Former Adat land is formed based on the assessment of Adat Law, not because of state granting or land registration, and the Agrarian Basic Law recognizes it through provisions on conversion provisions, where former customary land rights are converted into ownership rights if the subject is an Indonesian citizen. The registration of former adat land rights aims to guarantee legal certainty, by abolishing former customary land, and being converted to ownership rights, with the issuance of certificates of land rights, which are formally subject to the system of control over land regulated in Agrarian Basic Law. Before the enactment of the Agrarian Basic Law, on customary land, only a fiscal cadastre was carried out, for the purpose of collecting land taxes, with evidence of girik, kekitir, petuk, kohir or excerpt from letter C, for adat land located in villages or Indonesian respondents for adat land in the city. From the point of proof of former adat land rights, consisting of complete written evidence, incomplete written evidence or no written evidence at all, carried out in 2 two) the procedure for registering former adat land rights is a conversion confirmation procedure only for complete written evidence and procedure for recognition of rights followed by conversion, for written evidence that is incomplete or non-existent at all. Legal uncertainty in registering former adat land rights is due to legal actions or events that have occurred since the enactment of the Basic Agrarian Law until the last rights holder is not recorded in the land book in the village or kelurahan, so the community or village head does not know the land history, legal subject the object of the plot of land and the legal relationship that occurs relating to the control of the land. In overcoming this legal uncertainty, using normative juridical methods, the principle of adat law was reduced to legal principles, which were used as parameters for head of adat or village heads in determining legal certainty regarding the legal status of adat land, legal subjects, land objects, legal relations relating to control of adat land as well as in the management of land book administration in the village or kelurahan that is open to the public.
{"title":"The Embodiment of Adat Law As An Element of Legal Certainty in Administration of Adat Rights","authors":"Anne Gunadi","doi":"10.15742/ILREV.V9N3.585","DOIUrl":"https://doi.org/10.15742/ILREV.V9N3.585","url":null,"abstract":"Former Adat land is formed based on the assessment of Adat Law, not because of state granting or land registration, and the Agrarian Basic Law recognizes it through provisions on conversion provisions, where former customary land rights are converted into ownership rights if the subject is an Indonesian citizen. The registration of former adat land rights aims to guarantee legal certainty, by abolishing former customary land, and being converted to ownership rights, with the issuance of certificates of land rights, which are formally subject to the system of control over land regulated in Agrarian Basic Law. Before the enactment of the Agrarian Basic Law, on customary land, only a fiscal cadastre was carried out, for the purpose of collecting land taxes, with evidence of girik, kekitir, petuk, kohir or excerpt from letter C, for adat land located in villages or Indonesian respondents for adat land in the city. From the point of proof of former adat land rights, consisting of complete written evidence, incomplete written evidence or no written evidence at all, carried out in 2 two) the procedure for registering former adat land rights is a conversion confirmation procedure only for complete written evidence and procedure for recognition of rights followed by conversion, for written evidence that is incomplete or non-existent at all. Legal uncertainty in registering former adat land rights is due to legal actions or events that have occurred since the enactment of the Basic Agrarian Law until the last rights holder is not recorded in the land book in the village or kelurahan, so the community or village head does not know the land history, legal subject the object of the plot of land and the legal relationship that occurs relating to the control of the land. In overcoming this legal uncertainty, using normative juridical methods, the principle of adat law was reduced to legal principles, which were used as parameters for head of adat or village heads in determining legal certainty regarding the legal status of adat land, legal subjects, land objects, legal relations relating to control of adat land as well as in the management of land book administration in the village or kelurahan that is open to the public.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":"9 1","pages":"260-278"},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48541030","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
E. Makarim, Muhammad Ibrahim Brata, Nabilla Arsyafira
The freedom of expression is thriving due to the global use of the internet. The digital era has revolutionized the scope, practices, and even the definition of freedom expression. However, it also evokes a number of social concerns. Offenses such as the circulation of defamation, hate speech, misleading propaganda to the masses, and fraud, for instance, can be found in the internet. Certain limitations deriving from the conditions prescribed by the human rights principles and instruments as well as the national constitution are therefore prudent to prevent the excess of freedom. As a state that abides to the rule of law, Indonesia recognizes the freedom of expression as a manifestation of human rights that is crucial to democracy. While new laws such as the Information and Electronic Transaction Act have been enacted to answer the challenges brought by the digital era upon the freedom of expression, the question of whether the existing laws have accommodated an ideal balance between restriction and protection for the freedom of expression remains a matter worth reviewing. This paper aims to study the limits of the freedom of expression, particularly in the digital context, in the constellation of the Indonesian legal system and how they converge and correlate with one another. Finally, this study concludes that the Indonesian government must protect its citizens from the spread and use of illegal content in electronic communications by enforcing and harmonizing its criminal, private, and administrative law configurations.
