Showing papers in "Hasanuddin Law Review in 2022"
TL;DR: To help reduce the corruption in the criminal justice system, Indonesia should consider implementing a Deferred Prosecution Agreement (DPA) mechanism, which would not only aim for punishment to corporations, especially in special and general deterrence, but also accommodate in returning state assets from perpetrators as discussed by the authors .
Abstract: To help reduce the corruption in the criminal justice system, Indonesia should consider implementing a Deferred Prosecution Agreement (DPA) mechanism. DPA would not only aiming for punishment to corporations, especially in special and general deterrence, but also could accommodate in returning state assets from perpetrators. Indonesia could learn from the DPA models applied in the U.K. and U.S., as well as the proposed model in Australia. DPA models could be noteworthy in making the criminal justice process more effective, efficient, and less time-consuming, as well as resolving the problems of significant caseloads and ongoing corruption.
2 citations
TL;DR: The study revealed that security is one of the most critical issues which hinder the agreement between the EU and the US on PNR data protection.
Abstract: Privacy should become a key component in the IT system. It is not something to be considered at last but from the very early stages. Almost no nation has a greater sense of personal data security which could be equivalent to the European level. Since 9/11, the United States has declared to utilize PNR as a method for combating terrorism by associating PNR data with criminal records. Nevertheless, in fact, the majority of data found in the PNR is immense and most of this data is of a confidential nature. The paper used doctrinal legal research methodology utilizing the case and comparative law approach. It elaborates particular cases in relation to data protection issues. It also explores the differences between EU and US law which hinder the idea of data protection in particular on PNR. The study revealed that security is one of the most critical issues which hinder the agreement between the EU and the US on PNR data protection. As the EU promotes the highest standard to the data protection referring to the European community history and GDPR provisions, while the US places national security as a main priority beyond the privacy issues.
1 citations
TL;DR: In this article , the authors argue that states should enact and implement the exceptional rules to attack civilian buildings and forbid military use of civilian airports in internal armed conflict in the Middle East.
Abstract: Civilian airports in recent internal armed conflict are being affected by the military operations of state armed forces and non-state armed groups. A review of the recent internal armed conflict in the middle east shows increase attacks on airports, which often disrupts, altogether halts civilian navigation, and increase the risk of being affected despite the fact that international humanitarian law (IHL) does prohibit such civilian objects attack that violates humanitarian law except in certain situations when it became military objectives. Moreover, military use of airport, may not justify any attack and remains prohibited by other IHL principles. Despite the negative use of civilian airports by the military as a justification to legalize attacking airports, IHL framework restricts this practice. States did not enact national prohibitions or restrictions of military use or limit attacks against civilian airports. However, recent armed conflict indicates that states can counter violation of the protections provided to civilian objects while military use by prohibiting military use of civilian airport. This article argues that states should enact and implement the exceptional rules to attack civilian buildings and forbid military use of civilian airports.
1 citations
TL;DR: In this article , the policy of illegal oil palm plantations reform and the rooted regulation problem in forest areas during Joko Widodo era were examined and data was collected through the investigation of legal material regarding oil palm policies.
Abstract: Indonesia is the largest oil palm producer. The area of oil palm plantations is approximately 3.4 million. However, this large potential is not part away from legal issues such as illegal oil palm plantations. It is also implied by overlapping regulations and permits. This study aims to examine the policy of illegal oil palm plantations reform and the rooted regulation problem in forest areas during Joko Widodo era. This research relies on a normative legal approach. Data was collected through the investigation of legal material regarding oil palm policies. The results of this study indicate that the overlapping regulation contributes negatively to the reformation attempt. Yet, there are no legal products and policies regarding the dispute settlement of illegal oil palm in forest areas. Repressive implementation of criminal law does not solve the problem at the grassroots. The establishment of Job Creation Law provides new hope for the settlement of oil palm plantations problem by mainstreaming the nonlitigation mechanism, namely administrative sanctions.
1 citations
TL;DR: In this paper , the authors examined the effect of the disputes classification in the industrial settlement system, comparing arrangements according to the perspective of the International Labor Organization, China, Japan, and Kazakhstan, and trying to find the ideal concept of the type of industrial dispute to apply in Indonesia.
