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Child Protection Post the New Marriage Law: How Indonesian Religious Court Interpreting the Urgency in Child-age Marriage 新婚姻法后的儿童保护:印尼宗教法院如何解读童婚的紧迫性
Pub Date : 2023-04-05 DOI: 10.29303/ius.v11i1.1054
Haniah Ilhami, D. B. Nugraheni, Tata Wijayanta
The amendment of the Law of Marriage in 2019 introduces the new concept of Dispensation of Marriage by providing some additional provisions: the obligations to provide the urgency of marriage and the specific supporting evidence in proving the urgency. This article aims to examine the interpretations of judges in Religious Court on defining the urgency of child-age marriage and the implementation of the supporting evidence in cases of Dispensation of Marriage. Based on the identification, the author analyzes the main questions about the protection of children's rights on those interpretations. Based on the normative legal research that examines the Rulings of Religious Court on the case of Dispensation of Marriage, this article uses the Nonprobability Sampling techniques, specifically the purposive sampling which refers to certain criteria, the author finds the inconsistencies in the interpretation of the urgency of marriage and the implementation of providing the supporting evidence, which influenced by 2 (two) factors,  the Formal Regulation and the principle of judge’s independence. As a result, the author suggests detailed regulations regarding the supporting medical evidence, as well as the improvement of comprehensive and equal understanding for judges about the concept of child protection. Comparing to previous studies, this article shows its originality through a broader object study and comprehensive research analysis with more emphasis on juridical aspect, therefore that arguments and conclusions are built on a strong analytical foundation.
2019年《婚姻法》修正案引入了婚姻免除的新概念,增加了提供婚姻紧急性的义务和证明婚姻紧急性的具体证据的规定。本文旨在考察宗教法院法官在“婚姻豁免”案件中对未成年婚姻紧迫性的界定和佐证证据的执行情况的解释。在此基础上,分析了这些解释在儿童权利保护方面存在的主要问题。本文通过对宗教法院关于婚姻豁免案判决的规范性法律研究,运用非概率抽样技术,特别是指一定标准的目的性抽样,发现在对婚姻紧急性的解释和提供证据的执行上存在不一致之处;这主要受《形式规则》和法官独立原则两大因素的影响。因此,提交人建议对辅助医学证据作出详细规定,并提高法官对儿童保护概念的全面和平等理解。与以往的研究相比,本文通过更广泛的对象研究和全面的研究分析,更侧重于法律方面,从而使论点和结论建立在强大的分析基础上,从而显示出其独创性。
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引用次数: 1
The Debtor’s Liability For The Loading Of Personal Security In Indonesia 债务人在印尼的人身担保责任
Pub Date : 2023-04-04 DOI: 10.29303/ius.v11i1.1180
RR Dewi Anggraeni, Iman Imanuddin, Purmanto Purmanto
This study aims to find out the legal liability as well as the judge’s consideration of personal guarantees in the case of debtors who are declared bankrupt based on act number 37/2004.. The research method used is the normative juridical method, using library data. The results of this study indicate that in personal guarantee liability, there are two different agreements but closely related to each other, namely the guaranteed principal agreement and the personal guarantee agreement as a guarantee of the main agreement. In the personal guarantee agreement, besides the main agreement, there is also an accessory agreement where a personal guarantee serves the obligations. Personal guarantee in this bankruptcy case is the debtor from the obligation to pay off the debt. The personal guarantee assets will only be used to the return of the debts to creditors when the property has been confiscated and auctioned. However, the proceeds are not sufficient to pay the debt. This could be due to the debtor having two or more creditors and not paid off at least one overdue debt and can be collected.
