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The Limitations of Living Law in Indonesian Criminal Law Reform: An Effort to Realize Justice 活法在印尼刑法改革中的局限性:实现正义的努力
Pub Date : 2023-07-28 DOI: 10.29303/ius.v11i2.1232
Yenny Febrianty, Ade Sathya Sanathana Ishwara, Bintara Sura Priambada, Hikam Hulwanullah
One of the important points of criminal law reform in the Criminal Code is the regulatory provision regarding living law. The Criminal Code authentically determines that living law is customary criminal law, which is declared valid and further regulated through Local Regulations. The absence of limitations related to customary criminal law standards that can be qualified as a living law has the potential to cause injustice. This study aims to analyze the urgency and the formulation of limitations on living law arrangements in the Criminal Code in realizing justice. The results of the study show that the urgency regarding limitations on living law arrangements in the Criminal Code is meant to protect human rights while at the same time preventing potential criminalization. The formulation of limitations of the living law arrangements in the Criminal Code is to realize justice. Therefore, the limitations of customary criminal law can be categorized as a living law according to the Criminal Code, that are: indigenous people still practice the law; these customary crimes do not conflict with the principles of the rule of law; they do not conflict with Pancasila values; and the crimes are further formulated by local regulations.
刑法改革的重要内容之一是对生活法的规制。《刑法典》真实地确定习惯法是习惯法,习惯法通过地方性法规宣告有效并进一步加以规范。由于缺乏与习惯刑法标准有关的限制,而这些标准可以被认定为一项活生生的法律,因此有可能造成不公正。本文旨在分析刑法中生活法安排的限制在实现正义中的紧迫性和制定。研究结果表明,迫切需要限制《刑法》中的现行法律安排,是为了保护人权,同时防止可能的刑事定罪。刑法现行法律安排限制的制定是为了实现正义。因此,习惯法的局限性可以根据《刑法》归类为活法,即:土著人民仍在实行法律;这些习惯罪行与法治原则并不冲突;它们与Pancasila的价值观不冲突;地方性法规对犯罪行为作了进一步规定。
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引用次数: 0
The Progressive Legal Perspective of Legal Justice in Customary Dispute Resolution Related to Natural Resources 自然资源习惯法争端解决中法律正义的进步法学视角
Pub Date : 2023-07-28 DOI: 10.29303/ius.v11i2.1252
Muhammad Akbar, None Maisa, Mohamad Didi Permana, Hazmi Rusli
The absence of special arrangements regarding customary law has the potential to cause inferiority in the position of customary law compared to the substance of national law in customary disputes relating to natural resources. This study seeks to analyze and formulate the idea of ​​resolving customary disputes over the management of natural resources in a progressive legal perspective to achieve justice. The results of the study confirmed that the problems of customary disputes related to the management of natural resources, especially those that occurred in the territories of indigenous peoples, made the position of customary law weaker compared to national law. This happens because regulations regarding indigenous peoples have not been ratified. Legal efforts to settle natural resource customary disputes to achieve justice in a progressive legal perspective need to be regulated through the establishment of a Perppu (Government Regulation in Lieu of Law) to facilitate the position of customary law in resolving customary disputes in the field of natural resource management. In the Perppu, it is hoped that there will be confirmation regarding the enactment of the conception of legal pluralism so that customary law has an equal position with national law in customary disputes over natural resource management.
