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Amendment of the Corruption Eradication Commission Act and Its Impact on the Constitution 《清廉委员会法》的修改及其对宪法的影响
Pub Date : 2021-12-31 DOI: 10.18196/jmh.v28i2.10941
Josef Mario Monteiro
This study analyzed the sub-system factors influencing the amendment of the Corruption Eradication Commission Act (KPK Law) from the Cybernetics theory and the impacts on the Constitution. According to this theory, there are various kinds of sub-systems, where one sub-system is interrelated with other sub-systems. Each of the sub-systems referred to will influence each other based on the primary function of each of these sub-systems, such as the cultural sub-system, which has the primary function of maintaining patterns, the social sub-system as a function of integrity, the political function as a function of achieving goals, and the economic sub-system as an adaptive function. This doctrinal legal research employed statutory approaches and concepts and found that changes in the KPK Law are influenced by the political sub-system factor, particularly the strong political interests of the House of Representatives and the Government. As a result, the amendment to the KPK Law is undemocratic because it does not fulfill the formal and material principles. In addition, it does not philosophically fulfill the function of law, leading to constitutional values violation.
本研究从控制论的角度分析了影响《肃贪委员会法》修改的子系统因素及其对宪法的影响。根据这一理论,有各种各样的子系统,其中一个子系统与其他子系统相互关联。所述的每个子系统将根据每个子系统的主要功能相互影响,例如文化子系统具有维持模式的主要功能,社会子系统具有完整性的功能,政治功能具有实现目标的功能,经济子系统具有适应功能。这一理论法律研究采用了法定的方法和概念,发现KPK法的变化受到政治子系统因素的影响,特别是众议院和政府强烈的政治利益。因此,肃贪法修正案不符合形式原则和实质原则,是不民主的。此外,它没有在哲学上履行法律的功能,导致宪法价值的违背。
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引用次数: 0
The Role of International Human Rights Law in Fights Against Climate Change 国际人权法在应对气候变化中的作用
Pub Date : 2021-12-31 DOI: 10.18196/jmh.v28i2.10988
Andika Putra
This paper aims to examine the current international legal framework that addresses climate change and identify the role of international human rights law in climate change issues. This paper began by identifying the international legal basis, the development of international legal regimes, and looking at the character and nature of these frameworks. Furthermore, this study seeks to identify the role of international human rights law to close the gap left by the climate change framework. This normative legal research examined secondary data from relevant books, journals, and published documents. There were several findings from this research. First, the current international climate change framework is insufficient to address climate change problems and their adverse impact. Second, international human rights law may play a significant role in closing the current climate change framework gap. International human rights law will add distinctive value to the current system, perform the complementary function to the non-legally binding commitment, and provide an 'arena' for such non-compliance behavior of states parties.
本文旨在审查当前应对气候变化的国际法律框架,并确定国际人权法在气候变化问题中的作用。本文首先确定了国际法律基础、国际法律制度的发展,并考察了这些框架的特点和性质。此外,本研究旨在确定国际人权法在缩小气候变化框架留下的差距方面的作用。这项规范性法律研究检查了相关书籍、期刊和已发表文件中的次要数据。这项研究有几个发现。首先,目前的国际气候变化框架不足以解决气候变化问题及其不利影响。第二,国际人权法可能在缩小当前气候变化框架差距方面发挥重要作用。国际人权法将为现行制度增添独特的价值,发挥对不具法律约束力的承诺的补充作用,并为缔约国的这种不遵守行为提供一个“舞台”。
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引用次数: 0
Emergency Powers and Covid-19 in Thailand: Carl Schmitt’s Constitutional Emergency Model Reconsidered 泰国的紧急权力和Covid-19:卡尔·施密特的宪法紧急模式的重新思考
Pub Date : 2021-07-01 DOI: 10.18196/JMH.V28I1.11477
Rawin Leelapatana
Carl Schmitt was an anti-liberal conservative jurist during the Weimar Republic in Germany whose position on emergency powers sponsors a hardline form of ‘realism’. To restore peace and order qua the homogeneity of the people in times of crises, he sponsors the role of the sovereign in deciding on an extreme emergency even by transgressing the wordings of a written constitution. However, this article seeks to use the case of the Thai government’s response to Covid-19 through the invocation of emergency powers to expose deficiencies pertaining to the Schmittian model. Rather than calling for the politics of exclusion, the present outbreak of Covid-19 in Thailand reiterates the essence of legality and communitarian and social solidarity.
