Pub Date : 2022-09-01DOI: 10.20473/ydk.v37i3.36976
Iftinaity Shaumi Rahma, Eliza July Hasiana, Sian Lie Cantika, Tania Octaviona
Currently, internet development grows rapidly which facilitates and eases various economic activities, especially e-commerce transactions, on a global scale. In 1996, the UNCITRAL regulated the e-commerce transactions, including e-contracts. The e-contract is one of the most relevant matters in e-commerce transactions, especially it is of importance for the consumers to avoid any unwanted situations. However, several problems arise for consumers in conducting e-commerce transactions, such as the asymmetrical bargaining power of the parties involved. In this sense, there is an urgency for the legal protections for consumers. The objective of this article is to understand the connection between consumers’ legal protection and e-contracts validity in e-commerce transactions. The research method used is the legal descriptive analysis through statutory and conceptual approach. This study analyzes the legal relationship between the legislations related to the e-contracts within e-commerce transaction in Indonesia, which are the Indonesian Civil Code, Law Number 8 of 1999 concerning Consumer Protection, and Law Number 19 of 2008 on Information and Electronic Transactions. Through a systematic appraisal, it argues that the current legal framework does not fully guarantee legal certainty for consumers in e-commerce transactions, such as on the obligations of producers and distributors to customers in the e-commerce transactions.
{"title":"Indonesian Legal Protection for Consumers on the Validity of Electronic Contracts in the E-Commerce Transactions","authors":"Iftinaity Shaumi Rahma, Eliza July Hasiana, Sian Lie Cantika, Tania Octaviona","doi":"10.20473/ydk.v37i3.36976","DOIUrl":"https://doi.org/10.20473/ydk.v37i3.36976","url":null,"abstract":"Currently, internet development grows rapidly which facilitates and eases various economic activities, especially e-commerce transactions, on a global scale. In 1996, the UNCITRAL regulated the e-commerce transactions, including e-contracts. The e-contract is one of the most relevant matters in e-commerce transactions, especially it is of importance for the consumers to avoid any unwanted situations. However, several problems arise for consumers in conducting e-commerce transactions, such as the asymmetrical bargaining power of the parties involved. In this sense, there is an urgency for the legal protections for consumers. The objective of this article is to understand the connection between consumers’ legal protection and e-contracts validity in e-commerce transactions. The research method used is the legal descriptive analysis through statutory and conceptual approach. This study analyzes the legal relationship between the legislations related to the e-contracts within e-commerce transaction in Indonesia, which are the Indonesian Civil Code, Law Number 8 of 1999 concerning Consumer Protection, and Law Number 19 of 2008 on Information and Electronic Transactions. Through a systematic appraisal, it argues that the current legal framework does not fully guarantee legal certainty for consumers in e-commerce transactions, such as on the obligations of producers and distributors to customers in the e-commerce transactions.","PeriodicalId":31372,"journal":{"name":"Yuridika","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43861575","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}
Pub Date : 2022-09-01DOI: 10.20473/ydk.v37i3.36746
L. Ndlovu, A. B. Leslie
The pressure for employment opportunities has led to many dishonest practices by employees and job seekers. The evil of employees misrepresenting their academic qualifications has become endemic, and the South African government has been compelled to act. Misrepresentation of academic qualifications mainly manifests itself through employees claiming to have non-existent higher education qualifications to secure a new job offer or be promoted to a higher post. This misrepresentation has consequences for the employer, who may pay the employee a salary they do not deserve. The employee must refund the employer and face prospects of imprisonment if found guilty in a criminal court. In South Africa, high-profile individuals working in the public service or occupying prominent political positions have falsely claimed to have qualifications that they did not have. They have been allowed to resign on their own accord or were dismissed after lengthy disciplinary hearings. This paper outlines some examples of this misrepresentation and unravels the legal implications from a South African perspective. We recommend that employers promptly discipline employees found guilty rather than allow them to resign, as was done correctly in the Mthikhulu case discussed here. Further, we urge employers in South Africa to foreground the skills of employees rather than paper qualifications and assess technical ability ahead of academic qualifications.