在与自然资源有关的习惯争端中,没有关于习惯法的特别安排有可能使习惯法的地位低于国内法的实质。本研究旨在分析和拟订从进步的法律角度解决自然资源管理方面的习惯争端以实现正义的想法。研究的结果证实,与自然资源管理有关的习惯争端问题,特别是在土著人民领土上发生的问题,使习惯法的地位较国内法弱。这是因为有关土著人民的条例尚未得到批准。解决自然资源习惯法争端以从进步的法律角度实现正义的法律努力需要通过建立代替法律的政府条例来加以规范,以促进习惯法在解决自然资源管理领域的习惯法争端中的地位。在秘鲁,希望将确认制定法律多元化的概念,以便习惯法在有关自然资源管理的习惯法争端中与国内法具有平等的地位。
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引用次数: 0
The Plea Bargain Concept Related to Medical Malpractice Crimes to Realize Substantive Justice: An Idea for the Future 医疗事故犯罪辩诉交易概念实现实体正义:未来构想
Pub Date : 2023-07-28 DOI: 10.29303/ius.v11i2.1245
I Made Wirya Darma, Mahamadaree Waeno
Malpractice in medical practice is a common thing that occurs because the unprofessionalism and negligence of medical personnel and . In practice, medical malpractice is resolved through a convoluted criminal justice system that does not reflect a substantive justice orientation. This study aims to formulate the idea of applying plea bargaining in the settlement of criminal acts related to medical malpractice in order to realize substantive justice. The results of the study confirm that the settlement of criminal acts related to medical malpractice does not reflect substantive justice and is not oriented toward efforts to provide compensation for victims. Therefore, in the future, efforts are needed to apply the concept of a plea bargain in the settlement of criminal acts related to medical malpractice in order to ensure substantive justice for victims of medical malpractice.
医疗事故是由于医务人员的不专业和疏忽,在医疗实践中经常发生的事情。在实践中,医疗事故是通过一个复杂的刑事司法系统来解决的,这个系统没有反映出实质性的司法取向。本研究旨在探讨辩诉交易在医疗事故刑事和解中的应用,以实现实质公正。研究结果证实,与医疗事故有关的犯罪行为的解决没有体现实质正义,也没有以向受害者提供赔偿为目标。因此,今后应努力将辩诉交易的概念应用于医疗事故犯罪行为的和解中,以确保医疗事故受害者得到实质性的正义。
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引用次数: 0
The Implementation of Competency Development of State Civil Apparatus in The Framework of Fulfilling The Rights of Civil Servants In West Sumatra Province 西苏门答腊省公务员权利实现框架下国家民事机构胜任力发展的实施
Pub Date : 2023-04-27 DOI: 10.29303/ius.v11i1.1210
Khairani, Sri Artnetti, Fikri Hasan
This study aims to know the implementation of competency development for Civil Servants (PNS) in West Sumatra. As an element of the state apparatus, civil servants have the right to participate in the development so that their competence in providing public services can possibly be carried out in a professional and qualified manner. The results of this study are expected to contribute to local government policies in managing the ASN. Based on Article 70 of Law Number 5 of 2014 concerning State Civil Apparatus (UU ASN) which states that every ASN employee has the right and opportunity to develop their competency, each Government Agency is required to prepare an annual competency development plan that is included in the annual work plan of the respective agency's budget. This can have an impact on the competence of less effective personnel, causing their responsibilities to be carried out inefficiently and negatively impacting the quality of public services. The issues in this study: 1. How is the management of civil servants in West Sumatra Province? 2. How is the competency development of civil servants in West Sumatra Province implemented? The research method used is a sociological juridical (empirical) approach. This research is descriptive and analytical. The data are collected through interviews and document studies. This research aligns with the strategic research plan set by Andalas University for 2020 – 2024, which is focused on the issue of political and social law. The results of the study show that the management of PNS in West Sumatra Province has not been based on a comparison of the competencies and qualifications required by positions with the competencies and qualifications held by the PNS, owing to the merit system’s ineffective implementation in PNS management. Implementation of PNS Competency Development in West Sumatra Province, from the data obtained, only 1,168 out of 18,614 civil servants in West Sumatra Province participated in PNS competency development, and the annual competency development plan document was not prepared, this shows that it is still not optimal and the implementation is not yet appropriate between civil servant competency development and applicable regulations.