Abstract: This study aimed to examine the effect of the disputes classification in the industrial settlement system, comparing arrangements according to the perspective of the International Labor Organization, China, Japan, and Kazakhstan, and trying to find the ideal concept of the type of industrial dispute to apply in Indonesia. This research is normative legal research. The approaches used in this study were the statutory approach, conceptual approach, fact approach, and comparative approach. The results revealed that the classification of disputes in the industrial relations settlement system in Indonesia has an impact on the difficulty of the parties in classifying their disputes. Comparative studies were conducted to determine the classification of disputes in international law as well as in China, Japan, and Kazakhstan. The ideal concept that can be offered to Indonesia is the simplification or elimination of the classification of industrial relations to provide dispute resolution by applying the principles of fast, precise, fair, and inexpensive methods.
TL;DR: In this paper , the authors provide a detailed overview and thorough research regarding to the CICC and provide answers to the potential misunderstandings around the formation of the Chinese International Commercial Courts (CICC).
Abstract: People’s Republic of China (PRC) established China’s International Commercial Courts (CICC) and became one of the global competitors that offers international commercial dispute settlement service. Basically, the CICC formed to assist the enhancement of the “Belt and Road Initiative”. The formation of the CICC was an important progress in the judicial system of the PRC. The Supreme People’s Court (SPC) of the PRC equips the CICC with the necessary judicial interpretation. This article analyses the establishment of the CICC and its significant features. The goal of this research is to illustrate a detailed overview and thorough research regarding to the CICC. The current work also provides answers to the potential misunderstandings around the CICC. Based on the existing works of distinguished scholars some improvements regarding to CICC is incorporated in the research. The author also provides a comprehensive analysis of the functioning and structure of the CICC.
TL;DR: In this article , the role played by the United Nations in securing gender equality through conventions and resolutions, is artificial intelligence capable of posing a threat to gender equality and what measures can be implemented to secure gender equality about artificial intelligence.
Abstract: Technology is advancing at an exponential rate, and artificial intelligence has become a contentious issue of the day. A plethora of fields influencing human life has been impacted by artificial intelligence, whereas the development of artificial intelligence has opened Pandora’s box of legal concerns. Several international organizations, including the United Nations, have identified gender equality as an indispensable constituent of the protection of human rights. The voyage of gender equality has seen a long phase of struggle and persists. This paper aims to analyze, in what manner artificial intelligence is affecting gender equality, raising concerns on the issues regarding the role played by the United Nations in securing gender equality through conventions and resolutions, is artificial intelligence capable of posing a threat to gender equality and what measures can be implemented to secure gender equality about artificial intelligence.
TL;DR: In this paper , the authors elucidate the zero hunger goal as one of the central legal rights and identify challenges in executing it during the COVID-19 crisis and find that the progress of zero hunger is decelerated as the pandemic has caused few challenges.
Abstract: ‘Zero hunger is the world’s pledge under the Sustainable Development Goals 2030, which aims to end hunger, achieve food security and improve nutrition. Nevertheless, the mission had been seized as the world faced economic turndown due to the outbreak of the COVID-19 virus. The circumstances have brutally affected society’s ideal living standards and raised social problems such as extreme poverty, famishment, malnutrition, and medical conditions, specifically among vulnerable children. The essential purpose of this writing is to elucidate the ‘zero hunger goal as one of the central legal rights and identify challenges in executing it during the COVID-19 crisis. Data were collected through library studies and analyzed critically using the content analysis method. The writing finds that the progress of zero hunger is decelerated as the pandemic has caused few challenges. The paper concludes that all objectives under the SDG 2 are significant to be achieved to ensure vulnerable children’s survival. Thus, the paper recommends that humanitarian relief assists with food distribution among those in dire need, especially at-risk children. Furthermore, food and agricultural production must be maintained to guarantee enough food supply chain. Ultimately, every government must comply with SDG 2, specifically for the benefit of vulnerable children.
TL;DR: In this paper , the authors highlight the importance of applying imprisonment as a corporate criminal sanction in forestry crimes to observe and consider individual and far-reaching victims, and propose an alternative criminal sanction against corporations through identification where corporate liability could be identified through its management.
Abstract: Environmental harms are frequently part and parcel of ordinary commercial practice. This study aimed to highlight the importance of applying imprisonment as a corporate criminal sanction in forestry crimes to observe and consider individual and far-reaching victims. Forest crimes impact the community’s socio-cultural life and cause environmental damage by increasing global warming. Based on the laws and regulations, fines as criminal sanctions do not effectively deter corporations. Subsequently, imprisonment could be an alternative criminal sanction against corporations through identification where corporate liability could be identified through its management. Actions taken by the management are not based on their rights and authorities but those of the corporations. Therefore, imprisonment and other sanctions such as restitution are expected to effectively and viably address forestry crimes.
