Padjadjaran Journal of Law
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The Legal Status of Cryptocurrency and Its Implications for Money Laundering in Indonesia
Full text linkDecentralized technologies such as blockchain facilitate secure and anonymous transactions, heralding a new era of financial innovation. However, the advent of cryptocurrencies has also posed significant challenges, especially in the realm of preventing money laundering practices. In Indonesia, individuals have exploited these systems for illicit money laundering from fraudulent schemes. Therefore, this study aimed to critically analyze the effectiveness of current regulatory frameworks and propose improved approaches to mitigate money laundering risks associated with cryptocurrency. Indonesia expects to shift its legal perspective due to the substantial threats posed by attempting to regulate a volatile financial system. This study employed normative legal research methods. The findings suggest that recognizing cryptocurrency as a legal tender could advance the agenda of addressing money laundering as a critical threat to financial stability and national security. This would significantly enhance the regulatory framework and ensure the financial system's integrity amidst evolving threats
Creativity and Innovation in the Age of Artificial Intelligence: A Copyright Dilemma
Full text linkThe advent of artificial intelligence marks a significant shift in creative domains traditionally dominated by human efforts, such as writing and painting. Artificial Intelligence challenges the intellectual property system with fundamental issues, including authorship and ownership. This paper explores the utilitarian dilemma related to the copyrightability of AI-generated content and re-evaluates the basis of natural rights, thereby questioning established copyright premises. It examines the manifestation of creativity in AI-based literary and artistic works, highlighting the current and changing aspects of copyright consideration. Additionally, the paper provides an exhaustive overview of the legal protections applicable to AI-generated works, specifically focusing on the legal context in India. It also explores the feasibility and suitability of establishing sui generis rights designed specifically to safeguard AI-generated content. The conclusions presented offer a detailed perspective on the complexities of aligning copyright laws with the dynamic nature of AI-enhanced creativity
Extraterritorial Act versus the Indigenous People Protection: An Analysis of the European Union Deforestation-Free Regulation
Full text linkAt first glance, indigenous people and international trade appear to be two separate issues. However, this perception does not apply in the case of European Regulation 2023/1115. This study aims to provide an understanding of how Indonesia should respond to the EU DFR, which has affected Indonesia’s national interests in protecting indigenous people. This study applied a normative method through doctrinal and conceptual approaches to achieve the objective. The study covers two main discussions. The first explains how due diligence under the EU DFR has indirectly pushed Indonesia to become an EU trading partner and provide more excellent protection for local indigenous people to gain access to the Union’s market for its agricultural products. The second discussion explains how Indonesia should respond to this regulation by considering protecting its indigenous people and ensuring the availability of market access for Indonesian companies and traders. The first discussion states that the EU DFR will prohibit the export and import of agricultural products if the trading partner’s company does not provide adequate legal protection for its indigenous people. The second discussion suggests that Indonesia must better protect its indigenous people to secure market access to the European Union. However, if the EU regulator acts arbitrarily, Indonesia reserves the right to address these issues through the available means of trade dispute settlement under international law
Cyber Espionage Policy and Regulation: A Comparative Analysis of Indonesia and Germany
Full text linkThis study explores the policy and regulatory frameworks concerning cyber espionage within Indonesia and Germany. Given the considerable threats cyber espionage poses to national security and economic interests, it is crucial for nations to formulate thorough strategies to mitigate such risks. Through a comparative analysis of Indonesia and Germany—two countries with distinct geopolitical stances and methodologies regarding cybersecurity and espionage—the research delves into the legal, political, and technological factors influencing their cyber espionage policies. The methodology includes a comprehensive review of legislative measures, governmental strategies, and the response of institutions to cyber espionage in both nations. The objective is to discern the similarities, differences, and effectiveness of the policies and regulations of these countries. This comparison sheds light on the adequacy of Indonesian legislation in combating cybercrime, especially cyber espionage. The study reveals that Indonesia's legal infrastructure for cybercrime is markedly underdeveloped compared to Germany's, where stringent and well-articulated regulations are in place, facilitating precise and efficient management of cyber issues. Thus, the study underscores an urgent need for Indonesia to reform its cybercrime laws, focusing on cyber espionage, among other cyber threats, while continuing to enhance the quality of its human resources.DOI: https://doi.org/10.22304/pjih.v11n1.a
Securing Blockchain Enterprises: Legal Due Diligence Amidst Rising Cyber Threats
Full text linkThis study aims to understand the vulnerabilities faced by enterprises operating on token-based blockchain businesses and the role of legal, due diligence procedures in mitigating such risks. It employed the Preferred Reporting Items for Systematic Reviews and Meta-Analyses method and sourced data from DeFillama, a platform tracking decentralized finance developments, to categorize hacking incidents into five major groups: Ecosystem, Infrastructure, Protocol Logic, Rugpull, and Smart Contract Language. The findings highlight that Infrastructure attacks, mainly through Private Key Compromise, are the most damaging. They cause losses of over 800 million dollars between 2020 and 2023. It necessitates comprehensive and adaptable legal, due diligence strategies focusing on jurisdictional legal frameworks, platform usage terms, regulatory compliance, and potential legal issues. The study underscores the importance of further research to evaluate and enhance the effectiveness of these measures in addressing the unique challenges of blockchain technology, which are crucial for enhancing the resilience and sustainability of blockchain enterprises, thereby promoting global trust in this emerging field.DOI: https://doi.org/10.22304/pjih.v11n1.a
Disclosure Principle as Ex-Ante Rules for Combating Big Tech’s Abuse of Dominance in Digital Market: A Comparative Analysis
