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Pandecta : Jurnal Penelitian Ilmu Hukum
Number of Followers: 0  

  This is an Open Access Journal Open Access journal
ISSN (Print) 1907-8919
Published by Universitas Negeri Semarang Homepage  [78 journals]
  • Disharmony of Domestic Refining Provisons for Mineral and Coal in
           Indonesian Laws and Regulations

    • Authors: Ira Fadilla Rohmadanti, Febriansyah Ramadhan, Ilham Dwi Rafiqi
      Pages: 1 - 7
      Abstract: Domestic refining practices of minerals and coal in Indonesia have not run efficiently and provided provisions for the country. The challenge of realizing the purification policy comes in turn, one of which is the problem of regulation. Hence, this study aims to examine and analyze mineral and coal (referred to as minerba) refining policy in the country in the laws and regulations, ranging from the level of legislation to implementing regulations. The research method used is normative legal research using a statutory and conceptual approach. The results showed that domestic minerba refining policies stated in many rules tends to be not one-way and is flexible, indicated by frequent changes in domestic refining policy. As a result, it causes disharmony between the Minerba Bill and the implementing regulations. Some implementing regulations, particularly Ministerial Regulations, are not in accordance with the principle of the obligation to increase the value-add by carrying out processing and refining domestically. Moreover, the regulation is considered contradictory due to providing opportunities for exporting minerals that have not been processed and refined, leading to reduced state revenues and impact on state losses.
      PubDate: 2022-07-04
      DOI: 10.15294/pandecta.v17i1.31236
      Issue No: Vol. 17, No. 1 (2022)
  • The Settlement of Mining Disputes and The Implementation of International
           Arbitration Awards

    • Authors: Suwarsit Suwarsit, Yoyo Arifardhani
      Pages: 18 - 28
      Abstract: Article 154 of the Law of the Republic of Indonesia Number 4 of 2009 concerning Mineral and Coal Mining has regulated dispute resolution through domestic courts and arbitration. In fact, the dispute resolution such as the divestment cases of PT Newmont Nusa Tenggara and PT Kaltim Prima Coal was settled at the International Arbitration Institute. Furthermore, the resolution of the dispute over the divestment of mineral and coal mining shares against PT Newmont Nusa Tenggara and PT Kaltim Prima Coal through the International Arbitration Institute was accepted and some were rejected. The purpose of this research is to find the settlement of mineral and coal mining disputes and the implementation of international arbitration decisions. The results of the study show that in addition to resolving mineral and coal mining disputes, contracts made by mining business actors with the Government of Indonesia, both Contracts of Work and Coal Mining Concession Work Agreements, dispute resolution is carried out through International Arbitration institutions besides being regulated through courts and domestic arbitration. The implementation of international arbitral awards according to Indonesian law must meet several conditions, one of which is that the decision is handed down by an arbitrator or arbitral tribunal in a country with the Indonesian state bound by agreements, both bilaterally and multilaterally. Regarding the recognition and implementation of international arbitration awards, if the starting point is Article 3 in the New York Convention, a request for recognition and execution from one of the participating countries to a participant in another country must be executed, but Article 5 of the New York Convention provides the possibility for a participating country to refuse it.
      PubDate: 2022-07-04
      DOI: 10.15294/pandecta.v17i1.32557
      Issue No: Vol. 17, No. 1 (2022)
  • Access to Justice Based on Expert Testimony in Tax Crimes: An Integrated
           Criminal Justice System Perspective in Indonesia

