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The Enforcement of Business Competition Law by the Police: An Indonesian Experience
Get PDFIn Indonesia, the Commission for the Supervision of Business Competition or Komisi Pengawas Persaingan Usaha (KPPU) is granted the power according to Law Number 5 of 1999 but such a power cannot be optimally implemented. KPPU often experiences difficulties and obstacles in the process of enforcing business competition law due to a large number of business actors and uncooperative witnesses so that this hinders the process of examining cases. In particular, KPPU has lack of cooperation of involved parties during the inspection process. However, the KPPU in carrying out its authority can include the role of the Indonesian police to assist in the process of enforcing business competition law. This paper shows that the role of the Indonesian police in the enforcement of business competition law can be initiated during the investigation process if the KPPU requests assistance to present the reported party, witnesses, and expert witnesses. Until the decision is issued by the KPPU, investigators can follow up with relevant individuals that may have cases that contain criminal aspects.
Keywords: Business Competition Law, the Commission for the Supervision of Business Competition, Indonesian Polic
The Evaluation of Surrogacy’s System in Indonesia as Comparison to India’s Legislation
Get PDFIn today’s age, marriage life is can be complicated with problems like infertility. In the face of this problem, couples have used surrogacy as a potential fix. Surrogacy poses a unique problem in Indonesia, because such a concept remains culturally taboo and no legal system exists to regulate the process and the responsibilities of the surrogate mother. Thus, other countries that have created a legal infrastructure for surrogacy offer valuable paradigms and best practices. This study seeks to compare surrogacy law between Indonesia and India, with the overall goal of suggesting policies to better regulate surrogacy within the former country. This study uses comparative legal research methodology through the functional method because Indonesia and India face the same social problem of surrogacy. The result reveals that it needs a legal system on surrogacy and surrogate mother as the legal certainty for any individual especially spouse who could not have offspring along with some reasons such as minimalize prostitution and unregistered marriage, prevent dispute, and to develop scientific field. The study concludes that Indonesia requires stronger legal infrastructure for surrogacy that will not only provide legal certainty for surrogate mothers and families using surrogacy but will also minimize prostitution and unregistered marriages, mitigate domestic disputes, and catalyze scientific innovation.
Keywords: Surrogate Mother, Surrogacy, Indonesia, India
Juridical Analysis on the Criminal Act of Online Shop Fraud in Indonesia
Get PDFThe development of technology has led to the sales and purchases of products and services online. However, the absence of a physical store prevents the prospective buyers from physically assessing the quality of the product/service. This leads to the emerging issue of online shop fraud. This paper aims to analyse the scope of online shop fraud within Indonesian laws and regulations, as well as the legal enforcement by Indonesian authorities to eradicate online shop fraud. This research uses the normative juridical method, which utilises secondary data such as books, journals and relevant legal products. This research finds that the Criminal Act of online shop fraud is regulated under Article 28 paragraph 1 of Law Number 11 Year 2008 following its amendment to Law Number 19 Year 2016 on Electronic Information and Transaction. The current efforts for legal enforcement of online shop fraud is performed in both preventive and repressive manners.
Keywords: Online Shop, Fraud, Cybercrim
Citizen Lawsuit in Environmental Cases
Get PDFThe citizen law suit is one of the effective alternatives for the environmental law enforcement. The citizen lawsuit in environmental disputes has been regulated in the PPLH Law specifically Article 91 paragraph (1) and the Chief Justice of the Indonesian Supreme Court Number 36/KMA/SK/II/2013 concerning the Implementation of Guidelines for Handling Environmental Cases. However, there are no specific rules governing citizen lawsuits in Indonesia because it’s not widely known in the Indonesian legal system. This paper argues that there are three main constraints to the practice of citizen lawsuits in environmental cases, namely: (1) the absence of legal rules that specifically regulate citizen lawsuits, especially the reading mechanism; (2) lack of understanding of law enforcement officials (especially judges) regarding citizen lawsuits; and (3) lack of environmental-certified judges in Indonesia, especially in regions.