TL;DR: In this article , the authors discuss the problem of the crime of real servitude based on the ways of creating this right, and propose a separation of legal titles for the crime.
Abstract: Legal provisions define the right of servitude as a real right both in local legislation and in the legislation of European countries. Based on the local legislation, some shortcomings are encountered when it comes to the right of servitude, particularly the right of servitude in kind. An issue that will have to be addressed and compared with the legislation of other countries is the crime of the right of real servitude, based on the ways of creating this right. Based on the local legislation, it is emphasized that the right of real servitude can be created based on a legal title, the decision of a state body and based on the law. At the same time, no more detailed division is made to show which legal title belongs in which way, that of derivatives or original. In comparison, legislation of European countries such as Germany, Austria and France, as well as regional countries, it is emphasized that there are two ways for the crime of the right of real servitude. After the ways are mentioned, the separation of legal titles is done; such a thing should be defined in the legislation of Kosovo. Nevertheless, based on the provisions of the legislation in force, we note that where the legal titles for the creation of the right of real servitude are mentioned, there it is known that there are two ways of creating the right of real servitude that the derivative way and the original way of obtaining the right of real servitude, only that it would be more correct if they specified which legal title is considered a derivative title, which in our case is the contract and testament, and which would be considered an original title, which could be the decision of the state body such as that of the court or any administrative body.
TL;DR: In this article , the authors identify problems of information security of defense forces in Ukraine and find ways of their elimination, using formal logical, systemic structural, comparative and legal methods to conduct the research, and the results obtained are important for research, law-making and law enforcement activities.
Abstract: Relevance of the article - security has always been one of the priority issues of state policy. Considering that the defence forces are an inseparable part of state security, studying their information security is essential. The feasibility of this study is confirmed by the fact that in the current conditions of development of the information society, the information technology of the Ukrainian defence forces must adapt to the current challenges and threats, to ensure proper protection of information of strategic importance to the state and collected, consolidated and stored by the defence forces. This article aims to identify problems of information security of defense forces in Ukraine to find ways of their elimination. Formal logical, systemic structural, comparative and legal methods were used to conduct the research. It is stated that by dividing the information space and cyber space, the legislator has laid down legal regulation of protection of the state's information space. It is understood that the Lithuanian and Latvian forces for combating threats to the information space were consolidated within the structure of the Ministry of Defence. Consequently, the authorities argue that the system of entities responsible for protecting the information space needs to be optimized, creating conditions for state-private cooperation in this area, as in the case of Germany, and providing these entities with qualified employees. The results obtained are important for research, law-making and law enforcement activities.
TL;DR: In this paper , the mock application of the insolvency law in Jordan is analyzed by applying a qualitative legal approach, and the authors show that applying the law is still a theory and that Jordanian courts should cautiously extend the scope of the law to achieve the purpose for which it was issued.
Abstract: Jordan is currently going through difficult economic conditions whose features have begun to crystallize clearly since the outbreak of crises and wars in Syria and Iraq. In addition to that, the year 2020 brought with it the unknown to further complicate the Jordanian economic situation. In order to find a comprehensive solution, the Jordanian legislator used some international references, such as the principles of effective systems of creditors’ rights and insolvency issued by the World Bank and the Legislative Guide to the Insolvency Law issued by the United Nations Commission on International Trade Law (UNCITRAL) to rescue faltering economic projects or those that are about to stumble. The study resulted in the issuance of the Jordanian Insolvency Law No. 21 of 2018. This paper aims to identify the insolvency standard of the Jordanian courts and its impact on Jordan's economy. By applying a qualitative legal approach, this paper analyses the mock application of the Insolvency Law by the Jordanian courts. It also examines the insolvency standard followed by the Jordanian courts via juridical-normative with descriptive analysis. The finding shows that applying the insolvency law in Jordan is still a theory. Jordanian courts should cautiously extend the scope of insolvency theory for the law to achieve the purpose for which it was issued. Comparing the practice in Indonesia, which has switched from the insolvency test concept to the presumption of bankruptcy, this is a lesson because, in the conditions of the COVID-19 pandemic, companies will find it challenging to request reports due to uncertain situations. According to the financial aspect, large companies are still good, but companies are reluctant to pay debts. This condition means that if the system used is a bankruptcy test, this case cannot be brought to the Commercial Court, so the court cannot force debtors who are reluctant to pay their debt obligations.