Substantive Justice Research Articles

Подходы к пониманию справедливости

Various doctrinal approaches are considered, which are ambiguous when using a number of terms, which include principles of law, legal phenomena, among them: justice, legal certainty, proportionality. Considering justice, its different types are noted. In Russian socio-humanitarian science it is presented in the form of general and special (private) justice. There are subjective and objective justice, formal and substantive justice. Procedural fairness is highlighted separately. The study concludes that the diversity of ideologies of modern society does not make it possible to answer the question about the principles of proportional justice, which should be reflected in law, therefore the criteria of justice contain a broad intersubjective basis that allows them to be realized in procedural justice. The analysis of theories gives the right to assert that the variety of theories of justice themselves will always vary from the priority of one or another benefit in society, which is the basis of social institutions, political and legal ideology, and the procedure for establishing the result.

MENGEMBANGKAN PLURALISME HUKUM SEBAGAI PONDASI HUKUM MASA DEPAN INDONESIA

The emergence of double law in social life is known as legal pluralism. Legal pluralism in Indonesia emerged and developed as a result of the country's historical factors, which included differences in ethnicity, language, culture, religion, and race. However, although pluralism has various etymological meanings, they all have one thing in common: recognizing the reality of all differences. The purpose of this research is to find out the concept of legal pluralism that is used to restore customary law in an effort to protect indigenous peoples' natural resources from appropriation authorized by the state. This study also uses a normative legal approach, which is a process to find a rule of law, legal principles, or legal doctrines to answer the legal issues at hand. Almost every state law that regulates natural resources now has rules regarding indigenous peoples. Pro-indigenous activists are still leading the movement to promote recognition of indigenous peoples at a practical level. Among other things, by collecting data on customary law and mapping customary territories in various locations. Because these two factors are the main prerequisites for recognizing the existence of indigenous peoples. This is considered as one of the solutions to the weakness of the state dispute settlement institution (court) which is deemed unable to provide substantive justice. This movement basically proposed that the people solve their own problems without the help of the courts.

The Crucial Role of Court Proceedings Reports in Criminal Case Proceedings and the Dilemma of Judicial Decision-Making

The impact of legal positivism on the development of law enforcement has been substantial. Judges, when deciding a case, consistently adhere to the indictment presented by the Public Prosecutor, even though at times the indictment may conflict with the facts presented during the trial. In such instances, the role of the Court Session Report in the trial process seems to be merely that of a record rather than a factual account that also warrants consideration. This research aims to examine the position of the Court Session Report in criminal case proceedings and whether it can serve as a basis for a Judge's decision outside the scope of the indictment, particularly when the contents of the indictment differ from the proven facts in court. The status of the Court Session Report as a basis for evidence is deemed equally significant as the position of the Indictment prepared by the Public Prosecutor. There are two perspectives regarding the authority of the Judge in deciding a case. First, the judge is obligated to strictly adhere to the indictment presented by the Public Prosecutor. Second, or a perspective that prioritizes substantive justice, the judge may consider the Court Session Report as a basis for deciding a case brought before them.

The Implementation of Actio Pauliana Creditor Law Bankruptcy Boedel Dispute Process to Achieve Substantive Justice

This Actio pauliana is actually a lawsuit that substantively attempts to confirm that the debtor's legal actions are declared legally invalid if they harm the creditor. In bankruptcy law, actio pauliana is an important instrument so that substantive justice, especially for creditors, can be implemented optimally. This research aims to analyze the substantive justice aspects of actio pauliana in the field of bankruptcy law. This research is normative legal research by prioritizing conceptual and statutory approaches. The research results confirm that the essence of actio pauliana in bankruptcy disputes is viewed from the aspect of substantive justice, namely that it is aimed at protecting creditor rights, especially when there are debtor legal actions that can harm creditors. Apart from that, Actio Pauliana also emphasizes the restitutive aspect as per the substantive justice concept, namely being able to declare the debtor's actions to have no legal force if the action is detrimental to the debtor and reduces the number of bankruptcy debts as has been determined. In its development, the actio pauliana lawsuit in bankruptcy actually represents the fairness aspect as a manifestation of substantive justice so that in the future the actio pauliana lawsuit will not only represent factual losses, but also include potential losses that directly harm creditors and can be proven fairly and properly