本研究旨在探讨根据第37/2004号法案被宣布破产的债务人的法律责任以及法官对个人担保的考虑。本文采用的研究方法是规范的法律方法,使用图书馆资料。本研究结果表明,在个人担保责任中,存在两种不同但又密切相关的协议,即被担保的主体协议和作为主体协议担保的个人担保协议。在个人担保协议中,除主协议外,还有由个人担保履行义务的附属协议。个人担保在本破产案中是指债务人免于清偿债务的义务。个人担保资产仅在财产被没收拍卖后用于向债权人偿还债务。然而,所得款项不足以偿还债务。这可能是由于债务人有两个或两个以上的债权人,并且至少有一个逾期债务没有偿还,并且可以被收回。
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引用次数: 0
IUS Constituendum of Expert Advisor in Commodity Futures Trading: A Legal Certainty 商品期货交易中的专家顾问:法律确定性
Pub Date : 2023-04-04 DOI: 10.29303/ius.v11i1.1170
I. Gede, Agus Kurniawan, Lourenco de Deus, Mau Lulo, Fradhana Putra Disantara
This study aims to construct forward arrangements regarding Expert Advisors in commodity futures trading. The legal issue being studied is the legal vacuum of regulating trading robot software or commonly known as an Expert Advisor in commodity futures trading. The novelty of this research is legal discovery through legal construction of the development of Expert Advisors in commodity futures trading. This research is juridical-normative legal research by prioritizing statutory and conceptual approaches. The results of the study confirm that the urgency of setting up an Expert Advisor as a futures adviser in commodity futures trading is needed in order to provide legal certainty for commodity futures transaction actors. Legal certainty related to the arrangement of Expert Advisors as futures advisers in commodity futures trading is also needed for CoFTRA as a supporting element of the ministry of trade as well as being a supervisor and enforcer of various legal provisions in the practice of commodity futures trading so that the supervision and enforcement process can be more optimal and can guarantee legal certainty, benefits, and fairness for commodity futures trading actors. Ius constituendum Expert Advisor as a futures adviser in commodity futures trading to ensure legal certainty can be carried out by revising the Law on commodity futures trading, including conducting a judicial review at the Constitutional Court regarding the provisions in the Law on commodity futures trading.
本研究旨在建构专家顾问在商品期货交易中的前瞻性安排。正在研究的法律问题是监管交易机器人软件或通常被称为商品期货交易中的专家顾问的法律真空。本研究的新颖之处在于通过对专家顾问在商品期货交易中发展的法律建构进行法律发现。这项研究是司法规范的法律研究,优先考虑成文法和概念方法。研究结果证实,在商品期货交易中设立专家顾问作为期货顾问的紧迫性是必要的,以便为商品期货交易行为者提供法律确定性。CoFTRA作为贸易部的支持部门,同时也是商品期货交易实践中各种法律规定的监管者和执行者,也需要与安排专家顾问作为商品期货交易的期货顾问相关的法律确定性,以便监管和执行过程更加优化,并保证商品期货交易参与者的法律确定性、利益和公平性。宪法专家顾问作为商品期货交易的期货顾问,通过修改商品期货交易法来确保法律确定性,包括在宪法法院对商品期货交易法的条款进行司法审查。
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引用次数: 7
The Orientation and Implications of New Criminal Code: An Analysis of Lawrence Friedman's Legal System 新刑法典的取向与启示——劳伦斯·弗里德曼法律体系分析
Pub Date : 2023-04-04 DOI: 10.29303/ius.v11i1.1169
H. Flora, Mac Thi Hoai Thuong, Ratna Deliana Erawati
This study aims to analyze the orientation and implications of the legalization of the Draft Criminal Code (RKUHP) to become Law No. 1 of 2023 concerning the Criminal Code (New Criminal Code) regarding the legal system theory of Lawrence M. Friedman. This research is normative legal research by prioritizing conceptual and statutory approaches. The results of the study confirm that the orientation of Lawrence Friedman’s legal system regarding the ratification of the Draft Criminal Code is that the aspects of legal substance in the New Criminal Code have adopted Indonesian legal values and culture by applying the concept of restorative justice. From the aspect of legal structure, implementing the New Criminal Code in a transitional manner for three years has an orientation to provide socialization. From the aspect of legal culture, the orientation of restorative justice involves the public in the criminal justice process. The implication of Lawrence Friedman’s legal system puts forward the substance of customary law as the applicable law, related to the idea of restorative justice to the affirmation that imprisonment is a last resort. That has implications for the need for judges to understand customary law. From the aspect of the legal structure, the roles of judges, prosecutors and other law enforcement officials are also prioritized to provide the essence of justice in implementing the New Criminal Code. From the aspect of legal culture, the role and participation of the community are essential in efforts to prevent and enforce criminal law in society.
