Jurnal Hukum Novelty
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Disgorgement as Remedial Action in Indonesian Capital Market Regime
Full text linkIntroduction to The Problem: In 2019, Financial Services Authority introduced the disgorgement within the field of Indonesian Capital Market by the establishment of OJK Regulation Draft concerning Disgorgement and Disgorgement Fund in the Capital Market. Disgorgement itself is a very new concept in Indonesia. It is meant to be a remedial action, furthermore, it is expected to prevent Party for enjoyment of illegal profit, compensate the victim’s loss, containing corrective element, as well as to give deterrence effect.Purpose/Objective Study: This study aims to study on how the disgorgement as remedial action would apply and create deterrence effect in Indonesian Capital Market Regime.Design/Methodology/Approach: This is a normative legal research which uses qualitative research method. This study will conduct literature review and comparative study with disgorgement regulation within the field of securities law in common law and civil law jurisdiction.Findings: In upcoming disgorgement technical manner, OJK will give a written order for the Party who violate capital market regulation and pursuing illegally obtained profit or illegally avoided loss to return sum amount of money sum up with the interest (if any). To uphold this scheme, Indonesia needs to develop the theoretical framework such as actio de in rem verso or unjust enrichment. Furthermore, in order to create deterrence effect, Indonesia shall provide effective, proportionate and dissuasive sanction
Deed of Settlement as A Dispute Object based on HIR and Supreme Court Regulation No. 1/2016
Full text linkIntroduction to The Problem: It is uncommon for a case that has been decided by a judge and has the legal force to be retained and then brought back to Court by one party for a lawsuit. This kind of case contradicts the principles and applicable law, such as the case that the researcher found in Case No. 22/Pdt.G/2016/PN. Sal.Purpose/Objective Study: This paper intends to discuss the legal problem of the re-submission of the deed of settlement as the object of a breach.Design/Methodology/Approach: This research is doctrinal legal research. The data are secondary data which analyzed qualitatively. Following the approach method used, the study is conducted on norms and principles contained in secondary data, from the primary, secondary, and tertiary legal materialsFindings: The results of the study show that, first, deed of settlement cannot be an object of default because it has been inkracht. Secondly, Salatiga court judges did not consider the principle of ne bis in idem under Article 10 (1) The Judicial Power Act. The president of judges shall be able to carry out the role or power under Article 119 of the HIR, which is to provide advice to those who wish to file a lawsuit.Paper Type: Research Article
Consumer Protection of Unauthorized Cosmetic Distribution in Indonesia's E-Commerce
Full text linkIntroduction to the Problem: Technological advances in the field of pharmacy or medicine, especially in the field of cosmetics today, have provided many alternatives for consumers, especially women, to meet their needs. The presence of various cosmetic products does provide hope for women to look more beautiful and attractive. But often, many cosmetics products have no active ingredients mentioned. Motivated by big profits, the manufacturers do not register their products for further assessment. When it comes to the market, the products are actually without standard authorization, or in the other cases using false or fictitious marketing authorization numbers. One form of protection to the consumer is the certainty of information contained in cosmetic packaging itself. The distribution of cosmetics without marketing authorization is also commonly found in applications or online stores. Still, on the one hand, it makes it easier for the public to conduct business transactions. However, compared with the easiness the online stores offered, when the products are still unauthorized, it will harm its users.Purpose/Objective Study: This research discusses consumer protection for the circulation of cosmetics without marketing authorization in Indonesia through e-commerce.Findings:This research shows that the Indonesian government protects consumers against the circulation of cosmetics without marketing authorization through the rules and laws. However, on the other aspect, those rules or regulations have no practical impact on society in this digital era. So, Indonesia should concern more to online activity where unauthorized marketing products are being marketed
Immunity Rights Problems before the ICC: Between the 1961 Vienna Convention and the 1998 Rome Statute
