Jurnal Hukum dan Peradilan
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DISPUTE ON LEASE FINANCING AGREEMENT: IS IT SUBJECT TO CONSUMER PROTECTION OR CIVIL LAW?
Full text linkDisputes arising between the financing company and the debtor in connection with the implementation of the lease financing agreement often occur as the debtor is negligent in completing the installments as contained therein. Consequently, the financing company withdraws the object of financing that is encumbered with security, generally with a fiduciary, from the possession of the debtor. Upon this action, the debtor filed a lawsuit against the financing company to the BPSK since the debtor considered themselves as consumers in the lease financing agreement, so that in some cases BPSK won the debtor\u27s lawsuit. However, both the district court and the Supreme Court of the Republic of Indonesia in their decisions emphasized that this is not a consumer dispute, but a civil dispute in the form of breach of contract. The research in this article will answer whether the dispute between the financing company and the debtor in regard to lease financing agreement will be subject to the consumer protection law or civil law and which judicial bodies has the authority to settle this issue. The research method used in this research is normative juridical with analytical descriptive research specifications. The data used in this study are secondary data and tertiary data that have been prepared and analyzed according to the topic of discussion in this article. The main finding in this study is the agreement in the financing agreement because there is a breach of contract that is subject to civil law and the court that adjudicates it is the district court and not the BPSK.Perselisihan yang timbul antara perusahaan pembiayaan dengan debitur sehubungan dengan pelaksanaan perjanjian pembiayaan seringkali diakibatkan karena debitur lalai dalam menyelesaikan angsuran sebagaimana diperjanjikan dalam perjanjian tersebut. Oleh karena itu, perusahaan pembiayaan menarik objek pembiayaan yang dibebankan jaminan kebendaan, umumnya dengan fidusia, dari penguasaan debitur. Atas tindakan tersebut, debitur mengajukan gugatan kepada BPSK karena debitur menganggap bahwa mereka adalah konsumen dalam perjanjian pembiayaan sehingga dalam beberapa kasus BPSK memenangkan gugatan debitur. Namun, pengadilan negeri maupun Mahkamah Agung dalam putusannya menegaskan bahwa perselisihan ini bukan merupakan sengketa konsumen, melainkan sengketa keperdataan berupa cidera janji. Penelitian dalam artikel ini akan menjawab mengenai apakah perselisihan antara perusahaan pembiayaan dan debitur dalam perjanjian pembiayaan tunduk pada hukum perlindungan konsumen atau hukum perdata serta badan peradilan mana yang berwenang menyelesaikan perselisihan ini. Metode penelitian yang digunakan dalam penelitian ini adalah yuridis normative dengan spesifikasi penelitian deskriptis analitis. Data yang digunakan dalam penelitian ini merupakan data sekunder dan data tersier yang telah disiapkan dan dianalisis sesuai dengan topik diskusi dalam artikel ini. Temuan utama dalam penelitian ini adalah perselisihan dalam perjanjian pembiayaan dikarenakan adanya peristiwa cidera janji tunduk pada hukum perdata serta badan peradilan yang berwenang mengadiliinya adalan pengadilan negeri dan bukan BPSK.Â
THE IMPACT OF LEGAL AND EXTRA-LEGAL FACTORS ON SEVERITY OF JUDGES SENTENCING REGARDING NARCOTICS OFFENDERS
Full text linkThe current study attempts to explain how judge sentencing varies as a response to the legal and extralegal factors of drug offenders. The variables of interest in this research are the recidivism factors among drug offenders. The utilization of ordinary least squares (log-level regression) gives results that mostly coincide with prior studies. However, the empirical evidence found indicates that the roles, gender, religion, and birthplaces of offenders reveal a different fact. This paper acknowledges the limitations related to the data of ethnicity, judge characteristics, and demographic situation in each province. Hence, this model could be improved in future research
ANALYSIS AND EVALUATION OF LEGAL AID IN THE INDONESIAN COURT
Full text linkThis article examines the regulation and application of legal aid services in Indonesian Courts. Normatively, the guidelines for the provision of legal aid in court are based on the Law on Judicial Power, Law on General Courts, Law on Religious Courts and Law on State Administrative Courts, and Supreme Court Regulation Number 1 the year 2014 (Perma). On the one hand, there is incoherence in the provision where the law determines that free legal service (Posbakum) service supported any level of the court until the decision is legally binding and executable, whereas in Perma applicable for the district court. On the other hand, there is an expansion of the provision of legal aid services regulated by Perma, namely that the recipient of services is not required by the poor as stipulated by law, but also for those who cannot afford to pay for advocate services. The leniency of this requirement is to facilitate people who are not categorized as poor but cannot pay for the services of a lawyer. In addition, Perma also provides services in the form of Sessions Outside the Court Building (SLGP) to facilitate justice seekers who have limited access to transportation and accommodation for the distance from the court. So the inability of the justice-seeking community is also interpreted as the inability to access trials or litigate cases in court due to the remote location or difficulty in transportation and accommodation. There are several obstacles in providing legal aid services at the court, namely related to budget constraints, lack of socialization, and availability of facilities and infrastructure. This article contributes to the role of the Indonesian Court in providing unique access to justice