{"title":"Limitation of Rights As A Manifestation of Duties and Responsibilities Pertaining to The Freedom Expression in Digital Communications","authors":"E. Makarim, Muhammad Ibrahim Brata, Nabilla Arsyafira","doi":"10.15742/ILREV.V9N3.586","DOIUrl":"https://doi.org/10.15742/ILREV.V9N3.586","url":null,"abstract":"The freedom of expression is thriving due to the global use of the internet. The digital era has revolutionized the scope, practices, and even the definition of freedom expression. However, it also evokes a number of social concerns. Offenses such as the circulation of defamation, hate speech, misleading propaganda to the masses, and fraud, for instance, can be found in the internet. Certain limitations deriving from the conditions prescribed by the human rights principles and instruments as well as the national constitution are therefore prudent to prevent the excess of freedom. As a state that abides to the rule of law, Indonesia recognizes the freedom of expression as a manifestation of human rights that is crucial to democracy. While new laws such as the Information and Electronic Transaction Act have been enacted to answer the challenges brought by the digital era upon the freedom of expression, the question of whether the existing laws have accommodated an ideal balance between restriction and protection for the freedom of expression remains a matter worth reviewing. This paper aims to study the limits of the freedom of expression, particularly in the digital context, in the constellation of the Indonesian legal system and how they converge and correlate with one another. Finally, this study concludes that the Indonesian government must protect its citizens from the spread and use of illegal content in electronic communications by enforcing and harmonizing its criminal, private, and administrative law configurations.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":"9 1","pages":"279-296"},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42464253","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Indonesian island of Bali is internationally renowned as a popular tourist destination. Tourists from around the world have been attracted to Bali’s rich and colourful displays of culture and its friendly people for many decades. Intertwined with the predominately Hindu culture that is so readily visible is the invisible customary legal system of Bali that regulates much of the daily life of the Balinese. This autochthonous legal system exists in plurality with the Indonesian state legal system. As with all legal systems, the Balinese customary law system is in a state of flux. This article will examine the foundational sources and purposes of authority in the Balinese customary law system and analyse the pressures of change upon that system. It will be argued that an embryonic quasi-common law system is developing in the Balinese customary law system due to the recent formation of the Majelis Utama Desa Pakraman and the Bali mawacara jurisprudence.
