Showing papers in "Yuridika in 2014"

Karakteristik good corporate governance pada bank syariah dan bank konvensional

Abstract: Basically, good corporate governance is the implementation of the vision and mission of Islamic banking. The main point is the reference of this visionis to fulfil the principle of prudence (prudential banking). Meanwhile, point mission is to prepare and implement the concept of risk-based regulation and supervision to ensure the sustainability of Islamic banking operations in accordance with the characteristics that Islamic corporate governance meant that economic activity actually undertake into achieve its goal, both goals hablumminallah and hablumminannas. This is reasonable, because Islamic Corporate Governance has become the soul of all parties involved in the company (stakeholders), the fraud, speculation, insider-trading, or else can be minimized. Keywords: GCG, sharia banking, conventional banking.

Urgensi analisa 5c pada pemberian kredit perbankan untuk meminimalisir resiko

Abstract: Application of the principle of 5 C in the banking world is often not implemented optimally by the banks. One factor is that the number of its targets to be achieved by the bank or the debtor is an urgent requirement so often do in any way to make the submission of credit is received by the bank. Principle 5 C should carry cumulatively, but in practice this principle applies only limited to whether the debtor has a large mortgage or not. It is actually going to bring impact on large-scale national development, especially economic development in Indonesia. Key words: principle 5C, banking, credit.

Implementasi restorative justice dalam penegakan hukum pajak

Abstract: In order to prevent the tax evasion, the tax law can be enforced by tax collection, tax assessment and tax investigation. This paper is based on legal research using statute and conceptual approaches. The legal issues of this paper focus on two problems; the philosophical basis and general philosophy of restorative justice in the law enforcement and whether the philosophical and restorative justice principles become a foundation for the tax law enforcement in Indonesia. The result of the paper indicates that the philosophical and the restorative justice principle has become the foundation for regulation and tax enforcement rather than repressive or retributive justice. Persuasive approach focused on tax payers and officers’ consensus is the best mechanism for tax evasion, not only related on civil and criminal matters, but also for administrative. The implementation of restorative justice principle will be appropriate if the principle is accompanied by good governance principles. Keywords: tax, restorative justice, law enforcement, persuasive, and concensus.

Prinsip hukum dalam tata kelola rumah sakit

Abstract: Health is a part of human right and one of the elements of well-being that should be realized in accordance with the ideals of the nation of Indonesia as stipulated in Pancasila and the Constitution of the Republic of Indonesia Year 1945. As the implementing regulations contained in Law No. 36 of 2009 on Health, in Article 1 point 1 is determined “Health is a state of health, both physically, mentally, spiritually and socially to enable more people to live socially and economically productive”. Thus, health is a part that should be pursued to achieve the welfare of the nation. One of the efforts to achieve should be manifested in the provision of health care facilities. Keywords: health, hospital, health services.

Konvensi ketatanegaraan sebagai batu uji dalam pengujian undang-undang di mahkamah konstitusi

Abstract: This research attempts to analyze in normative manner the use of constitutional convention as source of laws and cause of action for Constitutional Court (Mahkamah Konstitusi) in constitutional review and to explain further the meaning of constitutional convention as unwritten law. This research indicates that: constitutional convention cannot be included into legal regulation hierarchy. Refers to the meaning and concept of convention as unwritten law cannot be included because it will violate the essence of constitutional convention as unwritten law; The role of constitutional law is to cover the weaknesses of constitutional regulations can be used as a companion to written constitution serves as reference for The Constitutional Court, so that the existing and respected constitutional values and practices need to be considered. It also functions to preserve values which are considered as sacred or it is considered impossible to amend the constitution quickly because of constitutional issues. Keywords: constitutional court, constitutional convention, unwritten law

Pengujian konstitusional undang-undang pengesahan perjanjian internasional

Abstract: This research aims to analyze normatively about the nature of the act of the ratification of international treaties and outlines the act of constitutional review to the ratification of international treaties. The results of research shows: 1) the standing of international treaties is dependent on the scores of international law who espoused a country. Ratification of a treaty embodied through the two phases namely: the phases of the national law and of international law; 2) the meaning of “DPR approval” must be viewed in the context of internal procedures meanwhile ratification must be vied of external procedure. 3) Constitutional review may results in wide and problematic decision. If it is declared void then execution of the decision will face obstacles. If there is a denunciation, Government is in the difficult position and even can trigger dispute to the international Court of Justice. Keywords: ratification, international agreement, legislation

Kajian penerapan asas ultra petita pada petitum ex aequo et bono

Abstract: In judicial practice, that more than likely a lawsuit granted by the court , it often demands the principal ( the primary petition ) is accompanied by replacement demand ( petitum subsidiary ). The contents of the demands it usually reads : " ex aequo et bono " or " please take decisions based on fairness and propriety " . The goal is not to be denied that the primary demand is still possible granting of a lawsuit based on the freedom of judges and justice , in a decision handed down by the judge . Independence of judges in adjudicating the petition accompanied lawsuit subsidiary limited by a principle , namely that : a. Judge shall adjudicate all claims section ( vide Article 178 paragraph ( 2 ) and Article 189 paragraph HIR ( 2 ) Rbg ). b. Judge barred verdict on the case is not prosecuted or granted more than required ( vide Article 178 ( 3 ) HIR and Article 189 ( 3 ) Rbg ). This principle is sometimes called the principle of ultra petita the judge's decision, that in the application raises a particular problem when judges have ruled on the petition relating to the subsidiary, then the research we are doing to provide additional insight for all those who want to understand about the application of the principle in the imposition of ultra petita subsidiary petition or petition of ex aequo et bono.