本研究旨在分析刑法草案(RKUHP)成为2023年第1号关于刑法的法律(新刑法)的法制化取向和影响。这项研究是规范性的法律研究,优先考虑概念和成文法的方法。这项研究的结果证实,劳伦斯·弗里德曼关于批准《刑法草案》的法律制度的方向是,新《刑法》的法律实质方面采用了印度尼西亚的法律价值和文化,采用了恢复性司法的概念。从法律结构上看,以过渡性方式实施三年《新刑法》具有社会化的取向。从法律文化的角度看,恢复性司法的取向将公众纳入刑事司法程序。劳伦斯·弗里德曼法律体系的含义是提出习惯法作为适用法律的实质,与恢复性司法的理念有关,与确认监禁是最后手段有关。这意味着法官需要了解习惯法。从法律结构方面看,法官、检察官和其他执法官员的作用也得到优先考虑,以便在执行《新刑法》时提供正义的实质。从法律文化的角度来看,在社会上预防和执行刑法的努力中,社区的作用和参与是必不可少的。
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引用次数: 1
Single Executive in The Indonesian Presidential System 印尼总统制的单一执行者
Pub Date : 2023-04-04 DOI: 10.29303/ius.v11i1.962
S. Sudirman
This article discusses a single executive in the Indonesian presidential system. A single executive is power as head of state and power as head of government depends, on one hand, on the President. However, the 1945 Constitution does not explicitly discuss the concept of a single executive, so information about this concept is not collected properly, so this article discusses in depth the concept of a single executive in the Indonesian presidential system based on the 1945 Constitution. This study uses normative legal methods. The finding indicated that the single executive in the Indonesian presidential system was based on the 1945 Constitution, which can be seen from the position of the president hold the inherent power of a head of state; the chief of the army, holds the pardon power, making government regulations and presidential regulations; appointing and dismissing ministers; holding the administrative power; and holding the diplomatic power.
本文讨论的是印尼总统制中的单一执行者。作为国家元首和政府首脑的权力一方面取决于总统。然而,1945年宪法并没有明确讨论单一行政机构的概念,因此关于这一概念的信息没有得到适当的收集,因此本文以1945年宪法为基础,对印尼总统制中的单一行政机构概念进行了深入的探讨。本研究采用规范的法律方法。研究结果表明,印尼总统制的单一行政机构是建立在1945年宪法的基础上的,从总统的地位可以看出,总统拥有国家元首的固有权力;陆军总司令拥有赦免权,制定政府规章和总统规章;任免部长;掌握行政权;并掌握外交权力。
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引用次数: 0
The Problems of International Civil Law of Indonesia in Protecting Transnational E-Commerce Consumers 印尼国际民法在保护跨国电子商务消费者方面存在的问题
Pub Date : 2022-12-29 DOI: 10.29303/ius.v10i3.1042
Musleh Herry, Meisy Fajarani
Technological advances on a transnational scale have had a considerable impact on all levels of Indonesian society. One of the technological advances is the existence of gadgets. Not only positive effects, but they also bring negative impacts. Furthermore, the existence of gadgets continues to grow with more transactions being carried out. Unfortunately, this can be a dispute. The purpose of this research is to propose the problems of Indonesian International Civil Law which have not regulated and provided guarantees to protect transnational e-Commerce interests and their solutions. The method used in this research is normative with a statutory and conceptual approach. The results of this study are the existence of Consumer Protection Law (UUPK), Electronic Information and Transactions Law (ITE Law), Money Supply Law (UUUP), and International Civil Law (HPI) of Indonesia have not provided a clear guarantee of protection related to the choice of law in transnational scale e-commerce contracts. Besides, they also have not been able to accommodate the interests of consumers. One of the solutions offered is concretizing the principle of the recipient country. It is a rule that allows end-users to apply the Consumer Protection Law of their country. This principle is excluded from consumer transactions. This also does not apply .e-commerce contracts. This principle is taken from the Rome and Brussels Convention which is incorporated into the Directive, namely the Law for the EEC community (Europe Union). To provide legal guarantees for consumers, thus the interests’s of consumers can be protected.
