Jurnal Bina Mulia Hukum
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THE DEVELOPMENT OF NEIGHBOR LAW IN INDONESIA
Full text linkNeighbor law was born in the midst of community life to regulate and limit rights and obligations in neighborly relationships. One of the developments in neighbor law is the concept of servitude or property easement. Issues related to servitude right in Indonesia are still frequently encountered, often resulting in illegal actions that lead to losses for others. Therefore, based on several court decisions in Indonesia, it is necessary to conduct an in-depth study of property easements as a limitation on property rights and legal protection for those who are harmed in cases involving property rights restrictions. This research is a legal study that employs three approaches: legislative approach, conceptual approach, and case approach. The results reveal that servitude right is a restriction on property rights over land that is still applicable according to civil law provisions and is based on the social function found in agrarian law. Legal protection provided through the judicial system in Indonesia regarding cases involving property rights restrictions and violations of servitude right involves filing lawsuits by the injured party based on illegal actions. If it is proven that the defendant has committed an illegal act, the judge will issue a court order (aanmaning) to perform or cease a certain action, as well as award compensation to the harmed party for actions that violate the servitude right
LEGAL POLICY ON REGULATING THE ACCELERATION OF DEVELOPMENT IN DISADVANTAGED REGIONS IN THE IMPLEMENTATION OF NATIONAL DEVELOPMENT WITH A COLLABORATIVE GOVERNANCE APPROACH
Full text linkAccording to National Medium-Term Development Plan for 2020-2024 (RPJMN 2020-2024), there are still 62 regencies specified as disadvantaged regions. The emergence of these disadvantaged regions is empirically a result of uneven national development in the past. Therefore, an affirmation policy from the government is needed to accelerate the development in disadvantaged regions through an acceleration program. The essence of forming regulations to accelerate the development of disadvantaged regions will be examined using a legal and conceptual approach. The discussion in this study is related to the legal politics of forming regulations to accelerate the development of disadvantaged regions, which is an integral part of the implementation of national development. The results of this research indicate that the legal politics of regulating the acceleration of development in disadvantaged regions in the implementation of national development is a mandate of the 2005-2025 RPJPN Law, Regional Government Law, and Ministry of State Law, which is aimed at providing development preferentially to disadvantaged regions and implemented to include the fulfillment of basic needs as well as basic facilities and infrastructure in disadvantaged regions in order to achieve public welfare through equitable development in Indonesia. Concurrently, accelerating development in disadvantaged regions through the implementation collaborative governance approach is a government policy aimed at creating synergy and integrating programs and activities executed by relevant ministries/agencies and partnering with communities and businesses to support funding for the accelerating development in disadvantaged regions
THE VULNERABILITY OF PROVING FRAUD AS THE BASIS FOR CANCELLING AGREEMENTS IN THE DIGITAL ERA
Full text linkCivil Law grants freedom to everyone to agree on something as long as it fulfills the valid agreement requirements stated in Article 1320 of the Civil Code. The consent condition is mentioned in Article 1321 of the Civil Code. Consent is invalid if there is a mistake, coercion, or fraud. This writing discusses consent that is not valid due to fraud. Article 1328 of the Civil Code states that 'fraud is a reason for the cancellation of an agreement if the deception used by one of the parties is so obvious and clear that the other party would not have agreed if there was no deception.' It is not easy to prove fraud in an agreement that has been made, as the party that feels deceived is not in a position of 'being forced' and voluntarily signs or digitally approves the agreement with a submitted or accepted mark. More detailed regulations regarding canceling agreements due to fraud are needed to provide legal certainty and justice for the parties
LEGAL REMEDIES AGAINST BANKRUPTCY DECISION FOLLOWING CONSTITUTIONAL COURT DECISION NO. 23/PUU-XIX/2021