Конкурентні стратегії цифрової адаптації бізнес-процесів

The article represents the study of the directions of business adaptation to the modern paradigm of market systems functioning – digital transformation. The purpose of this article is to provide a theoretical and methodological basis for the formation of competitive strategies of companies, to identify the peculiarities of digital transformation of business processes, and to introduce modeling scenarios and implement procedures and algorithms for the digital adaptation of competitive strategies of companies. The article presents the competitive impact of the market environment on the formation of a strategic management system, which considers the influence of economic relations participants on the functioning of the selected object market, the influence of analog goods and the commodity market assortment, the impact and advantages of the aggregate, the influence of suppliers on the market architecture, the influence of buyers on the performance of market business entities, etc. It is determined that digital adaptation should take place while considering basic competitive strategies and the integration of digital tools. The authors present some competitive strategies for business development and describe the positive and negative levers of influence on the company’s activities for a particular strategy chosen for this study. In digital adaptation to a competitive strategy, the authors focus on cost, which is one of the basic strategies for gaining competitive advantages and is aimed at achieving a low cost of production or supply of goods in a narrow market niche. This competitive strategy allows the company to succeed by focusing on a specific market segment and providing customers with low-cost products. This strategy was chosen due to the existing opportunities for digital adaptation of the strategy in the current market conditions. It is demonstrated that the development direction of strategic business management has prerequisites for introducing digital adaptation models. A procedural approach and algorithmisation of integration of tools and technologies for digital adaptation of business to modern conditions are proposed, considering the substantive justification of the proposed solutions. Keywords: competitive strategy, digital transformation, digital adaptation, market activity, business entities, procedural approach, modelling, algorithmisation, efficiency.

Philosophy of Expanding Substantive Justice in Disputes on The Results of The Election of Governors, Regents and Mayors in The Constitutional Court

Philosophy of Expanding Substantive Justice in Disputes on The Results of The Election of Governors, Regents and Mayors in The Constitutional Court

LEGAL REASONING OF THE JUDGE'S DECISION REGARDING GOVERNMENT PROCUREMENT CONTRACT GUARANTEE CLAIM

The decision is a written legal text made by an authorized judge, and its legal product is categorized as a crown. However, despite being considered a crown, a judge's decision is not exempt from examination by legal scholars. The optics used in the examination process are based on various perspectives, including hermeneutics as the fundamental basis for interpreting the text (decision). Substantively, hermeneutics has three main streams of thought, namely as a theoretical (methodological), philosophical, and critical hermeneutics, each with different understandings. Hermeneutics as a method focuses more on the effort to capture and reveal the meaning of the text, while philosophical hermeneutics goes beyond that and emphasizes "capturing meaningful meaning," implying that the meaning of the text can be continuously produced through a dialectical process. On the other hand, critical hermeneutics focuses on the aspect of disclosing the meaning of the author's ideological interests. This research aims to examine the legal reasoning in Decision No. 272 / PDT.G / 2017 / PN.BDG regarding the Government Procurement Contract Guarantee Claim from the perspective of Hans Georg Gadamer's Hermeneutic Circle. The research type is normative doctrinal, using secondary data sources consisting of primary, secondary, and tertiary legal materials with a conceptual approach, statutory approach, and case study. The research findings suggest that the process of claiming a bank guarantee through the judicial institution can be carried out by the Procurement Committee (PPK) as long as they obtain authorization from the Budget User, who is the owner of the work (bouwheer). This is due to the hybrid nature of government procurement contracts, which distinguishes them from private contracts, and the clarity of the scope of authority of the Budget User serves as the establishment of formal justice, acting as a bridge (epistemology) toward substantive justice.

Quo Vadis Specialised Courts in Indonesia within Constitutional Court Decisions Confines

In Indonesia, special courts represent a phenomenon of judicial deference which is associated with an independent judicial system and supports the efficient and effective administration of justice. However, the practice in Indonesia shows that there is a need for further discursive research and thinking in the organization of the special justice system in Indonesia, based on internal and external issues in the realization of a special justice order that promotes substantive justice and is based on effectiveness, efficiency, and justice that is based on the needs of legal specificity under the specialized court context. This article utilizes dogmatic legal research based on a statutory approach, a case law approach, and a conceptual approach on a micro-legal research basis to examine the revamping of special courts in Indonesia, including the elaboration of Constitutional Court Decisions relevant to the strengthening of constitutional consolidation in post-reform Indonesia. Furthermore, the findings of this study show that the dynamics of special justice in Indonesia seem to be based on specific needs, international intervention in several cases, and ideas when the 1945 Constitution was amended by strengthening in accordance with conditions and times to achieve substantive justice. Similarly, the failure to build several special courts has become a discourse in recent decades, as various Constitutional Court decisions have directed topics that may be seen in the formation of special courts in the future. These include the existence of electoral and medical courts, which have also emerged as ideas for revamping specialized courts in Indonesia.