本研究旨在了解西苏门答腊公务员胜任力发展的实施情况。公务员作为国家机器的组成部分,有权参与发展,使其提供公共服务的能力能够以专业和合格的方式发挥出来。预计本研究结果将有助于地方政府制定管理ASN的政策。根据2014年关于国家民用机器(UU ASN)的第5号法律第70条规定,每个ASN员工都有权利和机会发展他们的能力,每个政府机构都必须准备一份年度能力发展计划,该计划包括在各自机构预算的年度工作计划中。这可能对效率较低人员的能力产生影响,使他们的职责执行效率低下,并对公共服务的质量产生不利影响。本研究涉及的问题有:1。西苏门答腊省公务员管理情况如何?2. 西苏门答腊省公务员的能力发展是如何实施的?所使用的研究方法是社会学、法学(实证)方法。本研究是描述性和分析性的。数据是通过访谈和文献研究收集的。这项研究与Andalas大学制定的2020 - 2024年战略研究计划相一致,该计划的重点是政治和社会法问题。研究结果表明,西苏门答腊省PNS的管理并没有将职位所需的能力和资格与PNS所拥有的能力和资格进行比较,这是由于绩效制度在PNS管理中的执行不力。西苏门答腊省PNS胜任力开发的实施,从获得的数据来看,西苏门答腊省18,614名公务员中只有1168人参与了PNS胜任力开发,并且没有编制年度胜任力开发计划文件,这表明它仍然不是最优的,公务员胜任力开发与适用法规之间的实施还不合适。
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引用次数: 0
The Fulfillment of The Clarity Principle Towards the Formulation Arrangement in The Recognition of Statutory Bodies Within the Limited Liability Company 有限责任公司内部法定机构认定中制定安排的明确性原则的实现
Pub Date : 2023-04-27 DOI: 10.29303/ius.v11i1.1206
Amelia Sri Kusuma dewi, Anindita Purnama Ningtyas
For a legal entity, legality is the most important element, because it indicates a state of legality or legitimacy so that it is recognized by law and society as a legal subject. Limited Liability Company, requires a special establishment procedure to legalize legal entity status, as stated in Article 109 number 2 Law Number 6 of 2023 concerning Stipulation of Government Regulation in Lieu of Law Number 2 of 2022 concerning Job Creation to become Law which has changed the arrangements regarding the establishment of a Limited Liability Company which was previously regulated in Article 7 of the Law Number 40 of 2007 concerning Limited Liability Companies. After the amendment, the arrangement regarding the acquisition of Limited Liability Company legal status is “after being registered with the Minister and obtaining proof of registration”. The Research Team sees a legal issue, namely whether changing the arrangement meets the principle of clarity of formulation as stipulated in Article 5 letter f of Law Number 12 of 2011 Concerning the Establishment of Legislation. Furthermore, the Research Team also analyzed the proper legal reconstruction in the regulation regarding the acquisition of Limited Liability Company Legal Entity status, so that the principle of clarity of formulation was fulfilled as one of the principles for the Formation of good Legislation. This research is a type of normative juridical research using statutory and conceptual approaches. Based on the analysis of the Research Team, the arrangement regarding the time of acquiring the legal status of a Limited Liability Company does not meet the clarity principle of the formulation. While the proper legal reconstruction is to provide a formulation that uses a choice of words or terms, as well as the clarity of legal language in which understandable so that it minimizes the excessive interpretations in its implementation.
