Jurnal Fakultas Hukum Universitas Padjadjaran
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THE USAGE OF MORTGAGE RIGHTS COLLATERAL IN THE MUSYARAKAH MUTANAQISHAH CONTRACT
Get PDFPenelitian ini bertujuan untuk menganalisis penggunaan jaminan hak tanggungan untuk menjamin akad Musyarakah Mutanaqishah yang didasarkan pada hubungan hukum kerja sama (kemitraan) sementara Akta Pemberian Hak Tanggungan (APHT) digunakan untuk menjamin hubungan hukum utang piutang antara Nasabah dengan Bank sehingga timbul ketidakpastian hukum pemilik objek jaminan dan potensi ketidakpastian pengalihan objek pembiayaan, dan ketidakjelasan harga objek pembiayaan. Pendekatan yuridis normatif digunakan dalam penelitian ini melalui Fatwa Dewan Syariah Nasional Majelis Ulama Indonesia, dan Undang-Undang Nomor 4 Tahun 1996 tentang Hak Tanggungan dan Benda-benda yang Berkaitan dengan Tanah yang dijelaskan secara deskriptif, dan dianalisis secara kualitatif. Hasil penelitian menunjukkan: Pada akad Musyarakah Mutanaqishah, Nasabah wajib membeli porsi kepemilikan Bank secara bertahap, akad ini memiliki sifat obligatoir sehingga dapat diikat hak tanggungan. Jaminan dilakukan eksekusi apabila Nasabah melakukan kelalaian/hal yang dilarang, diperlukan Sertifikat Hak Tanggungan yang didasarkan pada APHT untuk melakukan eksekusi, tetapi APHT belum memenuhi prinsip syariah karena klausul yang disusun secara baku yang bukan didasarkan akad pembiayaan syariah melainkan perjanjian pembiayaan konvensional, dapat disimpulkan, penggunaan jaminan hak tanggungan pada Akad Musyarakah Mutanaqishah belum memenuhi prinsip syariah
Inconsistency in Recognition and Enforcement of Foreign Arbitral Awards: Non-Compliance or Normative Factors?
Get PDFRecognizing and enforcing a foreign arbitral award has been becoming a global issue. To solve such an issue, the New York Convention 1958 turns out to be an important international legal product regarding the recognition and enforcement of foreign arbitral awards worldwide. States ratifying the convention are internationally bound to respect and assist in the execution of a foreign arbitration award in their respective countries; Indonesia is one of them. It ratified the convention by Presidential Decree Number 34 of 1981. Nonetheless, there is an impression that Indonesia has not implemented the convention consistently, compared to countries that are, considered, friendly to foreign arbitration awards due to the facts that there are several foreign arbitral awards that have been rejected by the District Court. This impression, however, needs to be re-examined by understanding textually the norm formula in the 1958 New York Convention and comparing its implementation among Indonesia and several countries that are considered friendly to foreign arbitration awards. This paper finds that there is a norm formula in the 1958 New York Convention that opens space for ratification countries not to always recognize and enforce foreign arbitral awards in the executing country of the award
Environmental Justice Framework Based on Local Wisdom Model
Get PDFIndonesia's environmental justice system currently does not provide environmental law objectively. The philosophy, paradigm, approach, and objectives of environmental law as a regulatory basis are not applied by judges as intended by environmental law theories and concepts. This article aims to find an ideal environmental justice model. By applying a normative-empirical approach and a comparative method, as well as being based on qualitative juridical analysis, this article explores the values and principles contained in the local wisdom of indigenous communities that are relevant to becoming the basis for an environmental court model. This article concludes that the main problem that hampers environmental law enforcement at the court level is that the philosophy, paradigm, and methods of environmental law are marginalized due to the barriers of civil, criminal, and state administrative law regimes. The ideal environmental justice model is one that is based on the local wisdom values of indigenous communities, where environmental courts should be integrated, judged by certified competent judges, independent, and able to accommodate core environmental law theories and concepts.
