural understanding, the stages of the mechanism of the transformation of law from possibility into reality are presented in detail, where "objective" law serves as the criterion for law. The author also analyzes the unique reflection of this mechanism in Hegel’s “Philosophy of Law”. Essentially, based on the positions of the integral approach to legal understanding, this mechanism is revealed through the method of ascending philosophical categories from the abstract to the concrete. According to the conclusion presented in the article, the mechanism of the transformation of law from possibility into reality has a complex, multifaceted, multistage and changeable nature, the elucidation of which undoubtedly depends on legal understanding. Regressive and outdated are all those approaches that, based on formal, legalistic - normative understanding of law, view the discussed mechanism only in a narrow sense - as the implementation of officially acting positive law in public legal relations through state coercion. These approaches are being replaced by concepts based on the differences between law and legislation, which, on the basis of the jural (also mixed) type of legal understanding, analyze the discussed mechanism in a broader sense, from a philosophical standpoint, taking into account the essence of law, the objective requirements of law, the active role of legal subjects, etc. From the methodological perspective of this legal understanding, the examined mechanism acquires new content, which, according to the author, is essential for resolving the issue of transforming law from possibility into reality.

Regula Et Mensura: Philosophical Exploration of Moral Position in The Indonesian Legal System According to The Thoughts of Thomas Aquinas

The relationship between law and morals in the perspective of legal thought focuses on the conflict between positivism and natural law. The main problem concerns whether or not there is a relationship between the two rules which influence the existence and validity of legal rules so that they bind members of society. The aim of this research is to find out the legal system in Indonesia and how the position of moral values is towards the legal system in Indonesia and its practice in the justice system in Indonesia. The research method used in this writing is a normative juridicial method, namely legal research conducted by examining library materials and examining laws and regulations related to the problem. The results of this study indicate that the moral position is very influential on the legal system in Indonesia and in its enforcement, because the morale of law enforcement officials is needed to archive true justice. Good law enforcement requires implementation that is directed at the process of archiving goals which includes the actualization of values/morals towards law enforcement officials or often referred to as the legal structure that underlines and becomes a reference for the behavior of law enforcement processes, which is aimed at at achieving legal goals. To elements of good law enforcement.

Studi Komparatif Terhadap Pelaku Main Hakim Sendiri (Eigenrichting) yang Menyebabkan Kematian Menurut Hukum Pidana Islam dan Hukum Pidana

The act of vigilantism in Dutch Eigenrichting is an arbitrary act carried out by the community against the perpetrator of a crime by torturing, beating, and even burning the victim which causes injuries and death. This act of taking the law into your own hands has become an act that continuously occurs in people's lives. This action creates new problems and also violates human rights where perpetrators of crimes have the right to receive defense by the authorities and be punished according to established regulations. In Islamic criminal law (jinayah) the act of taking the law into your own hands is included in the act of semi-intentional murder (al-qatl Syibh al-'Amd) where the sanctions for this act are diyat, kiffarat and additional punishment. In positive criminal law, the Criminal Code explains in articles 351-358 about abuse and the forms of this act. The problem in this research is the determination of the sanctions for vigilantism perpetrators in Islamic criminal law and positive criminal law, as well as the distinctions between the two legal systems. A normative method is employed in this research, which involves the examination of books, scientific works, and legislation that are pertinent to the issue. This research discusses “how the firmness of law in Indonesia regulates perpetrators of vigilante actions that cause death, and a comparison with Islamic criminal law which is the majority religion in Indonesia”.

Legitimate self-affirmation of a person in society

It was found that a number of objective and subjective factors influence the choice of value guidelines and the formation of individual legal value attitudes. The formation of a legal vector of human behavior in the modern legal space requires the development of personal qualities of a person through legal education, the development of value-based legal orientations, legal culture, and legal awareness. It is emphasized that a person’s legal awareness, as a set of ideas and perceptions of a person about positive law, must be formed on the principle of interconnection and complementarity of natural and positive law. In a legal state and a democratic society, a person should feel this interaction in the dominance of universal values and principles originating from the norms of natural law, as well as anthropocentrism in the norms of positive law. The formation of the legal culture of an individual through awareness of the purpose of law, its content, and basic ideas is a guarantee of respect for law and human rights and contributes to the formation of a valuable legal worldview and understanding of the principles of functioning of a civilized society. It is noted that today the state must take care that citizens have the proper level of legal culture and legal awareness, and also, it is important that this process is not ideological, but on the contrary, that a person feels that no one imposes any social models on him and ideals, except that legitimate self-assertion is encouraged. Attention is focused on the fact that the legitimate self-assertion of a person in society is the basis of his harmonious existence in the natural-legal field of the state within the natural­legal space and continues throughout life on the basis of learning the norms of social morality, universal ideals, awareness of the value and purpose of law and unconditionality in observance of basic human rights. The formation of a legitimate vector of individual development involves the interaction of the main social institutions for the development of legal culture, legal awareness and legitimate social attitudes, which will contribute to reducing the manifestations of illegal human behavior.