Keywords: Citizen Lawsuit, Environment, Government
The Existence of Decision Norms of the Constitutional Court as a Source of Legislative and Executive Laws
Get PDFNorms are behavioral guidelines in the Indonesian legal state. Norms continue to exist in the legislation and juridical consequences of constitutional court decisions, and in particular, that of the Constitutional Court. Legal norms have principles that are applied to a wider hierarchy of legal norms and the production of legislation. In essence, the Constitutional Court's rulings have consequences on the actions of the government and therefore the action of governance. Including decision norms in the Constitutional Court's ruling has juridical consequences for the hierarchy of regulations and state legal actions in carrying out the function of government. This article aims to find out how to apply decision norms if there an identical or related decision exists within a different judicial institution. In government institutions bound by the Constitutional Court's decisions, application of decision norms resulted in chaos for the application and enforcement of the law. The implementing agency is faced with the same legal product, namely a verdict in another judicial institution. This causes no legal certainty. Rather than a solution or outcome, implementing agencies are faced with an identical legal response yet no legal certainty. The absence of legal certainty has consequences for government institutions that are bound by the Constitutional Court's decision. By utilizing a hierarchy of legal norms, the issue of rigidity and uncertainty caused by decision norms can be resolved. Likewise, in the legislature, the Constitutional Court's decision is the source of making legal norms. As the Constitutional Court’s decision is the source of legal norm production in the legislature, espousing a hierarchy of legal norms will enable laws and regulations that are formed to reflect justice, certainty and benefit.
Keywords: Court Decision, Legal Norms, Government
A Review of Pancasila under Globalization: Al Khanif, Mirza Satria Buana, Manunggal Kusuma Wardaya (Eds). Pancasila dalam Pusaran Globalisasi (LKiS, 2017) pp. xviii + 440. Paperback: IDR 150.000
Get PDFPancasila dalam Pusaran Globalisasi (Pancasila under Globalization) is a book that aims to see Pancasila, Indonesia's state ideology, from a global perspective. This book suggests readers consider the role of Pancasila over the world's powers of other ideologies by presenting rare insights to discuss and bridge the understanding of continuities and changes that has existed in society. Changes include, but not limited, to social, political, economic change, and linkages with various variations of society. Those changes are massively happening in the era of globalization plus with the challenges of the government to filter it. This book is a compilation of writings from various excellent academics in their fields. Moh. Mahfud MD, foremost Indonesia's professor of law and politics, delivered the book's prologue, who critically questioned 'Is Pancasila still relevant?' in the era for which Pancasila is rarely seen to implement in public life. Given the fact that hitherto Indonesia has faced problems that have come out of the nature of Pancasila. Mahfud, in his prologue, asked the reader to reflect on the true meaning of Pancasila. In short, understanding the role of Pancasila in this globalized world, particularly as the nation's ideology, has become essential so that every Indonesian citizen will have a much more similar understanding, perception, and attitude towards Pancasila
Warrant of Termination of Investigation (SP3) Issued Based on Peace Agreement Between Suspects and Reporters in Ordinary Offences
Get PDFWarrant of Termination of Investigation (SP3 – Surat Perintah Penghentian Penyidikan) is applied as the power granted to the investigator of a criminal act. Article 109 paragraph (2) of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP – Kitab Undang-Undang Hukum Acara Pidana) states that there are three requirements to stop a criminal investigation: (a) insufficient evidence; (b) the act committed by the suspect is not a criminal offence; and (c) the investigation is stopped by law. These three conditions are alternative conditions. At the implementation level, there are many cases that are terminated because they fulfill these three requirements. However, it is not uncommon for cases that have progressed to the stage of investigation be stopped as well because the suspected and the reporter reached a peace agreement through mediation facilitated by police investigators. The mediation condition will impact the ongoing investigation since the investigation should be stopped and police should revoke the report of the investigation concerned. Whereas, in this context, the status of this case is an ordinary offence status which means that the revocation of the report has no consequences with the ongoing investigation. Peace agreements impact ongoing investigations. Whereas the investigation should be stopped and police should revoke the offense report, under extant legislation, investigations maintain ordinary offence status, meaning revocation of the offense report has no effect on the ongoing investigation. The investigation cannot be stopped with any other reasons excepts those that stated in Article 109 paragraph (2). The fact that the revocation of the report of investigation leads to the termination of the ongoing investigation as evidenced by the issuance of SP3. While the issuance of SP3 enables termination of an ongoing investigation by revoking the report of investigation, investigation termination requirements explicitly state that an agreement reached through a mediation mechanism cannot provide legal grounds to issue SP3. This paper provides a normative legal analysis of the validity of investigation termination as the result of an agreement reached through a mediation mechanism. Investigations that terminated based on an agreement achieved by mediation mechanism will create space for third parties to utilize a pre-trial mechanism whose purpose is to test the validity or termination of the investigation.
