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All Journal JURNAL HUKUM Jurnal Dinamika Hukum Journal of SouthEast Asian Human Rights Sriwijaya Law Review Al-Adalah: Jurnal Hukum dan Politik Islam International Journal of Environmental, Sustainability, and Social Science Indonesia Law Review (ILREV)
Rosa Agustina
Faculty Of Law, Universitas Indonesia, Jakarta, Indonesia
Religion Arts Humanities Decision Sciences, Operations Research & Management Economics, Econometrics & Finance Environmental Science Law, Crime, Criminology & Criminal Justice Social Sciences

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Punishing The Bankruptcy Fraudsters: What Can Indonesia Learn from United States of America? Robert, Robert; Agustina, Rosa; Nasution, Bismar
Jurnal Dinamika Hukum Vol 20, No 1 (2020)
Publisher : Faculty of Law, Universitas Jenderal Soedirman

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.20884/1.jdh.2020.20.1.2874

Abstract

Bankruptcy is a system that was created to provide financially distressed debtors relief from their debts while providing the creditors with a fair portion of the debtors’ assets. Unfortunately, certain parties might attempt to beat the system unfairly. The goals of this study are to compare Title 18 United States Code with Indonesia’s legal system regarding bankruptcy fraud and how the Indonesian bankruptcy law ought to be in regulating bankruptcy fraud. This research is qualitative, using a black letter method and legal comparative approach. The result of this study shows that Indonesian bankruptcy law does not regulate provisions regarding bankruptcy fraud as comprehensive as Title 18 United States Code. It is suggested that the Indonesian government amends the bankruptcy law, therefore the public’s confidence in the bankruptcy system can be preserved while providing a deterrence effect for the participants who might exploit the bankruptcy system for their advantages. Keywords: bankruptcy; bankruptcy crime; fraud; white collar crime
The Rationalization of Debt Discharge Policy for Individual Debtors in Indonesian Bankruptcy Regime Robert Robert; Rosa Agustina; Bismar Nasution
Sriwijaya Law Review Volume 6 Issue 1, January 2022
Publisher : Faculty of Law, Sriwijaya University, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.28946/slrev.Vol6.Iss1.928.pp101-121

Abstract

The Indonesian bankruptcy regime tends to be harsh to the debtors, especially the individual debtors. In contrast, the creditors possess the right to pursue the debtor’s outstanding debts even after the bankruptcy process. For that reason, this article aims to argue why it is rational for the Indonesian government to implement a debt discharge policy in the Indonesian bankruptcy regime. This article employs a normative research method, using a conceptual and comparative approach. The result of this study is based on the debtor cooperation theory and the humanitarian theory of debt discharge. Hence, it is rational for the Indonesian government to implement a debt discharge policy for individual debtors. The first and second Sila of Pancasila is also in line with these theories. Consequently, as a member of society, the individual debtor should be treated with dignity and humane values, which includes debt forgiveness. Nevertheless, not every debtor is deserves to be discharged from his debts. Therefore, it is rational for the Indonesian government to implement the debt discharge policy in the amendment of Indonesian bankruptcy law to protect the honest but unfortunate individual debtors.
The Effects of Conflict and Palm Oil Investment Between Investors and Communities in Indonesia Rahmad HENDRA; Rosa AGUSTINA; Ratih LESTARINI
International Journal of Environmental, Sustainability, and Social Science Vol. 4 No. 1 (2023): International Journal of Environmental, Sustainability, and Social Science (Jan
Publisher : Indonesia Strategic Sustainability

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.38142/ijesss.v4i1.491

Abstract

The resolution of customary land conflicts often does not bring results. The protracted conflict inflicted losses on both sides. The community cannot benefit from the land that is their customary right because it is under the control of the Oil Palm Plantation Company (PPKS), while PPKS cannot operate comfortably because it must always face community demands. Until now, there are still conflicts in oil palm plantations that occur between indigenous peoples in Kampar Regency, Riau Province and PPKS. Based on these conditions, the legal issue that is also the main problem in this study is why there is a land conflict between oil palm plantation business investors and indigenous peoples and how the parties resolve it. The author found that the conflict occurred due to differences in views on customary land, the non-implementation of deliberations with indigenous peoples before investment was made, and government policies. Conflict resolution is carried out using different means according to the cause of the conflict.
Menyoal Legal Standing Permohonan Penundaan Kewajiban Pembayaran Utang oleh Pemegang Polis Asuransi Gultom, Xander Gorga; Agustina, Rosa
Al-Adalah: Jurnal Hukum dan Politik Islam Vol 8 No 1 (2023)
Publisher : Program Studi Hukum Tata Negara, Fakultas Syariah dan Hukum Islam IAIN Bone