Full text linkIntroduction to The Problem: The right to immunity in international law is a privilege granted to Diplomatic Officers in the context of carrying out missions, in particular, representing the state. The immunity rights of a Diplomatic Officer must be protected and respected by the recipient state as an obligation in diplomatic relations. The rights of immunity respected in customary international law under the 1961 Vienna Convention are inversely proportional to those stipulated in the 1998 Rome Statute regarding the abolition of immunity rights before the International Criminal Court. This thing then raises the status of immunity rights problems between the 1961 Vienna Convention and the 1998 Rome Statute of the International Criminal Court.Purpose/Objective Study: This study aims to examine the problematics of applying immunity rights for diplomatic officials, namely how the respect and protection of immunity rights regulated in the 1961 Vienna Convention and how the abolition of immunity rights held in the 1998 Rome Statute of ICC. This thing then looks for problems in immunity rights between the two conventions in practice and occurred-cases.Design/Methodology/Approach: This study used a normative research method. The assessment is carried out using a conceptual approach, a statute approach, and a case approach so that the relevance between the problem and the final purpose of this research is found.Findings: This study found several reasons regarding the status of immunity rights before the International Criminal Court, which raises the problem of weaknesses in international law related to immunity rights. The flaw was triggered due to the lack of legal certainty associated with the lack of hierarchy used in the provisions of international law. So that between the 1998 Rome Statute of ICC and the 1961 Vienna Convention, there was a dilemma in its application. Based on the case, the UN Security Council, as an international institution, influences the decision on how the status of the right to immunity can be applied or not.Paper Type: Research Articl
The Intersection of Criminal Law, Technology and Business Commercial Law on Carding as Cyber Fraud
Full text linkIntroduction to The Problem: Â Since digital reform, business and trade sectors have begun to expand their network in cyberspace. Transactions carried out also no longer refer to ordinary things. The modern era of society indeed prefers a more efficient payment process, namely through a credit card. On the other hand, the advancement of digital technology also provides opportunities for perpetrators of crime in cyberspace. The fraud, which was initially carried out with the objects of written reports, began to move lanes towards data manipulation in the form of carding.Purpose/Objective Study: This paper is intended to analyze and examine carding as cyber fraud in three legal studies: criminal law, business, and commercial law, and transnational criminal law. This study illuminates the intersection between criminal law, business and commercial law, law and technology, and international criminal law in carding cases.Design/Methodology/Approach: The paper is normative legal research using a comparative approach and regulations related to carding and cyber fraud.Findings: The study highlighted that carding as a manifestation of cyber fraud is also a transnational crime, which involves networks or groups across national borders to carry out certain illegal businesses or activities. Included in this case is the data theft on credit cards. Of course, this has resulted in a shift of public trust towards the credit card provider sector, namely banks, so that there is a need to strengthen the juridical pathway nationally and internationally.Paper Type: General Revie
The Execution of the Administrative Court’s Decision; Looking for Its Justice and Legal Certainty
Full text linkIntroduction to The Problem: The execution of the Administrative Court’s decisions seems floating, and there is no final settlement. The implementation of the decision of the State Administrative judge is entirely left to the awareness of the administration official or institution. The problem is that the officials are lack of awareness due to the less supervision by a higher institution like the House of Representatives.Purpose/Objective Study: This article aims to find out the execution to carry out the Administrative court and Administrative court decisions that can provide a sense of justice and legal certainty to the public.Design/Methodology/Approach: The study in this article uses a doctrinal approach with secondary data sourced from books and journals, and is presented using a qualitative method.Findings: The study showed that the execution of the court’s decision only emphasizes the sense of self-respect and legal awareness of the Administrative officials and there has been no application of forced efforts against Administrative officials if they do not implement it. Administrative actions must be following the principles of a legal constitution dominated by the norms of public policy to prevent acts of abuse of authority from higher powers
Recognition and Strengthening the Customary Land Ownership in Central Borneo Province