Application Of Counterterrorism In Eradicating Criminal Acts Of Terrorism Into Indonesian Positive Legislation

Through counterterrorism policies, the government can mobilize various public work sectors which ultimately improve the quality of security and welfare provisions by the state. Improving the handling of terrorism convicts in prison to prevent recidivism, for example, will improve the detention system, immigration system and civil registration. This is of course with an important note that the policy of responding to terrorism is carried out in a coordinated manner. So, not only certain institutions within the country, but all state institutions must have a clear role in responding to terrorism. The formulation of the problem discussed is: How can counterterrorism efforts prevent and overcome terrorism? and How is counter-terrorism implemented in eradicating criminal acts of terrorism into Indonesian positive law legislation? The research method used in this research is normative juridical research with a statutory approach and a conceptual approach. Discussion: The application of counter-terrorism in eradicating criminal acts of terrorism in Indonesia has been integrated into positive legal legislation through Law no. 5 of 2018. This law strengthens the legal framework by expanding the definition of terrorism, tightening supervision, and giving greater authority to security forces, as well as introducing preventive measures such as preventive detention and deradicalization. The role of the National Counter-Terrorism Agency (BNPT) has also been strengthened to coordinate counter-terrorism strategies. The legislative process in Indonesia which follows the civil law tradition requires regulations to be written in writing. Establishment of Law no. 5 of 2018 was also influenced by the phenomenon of acts of terrorism which prompted the acceleration of the revision of Law no. 15 of 2003. Encouragement from society (bottom-up) and responses from political actors accelerated the ratification of this law, even though there were various challenges related to expanding authority and human rights. In dealing with terrorism, Indonesia applies two main approaches, namely the criminal justice model and the war model. The criminal justice model views terrorism as a legal violation that is handled through law enforcement, while the war model views it as an existential threat that requires a military response.

Legal Responsibility of Businesses Who Distribute Food Products that are not Fit for Consumption or Expired

In food products, it is very important to include information about the expiration date to protect consumers from the dangers of poisoning from expired products. The expiration date must be written on the product packaging or on the packaging box only. Usually, products that include information about the expiration date are products that come from factories or industries that produce in large quantities and have been widely distributed. However, sometimes there are some manufacturers who deliberately do not include the expiration date on their product packaging for profit alone. The act of selling products that are no longer fit for consumption is an act that is detrimental to consumers and violates the Consumer Protection Act with quite severe sanctions for the community or entrepreneurs who trade them. The formulation of the problem discussed is: 1) What are the legal consequences for business actors who deliberately distribute food products that are not fit for consumption or expired? and 2) What is the legal responsibility of business actors who deliberately distribute food products that are not fit for consumption or expired? The research method used is the normative juridical method, namely analyzing the relationship between applicable laws and regulations with legal theories and the practice of implementing positive law concerning the problems discussed. Keywords: legal responsibility, business actors, distribution of food products, expired

La gestión fiscal como presupuesto sustantivo y procesal de la responsabilidad fiscal

The concept of fiscal management is a presupposition of fiscal responsibility, and only to the extent that there is a conjunction between the conduct deployed by the agent (public or private) based on a constitutional, legal (in a material sense), statutory, regulatory or contractual competence or authorization, as the case may be, to administer or manage public assets, and the element of damage, the competence of the Fiscal Control Body to legitimately and validly promote the fiscal action through the correlative process will arise. Therefore, correctly identifying its content and legal structure is a task of capital importance that concerns, on the one hand, the legitimacy and institutional validity of the actions of the Comptroller’s Office and, on the other hand, the principle of legal certainty, in the sense that this guarantee of certainty and objective foreseeability is projected on the conduct of individuals (as eventual passive subjects of the fiscal action), in terms of equality, good faith, legitimate trust and, of course, under the iusfundamental plexus of due process (principles of legality and natural judge, among others). In this sense, an analysis of the fiscal management will be presented, which will allow us to unravel its configuration as a principle and rule of positive law, and as a transversal concept in fiscal responsibility, and the process itself, as well as its projection in the field of individuals, all by way of an interpretative statement, and in a context of legal reality.

TAQNIN FIKIH : Transformation of Marriage Law in Indonesia

Indonesia has a pluralist background, so realizing one rule accommodating all interests is a challenge. Among them is the unification of the rules on marriage. The purpose of this study is to explore historically the growth and development of taqnin from time to time, taqnin of marriage law in Indonesia, the legality of post-taqnin marriage law, challenges and opportunities, and challenges of taqnin. This literature research method uses quantitative with an exploratory analysis approach, namely analyzing fikih munakahat products transformed into positive law. Data processing by managing library materials (library research). Secondary data sources are Law Number 1 of 1974 concerning Marriage and the Compilation of Islamic Law (KHI) and books and articles based on OJS (Open Journal System). Techniques for analyzing the data obtained were exploratory and descriptive analysis using the techniques of reduction, display, and verification. The results showed that, based on historical aspects, taqnin had been pursued since the abasiyah daulah but has experienced ups and downs in its implementation. Second, The transformed legal product is dynamic. Third: Munakahat jurisprudence has gone through the process of taqnin to have the legality of state law, so it becomes the primary source in marriage issues. Fourth: The opportunities and challenges faced are internal and external.

