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The Undue Influence Doctrine and Its Function in Consumer Financing Cases
Full text linkThe practice of freedom of contract in Indonesia is remain imbalance due to unequal position of the parties. This imbalance has been used by companies to take advantages and at the same time harm consumers. This study aims to explain the "undue influence" doctrine in legal practice in Indonesia and its function in emphasizing the importance of the consensual principle in contracts. By using normative juridical approach based on secondary legal materials, statutory, and court decisions, and the data were collected through literature study and analyzed qualitatively. The terminology of undue influence or misbruik van omstandigheden in the Indonesian Civil Code obviously has not been regulated but has the same character as the concept of “defect of the will” as regulated in Article 1321 of the Code. The provision of “defect of the will” is an integral part of the consensual principle in Article 1320 of the Code. The function of this doctrine limits the application of the absolute principle of freedom of contract and becomes a source of law for judges in resolving contract disputes in court. In the reform of the national contract law, this doctrine should be considered to be included as an important element to complete main aspects of Article 1321 of the Code
Building Quality of Democracy and Democratization of Political Party’s Leader Election
Full text linkPolitical parties are crucial assets of democracy. Political parties have strategic functions and roles in building democracy of a country. To create democracy and democratization, thus, the first subject who must practice democratization should be the political parties themselves. Until today, Indonesia is still in the process of seeking and progressing towards the ideal form of democratic living (democratization), as envisioned in the constitution. Surely, “the process of democratization” must be done in all aspects. Democratization in political parties has not been built well, as there are still some political parties whose election of leaders are still influenced by the parties’ founder and family ties. Building quality of democracy may be initiated by the democratization of political parties, in this case through making better the election mechanism of the leader of the political party. This election process may be done democratically if: there are regulations which have been prepared from the beginning which guarantees the democratic changing process of the political party’s leader. There should be no “familial” characteristics in the political parties which will actually create political party dynasties. There should also be a clear limitations regarding the head of the political parties’ term of office and a more transparent and accountable election of political party’s election of leader.
The Position of Amicus Curiae under the Indonesian Law of Evidence
Full text linkThe use of amicus curiae has been common in Indonesia, especially in criminal courts. Although there is no clear regulation on amicus curiae, in practice, it has been submitted more than 24 times to the courts. Even there are some judges who consider amicus curiae in making their decisions. This paper aims to determine and examine the legal standing and the strength of amicus curiae under the Indonesian law of evidence. This normative legal research relies on the secondary data in the form of legal material. It is found that the opinion of an amicus curiae, which is usually submitted to the court in written form, could be used as a documentary evidence as intended in Article 187 of the Criminal Procedure Code. However, it has no binding force. Therefore, the judges are free whether or not to consider the opinion submitted by the amicus curiae
Corruption of the Local Leaders in Indonesia: An Expository Study
Full text linkCorruption in Indonesia takes various forms and involves various parties including the local leaders. The aim of this study is to analyze various forms of bribery involving the heads of regencies/Mayors. This study employs qualitative method and focuses on corruption cases in four regencies namely Bangkalan, Karawang, Tegal and Madiun. The research is supported by the Nvivo12 software package that enable researcher to categorize and homogeneous the enormous data. The study found that there are various types of bribery committed by the heads of regencies that include either direct bribery, levies, forced bribery (extortion), or tribute. The type of bribery depends on the specific conditions of each area. The types of corruptions can also be distinguished into hidden and open corruption. Open corruption refers to corruption that involves local governmental units
The Legitimacy of Ondoafi in Conflict Settlement of Customary Land Tenure in Sentani, Papua
Full text linkThe charismatic power of ondoafi as a leader in customary government can determine the direction of the policy including the resolution of problems of indigenous people. In the new order Era, ondoafi was not involved further in resolving land issues, so he would not be labeled as part of the Free Papua Movement (OPM). In the Special Autonomy era, the roles of ondoafi got stronger as indicated by the privileges given by the government to indigenous people in Papua. This paper explores the roles of ondoafi in resolving the conflict over the customary land in Sentani, Jayapura, Papua, using a qualitative approach with secondary data. The result of the research shows that ondoafi could not resolve the conflict over the customary land in Sentani effectively due to the discrepancy of values between the conflicting parties. Nevertheless, ondoafi should become a mediator to resolve the conflicts between indigenous people and non-indigenous people; including privates or corporates and the central government. An ondoafi should be able to become a diplomat who can bridge the values differences between the conflicting parties and urge the conflicting parties to understand others’ interests and values so that conflicts can be resolved in a peaceful manner