Kepentingan umum dalam perlindungan paten

Abstract: This article aimed at studying provisions in TRIPs Agreement and Law Number 14 of 2001 regarding Patent, particularly provisions reflecting criteria of public interest.The approach used is statutory and conceptual approaches by analysing TRIPs Agreement and Law Number 14 of 2001. It is concluded that public interest has been stipulated generally in TRIPs Agreement and Law Number 14 of 2001 in their provisions regarding kind and scope of the use of limitation and exception of patent holder’s exclusive rights. Law Number 14 of 2001 basically has implemented limitation and exception provisions stipulated in TRIPs Agreement. However, it does not provide further and clearer elaborations on some provisions that need to be elaborated further. In addition, both TRIPs Agreement and Law Number 14 of 2001 do not provide criteria as to public interest. Keywords: public interest, criteria, exception, limitation, patent.

Aspek hukum pidana dalam kaitannya dengan perizinan di bidang pertambangan

Abstract: Formulation of maladministration is confounding between a fault, an official responsibility or a personal responsibility. The definition of maladministration in the criminal provisions on the Act 4 of 2009, the formulation of Article 165 does not specify fault elements as well as the intent and dolus and culpa relating to criminal liability. In addition, the criminal provisions on the Act No. 4 of 2009 has not memprekripsikan of malversation as a whole, only contains a clause of Article 165. In many cases related to the regional head of mining permits in some areas, so many overlapping permits caused by maladministration authoritie. Keywords: maladministration, responsibilities, permissions.

Sita jaminan dalam kepailitan

Abstract: The law of bankruptcy basically has to pay more attention and give a proportionate legal protection between the interests of debtors to creditors, even also the interests of other credi-tors, who do not have a file in the bankruptcy process. Unfortunately, the legal protection for the other creditors which is regulated in Article 10 Law No. 37/2004 contains many weak-nesses and give many erroneous interpretation in the field of its structure, culture and the substance. Therefore, the legal enforcement and the conservatoir measures in bankruptcy law which has been intended to protect the legal interests of what we called “the other credi-tors” in the commercial court decision becomes unpredictable. Keyword : bankruptcy, other creditors, debtors.

Menciptakan itikad baik yang berkeadilan dalam kontrak asuransi jiwa

Abstract: An insured who bind themselves to the insurer to protect his life by taking life insurance, of course, will conduct the closing of the contract of insurance agreements. To close this insurance contract the insured is deemed very essential to peruse the terms and conditions and the rights and obligations that will he get. In many cases it is turned to be extremely detrimental to the insured party when related to the contract of insurance. This is due to a lack of good faith on the part of the insurer to pay insurance claim filed by the insured or beneficiary. Instead, the insured is required to execute an agreement in good faith even at the beginning of the insurance contract the insured has been burdened insurance for acting in good faith. Keywords: contract, good faith, life insurance.

Penerapan prinsip pembuktian hukum perdata formil dalam arbitrase berdasarkan undang-undang nomor 30 tahun 1999

Abstract: In the dispute resolution mechanism both litigation and non-litigation such as arbitrary, proofing evidence process plays essential role to reconstruct the real occurrence in order to seek the truth. Proofing principles that is used in Indonesian arbitrary process is based on the Law number 30 year 1999 on arbitrary and alternative dispute resolution that is lex arbitri for Indonesia. Arbitrary is part of formal civil law, therefore its proofing principles is basically the same with the dispute resolution trough litigation. The Law number 30 year 1999 shows that Even though Indonesia is a civil law jurisdiction, there are some common law principles that are accommodated in the arbitrary process. Using conceptual and statute approach, this article attempts to look at proofing principles may arise in arbitrary mechanism based on the law mentioned and based on the actual practice. Keywords : arbitrary, proofing principles, civil procedural law.

Penanganan risiko hukum pembiayaan di bank syariah

Abstract: The most of the assets of syariah banks are financing. On one side it is the largest source of income. however it could be the source of the greatest business risk as well. Therefore, quality of the financing must be protected and kept feasible. The legal issue analyzed in this article is about the efforts being made by Islamic banks to handle legal risks arising from financing. The approach used is the statute approach and conceptual approach. The efforts made by syariah banks in dealing with risk law financing based on two strategies, namely the restructuring of financing or settlement of financing problem. Keywords: legal risk, financing, syariah bank.