 
Protecting Indonesian Children in Adapting Climate Change Based on Business and Human Rights Principles
Get PDFBased on research data, the climate change condition has increased globally. Indonesia is a part of this condition with over 100% increase in carbon emissions over the last 12 years. When it comes to the context of climate change, children have a different position as they become the most medically vulnerable group and are pivotal to Indonesia's future, demanding special attention. Previous research pointed out that one of the possible major contributors towards climate change and carbon emissions is companies in industrial and energy activities. With the availability of the child rights convention and national law, this article will answer the notion of whether the existing National Law in Indonesia is sufficient to prevent and protect the rights of Indonesian children in the future, along with an analysis of how business and human rights can push companies to comply and be held accountable in case of violation. The methodology that will be used in this research is the normative juridical method, creating a specific approach to laws and regulations based on data analysis. This article concludes that Indonesia will need to include more Climate change and Business and Human Rights aspects to handle the future implications of climate change impact. This article also concludes that to have a strong hard law system in Indonesia, an integration of International frameworks and Business and Human rights principles into the national law is essential
Strategi Pemberantasan Cybercrime Lintas Batas: Implementasi Mekanisme Mutual Legal Assistance berdasarkan Permenkumham Nomor 12 Tahun 2022
Get PDFPenggunaan teknologi membawa dampak positif dan peluang inovasi di berbagai bidang. Namun, ancaman yang timbul tidak bisa disepelekan, seperti cybercrime. Cybercrime bukan hanya memberikan kerugian materiil namun juga immateriil. Ruang lingkup yang luas dan rentan terjadi lintas batas negara menuntut adanya kerjasama antar negara. Mutual Legal Assistance sebagai salah satu mekanisme kerjasama internasional memiliki peran penting dalam memberantas cybercrime sebagai kejahatan transnasional yang bersifat lintas batas. Tujuan penelitian ini adalah untuk mengetahui bagaimana hubungan antara cybercrime dan MLA sekaligus penegakan MLA pasca-adanya Permenkumham Nomor 12 Tahun 2022 dengan menggunakan metode penelitian yuridis normatif. Mekanisme MLA memiliki dasar hukum yang kuat berdasarkan hukum positif Indonesia yakni UU Nomor 1 Tahun 2006 dan Permenkumham Nomor 12 Tahun 2022. Cybercrime sebagai kejahatan transnasional yang mengundang perhatian dan kerjasama internasional sangat relevan dengan mekanisme MLA. Hadirnya Permenkumham ini mendorong efisiensi mekanisme MLA yang bersifat teknis sehingga memiliki kepastian hukum mengingat peraturan ini dirancang sedemikian rupa sebagai pedoman bagi otoritas pusat untuk menegakkan mekanisme MLA
Legal Framework for Preventive and Proactive Measures under the Bangladesh of Mental Health Act 2018
Get PDFMental health issues are a growing concern globally, and Bangladesh is no exception. Despite International treaties like Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR), International Covenant on Economic, Social and Cultural Rights (ICESCR) and Convention on the Rights of Persons with Disabilities (CRPD) , emphasizing the protection of individuals with mental health problems, domestic implementation remains a challenge.. The Bangladesh Mental Health Act, 2018 aims to align with international standards to safeguard the rights of individuals with mental disabilities, yet the law has had some successes in certain areas but has also faced challenges or shortcomings in others. This article analyzes the strengths and weaknesses of the Act, examining how well it adheres to international standards and its impact on the rights and treatment of mentally challenged individuals. The Act's objectives, implementation, and adaptation, focusing on its potential to prevent mental health problems and enforce legal protections
The Practice of Parental Inheritance Distribution in West Java in Relation to Islamic Law
Get PDFIn general, the parental indigenous people in West Java, especially the Banceuy Traditional Village, the majority of the population is Muslim, but in practice the distribution of inheritance still uses customary law. The purpose of this study is to obtain an overview of the practice of inheritance distribution of the Banceuy Traditional Village community in terms of Islamic law and to obtain a response to the obstacles that occur in the practice of inheritance distribution from the indigenous community. This research method uses a juridicalnormative approach study method. Specifications This study is descriptive-analytical. The research stage is literature and field studies. The data analysis method in this study is a qualitative juridical analysis method, because the data obtained through field research and literature research are arranged systematically. Based on the results of research by Banceuy Traditional Village in the practice of dividing inheritance using customary law, so that it has several differences in its inheritance law system with the Islamic legal system and dispute resolution in the inheritance law of indigenous peoples when related to the application of customary law and Islamic law, namely the principle of consensus deliberation and the principle of justice in accordance with customary law and Islamic law