Full text linkThis study discusses the weaknesses of Law Number 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition in handling the abuse of dominance by big tech in the digital market. This study also explores lessons from how the European Union (EU) and Japan implement the disclosure principle to prevent such abuse. This normative study employs statutory, conceptual, and comparative approaches. The findings are as follows: first, Law Number 5 of 1999 does not implement ex-ante measures such as the “disclosure principle,” and prevention efforts are practically non-existent, particularly in handling dominance abuse. Second, a comparative study of the EU and Japan found that the EU has enacted the Digital Markets Act (DMA), which comprehensively regulates the abuse of dominance by big tech companies and categorizes them as gatekeepers. The DMA establishes the gatekeeper threshold and includes the duty to notify the European Commission voluntarily under Articles 5, 6, and 7 of the DMA. Japan has the Act on Improving Transparency and Fairness of Digital Platforms 2021, an ex-ante regulation that implements the disclosure principles on digital platforms. Based on these two comparisons, the main idea of such regulations is to implement the disclosure principle as an ex-ante rule for business actors who meet the threshold and to burden them with certain obligations. This approach allows authorities to perform supervision and prevent abuse of dominance by big tech optimally
The Licensing Transformation in Small and Medium Industries Affecting Environment Following the Establishment of the Law on Job Creation: A Case Study of the Washing Industry in Bandung Regency
Full text linkThe Law on Job Creation and its derivative regulations have shifted the licensing paradigm from a license-based approach to a risk-based one, focusing its primary consideration on risk. The Government Regulation Number 5 of 2021 on the Implementation of Risk-Based Business Licensing regulates the division of risks into four types: low, medium-low, medium-high, and high. The purpose of the Law on Job Creation is to provide ease of doing business. Unfortunately, business certainty has not been fully achieved due to various difficulties. This study aims to describe (1) the industrial conditions in Bandung Regency, especially in the washing industry, on the small and medium scales, and (2) the regulations of small and medium industries whose business activities have the potential to cause pollution. This study concludes that Industrial regulation in small and medium-sized enterprises requires collaborative governance between the government, business actors, and the community. Consistent law enforcement and penalties for violations are essential so that business activity continues to increase and the environment remains sustainable.
Dysfunctional Factors of Environmental Law on Strategic Lawsuit Against Public Participation and Developing Remedial Strategies Through Reconstruction Criminal Law System Model in Indonesia
Full text linkThe excessive criminalization of community and environmental enforcement activists has prolonged the problem of SLAPP (Strategic Lawsuits Against Public Participation) in Indonesia. This study explores the factors contributing to non-optimal protection for citizens and environmental law enforcement activists. It aims to develop an ideal model for formulating the criminal law system to address Indonesia's Strategic Lawsuit Against Public Participation (SLAPP). This study used a doctrinal juridical approach to analyze and identify the factors preventing environmental law from effectively providing legal protection to the community and activists advocating for a good, healthy, and safe environment or the occurrence of SLAPP. This research found that the new model should incorporate clear sentencing guidelines for law enforcement while addressing and reformulating conflicting legal instruments. The goal is to foster juridical harmonization, serving as a strategic approach to prevent SLAPP in the future.DOI: https://doi.org/10.22304/pjih.v10n3.a6
The Opportunities for Surrogacy Legalization Between the Right to Have Children and A Loophole of Trafficking
Full text linkThe phenomenon of producing surrogate mother facilities has been recognized in some countries, although Indonesia indirectly prohibits the practice. The practice is also feared to be a new form of human trafficking. Therefore, this study aims to evaluate the opportunities for surrogacy legalization regarding its perspectives between human rights and the loophole of trafficking. In this study, three problems were formulated: (1) the legal status of children born from a surrogate mother; (2) the legality of a surrogate mother in Indonesian law; and (3) the opportunities for surrogacy legalization in legal reform. This study is a normative juridical study that examines the differences in legal systems in various countries regarding the regulation of surrogacy. The children delivered through surrogacy were the legal offspring of surrogate mothers. They were also likely to have a legal relationship with their biological parents as adopted children. Asides from these legal statuses, Indonesian law did not support the validity of the uterine lease agreement. This was due to its inseparability from the influence of religious and cultural values, which opposed the existence of surrogacy. Women and children have the potential to become victims of exploitation, even though the practice of surrogate motherhood is very harmful to their health. The practice subsequently prioritized the opportunity to become a new form of human trafficking. Various international legal instruments that exist can be used as a reference to prohibit the existence of surrogate mothers.DOI: https://doi.org/10.22304/pjih.v10n2.a
Treaties as a Source of National Law in The Perspective of Constitutional Law
Full text linkThe 1945 Constitution of the Republic of Indonesia does not regulate the relations and interactions between treaties and national law. The absence of constitutional norms regarding this matter raises the question of how treaties become a source of national law. This study puts forward the perspective of constitutional law to answer how national law perceives treaties in the dimensions of national law. It argues that the constitutional law paradigm views treaties as a product of the legislative and executive interaction within the framework of the theory of separation of powers. Based on this view, the formation of law is the original power of the legislature, which impacts the obligation to provide legislative consent before treaties can be applied to domestic jurisdictions, as well as placing treaties under the 1945 Constitution. Thus, Indonesia can remain selective in enforcing treaties at the domestic level. The 1945 Constitution paradigm indeed influenced Indonesia's closeness to the teachings of dualism. However, this paper also describes that in using treaties, the Constitutional Court often uses treaties that have yet to be ratified as a basis for strengthening arguments in decisions. This practice shows a shift in the paradigm of dualism to a pragmatic monism paradigm.DOI: https://doi.org/10.22304/pjih.v10n2.a