跨国规模的技术进步对印度尼西亚社会的各个阶层都产生了相当大的影响。科技进步之一是小工具的存在。不仅有积极的影响,也有消极的影响。此外,随着越来越多的交易被进行,小工具的存在也在继续增长。不幸的是,这可能会引起争议。本研究的目的是提出印尼国际民法在保护跨国电子商务利益方面缺乏规范和保障的问题及其解决方案。在本研究中使用的方法是规范性与法定和概念的方法。研究结果表明,印尼现行的消费者保护法(UUPK)、电子信息与交易法(ITE Law)、货币供给法(UUUP)和国际民法(HPI)并没有为跨国规模电子商务合同的法律选择提供明确的保护保障。此外,他们也没有能够适应消费者的利益。提出的解决办法之一是使受援国的原则具体化。这是一项允许最终用户适用其国家消费者保护法的规则。这一原则不适用于消费者交易。这也不适用于电子商务合同。这一原则取自《罗马和布鲁塞尔公约》,并被纳入该指令,即EEC共同体(欧洲联盟)法。为消费者提供法律保障,从而保护消费者的利益。
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引用次数: 0
The Implementation of Notary Inclusive Rights in The Frame of Law Enforcement As a Public Official 公务员执法框架下公证包容性权利的实现
Pub Date : 2022-12-27 DOI: 10.29303/ius.v10i3.1160
Ikhsan Lubis, Taufik Siregar, Ismail Koto, Ruetaitip Chansrakaeo, Duma Indah Sari Lubis
This article aims to describe the implementation of a notary’s inclusive rights within the framework of carrying out his duties as a public official. The granting of attribution authority to a notary as a public official is a special assignment that is intentionally made based on laws and regulations with certain roles, functions, and authorities to provide legal services (law enforcement) to the public who need authentic written evidence and the other civil laws authorities, along with inclusive legal protection in the enforcement of duties of a notary. The research method used is juridical normative, in which analyzing a legal event occur and followed by the comparative study between the legal source material and the legal rules that govern it in practice. This study aims to find out what, how, and why the position of a notary is attached to inclusive rights in terms of various legal aspects according to the research topic. The results showed that the form of legal protection that is inclusive of notaries as general officials have been sufficiently regulated in the constitution of the Notary Commission as well as the right to disobey and the obligation to disobey notaries. In addition, the existence of the Notary Honorary Council as a tool for the organization of the Indonesian Notary Association as well as the Notary Supervisory Board and the Notary Honorary Council has strengthened the position of an inclusive notary through preventive measures in the context of fostering and supervising the ethics of notary behavior and the practice of carrying out the duties of the notary commission under the rules in UUJN and UUJN-P.