{"title":"False or Fake Qualifications in an Employment Context: A South African Perspective","authors":"L. Ndlovu, A. B. Leslie","doi":"10.20473/ydk.v37i3.36746","DOIUrl":"https://doi.org/10.20473/ydk.v37i3.36746","url":null,"abstract":"The pressure for employment opportunities has led to many dishonest practices by employees and job seekers. The evil of employees misrepresenting their academic qualifications has become endemic, and the South African government has been compelled to act. Misrepresentation of academic qualifications mainly manifests itself through employees claiming to have non-existent higher education qualifications to secure a new job offer or be promoted to a higher post. This misrepresentation has consequences for the employer, who may pay the employee a salary they do not deserve. The employee must refund the employer and face prospects of imprisonment if found guilty in a criminal court. In South Africa, high-profile individuals working in the public service or occupying prominent political positions have falsely claimed to have qualifications that they did not have. They have been allowed to resign on their own accord or were dismissed after lengthy disciplinary hearings. This paper outlines some examples of this misrepresentation and unravels the legal implications from a South African perspective. We recommend that employers promptly discipline employees found guilty rather than allow them to resign, as was done correctly in the Mthikhulu case discussed here. Further, we urge employers in South Africa to foreground the skills of employees rather than paper qualifications and assess technical ability ahead of academic qualifications.","PeriodicalId":31372,"journal":{"name":"Yuridika","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43043014","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}
Pub Date : 2022-09-01DOI: 10.20473/ydk.v37i3.41161
Oemar Moechthar, Agus Sekarmadji, Ave Maria Frisa Katherina
This paper is intended to criticize the societal practices that occur, especially in Indonesia, where many heirs during their lifetime give wills to heirs who have been given a particular part in the Qur'an, which results in other (experts) heirs not getting a share or obtaining. Less than that specified in the Qur'an. One of the contributing factors is because, according to the heir, the provision of the will is to provide justice for all his heirs; however, fairness according to the heir is different from justice in the distribution of inheritance according to the Al-Qur'an and Hadith. Legal research uses this case approach as the primary analysis juxtaposed with the statutory approach and the conceptual approach as the 'knife' of analysis. The thesis or argument obtained is related to aspects of Islamic law; it is not appropriate for the heir to give a will to someone who is an heir whose part has been assigned in the Al-Quran and Hadith.
{"title":"A Juridical Study of Granting Wills to Heirs in the Perspective of Islamic Inheritance Law","authors":"Oemar Moechthar, Agus Sekarmadji, Ave Maria Frisa Katherina","doi":"10.20473/ydk.v37i3.41161","DOIUrl":"https://doi.org/10.20473/ydk.v37i3.41161","url":null,"abstract":"This paper is intended to criticize the societal practices that occur, especially in Indonesia, where many heirs during their lifetime give wills to heirs who have been given a particular part in the Qur'an, which results in other (experts) heirs not getting a share or obtaining. Less than that specified in the Qur'an. One of the contributing factors is because, according to the heir, the provision of the will is to provide justice for all his heirs; however, fairness according to the heir is different from justice in the distribution of inheritance according to the Al-Qur'an and Hadith. Legal research uses this case approach as the primary analysis juxtaposed with the statutory approach and the conceptual approach as the 'knife' of analysis. The thesis or argument obtained is related to aspects of Islamic law; it is not appropriate for the heir to give a will to someone who is an heir whose part has been assigned in the Al-Quran and Hadith.","PeriodicalId":31372,"journal":{"name":"Yuridika","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46649849","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}
Pub Date : 2022-09-01DOI: 10.20473/ydk.v37i3.37604
M. Aris
Presidential government system has its own disadvantages, one of them is the possibility a minority president presence in this system, namely a president who is not supported by a parliamentary majority, even though the President has a strong mandate from public, but with a minority position, the government’s agenda which carried out by the president could be hampered by parliament or the legislature, therefore it is needed a coalition government. The combination of a presidential system with a multi-party system is difficult to implement because whoever the president is elected will be encountered with a certain condition that it is impossible to support him in parliament without forming a coalition. In order to respond the problem in strengthening the presidential system in Indonesia, the author offers a majority general election system or district system (first Past the Post) as an effort to create an effective and responsible government. This is a legal study which used two approaches, namely statutory approach and conceptual approach. Based on the results of study, it can be concluded that the majority system was more appropriate for creating an effective and responsible government because it could encourage the simplification of political parties and the responsibilities of people’s representatives to the voters in each district.