Full text linkIntroduction to The Problem: The rapid flow of globalization has brought indigenous peoples to prolonged horizontal and vertical conflicts. The majority of conflicts triggered by who has the right to own the land and functionalize it. The land that belongs to indigenous peoples and it inherited from generation to generation, suddenly taken by investors and it even supported by the government. The indigenous people are often victimized and forced out from their customary lands. They who try to claim the rights sometimes experience obstacles because of the stronger and dominant government position in the court. One of these conflicts occurred in the Dayak community in Central Borneo Province.Purpose/Objective Study: This study aims to determine the problems experienced by indigenous peoples in Central Borneo Province, as well as to find out the mechanism for establishing a legal protection system in order to provide recognition and strengthening ownership of customary land in the Central Borneo Province.Design/Methodology/Approach: This study uses normative research methods, with statute approaches and conceptual approaches.Findings: there are serious problems experienced by indigenous people in Central Borneo Province, related to customary land in their territory. However, there are legal safeguards that can be carried out through formal and administrative land recognition
Bank Liability as Trustee in Banking Insolvency
Full text linkIntroduction to The Problem: A trustee agreement is an exclusive agreement in banking gives the bank the right and authority to manage the customer's assets as stated to the agreement The assets of trust assets are the property of the customer, the management of the assets must be separately carried out to implement the Prudential Principle and Pacta Sunt Servanda in banking contract.Purpose/Objective Study: Research and analyze the legal consequences of the trustee agreement and analyze the bank liability towards the insolvency status to the trustee agreement.Methodology/Approach: This Legal Research used normative positivism with the using of the Statute and Conceptual Approach. The Legal Research Sources divided into primary to the tertiary source.Findings: The research shows that the Bank is only as the manager of the asset; therefore, every legal conduct shall have approval from the Settlor under the trustee agreement. It means, if the assets are included as insolvency assets, it is a violation of contract as well as law where the dispute settlement shall be taken into account.Paper Type: This Research is Reseach Article completed by rules and regulations
The Existences of International Law in The Establishment of Indonesian National Regulation on The Protection of Traditional Knowledge
Full text linkIntroduction to The Problem: The debate about whether the protection of traditional knowledge governed by international law has led developing countries, such as Indonesia, to have the potential for traditional knowledge to feel disadvantaged.Purpose/Objective Study: This paper intends to discuss the existence of international law in the formation of Indonesian national regulations concerning the protection of traditional knowledge.Design/Methodology/Approach: This research designed as doctrinal legal research. The data used in this study are secondary data which analyzed qualitativelyFindings:Â From the results of research and discussion it is known that stipulation of regulations related to the protection of traditional knowledge in Indonesia needs to be accompanied by efforts to encourage the acceptance of national interests in international agreements, both through increasing TRIP agreements and the ASEAN framework. Also, it must be ensured that all binding international legal instruments related to traditional knowledge will truly benefit especially the community of traditional knowledge owners in Indonesia
Illegal Hunting Prevention by Indigenous People in Bromo Tengger Semeru National Park
Full text linkIntroduction to The Problem: National park is a conservation area which has the most advanced management system compared to forest park, Nature Park, nature reserves, and wildlife reserves. The national park is becoming the area that can anticipate the hunt and to prevent the extinction of protected animals. One of the largest national parks in East Java is Bromo Tengger Semeru. Around the park, there lived a Tengger tribe whose role is to maintain the conservation areas.Purpose/Objective Study: The purpose is to determine the response on illegal hunting conducted by people around Bromo Tengger Semeru National Park and to determine the factors supporting the illegal hunting prevention in Bromo Tengger Semeru National Park.Design/Methodology/Approach: The type of this study is sociological law study using qualitative methodology — the data collected through observation, interviews, and literature.Findings: The results show that the way the Tengger tribe prevent illegal hunting is by doing spiritual guidance. While the supporting factors in preventing illegal hunting is the law and legal custom owned by Tengger tribe, thus the customary law applied by Tengger tribe is more effective than national law