Keywords: Termination of Investigation, Criminal Law, Criminal Procedure
Third Parties’ Legal Protection over Agreed Authorized Capital Amount by Founders in Limited Liability Companies
Get PDFOn July 14, 2016, the Government enacted the Government Regulation Number 29 of 2016 regarding Amendments in Authorized Capital of a Limited Liability Company (LLC). Article 1 paragraph (3) of the regulation showed that the amount of authorized capital was submitted to the agreement of the LLC founders. This regulation was issued in order to increase Indonesia’s ‘ease of doing business’ rank, especially in ‘starting a business.’ This article aims to examine the legal protection for the third party over the amount of authorized capital based on the agreement of the LLC founders using the study of dogmatic law. Regulations referenced are Law Number 40 of 2007 regarding Limited Liability Companies and Government Regulation Number 29 of 2016 regarding Amendments in Authorized Capital of LLC. Based on the results of this study, it was found that the determination of authorized capital based on the agreement of LLC founders has neglected the protection of the third parties. This manifested particularly in protecting minority investors and resolving insolvency. Through the enactment of authorized capital based on the agreement of the founders, the mechanism of preventive and repressive legal protection to the third parties are assumed to be eliminated.
Keywords: The Authorized Capital, Limited Liability Company, Agreement, Legal Protection
Kebijakan Kepemilikan Rumah Susun di Indonesia
Get PDFIn the concept of agrarian law, it is not something new anymore that the land is getting less and less while the human need for land increasingly day increases. This is what makes the government then make a policy in the construction of housing in the form of horizontally building homes to save land called flats. The development of the flats is expected to meet the needs of the community will be a place to live and can improve the quality of life of the community. but over time, in perkembangnnya development of flats is also not free from various problems. This article examines the legal certainty of the ownership status of apartment units, not only from the land ownership aspect in which the high rise is built, but also includes the initial publication of the master certificate issued on behalf of the developer for the first time. Developers as business actors in trust by the government to get the first certificate of a development of flats, this often affects the inhabitants of apartment units. Although each resident of a flats unit may own / hold property certificates of units from separate flats between joint and individual sections, sometimes ownership status with a title certificate also can not protect the inhabitants of various disputes. Therefore, to minimize the occurrence of disputes, legal certainty becomes important to protect the parties concerned so as not to harm each other. Legal protection in such cases can be done by means of preventive law protection and repressive law protection
Post-Notification Arrangements in Merging Business Entities (Mergers) as an Effort to Prevent Unfair Business Competition
Get PDFOne way a business actor strengthens their business is through cooperation with other business actors. One form of cooperation is a "merger" or another term, "merging." Mergers carried out by business actors can result in monopolistic practices or unfair business competition. A merger of competition aspects is regulated in Article 28 and 29 of Law No. 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition which provides regulation regarding post-notification of mergers. Commission Regulation No. 1 of 2009 on Pre-Notification of Mergers, Consolidations, and Acquisitions gives a different arrangement, namely in the form of pre-notification to business actors. This difference in notification arrangements provides ineffectiveness and inefficiency for business actors.
Keywords: Post-Notification, Mergers, Unfair Business Competition