{"title":"Opportunities and Challenges in the Implementation of Plurality - Majority (District) Electoral System for Strengthening the Indonesian Presidential System","authors":"M. Aris","doi":"10.20473/ydk.v37i3.37604","DOIUrl":"https://doi.org/10.20473/ydk.v37i3.37604","url":null,"abstract":"Presidential government system has its own disadvantages, one of them is the possibility a minority president presence in this system, namely a president who is not supported by a parliamentary majority, even though the President has a strong mandate from public, but with a minority position, the government’s agenda which carried out by the president could be hampered by parliament or the legislature, therefore it is needed a coalition government. The combination of a presidential system with a multi-party system is difficult to implement because whoever the president is elected will be encountered with a certain condition that it is impossible to support him in parliament without forming a coalition. In order to respond the problem in strengthening the presidential system in Indonesia, the author offers a majority general election system or district system (first Past the Post) as an effort to create an effective and responsible government. This is a legal study which used two approaches, namely statutory approach and conceptual approach. Based on the results of study, it can be concluded that the majority system was more appropriate for creating an effective and responsible government because it could encourage the simplification of political parties and the responsibilities of people’s representatives to the voters in each district.","PeriodicalId":31372,"journal":{"name":"Yuridika","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46613137","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}
Pub Date : 2022-09-01DOI: 10.20473/ydk.v37i3.38691
J. Aasi
The enactment of Israeli policy on the occupied Palestinian territory has shown the development of the annexation of Israel—from the “de facto” annexation, which seized and occupied the Palestinian territory, to “de jure” annexation by enacting legislations. The dispute between these two entities arises the question of the role of international law, including the position of international law in protecting the right to self-determination and sovereignty of the annexed Palestinian territory. Hence, it is crucial to understand the Israeli practice in the matter of territorial annexation to picture the legal framework provided under international law regarding such issue, within the historical and legal context of the Palestinian case. This research argues that the international law is ambivalent. While many United Nations resolutions and legal scholars, including the advisory opinion of the International Court of Justice, have concluded the wrongfulness of the annexation of the Palestinian territory, the recognitions of other states and the difficulty in requesting state responsibility disable the access of Palestinians to justice. As such, it is necessary to focus on the tools provided by the international criminal law to prosecute war criminals and perpetrators of crimes against humanity against the Palestinian people from the Israeli political and military elites.