印尼巴厘岛是国际知名的热门旅游目的地。几十年来，世界各地的游客都被巴厘岛丰富多彩的文化和友好的人民所吸引。与显而易见的以印度教为主的文化交织在一起的是巴厘岛无形的习惯法律体系，该体系规范了巴厘岛人的大部分日常生活。这种本土法律体系与印尼国家法律体系是多元的。与所有法律制度一样，巴厘岛的习惯法制度也处于不断变化的状态。本文将考察巴厘岛习惯法体系中权威的基本来源和目的，并分析变革对该体系的压力。有人认为，由于最近形成了Majelis Utama Desa Pakraman和Bali mawacara判例，巴厘岛习惯法体系中正在发展一个萌芽的准普通法体系。
{"title":"Bali Mawacara: Is A Quasi-common Law System Developing in Balinese Customary Law?","authors":"D. Kelly, W. Windia","doi":"10.15742/ILREV.V9N3.587","DOIUrl":"https://doi.org/10.15742/ILREV.V9N3.587","url":null,"abstract":"The Indonesian island of Bali is internationally renowned as a popular tourist destination. Tourists from around the world have been attracted to Bali’s rich and colourful displays of culture and its friendly people for many decades. Intertwined with the predominately Hindu culture that is so readily visible is the invisible customary legal system of Bali that regulates much of the daily life of the Balinese. This autochthonous legal system exists in plurality with the Indonesian state legal system. As with all legal systems, the Balinese customary law system is in a state of flux. This article will examine the foundational sources and purposes of authority in the Balinese customary law system and analyse the pressures of change upon that system. It will be argued that an embryonic quasi-common law system is developing in the Balinese customary law system due to the recent formation of the Majelis Utama Desa Pakraman and the Bali mawacara jurisprudence.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42518615","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Searching and seizing voluminous data is a challenge that Indonesian law enforcement authorities should resolve. Indonesia does not have a comprehensive regime on personal data protection. The absence of a coherent legal framework on personal data protection does not negate the obligation of Indonesian law enforcement authorities to protect personal data of Indonesian subjects. However, the absence of the framework may lead to uncertainties or ambiguities on how the authorities should protect personal data. Against the uncertainties and ambiguities, Indonesian law enforcement authorities should resolve issues of voluminous data in obtaining e-information with the prevailing legislation. This article attempts to answer the question: how may Indonesian law enforcement authorities interpret the current law to establish a coherent legal framework to protect personal data in searching or seizing voluminous data? The interpretation is instrumental in supporting the development of the Indonesian regime on personal data protection. It proposes that the Indonesian criminal procedure law should emphasise the active role of the chief judges of competent district courts and should incorporate specificity and proportionality as conditions and safeguards in the execution of search and seizure of electronic evidence.
{"title":"Developing A Legal Framework of Personal Data Protection in The Indonesian Criminal Procedure Law","authors":"Josua Sitompul","doi":"10.15742/ILREV.V9N3.582","DOIUrl":"https://doi.org/10.15742/ILREV.V9N3.582","url":null,"abstract":"Searching and seizing voluminous data is a challenge that Indonesian law enforcement authorities should resolve. Indonesia does not have a comprehensive regime on personal data protection. The absence of a coherent legal framework on personal data protection does not negate the obligation of Indonesian law enforcement authorities to protect personal data of Indonesian subjects. However, the absence of the framework may lead to uncertainties or ambiguities on how the authorities should protect personal data. Against the uncertainties and ambiguities, Indonesian law enforcement authorities should resolve issues of voluminous data in obtaining e-information with the prevailing legislation. This article attempts to answer the question: how may Indonesian law enforcement authorities interpret the current law to establish a coherent legal framework to protect personal data in searching or seizing voluminous data? The interpretation is instrumental in supporting the development of the Indonesian regime on personal data protection. It proposes that the Indonesian criminal procedure law should emphasise the active role of the chief judges of competent district courts and should incorporate specificity and proportionality as conditions and safeguards in the execution of search and seizure of electronic evidence.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48055898","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Implementation of restorative justice in the juvenile justice system in many countries has undergone its dynamics in the past few decades, including in Indonesia. The enactment of Indonesia Juvenile Justice System Law in mid-2014, which invalidates the 1997 Juvenile Court Law, became a significant point of juvenile justice reformation in Indonesia. The new Law began to shift the retributive paradigm in the Juvenile Court Law, as the previous statutory basis for juvenile justice in Indonesia, to restorative justice paradigm. The new Law introduces the Diversion mechanism as a means to implement the restorative justice approach. This article seeks to discuss how restorative justice can be contextualized through diversion mechanism, as well as to consider whether the new Indonesia Juvenile Justice System utilises restorative justice in a marginalized, boutique, or tokenistic way. Furthermore, this article uses statutory and theoretical approaches to examine the contextualization of restorative justice through the diversion mechanism introduced in the new Juvenile Justice System Law.