Full text linkBankruptcy is a legal institution created as a way out of debt problems that befall debtors. The bankruptcy mechanism consists of the Postponement of Debt Payment Obligations (Penundaan Kewajiban Pembayaran Utang/PKPU) and bankruptcy itself. These two mechanisms have different legal consequences, especially regarding the available legal remedies, which differ between bankruptcy rulings originating from PKPU applications and those originating from bankruptcy applications. The available legal remedies also differ between bankruptcy rulings originating from applications submitted by debtors and those submitted by creditors. Constitutional Court Decision No. 23/PUU-XIX/2021 has changed the legal remedies provisions in Law No. 37 of 2004 concerning Bankruptcy and Postponement of Debt Payment Obligations. Prior to the Constitutional Court's decision, there was no opportunity for debtors to file legal remedies against a bankruptcy ruling caused by the rejection of a peace agreement due to the failure to reach an agreement in the PKPU process. However, after the issuance of Constitutional Court Decision No. 23/PUU-XIX/2021, this has changed with the opening of the opportunity for legal remedies in the form of cassation against a bankruptcy ruling due to the rejection of a peace agreement because an agreement was not reached in the PKPU process. It is important to avoid the PKPU process being used as a means to bankrupt debtors who are still solvent but are bankrupted because there are interests of business competition involved
REORIENTATION OF THE ULTIMUM REMEDIUM PRINCIPLE IN HANDLING ECONOMIC CRIME REGARDING PROTECTIVE EQUIPMENT AND COVID-19 MEDICATIONS
Full text linkApplying the ultimum remedium principle to economic crimes needs to be studied from a regulatory perspective concerning the situation during the Covid-19 pandemic. The normative juridical research method combines a statutory approach with a conceptual approach. Both approaches provide a comprehensive understanding of the ultimum remedium principle in legislation and a contextual understanding of economic crimes during the Covid-19 pandemic. The results show that Emergency Law 7/1955 applies the primum remedium principle with a double-track punishment system, while Trade Law applies the ultimum remedium principle. Handling economic crimes related to providing personal protective equipment and/or medications to prevent and recover from Covid-19 infections can be considered essential goods and important commodities are given the situation and conditions during the Covid-19 pandemic in Law Number 7 2014. Applying Trade Law meets the ultimum remedium principle but does not prioritize the recovery of economic losses suffered
ACTOR SEQUITUR FORUM REI: A THEORITICAL STUDY
Full text linkThe actor sequitur forum rei principle is the primary basis for determining the relative competence of civil courts in countries that adopt civil law systems. In this article, the role of the actor sequitur forum rei will be examined theoretically by analyzing theories related to personal jurisdiction, categorization of jurisdiction, and procedural justice theory. The analysis results indicate that actor sequitur forum rei is founded on the theory of power and is classified as a "connected" jurisdiction with a general nature, as jurisdiction is linked to the defendant's domicile. It enables the defendant to be sued in the forum of their domicile at any time and for any reason. Additionally, according to procedural justice theory, actor sequitur forum rei is shown to provide the defendant with protective aspects
CIVILIAN AIRCRAFT TRANSPONDER MANIPULATION IN RECONNAISSANCE MISSIONS, AERIAL INCIDENTS CASES AND CHICAGO CONVENTION 1944
Full text linkThroughout 2020, the People's Republic of China (PRC) stated that the United States (US) manipulated the electronic identity code of its military aircraft (transponder code) over the South China Sea by using the identity of a civilian aircraft to carry out reconnaissance missions. The discussion of the incidents has faded in the past two years, even being regarded by some observers as a 'common' practice having been used since the Cold War era by the US. These incidents have never been heard to reappear in the South China Sea situation. However, the escalation of reconnaissance practices heated up again after a PRC's high altitude balloon was shot down by a US fighter jet over the US's territorial sea on February 4, 2023. The US had claimed that the aircraft was on a spy mission. This incident could be a starting point for the US to resume the practices throughout 2020 by imprisoning civilian aircraft in the South China Sea or even on the PRC's mainland because this practice is considered 'common' on the US side. By using the international legal research method, in which international legal sources are juxtaposed with the current context in the field, this article concludes that the practice of manipulating civil transponder codes cannot be justified as a 'common' practice because it is endangered the civil aviation and contrary to the Chicago Convention 1944