{"title":"Israeli Territorial Annexation in Occupied Palestinian Territory: The Ambivalence of International Law","authors":"J. Aasi","doi":"10.20473/ydk.v37i3.38691","DOIUrl":"https://doi.org/10.20473/ydk.v37i3.38691","url":null,"abstract":"The enactment of Israeli policy on the occupied Palestinian territory has shown the development of the annexation of Israel—from the “de facto” annexation, which seized and occupied the Palestinian territory, to “de jure” annexation by enacting legislations. The dispute between these two entities arises the question of the role of international law, including the position of international law in protecting the right to self-determination and sovereignty of the annexed Palestinian territory. Hence, it is crucial to understand the Israeli practice in the matter of territorial annexation to picture the legal framework provided under international law regarding such issue, within the historical and legal context of the Palestinian case. This research argues that the international law is ambivalent. While many United Nations resolutions and legal scholars, including the advisory opinion of the International Court of Justice, have concluded the wrongfulness of the annexation of the Palestinian territory, the recognitions of other states and the difficulty in requesting state responsibility disable the access of Palestinians to justice. As such, it is necessary to focus on the tools provided by the international criminal law to prosecute war criminals and perpetrators of crimes against humanity against the Palestinian people from the Israeli political and military elites.","PeriodicalId":31372,"journal":{"name":"Yuridika","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44618853","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}
Pub Date : 2022-09-01DOI: 10.20473/ydk.v37i3.37237
P. Osode
The rapid spread of the SARS-CoV-2 virus which is responsible for the COVID-19 pandemic across the globe has spawned an intense debate on the necessity of a waiver of some provisions of the World Trade Organisation’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) to increase access to medicines and other medical technologies essential for combating the disease. This article explores the potential of the TRIPS waiver as a mechanism for reconciling the conflicting norms of public health with intellectual property rights protection. It argues that while the TRIPS waiver can be an effective legal instrument which accommodates public health concerns of increasing access to medicines and medical technologies, it has, in its current form and text, many flaws which militate against its effectiveness. These flaws are evident in the way the TRIPS waiver is couched, notwithstanding that the waiver presents multiple benefits including furthering re-humaninisation, distributive justice and decolonisation goals. The article offers recommendations on how the TRIPS waiver adopted during the WTO’s recently concluded 12th Ministerial Conference could be strengthened to eliminate some of its defects in pursuit of expanding access to COVID-19 vaccines and other therapeutic. The research methodology used in this article is the qualitative desktop doctrinal research methodological approach.
{"title":"Reconciling the global public health interest with intellectual property protection through the waiver of certain provisions of the WTO TRIPS Agreement","authors":"P. Osode","doi":"10.20473/ydk.v37i3.37237","DOIUrl":"https://doi.org/10.20473/ydk.v37i3.37237","url":null,"abstract":"The rapid spread of the SARS-CoV-2 virus which is responsible for the COVID-19 pandemic across the globe has spawned an intense debate on the necessity of a waiver of some provisions of the World Trade Organisation’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) to increase access to medicines and other medical technologies essential for combating the disease. This article explores the potential of the TRIPS waiver as a mechanism for reconciling the conflicting norms of public health with intellectual property rights protection. It argues that while the TRIPS waiver can be an effective legal instrument which accommodates public health concerns of increasing access to medicines and medical technologies, it has, in its current form and text, many flaws which militate against its effectiveness. These flaws are evident in the way the TRIPS waiver is couched, notwithstanding that the waiver presents multiple benefits including furthering re-humaninisation, distributive justice and decolonisation goals. The article offers recommendations on how the TRIPS waiver adopted during the WTO’s recently concluded 12th Ministerial Conference could be strengthened to eliminate some of its defects in pursuit of expanding access to COVID-19 vaccines and other therapeutic. The research methodology used in this article is the qualitative desktop doctrinal research methodological approach.","PeriodicalId":31372,"journal":{"name":"Yuridika","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45001508","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}
Pub Date : 2022-09-01DOI: 10.20473/ydk.v37i3.32484
Michelle Rezky, A. Ibrahim
There are often cases where irresponsible individuals create social media accounts using other people's personal identities as if the account is the original account of the person whose identity is being used, hereinafter referred to as fake social media accounts. Such actions can be threatened with Article 35 jo. Article 51 paragraph (1) of Law Number 11 of 2008 concerning Information and Electronic Transactions (ITE Law). The type of research used by the author in this study is prescriptive normative law research with a statute approach and a case approach. In Verdict Number 1739/Pid.Sus/2020/PN Jkt.Brt, the defendant was declared guilty of committing a crime under Article 28 paragraph (1) jo. Article 45A paragraph (1) ITE Law. Not only fulfilling the elements in Article 28 paragraph (1) of the ITE Law, but the defendant also fulfilled the elements in Article 35 of the ITE Law. However, the defendant was not found guilty of a criminal offense under Article 35 of the ITE Law, even though Article 35 of the ITE Law was one of the prosecutor's indictments. Based on this research, the defendant was not found guilty of a criminal offense under Article 35 of the ITE Law because the form of the indictment in Verdict Number 1739/Pid.Sus/2020/PN Jkt.Brt is less precise. The form of indictment used by the public prosecutor is an Alternative Indictment where ideally the public prosecutor ought to use Cumulative Indictment on a concursus realis crime that the defendant committed.