本文旨在描述公证员在履行公职职责的框架内包容性权利的实现。公证员作为公职人员赋予归因权,是根据具有一定角色、职能和权限的法律法规,为需要真实书面证据的公众和其他民事法律机关提供法律服务(执法),并在公证员履行职责过程中提供包容性法律保护而有意作出的一项特殊指派。所使用的研究方法是司法规范,即分析发生的法律事件,然后比较研究法律来源材料和在实践中支配它的法律规则。本研究旨在根据研究课题,从法律的各个方面,找出公证员的职位是依附于包容性权利的,如何依附于包容性权利的,以及为什么依附于包容性权利的。结果表明,公证员作为一般公职人员的法律保护形式,以及公证员的不服从权和不服从义务,在公证委章程中都得到了充分的规定。此外,作为组织印度尼西亚公证协会以及公证监督委员会和公证荣誉委员会的工具,公证员荣誉委员会的存在通过在促进和监督公证行为道德以及根据ujn和ujn - p规则履行公证委员会职责的实践的背景下采取预防措施,加强了包容性公证员的地位。
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引用次数: 0
Problematic of Implementation of Electronic GMS on Deeds Made by Notaries 公证人证言实行电子GMS的问题
Pub Date : 2022-12-27 DOI: 10.29303/ius.v10i3.1106
Absori Absori, Aidul Fitriciada Azhari, Kelik Wardiono, Syifa Rana Tsary, Silaas Oghenemaro Emovwodo
The study reviewed the development of the digital era in the legal field, especially The Electronic General Meeting of Shareholders (GMS), which is ruled by law. The problem formulation was how the electronic GMS, according to positive law in Indonesia, and how the impact on the notarial deed related to its implementation. The method used by the researcher was normative and library study based on the primary material (legislation), secondary material (scientific works, journals, books, documents, and other literature), and tertiary legal materials (legal dictionaries). The study results were that E-GMS is effective today, then regulated in Art 77 UUPT and PJOK Number 16/Pojk.04/2020, so that the Limited Liability Company members can carry out the GMS as usual without being physically present to break the chain of the Covid-19 pandemic. Although the e-GMS arrangements have been regulated in the legislation, the lex specialist derogat lex generalist principle cannot be ignored; article 16 paragraph (1) letter (m) and Article 18 UUJN are still prioritized so that the electronic deed of the GMS cannot be carried out or will resulting in the legal force of the proof being a private deed.
该研究回顾了数字时代在法律领域的发展,特别是以法律为基础的电子股东大会(GMS)。问题的提法是电子GMS如何根据印度尼西亚的成文法,以及它的实施如何对公证契约产生影响。研究者使用的方法是基于一级资料(立法)、二级资料(科学著作、期刊、书籍、文件和其他文献)和三级法律资料(法律词典)的规范和图书馆研究。研究结果表明,E-GMS在今天有效,然后在Art 77 UUPT和PJOK第16/Pojk号中进行调节。4/2020,以便有限责任公司成员可以在不亲自出席的情况下照常开展GMS,以打破Covid-19大流行的链条。虽然电子管理系统的安排已在立法中作出规定,但法律专家克减法律通则原则不可忽视;第16条第(1)款(m)项和第18条ujn仍然是优先的,因此GMS的电子契约无法执行或将导致证明是私人契约的法律效力。
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引用次数: 0
Settlement of Juvenile Offenders Based on Restorative Justice 基于恢复性司法的少年罪犯安置
Pub Date : 2022-12-26 DOI: 10.29303/ius.v10i3.1018
S. Syafruddin
The establishment of Law No. 11/2012 was a government strategy for dealing with children as offenders and victims of crime. Despite juvenile criminal justice in place, society often stigmatizes child offenders. This study explores the use of restorative justice for children who have committed crimes. The normative method was used for a descriptive analysis of both statutory and case law. The findings showed that relying only on Law No. 11/2012 is not sufficient because each enforcement officer interprets it differently, necessitating the issuance of supporting regulations such as SE Kapolri No. SE/8/VII/2018, Prosecutor’s Office Regulation No. 15/2020, and PERMA No. 4/2014. To be held liable for one’s actions, as set out in Law no. 11/2012, a person must have both the intention to commit a crime and be aware that it will have a direct result in causing injury or physical harm to another person. Restorative justice is often seen as a more appropriate way to handle criminal acts involving children aged 8 and 13 years. At this age, children are still learning and trying to understand what is good and evil, which can lead them to behave in undesirable ways.