    • Authors: Setia Untung Arimuladi
      Pages: 29 - 36
      Abstract: Several cases of criminal acts in the field of taxation show differences in calculating losses in state revenue between prosecution and judge's decisions; several decisions acquit or punish a defendant. There is still ambiguity in treatment between the application of criminal tax sanctions or administrative tax sanctions, so it is necessary to and urges to conduct a study of access to justice in terms of setting expert statements in tax crimes based on the principle of equality before the law and the principle of checks and balances in building a solid integrated criminal justice system. Two main conclusions were drawn based on case studies and literature reviews using the normative juridical method, the access to justice, and the progressive legal models. First, experts in calculating losses on state income and experts on tax regulations in taxation are still dominated by internal employees of the Directorate General of Taxes (DGT), which of course will reduce the value of the independence of the experts' statements because they cannot be separated from conflicts of interest with their institutions. Second, experts who provide information in a tax crime must be competent, independent, capable, and objective in providing information and opinions so that it needs to be made in the form of a cross-institutional ad hoc team with accountability in the form of a report on the results of the examination. It is necessary and urgent to provide legal certainty in access to justice for expert testimony to update the rules regarding procedures for expert testimony in tax crimes.
      PubDate: 2022-07-04
      DOI: 10.15294/pandecta.v17i1.32622
      Issue No: Vol. 17, No. 1 (2022)
  • Model for Ulayat Land Dispute Resolution Based on Participatory Justice in
           the Era of Sustainable Development

    • Authors: B Rini Heryanti, Amri Panahatan Sihotang
      Pages: 37 - 49
      Abstract: The goal of this research is twofold: to investigate and evaluate the existing model for the resolution of disputes concerning customary rights in Indonesia and to devise a model for the resolution of such conflicts that is founded on participatory justice and is appropriate for use in an era in which sustainable development is a priority. The Juridical Empirical approach is employed as the methodology for this investigation. According to the study’s findings, the lack of instruments or mechanisms for resolving ulayat land disputes will make it difficult for indigenous peoples to gain access to the magical religious values of indigenous peoples related to the spiritual, social, and cultural values of indigenous peoples. These magical religious values are tied to indigenous peoples’ traditional ways of life. Indigenous peoples’ rights can be protected through participatory justice by exerting influence over the processes and policies involved in the resolution of ulayat land disputes. This ensures that indigenous peoples will continue to have access to social rights and human rights about preserving their values, spiritual, social, and cultural qualities sustainably.
      PubDate: 2022-07-04
      DOI: 10.15294/pandecta.v17i1.33299
      Issue No: Vol. 17, No. 1 (2022)
  • ASEAN’s Role in Protecting Migrant Workers’ Rights During the
           Covid-19 Pandemic

    • Authors: Budi Hermawan Bangun
      Pages: 50 - 57
      Abstract: This paper focuses on ASEAN’s efforts as a regional organization to protect the rights of migrant workers in the Covid-19 pandemic situation. The protection of the rights of migrant workers is part of the protection of human rights regulated in various international legal instruments as well as within the ASEAN framework, especially in the ASEAN Consensus on the Promotion and Protection of the Rights of Migrant Workers (ACPPRMW). Although responding quickly to the impact of the Covid-19 pandemic on the economic and health sectors, ASEAN’s response and efforts in protecting the rights of migrant workers during the Covid-19 pandemic were late and ineffective. This is also an illustration of the ineffective implementation of the system and mechanism for the protection of migrant workers in ASEAN as well as the implementation of other ASEAN human rights legal instruments, due to the main principle that is firmly held by ASEAN, namely the non-interference principle.
      PubDate: 2022-07-04
      DOI: 10.15294/pandecta.v17i1.33550
      Issue No: Vol. 17, No. 1 (2022)
  • Broaden The Authority of The Corruption Criminal Act Courts in Order to
           Eradicate Corruption, Colusion and Nepotism

    • Authors: Sultan Fauzan Hanif
      Pages: 58 - 68
      Abstract: Seriousness in eradicating KKN as a whole and not only focusing on eradicating corruption alone is in line with the regulations regarding collusion and nepotism in the Law on the Implementation of Clean and KKN-free Government. In the legislation, collusion and nepotism are formulated as criminal acts whose perpetrators are threatened with criminal sanctions. This means that collusion and nepotism are actions that are prohibited by the law. Indonesia has a Special Court to hear corruption cases, but these courts do not have the authority to try criminal acts of collusion and nepotism. The formulation of the problem raised in this paper is 1) What is the urgency of determining the court that is authorized to adjudicate criminal acts of collusion and nepotism' 2) What is the legal policy that should be related to the authority to adjudicate criminal acts of collusion and nepotism' The research method used `is normative legal research. The results of the study indicate that although juridically, the crime of collusion and nepotism should be tried in the general court, in this case the district court, in practice, the crime of nepotism has been tried and decided at the Corruption Court at the Class IA Bengkulu District Court in Decision Number 61/Pid. Sus-TPK/2016/PN.Bg. Therefore, it is necessary to clarify what court is authorized to adjudicate criminal acts of collusion and nepotism. The legal policy that related to the authority to adjudicate criminal acts of collusion and nepotism should be to expand as a step to strengthen the comprehensive eradication of KKN, if these steps are not taken, it is important to revoke the provisions for criminal acts of collusion and nepotism contained in the Law on the Implementation of Clean and KKN-free Government to ensure legal certainty .
      PubDate: 2022-07-04
      DOI: 10.15294/pandecta.v17i1.33036
      Issue No: Vol. 17, No. 1 (2022)
  • Who Should Regulate The Industry of Financial Technology'