{"title":"Fake Accounts on Social Media as a Criminal Act of Electronic Information Manipulation in Indonesia","authors":"Michelle Rezky, A. Ibrahim","doi":"10.20473/ydk.v37i3.32484","DOIUrl":"https://doi.org/10.20473/ydk.v37i3.32484","url":null,"abstract":"There are often cases where irresponsible individuals create social media accounts using other people's personal identities as if the account is the original account of the person whose identity is being used, hereinafter referred to as fake social media accounts. Such actions can be threatened with Article 35 jo. Article 51 paragraph (1) of Law Number 11 of 2008 concerning Information and Electronic Transactions (ITE Law). The type of research used by the author in this study is prescriptive normative law research with a statute approach and a case approach. In Verdict Number 1739/Pid.Sus/2020/PN Jkt.Brt, the defendant was declared guilty of committing a crime under Article 28 paragraph (1) jo. Article 45A paragraph (1) ITE Law. Not only fulfilling the elements in Article 28 paragraph (1) of the ITE Law, but the defendant also fulfilled the elements in Article 35 of the ITE Law. However, the defendant was not found guilty of a criminal offense under Article 35 of the ITE Law, even though Article 35 of the ITE Law was one of the prosecutor's indictments. Based on this research, the defendant was not found guilty of a criminal offense under Article 35 of the ITE Law because the form of the indictment in Verdict Number 1739/Pid.Sus/2020/PN Jkt.Brt is less precise. The form of indictment used by the public prosecutor is an Alternative Indictment where ideally the public prosecutor ought to use Cumulative Indictment on a concursus realis crime that the defendant committed.","PeriodicalId":31372,"journal":{"name":"Yuridika","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45550791","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}
Pub Date : 2022-09-01DOI: 10.20473/ydk.v37i3.34943
Bambang Sugeng Ariadi Subagyono, Zahry Vandawati Chumaida, Mochamad Kevin Romadhona
Legal protection of consumer rights in essence is the role of the government to protect the interests of consumers in the framework of trade. Violation of consumer protection norms can only be enforced if business actors are willing to voluntarily fulfill consumer demands for the fulfillment of consumer rights that have been violated by business actors. However, if the business actor is not willing to carry it out voluntarily, while the consumer assumes that the business actor concerned has violated the consumer protection norms stipulated by the UUPK and is detrimental to the consumer, then the enforcement of the consumer protection norms can only be prosecuted through a dispute specified resolution process in the UUPK. The purpose of establishing the Consumer Dispute Settlement Agency (BPSK) is to protect consumers and business actors by creating a consumer protection system that contains elements of legal certainty and information disclosure. This study is to analyze the implementation of consumer rights enforcement through the Consumer Dispute Resolution Board in order to increase the consumer satisfaction index, as well as to analyze the obstacles and barriers to consumer rights enforcement through the Consumer Dispute Resolution Board.