第11/2012号法律的制定是政府将儿童作为罪犯和犯罪受害者处理的一项战略。尽管有了少年刑事司法制度,社会却常常对儿童罪犯污名化。本研究探讨了对犯罪儿童使用恢复性司法。规范性方法被用于成文法和判例法的描述性分析。调查结果表明,仅仅依靠第11/2012号法律是不够的,因为每个执法人员对它的解释不同,有必要颁布配套法规,如SE Kapolri号。SE/8/VII/2018,检察官办公室条例第15/2020号和PERMA第4/2014号。根据第19号法律的规定,对某人的行为承担责任。11/2012,一个人必须有犯罪的意图,并意识到这将直接导致对另一个人的伤害或身体伤害。恢复性司法通常被视为处理涉及8岁和13岁儿童的犯罪行为的更适当方式。在这个年龄段,孩子们还在学习并试图理解什么是善与恶,这可能会导致他们以不受欢迎的方式行事。
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引用次数: 0
Effectiveness of Islamic Law in Protecting The Copyright of Indigenous Peoples of Indonesia in The Form of Traditional Knowledge & Traditional Cultural Expressions 伊斯兰法律在保护印度尼西亚土著民族传统知识和传统文化表现形式的版权方面的有效性
Pub Date : 2022-12-26 DOI: 10.29303/ius.v10i3.1141
Baiq Ratna Mulhimmah, Ridwan Olagunju
Copyright Protection of Indonesian Indigenous Peoples in the form of Traditional Knowledge (TK) &Traditional Cultural Expression (TCE) currently does not meet the sense of justice. The state is obliged to provide comprehensive protections capable of guarding the rights of Indigenous peoples under an adequate legal umbrella. Because the existence of Indigenous peoples, along with copyrights in the form of TK & TCE is part of the wealth and identity of the nation, this research focuses on how the view of Islamic law (Legal Opinion of Indonesian Ulama Council No.1 of 2003 concerning Copyright and Legal Opinion Of Indonesian Ulama Council No.1 of 2005 concerning Intelectual Property Right) with the maqasid al Shari’ah approach in protecting the rights of indigenous peoples. Islamic law is one of the secondary legal materials in determining state law and is expected to strengthen in providing solutions to this problem. The research method is normative with a concept and case approach to conclude that Islamic law (legal Opinion Of Indonesian Ulama Council) with the Maqasid al Shari’ah approach in protecting Traditional Knowledge (TK) &Traditional Cultural Expression (TCE) is a must. This is based on an obligation order covering several matters, including; the protection of life and hifzul nafsi/hifzul ‘irdhi, protection of reason (hifzul aqli), and protection of property (hifzul maal).
印尼原住民传统知识与传统文化表现形式的版权保护,目前并不符合正义感。国家有义务在适当的法律保护伞下提供能够保护土著人民权利的全面保护。由于土著民族的存在以及以传统文化和传统文化形式存在的版权是国家财富和身份的一部分,因此本研究的重点是伊斯兰法的观点(印度尼西亚乌拉玛委员会2003年第1号关于版权的法律意见和印度尼西亚乌拉玛委员会2005年第1号关于知识产权的法律意见)如何与maqasid al shariah方法保护土著人民的权利。伊斯兰教法是确定国家法律的次要法律材料之一,在解决这一问题方面有待加强。研究方法是规范的,以概念和案例的方法得出结论,伊斯兰法(印度尼西亚乌拉玛委员会的法律意见)与Maqasid al sharia €™ah方法保护传统知识(TK)和传统文化表达(TCE)是必须的。这是根据一项涉及若干事项的义务令,包括;保护生命和hifzul /hifzul / irdhi,保护理性(hifzul aqli)和保护财产(hifzul maal)。
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引用次数: 0
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