Putusan ultra petita mahkamah konstitusi dalam perkara pengujian konstitusionalitas undang-undang

Abstract: This research aimed to analyze the Indonesia constitutional court decisions which contain dissenting opinion regarding the constitutionality of the law. As a part of constitutional court law of procedure, some constitutional judges allowed to give their different opinion against the majority of the judges. In one hand, this action has reflected the independency of the judges cum the independency of the judicial power. On the other hand the dissenting opinion has raised a question concerning the legitimacy of the decision since the decision was not decide unanimously. This research is doctrinal research which means that all the material will be analyzed by using the law, court decisions and law principles. Keywords: dissenting opinion, decision, constitutional review.

Interpretasi mahkamah agung terhadap alasan pembatalan putusan arbitrase dalam pasal 70 uu no. 30/1999

Abstract: Article 70 of Law No 30 of 1999 on Arbitration and Alternative Dispute Resolution (Law No 30/1999) establish three basic reasons limitedly as cancellation of the arbitration decision In the case of PTComarindo Express Tama Tour against Yemen Airways, the Supreme Court considers the court decision based on the elucidation and cancels the arbitration award on the grounds out of Article 70 of Law No 30/1999 This paper seeks to elaborate on the interpretation of the Supreme Court against the cancellation reason arbitration award in terms of universal principles in the practice of modern arbitration and the legislation laws to use the statute approach, conceptual approach and case approach and suggests some court decision both Indonesian court and foreign court The Supreme Court in this case misapplied the law due to the fact that consideration of the elucidation is in contrast to the universal principles in the practice of arbitration Keywords: arbitration, the reason for the cancellation decision

Perwujudan keadilan bagi anak luar kawin melalui putusan mahkamah konstitusi nomor 46/puu-viii/2010

Abstract: By means of its decision number 46/PUU-VIII/2010, the Constitutional Court has made a breakthrough which intend to guarantee the fulfillment of civil rights for a child born out of wedlock from his/her both parents. By the fulfillment of civil rights, justice has been materialized for the child, as viewed from the perspective of the theory of justice. Keywords : civil rights, child born out of wedlock, justice.

Asas publisitas pada hak jaminan atas resi gudang

Abstract: The principle of publicity is closely related to property rights. Each of Guarantee Agency property rights in a way that is different. Loading Right Collateral Agreements on the warehouse receipt no later than a day after the date of imposition oft he rights agreement collateral to a second party warehouse receipt, which is the guarantee of the assignees hall notify the Registration Center Warehouse Receipt System in order to be recorded in the Register of Rights guarantee Imposition Top Warehouse Receipt. Then the Registration Center will issue a notice of the imposition of Rights Confirmation Proof Guarantee. The meaning of “notice” to sign if the birth registration of property rights on the Rights of the collateral for the warehouse receipt. This is done to avoid double guarantee and monitor the distribution of the warehouse receipt and provide legal certainty about th eparty entitled tothe goods in the event of injury promise. Key words: publicity,collateral,warehouse receipts.

Perizinan di bidang perbankan yang berimplikasi tindak pidana

Abstract: In order to support the improvement of the implementation of development in Indonesia, banking institutions experienced fluctuating growth along with the progress and political developments in Indonesia, the development of the international economy also in line with increased demand banking services needs of the community will be strong and feasible. This is then gives a very strategic role in the development of the banking institutions in Indonesia because of the bank as a means to harmonize and balance of each element of the trilogy of development, economic growth and national stability, as defined in Article 4 of Law No. 10 of 1998 on Banking. Keywords : license, banking, abuse.

Prinsip hukum perimbangan dana bagi hasil minyak dan gas bumi

Abstract: Based on Article 18 A (2) of the amended 1945 Constitution provisions, it can be inferred that article as the filosophical and constitutional basic of the Act No. 33 of 2004 about finance relationship between central government and regional government, include finance relationship in oil and gas sector. The problem statement in this research are firstly, elaborating of law oil and gas management in Indonesia and secondly analysing the principle of law distribution finance relationship between central government and regional government in sharing oil and gas finance. Social concept of ownership is a fundamental principle in the management of oil and gas as outlined in the basic orientation of national development. Oil and gas sector as a strategic non renewable natural resources shall be under the powers of the State and shall be used to the greatest benefit of the people. Keywords : principles of law, equity, production sharing, oil and gas

Implementasi peraturan pemerintah nomor 82 tahun 2012 sebagai upaya negara mencegah cybercrime dalam sistem transaksi elektronik

Abstract: The development of Information Technology (IT) changes the patterns of community’s behavior. The presence of the Internet as the main platform of online activities including electronic transaction is vulnerable to the presence of cyber attacks by irresponsible parties. Criminal acts in cyberspace (cybercrime) pose a major threat in the governance of online activities and other electronic transactions. One of the efforts of the Government of Republic of Indonesia to face those challenges is by authorising the Government Regulations Number 82 Year 2012 concerning the Implementation of Electronic Transaction Systems in order to govern the electronic transaction activities. This article will discuss about how the Government of Republic of Indonesia copes the issue of the threat on electronic transactions. Keywords: cybercrime, electronic transactions system, goverment regulation No. 82/ 2012