{"title":"Enforcement of Consumer Rights Through Dispute Settlement Resolution Agency to Improve the Consumer Satisfaction Index In Indonesia","authors":"Bambang Sugeng Ariadi Subagyono, Zahry Vandawati Chumaida, Mochamad Kevin Romadhona","doi":"10.20473/ydk.v37i3.34943","DOIUrl":"https://doi.org/10.20473/ydk.v37i3.34943","url":null,"abstract":"Legal protection of consumer rights in essence is the role of the government to protect the interests of consumers in the framework of trade. Violation of consumer protection norms can only be enforced if business actors are willing to voluntarily fulfill consumer demands for the fulfillment of consumer rights that have been violated by business actors. However, if the business actor is not willing to carry it out voluntarily, while the consumer assumes that the business actor concerned has violated the consumer protection norms stipulated by the UUPK and is detrimental to the consumer, then the enforcement of the consumer protection norms can only be prosecuted through a dispute specified resolution process in the UUPK. The purpose of establishing the Consumer Dispute Settlement Agency (BPSK) is to protect consumers and business actors by creating a consumer protection system that contains elements of legal certainty and information disclosure. This study is to analyze the implementation of consumer rights enforcement through the Consumer Dispute Resolution Board in order to increase the consumer satisfaction index, as well as to analyze the obstacles and barriers to consumer rights enforcement through the Consumer Dispute Resolution Board.","PeriodicalId":31372,"journal":{"name":"Yuridika","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"43886822","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}
Pub Date : 2022-09-01DOI: 10.20473/ydk.v37i3.41280
Rustanto
Many criminal acts of corruption originate from the procurement of goods/services which turns out to not make the application of the article on corruption crimes to matters relating to state losses or the application of corruption crimes to KPA and PA actions important to get attention, because many parties are certainly familiar with the character of law enforcement for criminal acts of corruption, which are always linked with administrative errors. Based on this background, this research raises the title: "Criminal legal responsibility for budget users and budget users authority in the procurement of government goods/services for the occurrence of state losses.” The purpose of this study is to analyze and find the ratio of the legal liability of PA and KPA in the procurement of government goods/services for the occurrence of state losses and legal consequences for the implementation of PA and KPA duties that cause state losses in the procurement of government goods/services. The research method used is legal research (doctrinal research) and the approach used is the statutory approach, case study, conceptual approach, and comparative approach. The results of this study, namely the Legis Ratio of accountability for PA and KPA for the occurrence of state losses, is because PA and KPA are state officials who have special authority which in fact is not owned by everyone, even public officials, so that, according to the legal principle of deen bevoegdheid zonder verantwoordenlijkheid (there is no authority without accountability), it is logical that, when exercising this authority, when the PA and KPA make a mistake, there are juridical consequences, but the mistakes made by the PA and KPA cannot be generalized immediately. The mistakes made by the PA and KPA must be analyzed, to find out the qualifications for the responsibilities of the PA and KPA, whether administrative, criminal, and/or civil liability. This, when associated with the ten-to-one rule principle, should not allow the PA and KPA to be held accountable for more than the mistakes made.
许多腐败犯罪行为源于货物/服务的采购，但事实证明，将腐败犯罪条款适用于与国家损失有关的事项，或将腐败犯罪适用于人民军和巴勒斯坦权力机构的行动，都不值得注意，因为许多当事人肯定熟悉腐败犯罪行为的执法特点，而腐败犯罪行为总是与行政失误联系在一起。基于这种背景，这项研究提出了一个标题：“预算使用者的刑事法律责任和预算使用者在采购政府产品/服务时对国家损失的权力。”本研究的目的是分析和找出在采购政府商品/服务时PA和KPA对国家损失发生的法律责任的比例，以及执行PA和KP的法律后果在采购政府产品/服务过程中造成国家损失的一种职责。所使用的研究方法是法律研究（理论研究），所使用的方法是法定方法、案例研究、概念方法和比较方法。这项研究的结果，即巴勒斯坦权力机构和人民解放军对国家损失发生的责任的Legis比率，是因为巴勒斯坦权力机构是拥有特殊权力的国家官员，事实上并非所有人都拥有，甚至不是公职人员，因此，根据deen bevoegdheid zonder verantwoordenlijkheid的法律原则（没有权力不追究责任），合乎逻辑的是，在行使这一权力时，当巴勒斯坦权力机构和人民解放军犯下错误时，会产生法律后果，但巴勒斯坦权力机构的错误不能立即一概而论。必须对PA和KPA犯下的错误进行分析，以确定PA和KPA.的责任资格，无论是行政责任、刑事责任和/或民事责任。当与十比一规则原则联系在一起时，不应让巴勒斯坦权力机构和人民军对所犯的错误承担更多责任。