The Court and the Sleeping Beauty 2.0: Filling the Contractual Gap, or Making Valid Consumer Contracts to the Detriment of the Non-consumer?

Abstract This paper is a critical presentation of the CJEU case-law on UCTD, with particular reference to the non-filling of the contractual gap resulting from the unfairness test by applying ‘dispositive’ law or supplementary interpretation. The result contradicts the principles and methods of national civil law: not only does the balance in the contract suffer under the position the CJEU has chosen, as it creates alternated forms of balance of interests rather than the identical ones sought by the parties, but moreover, the increasing number of different cases imposes an ambiguous approach on the CJEU, since European judges have to ask on a case-by-case basis what the best interest of the consumer is. By adopting such a functional approach in favour of the substantive justice of the contract, the ECJ decided with questionable results with regard to national civil law, while methodological legal questions as to whether the contract should stand as it is, following the unfairness test, or whether a supplementation of the contract should take place are still open. It is therefore of critical importance to achieve an optimal combination between a fair balance of the contract and effective consumer protection.423

Amicus Curiae: Position and Role in Issuing Decisions by Judges as an Effort to Achieve Substantive Justice

In practice of criminal justice system, a judge plays a fundamental role in making decision that will be imposed on the defendant. The Law on Judicial Power requires judges to widely disclose information and opinions from various groups and public participation. Amicus curiae concept is a mechanism that permits third parties who believe they are interested in a particular criminal case. However, the existence of amicus curiae in positive law has not been regulated explicitly or formally to explain how it is applied in criminal justice. While the judge plays a part in delivering a verdict on the defendant, it is anticipated to be founded on legal principles and a commitment of substantive public justice. This study employs a normative juridical research approach, utilizing secondary data acquired through library research and analyzed using qualitative methods and presented in a descriptive and explanatory format. The findings of this investigation that the position of amicus curiae can be known as stipulated in Article 5, paragraph (1) of the Judicial Power Act. In the application of the judge's decision to realize substantive justice, the judge does not only see a settlement in terms of formal law as a form of legal certainty, but the judge must also be able to see aspects of a sense of substantive justice by the expectations of the community as a seeker of justice.

Rehabilitating Transcendental Arguments: A Dialectical Dilemma for Stroud’s Meta-Epistemological Skepticism

The aim of this paper is to shake up the consensus view on transcendental arguments (TAs) that the ambitious “world-directed” kind fails and that only moderate, “belief-directed” transcendental arguments have a claim to validity. This consensus is based on Barry Stroud’s famous substitution objection: For any transcendental claim ‘p is an enabling condition for X’ we can readily substitute ‘the belief that p’ for ‘p’. I depart from the observation that the force of Stroud’s objection depends on it being applicable to any world-directed TA whatsoever. This requires a much more substantive justification than is commonly supposed. I rehabilitate world-directed TAs by posing a dialectical dilemma for the Stroudian skeptic: a certain moderate TA is required to uphold the skeptical challenge, but this TA brings with it the commitment to a distinction which restricts the scope of the challenge, namely to ‘empirical’ instead of ‘transcendental’ beliefs about the world. The positive result is a new way of understanding what world-directed transcendental arguments are: a way of showing us which of our beliefs about the world are true because they are, in the sense of Wittgenstein’s meter-measure analogy, constitutive of our very standard for objectivity.

The European Union’s roles in global atmospheric governance: evolving towards a ‘spacifier’?

ABSTRACTThis contribution examines how the roles of the European Union (EU) in the governance of the atmosphere – the global ozone and climate regimes – as a contested Global Space have evolved over time. To do so, it first combines theoretical considerations regarding foreign policy roles and global justice. It then traces EU role conceptions and role performance in these regimes from their inception until today. The article argues that, as the two regimes have matured, the EU has increasingly been adopting the role of a ‘spacifier’, pursuing a substantive justice position dedicated to fully protecting the atmosphere (‘leaving the space in peace’) while actively striving to reconcile other actors’ positions. This role embodies the EU’s simultaneous quest for embracing the European Green Deal’s socio-ecological transformation agenda while becoming a geopolitical actor. It can be interpreted as an expression of ‘principled pragmatism’ under the conditions of the Anthropocene.