对于一个法律主体来说,合法性是最重要的要素,因为它表明了一种合法性或正当性的状态,从而使其作为法律主体得到法律和社会的认可。有限责任公司需要一个特殊的设立程序来使法人实体地位合法化,如2023年第6号法律第109条第2款所述,该法律第109条第2款关于政府法规的规定,以代替2022年第2号法律关于创造就业的规定,该法律改变了关于设立有限责任公司的安排,该安排之前由2007年第40号法律第7条规定关于有限责任公司。修订后,关于获得有限责任公司法律地位的安排是“在向部长注册并获得注册证明后”。研究小组发现一个法律问题,即改变安排是否符合2011年第12号法律《关于立法的问题》第5条f款规定的表述清晰原则。此外,课课组还分析了在有限责任公司取得法人地位的规定中进行适当的法律重构,以实现表述清晰的原则作为良好立法形成的原则之一。本研究是一种使用成文法和概念方法的规范性法律研究。根据课题组的分析,关于有限责任公司获得法律地位的时间安排不符合制定的明确性原则。虽然适当的法律重建是提供一种措词或术语的选择,以及法律语言的清晰度,使其可以理解,以便在执行中尽量减少过度的解释。
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引用次数: 0
The Importance of Structuring Relationships Between Local Governments and Business Entities in The Perspective of State Administrative Law in Batam City, Riau Islands 廖内群岛巴淡市国家行政法视角下地方政府与企业关系构建的重要性
Pub Date : 2023-04-14 DOI: 10.29303/ius.v11i1.1146
M. Indra, Fadhilah Fauzan
This article explains the importance of structuring the relationship between local government and local business entities from the perspective of state administrative law in Batam City, Riau Archipelago. This study used a qualitative research method, in which several relevant sources obtained were analyzed using descriptive analysis to be able to explain and answer the research questions as a whole. The findings of this study indicate that the dynamics of the dualism of authority that occurs between the Batam City Government and the Batam Concession Agency have violated several principles of good governance, namely those relating to the principle of legal certainty, the principle of not mixing authority, and the principle of implementing the public interest. In the process, to overcome the dualism of authority that occurs, it is necessary to integrate the Free Trade Areas (FTA) of Batam, Bintan, and Karimun with the Free Port Concession Agency (FPCA) by placing the authority of the FPCA under the control of the Governor of the Riau Archipelago Province. Therefore, to adopt a better possibility of the findings of this study, it is very important to immediately amend Government Regulation Number 46 of 2007 concerning the Free Trade Zone and Free Harbor of Batam as amended several times, most recently by Government Regulation Number 62 of 2019 concerning the Second Amendment on Government Regulation Number 46 of 2007 concerning Free Trade Zones and Free Ports.
本文从廖内群岛巴淡市国家行政法的角度阐述了构建地方政府与地方企业关系的重要性。本研究采用定性研究方法,对获得的几个相关资料进行描述性分析,以整体上解释和回答研究问题。本研究的结果表明,巴淡市政府和巴淡特许机构之间的权力二元论的动态违反了几项善治原则,即与法律确定性原则、不混合权力原则和实施公共利益原则有关的原则。在此过程中,为了克服权力的二元化,有必要将巴淡岛、民丹岛、卡里门自由贸易区(FTA)与自由港特许机构(FPCA)合并,将FPCA的权力移交给廖内群岛省省长。因此,为了更好地利用本研究的结果,非常重要的是立即修改2007年关于巴丹岛自由贸易区和自由港的第46号政府法规,该法规已经过多次修订,最近一次是2019年关于2007年关于自由贸易区和自由港的第46号政府法规的第二次修正案的第62号政府法规。
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引用次数: 0
Effects of Legislation Overlapping Regarding Transnational Crime 跨国犯罪立法重叠的影响
Pub Date : 2023-04-13 DOI: 10.29303/ius.v11i1.1145
Imam Prasetio, Nathalina Naibaho, Dhianti Afifah Nabila Yudhy
Globalization has a dominant role in the trade of goods/services, people, technologies, and information. The globalization targets are cultural, economic, and political globalization. Unintentionally, problems arise in society, such as transnational rights issues (transnational crime) caused by globalization. The most common transnational crime is sexual exploitation, which occurs in both men and women. Therefore, regarding the handling of TIP in Indonesia, complementary and correlated regulations or legislation are needed to eradicate TIP. Considering that currently, there are regulations that overlap with each other. As happened in the criminal act of trafficking in persons and the law on the protection of Indonesian migrant workers, the two laws should synergize to prevent, handle, and eradicate TIP. Thus, law enforcers can also be maximal in carrying out their duties, especially in taking action against TIP perpetrators.