{"title":"Accountability of Budget Users and Proxy Budget users on the Emergence of State Losses in the Procurement of Government Goods/Services","authors":"Rustanto","doi":"10.20473/ydk.v37i3.41280","DOIUrl":"https://doi.org/10.20473/ydk.v37i3.41280","url":null,"abstract":"Many criminal acts of corruption originate from the procurement of goods/services which turns out to not make the application of the article on corruption crimes to matters relating to state losses or the application of corruption crimes to KPA and PA actions important to get attention, because many parties are certainly familiar with the character of law enforcement for criminal acts of corruption, which are always linked with administrative errors. Based on this background, this research raises the title: \"Criminal legal responsibility for budget users and budget users authority in the procurement of government goods/services for the occurrence of state losses.” The purpose of this study is to analyze and find the ratio of the legal liability of PA and KPA in the procurement of government goods/services for the occurrence of state losses and legal consequences for the implementation of PA and KPA duties that cause state losses in the procurement of government goods/services. The research method used is legal research (doctrinal research) and the approach used is the statutory approach, case study, conceptual approach, and comparative approach. The results of this study, namely the Legis Ratio of accountability for PA and KPA for the occurrence of state losses, is because PA and KPA are state officials who have special authority which in fact is not owned by everyone, even public officials, so that, according to the legal principle of deen bevoegdheid zonder verantwoordenlijkheid (there is no authority without accountability), it is logical that, when exercising this authority, when the PA and KPA make a mistake, there are juridical consequences, but the mistakes made by the PA and KPA cannot be generalized immediately. The mistakes made by the PA and KPA must be analyzed, to find out the qualifications for the responsibilities of the PA and KPA, whether administrative, criminal, and/or civil liability. This, when associated with the ten-to-one rule principle, should not allow the PA and KPA to be held accountable for more than the mistakes made.","PeriodicalId":31372,"journal":{"name":"Yuridika","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"42780293","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}
Pub Date : 2022-09-01DOI: 10.20473/ydk.v37i3.37426
Guilherme Massaú, Márcia Bertoldi
This paper reflects on the fundamental duty, extracted from art 225, caput, of the Brazilian Constitution, to protect and defend the environment. It refers to the duty arising from the fundamental right to an ecologically balanced environment. As it is a fundamental right, it defends the existence of a corresponding duty, in this case, a fundamental duty. Such a fundamental duty involves the relationship between present and future generations. The present generation must maintain and protect existing natural resources so the future generation may also enjoy the same natural resources. To reach the proposed objective, this paper adopts a deductive approach, has a qualitative character and uses the bibliographical-documentary procedure for its development. It concludes that the duty provided for in art 225, caput, is not enforceable by itself because it lacks efficacy; however, the right and duty to and with the environment are associated constitutional categories that become effective in return.
{"title":"The Fundamental Right for a Balanced Environment","authors":"Guilherme Massaú, Márcia Bertoldi","doi":"10.20473/ydk.v37i3.37426","DOIUrl":"https://doi.org/10.20473/ydk.v37i3.37426","url":null,"abstract":"This paper reflects on the fundamental duty, extracted from art 225, caput, of the Brazilian Constitution, to protect and defend the environment. It refers to the duty arising from the fundamental right to an ecologically balanced environment. As it is a fundamental right, it defends the existence of a corresponding duty, in this case, a fundamental duty. Such a fundamental duty involves the relationship between present and future generations. The present generation must maintain and protect existing natural resources so the future generation may also enjoy the same natural resources. To reach the proposed objective, this paper adopts a deductive approach, has a qualitative character and uses the bibliographical-documentary procedure for its development. It concludes that the duty provided for in art 225, caput, is not enforceable by itself because it lacks efficacy; however, the right and duty to and with the environment are associated constitutional categories that become effective in return.","PeriodicalId":31372,"journal":{"name":"Yuridika","volume":" ","pages":""},"PeriodicalIF":0.0,"publicationDate":"2022-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45028046","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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