{"title":"Contextualizing Restorative Justice Through Diversion Mechanism: A Study of Indonesia Juvenile Justice System","authors":"Faiz Rahman","doi":"10.15742/ILREV.V9N3.584","DOIUrl":"https://doi.org/10.15742/ILREV.V9N3.584","url":null,"abstract":"Implementation of restorative justice in the juvenile justice system in many countries has undergone its dynamics in the past few decades, including in Indonesia. The enactment of Indonesia Juvenile Justice System Law in mid-2014, which invalidates the 1997 Juvenile Court Law, became a significant point of juvenile justice reformation in Indonesia. The new Law began to shift the retributive paradigm in the Juvenile Court Law, as the previous statutory basis for juvenile justice in Indonesia, to restorative justice paradigm. The new Law introduces the Diversion mechanism as a means to implement the restorative justice approach. This article seeks to discuss how restorative justice can be contextualized through diversion mechanism, as well as to consider whether the new Indonesia Juvenile Justice System utilises restorative justice in a marginalized, boutique, or tokenistic way. Furthermore, this article uses statutory and theoretical approaches to examine the contextualization of restorative justice through the diversion mechanism introduced in the new Juvenile Justice System Law.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45751459","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article recounts a complete history of Indonesia’s implementation of the 1958 NY Convention. In particular, the elaboration and analysis focus on the comparison between related provisions in the 1999 Indonesian Arbitration Law and the Convention’s provisions as well as on several key Indonesian court decisions on enforcement of foreign arbitral awards. Different than other writings in this area, this Article looks more closely at the practical issues which affect the way Indonesian courts apply or interpret the 1958 NY Convention, such as procedural hurdle and the judicial capacity to comprehend and understand basic concepts and principles of arbitration. The Article shows that those practical issues very much influence the implementation of the Convention in Indonesia while the courts oscillate between monism and dualism, and highlights the important role of doctrines in developing Indonesian jurisprudence on this area. In that vein, the conclusion here may also contribute in answering the wider question about the position of treaties under Indonesian law and how they are implemented in Indonesia beyond the superficial debate on monism-dualism.
{"title":"The 1958 New York Convention in Indonesia: History and Commentaries Beyond Monism-Dualism","authors":"John Lumbantobing","doi":"10.15742/ILREV.V9N3.583","DOIUrl":"https://doi.org/10.15742/ILREV.V9N3.583","url":null,"abstract":"This Article recounts a complete history of Indonesia’s implementation of the 1958 NY Convention. In particular, the elaboration and analysis focus on the comparison between related provisions in the 1999 Indonesian Arbitration Law and the Convention’s provisions as well as on several key Indonesian court decisions on enforcement of foreign arbitral awards. Different than other writings in this area, this Article looks more closely at the practical issues which affect the way Indonesian courts apply or interpret the 1958 NY Convention, such as procedural hurdle and the judicial capacity to comprehend and understand basic concepts and principles of arbitration. The Article shows that those practical issues very much influence the implementation of the Convention in Indonesia while the courts oscillate between monism and dualism, and highlights the important role of doctrines in developing Indonesian jurisprudence on this area. In that vein, the conclusion here may also contribute in answering the wider question about the position of treaties under Indonesian law and how they are implemented in Indonesia beyond the superficial debate on monism-dualism.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44925978","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"International Mixed Marriage in Indonesia and ASEAN","authors":"lita Arijati","doi":"10.15742/ILREV.V9N3.588","DOIUrl":"https://doi.org/10.15742/ILREV.V9N3.588","url":null,"abstract":"","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":"9 1","pages":"309-311"},"PeriodicalIF":0.0,"publicationDate":"2019-12-31","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42033998","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Osama Ismail Mohammad Amayreh, I. M. Zakri, Pardis Moslemzadeh Tehrani, Y. Shandi
The phrase “who says contractual, says justice” “qui dit contractuel dit juste” does not fully express the truth of our present reality, where the phrase itself falls into doubt, since the contract does not always result in fair obligations, as the contract is an expression of often unequal wills. In this regard, the French judiciary realized that the absence of justice in the contract might arise as a result of the contractual freedom afforded to the contracting parties and, thus, they developed the idea of Commutative Justice in the contract, such as the Piller’s decision, which is considered one of its most important applications. However, the causation theory in the Palestinian Civil Code Draft and the Indonesian Civil Code was limited to monitoring the matter of the existence of the corresponding obligation whatever it was. In this context, this paper seeks to prove that the provisions of the causation theory in the Palestinian Civil Code Draft and the Indonesian Civil Code can be used as a means of monitoring the economic contractual equilibrium of the contract. To do so, the legal provisions of the causation theory should be analysed in a comparative analytical approach with the French judicial decisions to illustrate the Palestinian and Indonesian legislative deficiencies and the need for adopting the French judicial approach.