    • Authors: Suwinto Johan, Sugiarto Sugiarto
      Pages: 70 - 77
      Abstract: Financial technology (fintech) has outgrown its capacity. Industry supervision and consumer protection have become a challenge. Until now, the Indonesian Financial Services Authority (OJK) has been considered responsible for supervising the financial technology industry. The purpose of this research is to determine whether the Indonesian Financial Services Authority is capable of leading the fintech industry and whether a separate agency to oversee the fintech industry is necessary. This study employs a normative juridical methodology. This study examines the entire financial industry. According to this research, the Indonesian Financial Services Authority lacks the authority to regulate the fintech industry. The government should enact special legislation and regulations to govern the fintech industry. The regulator must consider creating a separate agency to supervise the fintech industry, similar to the Indonesian Financial Services Authority. This particular agency is comprised of individuals with ties to the financial sector, the telecommunications industry, and other law enforcement personnel.
      PubDate: 2022-07-04
      DOI: 10.15294/pandecta.v17i1.34048
      Issue No: Vol. 17, No. 1 (2022)
  • Analysis of The Merger of PT Bank Syariah Indonesia in Legal and Sharia

    • Authors: Khotibul Umam, Vina Berliana Kimberly
      Pages: 78 - 91
      Abstract: Legal analysis are necessary to the general considerations for merging in order to create a national banking industry structure that is strong and competitive and responsive to future challenges and special considerations for the merger of PT BNI Syariah and PT Bank Syariah Mandiri into PT Bank Syariah Indonesia, namely as an effort to create new and contributing national development workers. Towards the welfare of the wider community and shows the performance of sharia banking in Indonesia which is modern, universal, and provides goodness for all nature (Rahmatan Lil ‘Aalamiin). This issue has significance to be studied based on law and sharia because it can be a legal reference in the future. The research was conducted based on normative legal research and qualitative analysis. The result of this research shows that the considerations and the merger process are based on statutory regulations and have complied with sharia principles in the sense of fulfilling the values and objectives of Islamic banks, as well as being in line with the function of law as a means of development in order to achieve the benefit of the people and all the people of Indonesia.
      PubDate: 2022-07-04
      DOI: 10.15294/pandecta.v17i1.34539
      Issue No: Vol. 17, No. 1 (2022)
  • Ontological Study of The Classification of People in The Transfer of Land
           Rights in Realizing Legal Certainty

    • Authors: Rahadi Wasi Bintoro, Noor Dzuhaidah Dzuhaidah, Antonius Sidik Maryono, Sanyoto Sanyoto, Weda Kupita
      Pages: 92 - 103
      Abstract: Regulation of the Minister of State for Agrarian Affairs/ Head of the National Land Agency No. 3 of 1997 concerning Provisions for the Implementation of Government Regulation Number 24 of 1997 concerning Land Registration contains regulations regarding the classification of the population in the preparation of a certificate of inheritance. At present, such arrangements are considered irrelevant, especially since there are already regulations concerning citizenship and population administration in a law. Therefore, this article discusses the ontological basis for regulating population classification in Indonesia. In order to answer these problems, three normative research approaches are used, in the form of a statutory approach, a historical approach and a conceptual approach. This study uses primary and secondary sources of legal material, which after an inventory has been processed and analyzed using a qualitative approach. The classification of the Indonesian population, when viewed from an ontological study, was a policy of the Dutch East Indies government to divide the Indonesian nation and reduce the power of customary law and Islamic law that developed in society. However, if judging from the existence of the Regulation of the State Minister of Agrarian Affairs/Head of the National Land Agency Number 3 of 1997, the classification of the population which has implications for the institution authorized to make certificates of inheritance is not due to the politics of dividing the Indonesian nation. This rule exists because it is still possible for people to submit to the law of inheritance of Burgelik Wetboek. This regulation in the statutory system is hierarchically positioned lower than the law. Even though this regulation is inferior and contradicts the Citizenship Law and the Population Administration Law, and therefore contradicts the principle of lex superior derogate legi inferiori, but to prevent a legal vacuum this Ministerial regulation is still in effect.
      PubDate: 2022-07-04
      DOI: 10.15294/pandecta.v17i1.34806
      Issue No: Vol. 17, No. 1 (2022)
  • Quo Vadis Protection of The Basic Rights of Indonesian Workers:
           Highlighting The Omnibus Legislation and Job Creation Law