Restructuring State-Owned Enterprises (SOEs) as a Strategy to Face Demonopolization Policies
Full text linkThe demonopolization policy on State-Owned Enterprises (SOEs) makes SOEs as an independent corporations by prioritizing profit motives while running a business for public benefits. The opportunity for private companies to become competitors of SOEs that have been running a monopoly business is one of the challenges for SOEs to compete. Restructuring of SOEs is a strategy to survive in business. The fundamental goal to achieve is that SOEs can become the main business entity that plays a role in national development by combining corporate/business principles and public services, but it still rests on the concept of democratic economy as a characteristic of Indonesian. The main problem to improve the role of SOEs in being able to be independent and competitive would be presented through normative juridical (doctrinal) research by using secondary data as the main data. The findings in the normative-prescriptive analysis would then be interacted using qualitative descriptive analysis methods through inductive conclusions. The results is finding an external and internal improvement strategy for the company by strengthening the concept of restructuring as an effort to enhance the role SOEs to be independent, competitive, and contributive to the sovereign, fair, and prosperous national economy
Transformative-Participatory Legal Research Method for Harmonizing The Existence of The Living Law in Indonesia
Full text linkThe most common research which conducted in Indonesia is a doctrinal research, based on the deductive approach. Theoretically, all provisions have noble goals, but in practice there are several difficulties in term of implementation, especially related to existence of living law. Therefore, appropriate legal-research method is needed to counter the polemic, namely the use of transformative-participatory legal research method. The article aims to explore how to harmonize the living law with transformative-participatory legal research methods. The method uses in the study is the normative legal research method. The research found that through the transformative-participatory legal research, legal researchers would still accommodate the essence of legal analysis founded in conventional methods, but it will not be confined by those methods. The living law is the essence in society and based on transformative-participatory research method, the law-making process needs a community participation and empowerment
Philosophical Basis of Informed Consent, Informed Refusal and Documentation of Medical Information into Medical Record
Full text linkInformation delivered by the medical professionals to the patients in their initial communication is crucial in establishing the therapeutic contract (transaction). Based on that information, the patient will decide whether to accept or to refuse the proposed medical treatment. This paper discusses the philosophical basis of the Informed Consent, Informed Refusal and the documentation of medical information into Medical Record. This normative legal research is carried out by library-based study on primary and secondary legal materials. Besides descriptive-analytical approach, the study also employs comparative approach. The comparison is made between continental legal system, common law system, and the Islamic legal system. It is found that philosophical basis of informed consent, informed refusal and documentation of medical information into medical record is basically to protect the patients’ dignity and to maintain their trust and cooperation. Furthermore, from the Islamic perspective the establishment of informed consent is to respect the privacy to blood, property, and family. In addition, the documentation of medical information into the medical record is to give legal protection in the form of strong evidence both for the health providers and health receivers in the event of a medical dispute
The Application of Social Control Theory in Preventing Violent Crime by Juvenile Delinquent
Full text linkYogyakarta has faced a number of violent crimes committed by a group of teenagers (juvenile delinquents). These include vandalism, destruction of public facilities and even murder. The purpose of the research was to find out factors that contribute to the rise of such crimes Yogyakarta and the possible solutions. This Socio-Legal research employed both primary and secondary data. It was found that factors causing violent crimes derived from both internal and external factors of the perpetrators. Both penal and non-penal policies have been taken to prevent the mentioned crime. The future concept is to approach violent crimes by juvenile delinquents through Social Control theory in the form of affection, trust, commitment, and involvement. The idea is to involve various parties in handling the problem. Not only police officers, other stakeholders such as parents, teachers, and religious leaders should also be involved