Analisis Kekerasan Terhadap Anak

Child abuse is a serious issue with lasting impacts. While positive law provides legal protections for children, its implementation faces challenges. In Islamic tradition, fiqh from the four major schools of thought—Maliki, Shafi'i, Hanbali, and Hanafi—also offers guidelines for child protection. This study explores the integration between positive law and fiqh to enhance child protection. Using a qualitative, library research method, the research examines whether Indonesian legislation aligns with the views of these schools. The findings reveal both alignments and differences. Positive law offers a clear legal framework, while fiqh provides a moral and religious foundation that supports the social and ethical dimensions of child protection. Integrating these perspectives can lead to a more holistic approach, combining legal rigor with religious principles to safeguard children's rights. This collaboration may strengthen child protection strategies by being more adaptive to socio-cultural contexts, offering a comprehensive solution to combat child abuse and ensure children's rights are effectively protected.

The Cyberbullying Pada Aplikasi Tiktok Ditinjau Dari Hukum Pidana dan Fiqh Empat Madzhab

The growth of information technology has introduced challenges like cyberbullying, especially on platforms like TikTok. The real-time nature of TikTok and insufficient moderation exacerbate the psychological harm caused to victims. In Indonesia, cyberbullying is a criminal offense under Law Number 19 of 2016 (ITE Law) as it violates human rights. From an Islamic perspective, it is seen as a serious sin, contradicting Islamic moral values. The four major Islamic schools of thought—Hanafi, Maliki, Shafi'i, and Hanbali—guide punishing offenders, ranging from fixed (hudud) to discretionary (ta'zir) penalties depending on the severity of the offense. This study uses a doctrinal legal approach and library research to examine cyberbullying on TikTok from the perspectives of both criminal law and Islamic jurisprudence. The findings highlight that integrating the principles of positive law with Islamic jurisprudence could create a more holistic and effective framework for addressing cyberbullying. A combined approach can strengthen anti-cyberbullying policies, fostering a safer digital environment. Additionally, promoting education that emphasizes Islamic values such as respect can help prevent cyberbullying. The study recommends increasing public awareness, integrating Islamic and positive legal principles into policies, and improving law enforcement’s capacity to address cyberbullying more effectively.

Optical and X-ray studies of the Be/X-ray binary IGR J06074+2205

ABSTRACT We present the results obtained from X-ray and optical analysis of the Be/X-ray binary IGR J06074+2205, focusing on before, during, and after the X-ray outbursts in 2023 October and December. The properties of the neutron star in the binary are investigated using NICER and NuSTAR observations during the X-ray outbursts. The pulse profiles across a broad energy range, are found to be strongly dependent on luminosity and energy, revealing the complex nature of the emitting region. An absorbed power law can describe each NICER spectrum in the 1–7 keV band. The 3–79 keV NuSTAR spectrum can be well described by a negative and positive power law with an exponential cut-off model. Utilizing the MAXI/GSC long-term light curve, we estimate the probable orbital period to be 80 or 80/n (n = 2, 3, 4) d. We investigate the evolution of the circumstellar disc around the Be star by using optical spectroscopic observations of the system between 2022 and 2024. We observe variable H $\alpha$ and Fe ii emission lines with an increase in equivalent width, indicating the presence of a dynamic circumstellar disc. A distinct variation in the V/R value for H $\alpha$ and Fe ii lines is also observed. The appearance of additional emission lines, such as He i (5875.72 Å), He i (6678 Å), and He i (7065 Å), during the post-outburst observation in 2024 February suggests the growing of a larger or denser circumstellar disc. The disc continues to grow without any noticeable mass-loss, even during the 2023 X-ray outbursts, which may lead to a future giant X-ray outburst.

Hak Perempuan dalam Amar Putusan Cerai Menurut Perspektif Maqashid Syari’ah pada Pengadilan Agama Kuala Tungkal Kelas 1B

This study discusses women’s rights in divorce decisions at the Kuala Tungkal Class 1B Religious Court based on the perspective of Maqashid Syari’ah. Women’s rights decided in divorce, such as iddah maintenance, mut’ah, child custody, and property division, are analyzed in terms of their suitability with the main objectives of Islamic law, namely protection of religion, soul, descendants, mind, and property (Maqashid Syari’ah). This research uses qualitative methods with the normative legal approach. to examine court decisions and how the laws applied reflect the principles of Maqashid Syari’ah. The results of the study indicate that divorce decisions at the Religious Court have considered women’s rights proportionally, although there is still room for further adjustment to be more in line with the essence of Maqashid Syari’ah, especially in terms of economic protection and gender justice. This study recommends the need to strengthen the integration between positive law and sharia principles to better guarantee women’s welfare after divorce.