“谁说契约，谁就说正义”“qui dit contractuel dit justice”这句话并没有完全表达我们当前现实的真相，这句话本身就令人怀疑，因为合同并不总是导致公平的义务，因为合同通常是不平等意志的表达。在这方面，法国司法机关认识到，由于给予缔约各方合同自由，可能会出现合同中缺乏正义的情况，因此，他们发展了合同中的交换正义概念，例如皮勒案的决定，这被认为是其最重要的应用之一。但是，《巴勒斯坦民法典草案》和《印度尼西亚民法典》中的因果关系理论仅限于监测相应义务是否存在的问题，无论这种义务是什么。在此背景下，本文试图证明巴勒斯坦民法典草案和印度尼西亚民法典中因果关系理论的规定可以作为监督合同经济契约均衡的手段。为此，应以比较分析的方法来分析因果关系理论的法律规定，以说明巴勒斯坦和印度尼西亚的立法缺陷以及采用法国司法方法的必要性。
{"title":"A NEW ROLE OF CAUSATION THEORY TOWARDS ACHIEVING ECONOMIC CONTRACTUAL EQUILIBRIUM: MONITORING THE ECONOMIC EQUILIBRIUM OF THE CONTRACT","authors":"Osama Ismail Mohammad Amayreh, I. M. Zakri, Pardis Moslemzadeh Tehrani, Y. Shandi","doi":"10.15742/ILREV.V9N2.543","DOIUrl":"https://doi.org/10.15742/ILREV.V9N2.543","url":null,"abstract":"The phrase “who says contractual, says justice” “qui dit contractuel dit juste” does not fully express the truth of our present reality, where the phrase itself falls into doubt, since the contract does not always result in fair obligations, as the contract is an expression of often unequal wills. In this regard, the French judiciary realized that the absence of justice in the contract might arise as a result of the contractual freedom afforded to the contracting parties and, thus, they developed the idea of Commutative Justice in the contract, such as the Piller’s decision, which is considered one of its most important applications. However, the causation theory in the Palestinian Civil Code Draft and the Indonesian Civil Code was limited to monitoring the matter of the existence of the corresponding obligation whatever it was. In this context, this paper seeks to prove that the provisions of the causation theory in the Palestinian Civil Code Draft and the Indonesian Civil Code can be used as a means of monitoring the economic contractual equilibrium of the contract. To do so, the legal provisions of the causation theory should be analysed in a comparative analytical approach with the French judicial decisions to illustrate the Palestinian and Indonesian legislative deficiencies and the need for adopting the French judicial approach.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41658828","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This study analyzed the theories, norms, and practice of simple evidence (pembuktian sederhana) which have become the requirements for bankruptcy petition applications. The evidence applied in the procedure law of the bankruptcy petition and the Suspension of Debt Repayment Obligation or PKPU was simple evidence. The existence of the simple evidence requirement actually caused the bankruptcy petition to have a complication and legal uncertainty. Therefore, the norm of simple evidence needs to be reconstructed. The aspects that have fulfilled simple evidence in the bankruptcy petition or PKPU application included two (2) bankruptcy requirements, namely, unpaid debt that has matured and is collectible and the presence of at least two creditors. The research results found that the Bankruptcy Law determined that simple evidence in bankruptcy was necessary. However, the Bankruptcy Law did not definitively set the limits referred to as simple evidence, which resulted in norm obscurity. In practice, the judges had rejected bankruptcy petitions with unimportant considerations in evidence. In addition, disparities took place in bankruptcy decisions in applying simple evidence because there were complicated cases regarding the conditions for bankruptcy petitions. The court, on the other hand, considered and decided that the cases were not simple. Conversely, there were also simple cases that were adjudicated by the court to be not simple, thus, their bankruptcy petitions were overruled
{"title":"DECONSTRUCTING SIMPLE EVIDENCE IN BANKRUPTCY PETITION FOR LEGAL CERTAINTY","authors":"M. H. Shubhan","doi":"10.15742/ILREV.V9N2.527","DOIUrl":"https://doi.org/10.15742/ILREV.V9N2.527","url":null,"abstract":"This study analyzed the theories, norms, and practice of simple evidence (pembuktian sederhana) which have become the requirements for bankruptcy petition applications. The evidence applied in the procedure law of the bankruptcy petition and the Suspension of Debt Repayment Obligation or PKPU was simple evidence. The existence of the simple evidence requirement actually caused the bankruptcy petition to have a complication and legal uncertainty. Therefore, the norm of simple evidence needs to be reconstructed. The aspects that have fulfilled simple evidence in the bankruptcy petition or PKPU application included two (2) bankruptcy