    • Authors: Nyoman Mas Aryani, Ayu Putu Laksmi Danyathi, Bagus Hermanto
      Pages: 104 - 120
      Abstract: This article focused on the dynamics following the enactment of the Law on Job Creation. Pros and cons were raised publicly, with proponents arguing that the Omnibus Legislation method could be used to propose leaps and further forward steps for national economic acceleration with more effective and efficient investment and the creation of new job fields in Indonesia. However, the opposition argued that this law, enacted using the Omnibus Legislation method, was not prepared and did not involve workers or worker unions in the lawmaking process prior to its enactment. Furthermore, this law has crucial and controversial provisions that weaken workers’ rights fulfillment compared to the previous arrangement. This condition is the primary issue that created a chasm between workers with their rights and their employers, and it is the basis for further analysis of legal norms in the entirety of the Law on Manpower and the Law on Job Creation. With the use of a normative legal research method supported by a statutory law approach and a legal conceptual approach, as well as a legal material searching method and argumentative analysis, legal research is conducted. This article discovers and proposes fundamental principles, concept formulation, and concept proof comprehensively regarding Employment Law policy dynamics in Indonesia and pursues basic rights of workers protection after enactment of the Omnibus Law on Job Creation to ensure the realization of worker rights protection including industrial relations problem, and certainty guarantee that Employer must fulfill.
      PubDate: 2022-07-04
      DOI: 10.15294/pandecta.v17i1.34948
      Issue No: Vol. 17, No. 1 (2022)
  • Prophetic Law Accentuation in Marriage Regulations in Indonesia: Efforts
           to Maintain Family Resilience During The Pandemic

    • Authors: Adi Nur Rohman
      Pages: 121 - 128
      Abstract: The Indonesian people during the pandemic seemed to forget the purpose of married life which idealizes a household that lasts forever. The increasing divorce rate during the pandemic seems to confirm this hypothesis regardless of any triggering factors. Of course, the product of legislation related to marriage and family must be able to maintain the integrity and resilience of the family. This article aims to analyze transcendental values in marriage law regulations which play a very significant role in building family resilience. This article is in the form of a normative legal study that instrumented the approach to the application of laws and the philosophical approach and prophetic legal theory as a knife of analysis. The results of the study show that emphasizing divine values on rules that build and family resilience is absolutely necessary in and maintaining family resilience which is manifested in a sakinah, mawaddah and rahmah household. Prophetic values such as efforts to complicate divorce, legalization of marriages based on religious law, marriage as a form of lifelong ubudiyah must be internalized in applicable legal regulations.
      PubDate: 2022-07-04
      DOI: 10.15294/pandecta.v17i1.35516
      Issue No: Vol. 17, No. 1 (2022)
  • An Exoneration Clause in Standard Agreements: Problems in Consumer