卡尔·施密特(Carl Schmitt)是德国魏玛共和国时期的一位反自由主义的保守派法学家,他对紧急权力的立场支持一种强硬的“现实主义”。为了在危机时期恢复和平与秩序,即人民的同质性,他支持主权在决定极端紧急情况时的作用,甚至违反成文宪法的措辞。然而,本文试图以泰国政府通过调用紧急权力应对Covid-19的案例来揭示施密特模式的缺陷。当前在泰国爆发的新冠肺炎疫情并没有呼吁排斥政治,而是重申了合法性以及社区和社会团结的本质。
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引用次数: 0
ASEAN Non-Intervention Principles: An Alternative Settlement towards Human Rights Violation in Rohingya 东盟不干涉原则:解决罗兴亚人侵犯人权问题的替代方案
Pub Date : 2021-07-01 DOI: 10.18196/JMH.V28I1.10892
Yulianto Achmad, Nanik Prasetyoningsih, M. Fath
The frame of international news is colored with a series of systemic and consistent human rights violation experienced by the Rohingya ethnic group in Burma. Toward this case, it is unlikely for Burma to be willing and to be able to resolve this case internally. Hence, as a regional security and stability guard in the Southeast Asia region, ASEAN should take part in settling human rights violations that occur in its member states. However, every settlement attempted by ASEAN is constantly distracted with Non-Intervention Principles. This research aims to examine the alternative ideas for Non-Intervention Principles of ASEAN as a settlement towards human rights violation on Rohingya ethnic. This research used normative research, based on the secondary data was employed as the research method. The obtained data were analyzed by using qualitative analysis. The research found that the Non-Intervention principle has been applied in ASEAN in the most rigid form. Meanwhile, Humanitarian Assistance and Humanitarian Intervention mechanism is an alternative settlement towards human rights violations on the Rohingya ethnic group in Myanmar
缅甸罗兴亚民族经历了一系列系统性和一贯性的侵犯人权行为,这给国际新闻的框架蒙上了色彩。对于这一案件,缅甸不太可能愿意并能够在内部解决这一案件。因此,作为东南亚地区的地区安全与稳定卫士,东盟应该参与解决其成员国发生的侵犯人权行为。然而,东盟尝试的每一项解决方案都不断被不干涉原则所干扰。本研究旨在探讨东盟不干涉原则作为解决罗兴亚人人权侵犯问题的替代思路。本研究采用规范性研究,以二次数据为研究方法。通过使用定性分析对所获得的数据进行分析。研究发现,不干涉原则在东盟以最严格的形式得到了应用。同时,人道主义援助和人道主义干预机制是解决缅甸罗兴亚族侵犯人权问题的替代方案
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引用次数: 1
Corporate Liability for Creditors’ Losses during the Covid-19 Pandemic Covid-19大流行期间债权人损失的企业责任
Pub Date : 2021-07-01 DOI: 10.18196/JMH.V28I1.10566
Suwinto Johan, A. Ariawan
Many companies experienced bankruptcy lawsuits during the Covid-19 pandemic in 2020. This was so when the companies’ asset cannot afford their obligations upon their creditors, especially banks and other financial institutions. The creditors demanded compensation to avoid losses due to the companies’ failure in repaying their loans. The question is who should be held liable if the companies are of limited liability companies. This paper aims to examine the liability of corporation for creditors' losses. This normative legal research relies on secondary data in the form of legal materials, especially primary and secondary legal materials. The result shows that demanding compensation through bankruptcy lawsuit is not an easy task for the creditors. In fact, a separate lawsuit is required rather than incorporating it in a bankruptcy lawsuit. Even, it is not only a matter of civil case but also criminal case. Therefore, the companies may be subjected to both civil and criminal liability.