requirements, namely, unpaid debt that has matured and is collectible and the presence of at least two creditors. The research results found that the Bankruptcy Law determined that simple evidence in bankruptcy was necessary. However, the Bankruptcy Law did not definitively set the limits referred to as simple evidence, which resulted in norm obscurity. In practice, the judges had rejected bankruptcy petitions with unimportant considerations in evidence. In addition, disparities took place in bankruptcy decisions in applying simple evidence because there were complicated cases regarding the conditions for bankruptcy petitions. The court, on the other hand, considered and decided that the cases were not simple. Conversely, there were also simple cases that were adjudicated by the court to be not simple, thus, their bankruptcy petitions were overruled","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49392428","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Due to gobalization, world trade has increased tremendously. Franchising having surged as one of the many business models has the potential to improve the economy of the community. Basically, franchising refers to a method of goods and services distribution to consumers. The party who owns the method is referred to as the franchisor, while the party given the right to use a method the franchisee. This article examines the legal issues that arise in granting license rights from foreign franchisors to franchisees, and how the laws in Indonesia provide protection for the rights and obligations of the parties. The research employed the normative juridical method or library research. Normative legal research examines the law as a positive norm as it is written in the book. In accordance with Article 1320 and 1338 of the Indonesian Civil Code, arrangements of franchising agreement in Indonesia are based on the agreement between the parties. To provide legal protection for recipients foreign franchise in Indonesia, the government has enacted the Government Regulation No. 42/2007 on Franchise and Trade Minister Regulation No. 53/2007 on the Implementation of Franchising. In principle, the settlement of the problems that occur in international franchising agreement would be resolved by consultation or negotiation. If consensus is not reached, the parties can take the dispute to international arbitration. In general, the dispute over the franchise business concept is mostly resolved through the general justice institution.
{"title":"Legal Protection for Recipients of Foreign Franchise Rights in Indonesia","authors":"S. Sugeng","doi":"10.15742/ILREV.V9N2.530","DOIUrl":"https://doi.org/10.15742/ILREV.V9N2.530","url":null,"abstract":"Due to gobalization, world trade has increased tremendously. Franchising having surged as one of the many business models has the potential to improve the economy of the community. Basically, franchising refers to a method of goods and services distribution to consumers. The party who owns the method is referred to as the franchisor, while the party given the right to use a method the franchisee. This article examines the legal issues that arise in granting license rights from foreign franchisors to franchisees, and how the laws in Indonesia provide protection for the rights and obligations of the parties. The research employed the normative juridical method or library research. Normative legal research examines the law as a positive norm as it is written in the book. In accordance with Article 1320 and 1338 of the Indonesian Civil Code, arrangements of franchising agreement in Indonesia are based on the agreement between the parties. To provide legal protection for recipients foreign franchise in Indonesia, the government has enacted the Government Regulation No. 42/2007 on Franchise and Trade Minister Regulation No. 53/2007 on the Implementation of Franchising. In principle, the settlement of the problems that occur in international franchising agreement would be resolved by consultation or negotiation. If consensus is not reached, the parties can take the dispute to international arbitration. In general, the dispute over the franchise business concept is mostly resolved through the general justice institution.","PeriodicalId":13484,"journal":{"name":"Indonesia Law Review","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2019-09-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46589847","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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