Application of the Principle of Due Process of Law regarding narcotics crimes

The principle of due process of law implies a great respect for Human Rights (HAM). Basically the ultimate goal of the criminal justice system is due process of law as a legal process that is fair and impartial, proper, and is a true judicial process, which has gone through existing mechanisms or procedures, so that substantive justice can be obtained. So that the formulation of the problem in this study is the application of the principles of due process of law related to narcotics crimes. The purpose of this research is to realize the application of due process of law related to narcotics crimes. The method used in this study is an empirical juridical method using a statutory approach and looking at phenomena that occur directly in the field

Seeking Substantive Justice: The Progressive Spirit of Law on Sexual Violence Crimes

Sexual violence is a massive phenomenon that occurs in society. Sexual violence occurs in various places in Indonesia, including educational institutions. Massive sexual violence made the government and the House of Representatives (Dewan Perwakilan Rakyat or DPR) pass the Law on Sexual Violence Crimes (Indonesian: Undang-Undang Tindak Pidana Kekerasan Seksual, abbreviated as TPKS Law). The TPKS Law is oriented as an effort to prevent and overcome criminal acts of sexual harassment. This study aims to analyze the progressive orientation of the TPKS Law, including how the TPKS Law can provide and present substantive justice in society. This research is normative legal research that seeks to discuss and analyze legal products in the form of laws. The approach in this research is a conceptual approach and a statutory approach. The results of the study confirm that the TPKS Law is a law with a responsive character in the form of a progressive orientation related to preventive approaches to prevent sexual violence and the need for policies and mechanisms in each institution to prevent as well as crack down on sexual violence, the need for regular socialization and understanding of sexual violence in each institution, community, transparent, consistent, and conscientious enforcement of criminal law related to sexual violence, and the need for other mechanisms related to efforts to ensure healing and fulfillment of rights for victims of sexual violence.

PRINSIP PROPORSIONAL PERTANGGUNGAN GANTI RUGI DALAM PERKARA WANPRESTASI AKAD MUSYARAKAH (Analisis Putusan Mahkamah Agung RI Nomor 624 K/AG/2017)

This research explores the law consideration used as the foundation of the appearance of the obligation of compensation due to default in the musharakah verdict agreement. In practice, the bias between Islamic and conventional banks often occurs, especially regarding the musharakah agreement, which is sometimes interpreted as a debt agreement, as commonly occurs in traditional banks. Using a normative law research approach, the writer analyzes the internal works of law standards by using decisions of the first level of Religious Courts judges and the cassation level as the object. Based on the analysis, there are two types of law approaches of the judges: formal justice and substantive justice. The judges at the first level of the judiciary used a traditional method by comparing the sound of agreement and the facts of the court. Meanwhile, the substantive justice approach was taken from the cassation level judges who consider not only the agreement's validity but also the agreement's substantial. In this case, the judges on the cassation level managed to explore the substance of equality and partnership principles in the Musharakah agreement. Considering the precautionary principle in the implementation of financing by Islamic banking and the legal relation between the participants of the musharakah agreement, the deficiencies in this agreement will be burdened to each party as the fund deposited proportionally. This research contributes to the conflict resolutions of the Musharakah agreement proportionally

Indonesian Criminal Code, Living Law and Control in Law Enforcement in Indonesia

Introduction: The inclusion of the Living Law concept in the latest Criminal Code as a law that lives in society.Purposes of the Research: This paper analyzes the dialectic of legal certainty according to the principle of legality with living law as the principle of substantive justice in criminal law reform, from the perspective of law as a mechanism of social control and its influence on the dynamics of criminal law enforcement in Indonesia.Methods of the Research: This research uses a normative legal research model. Data collection is done through secondary data searches in the form of primary legal materials and secondary legal materials that are relevant to the object of the problem being studied. The approach used in the analysis is juridical-normative and then elaborated with a sociological approach through social science theories.Results of the Research: The results of the research on the accommodation of living law as a basic principle of criminal law have led to a dialectic between the principle of legal certainty and the principle of substantive justice. Living law is a form of law that is not codified like state law, but rather leads to awareness and cooperation among individuals in a community, so that the function applied is to control over community behavior, so that law enforcement mechanisms run naturally in order to maintain order and public morality.