全球化在商品/服务、人员、技术和信息贸易中起着主导作用。全球化的目标是文化、经济和政治全球化。无意中,社会上出现了一些问题,如全球化引起的跨国权利问题(跨国犯罪)。最常见的跨国犯罪是性剥削,男女皆有。因此,对于印度尼西亚的TIP处理,需要配套的相关法规或立法来根除TIP。考虑到目前的情况,有很多相互重叠的规定。正如贩运人口犯罪行为和保护印尼移徙工人的法律所发生的情况一样,这两部法律应该协同作用,以预防、处理和根除人口贩运。因此,执法人员也可以最大限度地履行职责,特别是在对TIP犯罪者采取行动方面。
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引用次数: 0
Harmonization between Investigators and Advocates in the Law Enforcement Process 执法过程中调查人员与辩护人的协调
Pub Date : 2023-04-12 DOI: 10.29303/ius.v11i1.1174
Rachman Maulana Kafrawi, Mohammad Zamroni, Antonino Pedro Marsal
Law enforcement containing the proportional principle is how law enforcement runs in such a way, so that it does not only enforce the normative rules (aspects of legal certainty) but also the philosophical aspects (aspects and values of justice). Functional differentiation causes law enforcement practices by law enforcement officers to be fragmented and fragmentary because each component of law enforcement has different perceptions and meanings. This has an impact on the difficulty of realizing an integrated and integrated criminal justice system because there are often conflicts of interest and differences in interpretation between law enforcement components so that the products of the judiciary have not been able to meet the expectations of the people seeking justice. So in this systematic framework, the actions of one body will affect the other bodies. Research purposes namely analyzing the harmonization between investigators and advocates in the law enforcement process and analyzing the harmonization and synchronization between law enforcers. The research method in this case combines elements of normative law which are then supported by additional data or empirical elements. The system in the criminal justice system so that in practice it will have an effect on the implementation of the criminal justice system as a whole.
包含比例原则的执法是指执法如何以这样一种方式运行,以至于它不仅执行规范性规则(法律确定性方面),而且执行哲学方面(正义方面和价值观)。职能分化导致执法人员执法实践的碎片化和碎片化,因为执法的每个组成部分都有不同的感知和意义。这对实现综合和综合刑事司法制度的困难产生了影响,因为执法部门之间经常存在利益冲突和解释差异,因此司法部门的产品无法满足寻求正义的人民的期望。所以在这个系统框架中,一个物体的行为会影响其他物体。研究目的是分析执法过程中侦查人员与辩护人之间的协调性和执法人员之间的协调性与同步性。在这种情况下,研究方法结合了规范性法的要素,然后由额外的数据或经验要素支持。这一制度在刑事司法制度中使其在实践中对整个刑事司法制度的执行产生影响。
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引用次数: 0
The Positive Fictional Principle After the Implementation of The Job Creation Law: A Prophetic Legal Paradigm 就业创造法实施后的积极虚构原则:一种预言性的法律范式
Pub Date : 2023-04-12 DOI: 10.29303/ius.v11i1.1168
Edi Pranoto, Kukuh Sudarmanto
The positive fictitious principle in the Law No. 11 of 2020 concerning Job Creation (CK Law) exists to facilitate investment and simplify licensing. However, the provisions in the CK Law, which exclude the role of the Administrative Court in fictitious applications have the potential to cause injustice and legal uncertainty in society. That research focuses on examining the positive fictitious principle's existence after the CK Law's enactment in the paradigm of prophetic law. The paradigm of prophetic regulation was chosen in this study as an effort to explore the theological (divine) and human dimensions in positive fictitious formulations as in CK Law. This research is a normative legal type of research with a concept and statutory approach. The results of the study confirm that in terms of the three aspects of prophetic law, namely transcendence, liberation, and humanization, the provisions of the CK Law, which no longer involve the role of the Administrative Court and have not issued Presidential Regulations regarding positive fiction can cause uncertainty and injustice in society. That makes the substance of the prophetic law in the positive fictitious provisions in the CK Law not be realized optimally. Orientation based on the prophetic legal paradigm in regulating the positive fictitious principle after regulation in the CK Law, according to the author, can be done by revising the positive fictitious provisions in the CK Law by returning the competence of the State Administrative Court.