REVIEW OF THE LEGAL IMPLICATIONS OF DIVORCE ON CHILD CUSTODY ARRANGEMENTS
Get PDFDivorce not only entails property division but also raises significant concerns regarding child custody. Courts often intervene to determine which parent is better suited to care for the child after divorce. This research aims to explore the legal implications of divorce on child custody rights and understand the factors influencing custody decisions between fathers and mothers, both individually and jointly. Employing descriptive analysis with a normative approach, the study utilizes secondary data from primary, secondary, and tertiary legal sources. Findings suggest that divorce can result in the loss of child custody rights due to neglect of parental obligations and immoral behavior, which may have contributed to the divorce. Additionally, judges consider various factors in determining custody, including the child's welfare, emotional connection with parents, and parental responsibilities. Factors such as parental presence in the child's life, financial support, and emotional interactions with the child influence custody decisions. Therefore, it is recommended that parents maintain positive relationships with their children, prioritize family unity, and actively fulfill their duties in providing protection, affection, and proper education
Community Empowerment Through the Utilization of Zakat for Productive Ventures in Sleman Regency
Get PDFThis research aims to determine and analyze the empowerment of the community through the utilization of zakat for productive ventures in Sleman Regency and the inhibiting factors in the community empowerment through the utilization of zakat for productive ventures. Data collection was conducted through document studies and interviews with respondents. The collected data were then analyzed qualitatively using a normative juridical approach. Based on the research conducted, the following conclusions were drawn: first, community empowerment through the utilization of zakat for productive ventures in Sleman Regency is focused on the economic sector through the provision of revolving capital and the provision of livestock assistance to groups or individuals classified as poor and still capable of working or doing business. The provision of zakat funds is carried out through grants or qardhul hasan contracts. Community empowerment through the utilization of zakat for productive ventures is in line with the provisions of Article 27 of Law Number 23 of 2011 concerning Zakat Management and Articles 32, 33, and 34 of Minister of Religious Affairs Regulation Number 52 of 2014. Second, inhibiting factors in community empowerment through the utilization of zakat for productive ventures include limited zakat funds to be distributed, limited assistance personnel, and declining motivation among some recipients of productive zakat assistance. To overcome these obstacles, cooperation with third parties is needed in providing funds and assistance personnel, as well as in motivating zakat recipients
The Validity of Sale and Purchase of Shares in Relation to Nominee Share Ownership (A Case Study of Decision Number 3041K/PDT/2020 and 765PK/PDT/2020)
Get PDFThe validity of capital injection into the Company and the existence of the shareholder nominee structure are closely related and directly impact legal actions, such as the sale and purchase of shares in the Company. There have been multiple instances concerning the sale and purchase of shares associated with Nominee Share Ownership, a practice commonly encountered in various sectors in Indonesia. This research will focus on two cases, namely Decision Number 3041 K/PDT/2020 and 765 PK/PDT/2020. In addressing these issues, the author is interested in discussing the decisions related to the Nominee Structure in Acquiring Limited Liability Company Share Capital and the Validity of Sale and Purchase of Shares in Relation to Nominee Share Ownership in Cases. This writing is normative legal research. The results of the research show that in the Case based on the Decision discussed, the Sale and Purchase of Shares related to Nominee Share Ownership is invalid and is a form of illegal action because it is contrary to the provisions of Article 48 paragraph (1) of the Company Law that the company must be issued in the name of the actual owner. However, the regulation in Company Law itself does not have an explicit prohibition on the nominee structure of shareholders. The nominee structure as an agreement is only valid and binding for the two parties making the agreement and is not binding on third parties, including not binding on the Company that issued the shares