Implications of Citizen Lawsuits for Forest and Land Fires in Central Kalimantan Province from the Perspective of Environmental Justice

Forest and land fires in Central Kalimantan Province in 2015 caused a lot of losses in the aspects of health and the economy. Therefore, the community filed a citizen lawsuit at the Palangkaraya District Court in 2016, suing the Indonesian President, various Ministers, the Governor, and the Legislative House of Central Kalimantan. From the first level to the cassation level, the plaintiffs won the case. But then, a judicial review was carried out and the Supreme Court granted it. So, the Government was free from any charges. This research used a socio-legal research method with a case study approach. Decision No. 980 PK/PDT/2022 which granted the Substantial Government Review had not created justice for the community and the environment, even though it aimed to maximize benefits for the community. The lawsuit filed by civil society in the case of forest fires in Central Kalimantan in 2015 against the government was a citizen lawsuit. The community’s demands through the lawsuit aimed to uphold and protect the environment and ecocracy principles. Thus, the Supreme Court decision is considered to fail in representing the principle of substantive justice.

The progress of Indonesian law enforcement reform after 25 years of the reform movement

This study aims to examine the development of law enforcement reform in Indonesia, which has become very relevant after the economic crisis in Asia in 1997, which led to political turmoil and legal reform in Indonesia. This research is normative legal research, with primary data sourced from decisions of the Supreme Court and courts under the Supreme Court, regulations from the Attorney General’s Office and the National Police Chief, and decisions on case settlements by law enforcement officials; Secondary data obtained from books, journals, and the Internet. The study found that investigators and public prosecutors often settle cases out of court in criminal law enforcement with a restorative justice approach through peace and reconciliation. Judges sometimes act in violation of the rules of procedural law to achieve substantive justice. In enforcing civil law, courts only intervene when the parties involved fail to settle their disputes outside of court. This finding also indicates a high degree of acceptability of court decisions. In conclusion, law enforcement agencies and officials in Indonesia have made significant progress in implementing progressive law, as evidenced by the settlement of cases through mediation using a restorative justice approach.

Burden Proof Dilemma of Election Disputes in the Constitutional Court

Objective: This research study examines the legal underpinnings, the institutional framework of the electoral laws, and the jurisprudence developed by the Constitutional Court of Indonesia in resolving electoral disputes. The study aimed to investigate whether the dispute resolution mechanisms in our electoral system are rigid, costly, and inefficient and serve to hinder justice by emphasizing technicalities at the expense of substantive justice. The evidentiary process is essential in excavating facts and searching for truth in trials. The burden of proof is carried by the plaintiff to prove the legality of his or her suit. Theoretical Framework: Evidentiary law in the settlement of electoral cases in the Constitutional Court uses a model of legal processes in civil law. Evidentiary law is applied to facilitate the speedy settlement of cases and consider the evidence of the parties to the dispute. Method: The research approach method used in this research is legal normative research. This method helps examine the juridical standards contained in laws and court decisions. Furthermore, library research was conducted to obtain data from primary, secondary, and tertiary legal materials. Research Implications: According to the conclusions of this study, the improvement of burden-proof procedures will ensure justice and democratic elections in Indonesia. It is hoped that the ideas and issues raised in this paper will help can improve the implementation of burden-proof procedures in the settlement of election disputes at the Constitutional Court of the Republic of Indonesia. Results and conclusions: The settlement of election disputes depend on how the dependent proves his/her complaints, which should be improved by the Constitutional Court. Originality/value: Mobilizing the public to actively monitor elections is part of creating a fair-and-democratic election.

Do the results of elections express the will of the people?

Elections are currently considered the most democratic method of making decisions. This article first starts from the perspective of "will of the people"，and combines the advantages and disadvantages of democratic selection. From a theoretical perspective, it demonstrates the conclusion that democratic elections as a process cannot endorse any substantial justice because any endorsement of substantial justice could lead to totalitarianism (i.e., the will of the people, as explored in the second section). Therefore, democratic elections must replace substantive justice with a kind of procedural justice to overcome political totalitarianism disguised as the fictitious "will of the people".