关于创造就业的2020年第11号法(CK法)中的积极虚拟原则是为了促进投资和简化许可。然而,《中华人民共和国法律》的规定排除了行政法院在虚构申请中的作用,这有可能在社会上造成不公正和法律不确定性。这一研究的重点是在预言法的范式中考察《CK法》制定后积极虚拟原则的存在。在这项研究中,我们选择了预言规则的范例,作为在CK法中积极的虚构表述中探索神学(神性)和人类维度的努力。本研究是一种具有概念和成文法方法的规范性法学研究。研究结果证实,在预言性法律的三个方面,即超越性、解放性和人性化方面,CK法的规定不再涉及行政法院的作用,也没有发布关于正面小说的总统条例,可能会造成社会的不确定性和不公正。这使得《CK法》正面虚构条款中预言性法律的实质没有得到最优实现。笔者认为,在《长江法》规制后对积极虚拟原则进行规制时,基于预言性法律范式的定位可以通过修正《长江法》中的积极虚拟条款,回归国家行政法院的权限来实现。
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引用次数: 0
Problems of Criminal Applications Law in The Life of Indonesian Communities and Cultures 印度尼西亚社区和文化生活中的刑事适用法律问题
Pub Date : 2023-04-06 DOI: 10.29303/ius.v11i1.1144
Rina Rohayu Harun, M. Sahid, Bahri Yamin
Early January 2023, the President of the Republic of Indonesia ratified the R-KUHP to become Law Number 1 of 2023 concerning the Criminal Code. The new Criminal Code will be enforced in three years, with the agenda of socializing it to all law enforcement officials, and also to all Indonesian people. This study wants to explore the use of the Criminal Code with the various problems that accompany it, during an independent nation. The enactment of the Criminal Code raises its own problems for Indonesian religious people based on the first precepts of Pancasila and having an eastern culture. The method used in this research is doctrinal research or normative legal research and is supported by empirical legal research. The novelty of this study is an analysis of the problems with the application of the Criminal Code so far to strengthen the enforceability of the new Criminal Code which will be implemented in the next three years. Research results are, the problem with the application of the Criminal Code as a form of material criminal law has an impact on all aspects. First, the aspect of legal education where knowledge about criminal law reform is not beneficial due to the maintenance of the Criminal Code, from the judicial or law enforcement aspect, the Criminal Code also continues to be used and even becomes the basis for considering the general rules of Book I of the Criminal Code, as long as it is not regulated in laws and regulations outside the Criminal Code. The validity of the Criminal Code from the perspective of religious law and customary law has gaps that cause problems, such as the adultery article in the Criminal Code which has different meanings and principles from those stipulated in religious law and customary law. The principle of “no excuse”, which is implied in the Criminal Code, does not reflect the religious and cultural character of the Indonesian people by prioritizing the concept of forgiveness.
2023年1月初,印度尼西亚共和国总统批准了R-KUHP成为关于《刑法》的2023年第1号法律。新的《刑法》将在三年内实施,其议程是使所有执法官员以及所有印度尼西亚人民都能接受它。本研究旨在探讨在一个独立的国家中,刑法的使用及其伴随的各种问题。《刑法》的颁布给印度尼西亚宗教人士带来了自己的问题,这些宗教人士基于潘卡西拉的第一条戒律,并拥有东方文化。本研究使用的方法是理论研究或规范法律研究,并以实证法律研究为支撑。这项研究的新颖之处在于分析了迄今为止在适用《刑法》方面存在的问题,以加强将在未来三年内实施的新《刑法》的可执行性。研究结果表明,刑法典作为物质刑法的一种形式,其适用问题影响着刑法的各个方面。首先,在法律教育方面,刑法改革方面的知识由于刑法的保留而不利于刑法改革,从司法或执法方面来看,只要在刑法之外的法律法规中没有规定,刑法也继续被使用,甚至成为考虑刑法第一卷通则的依据。从宗教法和习惯法的角度来看,刑法的效力存在差距,导致了一些问题,例如刑法中的通奸条款与宗教法和习惯法规定的含义和原则不同。《刑法》中所隐含的“无借口”原则没有反映印度尼西亚人民的宗教和文化特点,因为它把宽恕的概念放在首位。
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