在2020年新冠肺炎大流行期间,许多公司经历了破产诉讼。当公司的资产无法承担对债权人的义务时,尤其是银行和其他金融机构,情况就是这样。债权人要求赔偿,以避免因公司未能偿还贷款而造成的损失。问题是,如果这些公司是有限责任公司,谁应该承担责任。本文旨在考察公司对债权人损失的赔偿责任。这种规范性的法律研究依赖于法律材料形式的二次数据,尤其是一次和二次法律材料。结果表明,通过破产诉讼要求赔偿对债权人来说并非易事。事实上,需要单独提起诉讼,而不是将其纳入破产诉讼。甚至,这不仅是民事案件,也是刑事案件。因此,这些公司可能要承担民事和刑事责任。
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引用次数: 2
Implications of Legal Loophole concerning Liability over Delay in Restitution Payment by Criminal Offender 刑事犯罪延迟归还责任法律漏洞的启示
Pub Date : 2021-07-01 DOI: 10.18196/JMH.V28I1.10411
N. Aprilianda, Ryan Ilham Fibriansyah
Crime is harmful to society, especially to the victims. Legal protection should be taken into account to help the victims recover from the loss suffered. The protection can be made through the payment of restitution by either the offender or the third party. Such an issue has been addressed in the existing law, especially the Witness and Victim Protection Act 2014 (Amendment) and the Government Regulation No. 7 of 2018 concerning Compensation, Restitution, and Aid for Witness and Victim. Unfortunately, they do not impose any sanction over the delay in restitution payment by the third party or the offender. This paper aims at discussing the implication of this legal loophole. This normative legal research employs a statutory approach. It is found that the legal loophole has exposed the victims to secondary victimization due to uncertainty and injustice.
犯罪对社会有害,尤其是对受害者有害。应考虑到法律保护,以帮助受害者从所遭受的损失中恢复过来。保护可以通过罪犯或第三方支付赔偿金来实现。现有法律,特别是《2014年证人和受害者保护法》(修正案)和2018年关于证人和受害者赔偿、归还和援助的第7号政府条例,都解决了这一问题。不幸的是,他们没有对第三方或罪犯延迟支付赔偿金的行为施加任何制裁。本文旨在探讨这一法律漏洞的含义。这项规范性法律研究采用了法定方法。研究发现,法律漏洞使受害者因不确定性和不公正性而遭受二次伤害。
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引用次数: 0
Problematics of Determining Interest in Peer-to-peer Lending in Indonesia 印尼对等贷款利率确定问题
Pub Date : 2021-07-01 DOI: 10.18196/JMH.V28I1.10022
Muhammad Annas, M. Anshori
Peer-to-peer lending is considered as the solution for people who require loans with easy terms. However, peer-to-peer lending in Indonesia causes some new problem related to the essential nature of it. Authorization of Indonesian Joint Funding Fintech (AFPI) determines peer-to-peer lending interest-debt possible to violate competition law in Indonesia. The paper aims to describe and analyze the authorization of Indonesian Joint Funding Fintech, which has a big chance to harm competition law in Indonesia. The author uses normative legal research methods and secondary data sources to examine the topic in this study. The result shows that the arrangement of interest-debt in peer-to-peer lending potentially creates a cartel and violates the basic principles of competition law in Indonesia.
p2p贷款被认为是为那些需要贷款条件宽松的人提供的解决方案。然而,印尼的p2p借贷却引发了一些与其本质有关的新问题。印度尼西亚联合融资金融科技(AFPI)授权确定了可能违反印度尼西亚竞争法的点对点贷款利息债务。本文旨在描述和分析印尼联合融资金融科技的授权,这有很大的机会损害印尼的竞争法。作者使用规范的法律研究方法和二手数据来源来考察本研究的主题。结果表明,在p2p借贷中,利息债务的安排可能会形成一个卡特尔,违反了印度尼西亚竞争法的基本原则。
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引用次数: 2
Omnibus Law on Job Creation: State Capture? 关于创造就业的综合法案:国家控制?
Pub Date : 2021-07-01 DOI: 10.18196/JMH.V28I1.10654
Siska Ambarwati
The study aims to analyze whether there is a state capture in making the Job Creation Law. Since the Job Creation Law was raised, many parties have criticized the existence of the Law because in the making of the Job Creation Law it is believed that it is more beneficial to employers, giving rise to an indication of state capture in its making. The research method used is a form of normative research with a statutory approach. The result shows that there is a state capture carried out by the authorities and employers in the making of the Job Creation Law. About 262 or 45.5 percent of the 575 House of Representatives members are affiliated with the company and therefore the regulations to be made more favorable for employers or investors while the welfare of workers is at stake. The rushed legislative process causes the values and aspirations of the people to be unable to be proportionally aggregated and accommodated, and this is certainly contrary to the principle of participation and the principle of openness as stipulated in the provisions of laws and regulations.