    • Authors: Agustianto Agustianto
      Pages: 129 - 136
      Abstract: Standard agreements have been applied to the current business world in Indonesia. Problem in this research is relating to the standard agreement contains an exoneration clause that may cause detrimental to consumers. The purpose of this study is to analyze the legal protection in Indonesia for consumers related to standard agreements. The method in this research is normative juridical and the use of the theory of legal protection by Philipus M. Hadjon and the theory of law as a tool of social engineering by Roscoe Pound. Based on the research results, Law Number 8 of 1999 concerning Consumer Protection has provided repressive approaches, namely the protection given at the end and preventive namely the protection provided when a violation occurs. Legal protection has not been able to become a tool in social engineering, changing people’s behavior and creating a civilized society. Therefore, the recommendation in this study is that Law Number 8 of 1999 concerning Consumer Protection should be amended by containing strict sanctions for business actors who apply standard agreements containing exoneration clauses in the hope that these sanctions can provide a deterrent effect and can change people’s behavior to obey the laws that have been regulated.
      PubDate: 2022-07-04
      DOI: 10.15294/pandecta.v17i1.35401
      Issue No: Vol. 17, No. 1 (2022)
  • Online Dispute Resolution as an Alternative Model for Dispute Settlement
           in The Financial Technology Sector

    • Authors: Dona Budi Kharisma, Nadzya Tanazal E.Ar
      Pages: 137 - 145
      Abstract: Financial technology (fintech) is the use of technology in financial services in the digital economy era. Digital payments, peer-to-peer lending, and crowdfunding are examples of fintech that is growing rapidly in Indonesia. However, the high number of disputes in the fintech sector is an indication of the need for a dispute resolution mechanism that is fast, simple, and low-cost. In this regard, online dispute resolution (ODR) is present as an alternative dispute resolution model. ODR has many challenges, such as the existence of a legal vacuum (rechtsvacuum) regarding the ODR mechanism, internet disruption, and the weak protection of personal data in Indonesia.
      PubDate: 2022-07-04
      DOI: 10.15294/pandecta.v17i1.25267
      Issue No: Vol. 17, No. 1 (2022)
  • Application of The Juridic-Scientific Religious Approach Model in
           Execution of Penal Law Enforcement

    • Authors: Anis Widyawati, Dian Latifiani, Nurul Fibrianti, Ridwan Arifin, Rohmat Rohmat
      Pages: 146 - 157
      Abstract: Reforming the criminal application legislation in the national legal system is critical. This research uses the paradigm of legal constructivism and the type of research used is juridical-sociological. Criminal law enforcement regulations are currently still scattered in various laws and regulations, it is not impossible that they will disrupt the law enforcement system, especially in the implementation of criminal decisions/actions. Character building is an effort to establish a conservation value system to achieve the value of justice, the value of certainty and the value of benefit in law enforcement for the implementation of criminal law. Therefore, efforts are needed to enforce the law on the implementation of criminal law through a juridical-scientific-religious approach that is oriented (guided) on “science” (criminal implementation law) and “God’s guidance”. The juridical-scientific religious approach is realized as a concrete effort to reform the law through reforming the substance and culture of the law. In reforming the legal substance, the religious approach is carried out by making religious teachings a source of motivation, inspiration, and creative evaluation source in building legal people with noble character, so that concrete efforts must be developed in the content of national legal development policies.
      PubDate: 2022-07-06
      DOI: 10.15294/pandecta.v17i1.35812
      Issue No: Vol. 17, No. 1 (2022)
  • Progressive Agrarian Law as a Concept to Attain Social Justice

    • Authors: Muh Afif Mahfud
      Pages: 158 - 166
      Abstract: The management of Indonesian agrarian law has created discrepancy of resources ownership or injustice. This article offer a new perspective namely progressive agrarian law. This is a normative juridical research with conceptual approach by using primary, secondary and tertiary data. Those data are collected through literature research and analyzed with content analysis. Based on analysis, it can be concluded that there are several characteristic of progressive agrarian law, namely : (1) dynamic and contextual and respect the diversity because this consider social-political-cultural and economical condition of the society; (2) agrarian justice oriented to solve inequality of agrarian resources by doing affirmative action; (3) emphasize the importance of conscience in law making and law enforcement (involve intellectual, emotional and spiritual quotient); (4) give the chance for law enforcement to do rule breaking toward injustice regulation (substantive justice orientation); (5) pay attention disadvantage person (poor people) who lives under poverty and experience injustice.
      PubDate: 2022-07-07
      DOI: 10.15294/pandecta.v17i1.34022
      Issue No: Vol. 17, No. 1 (2022)
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