ENFORCEMENT OF JINAYAT LAW FOR NON-MUSLIMS IN ACEH
Full text linkLaw enforcement against non-Muslims who commit violations of jinayat law tends to use the penalties stipulated in the Qanun Hukum Jinayat compared to other criminal statutory provisions. This phenomenon is interesting to study because non-Muslims who commit criminal acts (Jarimah) are given the choice of choosing to use Qanun or other Criminal Law which is regulated outside the Qanun. This study aims to analyze how the enforcement of jinayat law against Jarimah is carried out by non-Muslims, why non-Muslims are more likely to choose jinayat law than the provisions of other criminal laws and regulations outside of the Qanun and which penalties are imposed more dominantly by syar\u27iyah court judges. The author uses the empirical juridical research method with the aim of describing concrete facts about jinayat law enforcement for non-Muslims. The primary legal materials used are Qanun Hukum Jinayat Qanun Hukum Procedural Jinayat. Secondary legal materials, namely through books, journals and research results. Primary data was obtained through interviews with non-Muslims who had been sentenced according to qanun, judges and Wilayatuh Hisbah (WH). The results showed that enforcement of jinayat law for non-Muslims must first seek approval from the suspect to use qanuns or criminal laws other than qanuns. Then the investigator takes action according to the choice set by the suspect. Non-Muslims tend to choose qanuns due to several factors: first, the punishment is more instantaneous than the KUHP which carries a prison sentence. Second, the people who witnessed the execution of the caning were not all citizens who knew him. The more dominant punishments handed down by judges were ta\u27zir flogging and actions in the form of revoking their business license
CONSTRUCTION OF LEGAL CULTURE MODEL FOR CORRUPTION PREVENTION THROUGH SOCIAL MEDIA IN INDONESIA
Full text linkFighting corruption is done not only repressively but also preventively through a legal culture approach. This article examines and explores the construction of a legal culture model to prevent corruption through social media. Because the rampant corruption in Indonesia is also caused by cultural factors, including the weak culture of religiosity, strong kinship culture, and paternalistic culture. The research method used is non-doctrinal or social-legal with a conceptual approach. This study found that preventing corruption from the aspect of legal culture can be done by utilizing internet-based culture in the new age in various social media, such as Facebook, Twitter, WhatsApp, Instagram, and blogs, as a tool for social movements to prevent corruption. Because philosophically, the media functions for surveillance, interpretation, linkage, and the transmission of values and entertainment simultaneously. The urgency of the role of the media as a tool for the anti-corruption community movement or civil society is because, in the tradition of internet-based democracy or e-democracy, social media is placed as the fourth pillar of democracy or the fourth estate democracy for a balancer in the supervision of democratic governance. Several construction models of the legal culture of the anti-corruption watchdog social movement are needed through social media, namely, the model for forming a non-profit social media organization. Second, the model creates an anti-corruption icon on social media. Third, a model for the legal protection of the anti-corruption movement on social media
ADOPTING OSMAN WARNING IN INDONESIA: AN EFFORT TO PROTECT POTENTIAL VICTIMS OF CRIME TARGET
Full text linkIn the development of criminal law globally, experts believe that preventing crime is much better than taking action. This article exemplifies several criminal cases, especially serial murder cases in Indonesia, which show the lack of quality in the crime prevention system in Indonesia. In line with these consequences, this article considers that Indonesia needs a kind of “warning†system to increase efforts to prevent crimes. Furthermore, this article refers to the experience of implementing the Osman Warning in the UK, improving the quality of crime prevention. This article concludes that there are many problems in the crime prevention system in Indonesia. In responding to these problems, this article aims to answer three concerns. First, what are the difficulties in preventing crime in Indonesia? Second, what is the extent of the obligations of law enforcement in preventing crimes? Third, what is the probability of adopting the Osman Warning concept in Indonesia? Furthermore, this article claims that the probability of implementing the Osman Warning in Indonesia is relatively high and is suitable for implementation. Finally, this article provides a view that special regulations are needed in the laws and rules to accommodate the Osman Warning in the criminal law system in Indonesia
THE ROLE OF SOCIAL CONTROL AND OPTIMIZATION OF JUSTICE POLICY RESTORATIVE ON JUVENILE OFFENDING