THE CORRELATION BETWEEN THE UNQUALIFIED OPINION BY THE AUDIT BOARD OF INDONESIA AND ANTI CORRUPTION ACT
Full text linkAn Unqualified Opinion (Opini Wajar Tanpa Pengecualian) is an assessment provided by the Audit Board of Indonesia to state institutions whose financial management is deemed appropriate. However, it is often observed that entities receiving the An Unqualified Opinion designation are subsequently found to have engaged in criminal acts of corruption, which raises public doubts concerning the credibility of BPK's assessments. This study elucidates the correlation between BPK's authority to issue opinions and efforts to combat corrupt practices. The research methodology employed is juridical-normative with a legislative and case-based approach. The findings indicate that Audit Board of Indonesia plays a pivotal role in the fight against corruption. Audit Board of Indonesia 's authority to provide opinions hinges on compliance with the relevant legislation, suggesting that Audit Board of Indonesia can detect the presence or absence of criminal elements committed by the audited entities. The occurrence of corruption cases involving An Unqualified Opinion recipients is primarily due to opportunities and disclosure gaps in the audit process. A correlation exists between Audit Board of Indonesia 's opinions and anti-corruption efforts, albeit limited to the specific category of corruption related to the state's financial scope under Article 2 of Law No. 17/2003. Thus, Audit Board of Indonesia can only identify cases of corruption directly linked to the state's finances, namely Corruption Adversely Affecting State Finances under Articles 2 and 3 of Law No. 31/1999 and Embezzlement in Office under Article 8 of Law No. 20/2001
JUDGE’S ATTITUDE TOWARDS THE MEDIATOR’S RECOMMENDATION REGARDING THE BAD FAITH PARTY AND MEDIATION FEES ISSUE
Full text linkThis article was the result of research in 2021 with normative research. The formulations of the problems are: 1) What is the consideration of the panel of judges on the recommendation of the mediator regarding the sanctions for payment of mediation fees for parties who are declared to have no good intentions; 2) What is the procedure for payment of mediation fees by these parties. The conclusions are: 1) There is no data on the mediator's recommendation regarding paying mediation fees. It is not immediately followed up if the panel of judges receives it. The judges continue to examine the recommendation of providing justice so that the defendant does not feel more burdened so that the recommendation is not included in the court’s product; and 2) The procedure for payment of mediation fees is carried out together with the accumulated principal costs of the case by complying with the principles of execution. This study advises the Supreme Court of the Republic of Indonesia that there should be a mechanism agreed upon by both parties to jointly consign the amount of money that is expected to be used in the mediation proces
RES IPSA LOQUITUR: APPLICATION IN PRODUCT LIABILITY
Full text linkConsumers who experience loss, injury, or death due to a damaged or defective product can claim compensation. However, the difficulty of proof is a scourge for consumers. In law, the doctrine of res ipsa loquitur was introduced, which in English means that things speak for itself. Based on the doctrine, the law presumes a presumption of negligence which can then be applied to the reverse burden of proof. This study examines the principle of product responsibility in the Consumer Protection Act and the application of the res ipsa loquitur doctrine in product liability. This research is normative research using a conceptual approach and a statute approach. This study found that the principle of product liability in the Consumer Protection Act contains two principles: first, the presumption of negligence, and second, the presumption of liability principle with the burden of proof reversed. In line with the consumer interest-oriented doctrine, res ipsa loquitur also contains the presumption of negligence followed by the presumption of liability principle. The application of the res ipsa loquitur doctrine in product liability is found in 2 things: first as a principle and second as a means of evidence in civil procedural law which can be enforced through evidence of a presumption concluded by a judge