本研究旨在分析在制定《创造就业法》时是否存在国家俘获。自从《创造就业法》提出以来,许多党派都批评该法的存在,因为在制定《创造就业法案》时,人们认为它对雇主更有利,这表明它的制定过程中有国家俘获的迹象。所使用的研究方法是一种具有法定方法的规范性研究形式。结果表明,在《创造就业法》的制定过程中,当局和雇主进行了国家捕获。575名众议院议员中,约262人(45.5%)隶属于该公司,因此,在事关工人福利的情况下,这些规定将对雇主或投资者更加有利。仓促的立法程序导致人民的价值观和愿望无法按比例聚合和容纳,这当然违背了法律法规规定的参与原则和公开原则。
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引用次数: 3
The Payment of Inheritance Acquisition Duty of Right on Land and Building in Sleman Sleman土地建筑权继承取得义务的履行
Pub Date : 2021-07-01 DOI: 10.18196/JMH.V28I1.10801
Perwitiningsih Perwitiningsih, Rikardo Simarmata
This research is aimed at revealing the collection practice of inheritance Acquisition Duty of Right on Land and Building (BPHTB) of Marital Properties in the form of land rights at Regional Finance and Assets Office (BKAD) Sleman and analyzing the practice based on the inheritance and land law. This research is empirical legal research. The data collected in this research are analyzed using a qualitative method and presented descriptively in order to obtain descriptive qualitative results. The result shows that there has been an overpayment of tax that should not be billed in the collection of BPHTB inheritance in the form of land as the marital property at BKAD Sleman since the living widow’s or widower’s right is counted. Land titles as joint assets, if registered only in the name of the heir without registering the spouse's name, the BKAD Sleman does not take into account the spouse’s right to the land titles. This calculation happens because a land certificate as the marital property is registered only under the name of a husband or a wife alone, and BKAD Sleman interprets this condition as that the owner of the certificate is the one whose name is registered on it.
本研究旨在揭示Sleman地区金融资产办公室(BKAD)以土地权的形式对夫妻财产的土地和建筑权继承征收义务的征收实践,并基于继承法和土地法对其进行分析。本研究为实证法学研究。本研究中收集的数据采用定性方法进行分析,并以描述性的方式呈现,以获得描述性的定性结果。结果表明,由于在世寡妇或鳏夫的权利已被计算在内,因此在BKAD Sleman以土地作为婚姻财产的形式征收BPHTB遗产时,不应多支付税款。作为共同资产的土地所有权,如果仅以继承人的名义登记,而不登记配偶的姓名,BKAD Sleman不考虑配偶对土地所有权的权利。之所以进行这种计算,是因为作为夫妻财产的土地证书仅以丈夫或妻子的名义登记,BKAD Sleman将这一条件解释为证书的所有者是其姓名登记在证书上的人。
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引用次数: 0
Interpreting Fiscal Risk for Lack of Bank Indonesia’s Capital 解读印尼银行资本金不足的财政风险
Pub Date : 2021-07-01 DOI: 10.18196/JMH.V28I1.8712
Y. Indrawati
The research is focused on determining the government's obligation to meet the shortage of capital of Bank Indonesia (BI), as the central bank, in the National State Budget (APBN). The research analyzes the basis of the government's obligation to meet BI's lack of capital and a mechanism for fulfilling the government's obligations to cover BI deficiencies in line with the objectives of the APBN. This study uses a normative legal research method with a statute, interdisciplinary, and analytical approach. The result shows that the government's obligation to suffice BI's capital is intended to maintain BI's sustainability so that BI can continue to carry out its responsibilities and obligations to maintain monetary stability. Monetary stability has implications for economic stability and increases in people's welfare. In addition, the fulfilment of government obligations is contingent, limited and final. This obligation will only be born if BI is no longer able to overcome the lack of capital. The cause of the lack of capital is beyond BI's control, as evidenced by the results of an examination by the Supreme Audit Agency and requires the approval of the House of Representatives.
该研究的重点是确定政府的义务,以满足印尼银行(BI)的资本短缺,作为中央银行,在国家预算(APBN)。本研究分析了政府满足商业银行资金不足的义务的基础,以及符合APBN目标的政府满足商业银行资金不足义务的机制。本研究采用规范的法律研究方法,结合法规、跨学科和分析方法。结果表明,政府有义务向央行提供足够的资金是为了维持央行的可持续性,从而使央行能够继续履行其维持货币稳定的责任和义务。货币稳定对经济稳定和人民福利的增加有影响。此外,政府义务的履行是偶然的、有限的和最终的。只有当BI不再能够克服资金缺乏的问题时,这种义务才会产生。最高审计署的调查结果证明,缺乏资金的原因超出了英国商业银行的控制范围,需要得到众议院的批准。
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引用次数: 0
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Jurnal Media Hukum
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