No full textThe West Java Child Special Penitentiary (LPKA) noted that in 2020 there were 241 juvenile detainees and 429 juvenile prisoners. Criminal behaviour in children is related to low social control such as attachment, responsibility, involvement, and the belief that the higher the social control, the lower the possibility of a child violating the law. The main issue in the settlement of juvenile criminal cases is the criminal justice system that does not take sides with children because the handling in this system has not implemented a restorative justice policy. Children who commit crimes ideally need to be returned to their original condition, not just punished for their actions. In fact, data on juvenile detainees and juvenile prisoners show an indication of suboptimal restorative justice policies. The purpose of this study was to determine the role of social control over children as perpetrators of criminal acts and to determine the policy of restorative justice in the process of resolving cases. This research is a descriptive study, using qualitative data analysis techniques with normative and empirical juridical approaches. The research subjects were 22 juvenile prisoners and detainees in one of the Penitentiaries of the West Java region. The results of the study indicate that social control plays a role in children as perpetrators of criminal acts, as well as the settlement of child criminal cases based on restorative justice policies, is not optimal. There are many diversion failures and a fairly high percentage of prison sentences that should be a last resort. There is also a large public stigma against the statement that children who violate the law should be imprisoned. On the other hand, trauma due to the examination process, prison life, and stereotypes as ex-convicts will greatly affect the psychological function of children. This can lead to low self-confidence, feeling worthless, and becoming the cause of recidivists because they feel unforgivable even though they have served their sentence
THE SUPREME COURT\u27S AUTHORITY AS AN IMPLEMENTER OF INDEPENDENT JUDICIAL POWER IN THE RECRUITMENT OF JUDGES
No full textThe primary issue addressed in this study is how the Supreme Court\u27s authority is autonomous in hiring judges with the status of state officials for judicial organizations within its jurisdiction. Because the legislation was the primary source of information, this study took a normative juridical approach. The study\u27s findings indicate that the current legal framework is not yet fully capable of accurately regulating, thoroughly implementing, and enforcing the judicial system and pattern and judges\u27 status as state officials. The current system and pattern of judicial recruitment continue to demonstrate the lack of transparency and uncertainty regarding the legal rules governing the recruitment pattern of judges with state official status. The existing rules retain a tenuous legitimacy because they are not governed by the Constitution, which establishes an independent Judicial Authority charged with enforcing law and justice. As a result, it will be required to enact new rules and regulations governing the system and pattern of recruitment of judges in accordance with the characteristics of judges\u27 positions as state officials in the future to ensure the implementation and accountability of judicial responsibilities
LIMITATION OF MEANINGFUL PARTICIPATION REQUIREMENTS IN THE INDONESIAN LAW-MAKING PROCESS
Full text linkThe Indonesian Constitutional Court through Decision Number 91/PUU-XVIII/2020, in the consideration section, shows how public participation in the formation of laws should be implemented, that is based on formal legal regulations and carried out in a “meaningful participationâ€. Participation is said to be meaningful if the right to be heard, the right to be considered, and the right to be explained or answered to the opinions and inputs given are fulfilled by the legislators. Who the subjects of meaningful participation are, what the limitations of the material or substance of meaningful participation are, where the appropriate space or media for meaningful participation is, and how to consider and answer to meaningful participation is given, will be the problems discussed in this conceptual study. This study needs to be carried out to clarify the limits of meaningful participation so that the concept or theory as the basis can be applied and accommodated in laws and regulations. The main idea of the result of this study is the findings regarding the limits of meaningful participation in the formation of laws, that is the provision of opinions and inputs carried out by parties affected directly or indirectly and have concern to it. In addition, indicators for assessing the substance of participation and receiving opinions and inputs are “the purpose†of the regulation that will be formed. The participation media as well as participation explanations and answers are delivered conventionally and virtually with certain intelligence adjustments to the information technology used
PROTECTION OF WOMEN\u27S AND CHILDREN\u27S RIGHTS BASED ON SYSTEM INTERCONNECTION: A New Paradigm of Execution of Women and Children\u27s Rights after Divorce
No full textThe implementation of post-divorce decisions in the religious court demands great attention because the system for implementing decisions in divorce cases still needs to be stronger. The cost of executing the decision is not commensurate with the nominal (the ex-husband must pay “the obligation†to his ex-wife). As a result, court decisions become “uselessâ€, which are only authoritative in writing but weak in implementation. Through this paper, the author wants to explain a new concept related to the fulfillment of the rights of women and children after divorce based on an interconnected system so that post-divorce women and children are guaranteed their fulfillment of rights without going through the process of execution in court. This research is normative research through a statutory approach and a conceptual approach. This research shows that ensuring the women\u27s and children\u27s rights fulfillment requires an interconnected system. Courts must involve non-judicial institutions in an integrated manner following their respective authorities. This new framework makes institutions outside the judiciary as external partners in implementing single identity-based court decisions