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30863/ajmpi.v8i1.3813

Abstract

In Indonesia, the postponement of debt payment obligations (PKPU) is a certain period of time granted by law through a commercial court decision. It gives both parties opportunity to deliberate on ways of paying their debts by providing a payment plan for all or part of the debt, including to restructure the debt. The purposes of this study is to find out the arrangement of pospotnment of debt payment obligations in Indonesia and the legal standing of a policy holder in applying suspension of debt payment obligations. This study is a normative research type and use Statute Approach, Conseptual Approach, and Case Approach. In collecting the data, examining the regulation of insurance company bankruptcy according to positive law and the legal standing of insurance customers as creditors to carry out company’s bankruptcy is done by the researcher. The results show that the regulations that apply both in law and insurance Law Number 40 of 2014, OJK Law, Law Number 37 of 2004 concerning Bankruptcy and Delays Debt Payment Obligations, and regulations related to the topic of scrutiny can be applied properly. Based on this study, it is expected that rules that have been set can be expressly and clearly used as a basis in submitting applications and handling cases of PKPU. It is also hoped that the Panel of Judges can consider the legal position of the party submitting for the applications.
Civil Disputes Between Government and Individuals: A Comparative Study of Indonesia and French Legal System Pujiningrum, Wigati; Agustina, Rosa; Nursadi, Harsanto
Jurnal Hukum Vol 40, No 2 (2024): Jurnal Hukum
Publisher : Unissula

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30659/jh.40.2.110-133

Abstract

This study aims to compare the legal systems of Indonesia and France in handling civil disputes involving the government and individuals. The research highlights challenges related to judicial independence, procedural efficiency, and fair trial accessibility for private individuals in both countries. This study assesses legislative developments and procedural safeguards in both countries, examining their effectiveness in resolving disputes and identifying strengths and weaknesses. In Indonesia, the dual judiciary system separates the General Courts, which handle both civil and criminal cases, from the Administrative Courts, dedicated to disputes involving government bodies. In contrast, France’s integrated legal approach under its administrative law tradition, overseen by the Conseil d’État, emphasizes separation of powers and judicial oversight to ensure government decisions comply with the rule of law. The French system incorporates corrective justice principles, offering comprehensive remedies to address losses in civil disputes, which differ significantly from Indonesia’s approach. It underscores Indonesia’s ongoing legal reforms aimed at enhancing judicial independence and France’s robust administrative jurisprudence that checks executive power, offering insights to improve administrative justice and protect individual rights in various legal contexts.
Legal Antinomy in Exercising Civil Rights of Persons with Disabilities in Notarial Activities: Lessons Learned from Indonesia Sendrawan, Tjhong; Agustina, Rosa; Makarim, Edmon
Journal of Southeast Asian Human Rights Vol. 8 No. 2 (2024): December 2024
Publisher : University of Jember

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19184/jseahr.v8i2.44270

Abstract

This paper addresses the legal antinomy present in the exercise of civil rights for persons with disabilities (PWD) in notarial activities in Indonesia. The conflict arises between the need for legal certainty, as required by national laws, and the obligation to provide equal justice and access for PWD, as mandated by the Convention on the Rights of Persons with Disabilities (CRPD). Key provisions of the Indonesian Notary Law, particularly the Notary Law Amendment of 2014, impose barriers that hinder PWD from fully exercising their civil rights. These issues highlight the lack of clear guidelines for notaries in accommodating PWD, resulting in legal uncertainty and potential discrimination. This paper proposes legal reforms and emphasizes the need for notaries to act as facilitators of justice, ensuring equal access to civil rights for PWD in line with international human rights standards. The study employs a doctrinal legal research method, conducting literature reviews of various primary, secondary, and tertiary legal materials, such as an international convention, notary laws, books, journals, dictionaries, and research papers published relevant to the topic.  This article limits the analysis of human rights of PWD to their access of civil rights services provided by a notary. A notary needs to understand and carefully make legal judgment when providing advice and drawing up notarial acts under various circumstances involving disabilities. In the end, this paper acknowledges a significant finding that Article 16 paragraph (1) letter (c), Article 42 paragraph (2) and paragraph (3), and Article 43 paragraph (3) of the Notary Law Amendment of 2014 currently hinder the exercise of civil rights of PWD. This paper offers both theoretical and empirical contributions to the ongoing discussion and presents perspectives from the Indonesian Constitutional Court Judgement Number 93/PUU-XX/2022, which amends the provisions of Article 433 Indonesian Civil Code and argues for the importance of a specific understanding and guidelines on this issue. Keywords: Access to Justice, Disability Rights, Equality, Human Rights Model, Notary Acts
The Feud of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet and Nemo Dat Quad Non Habet (Nemo Dat Rule) Legal Principles Against The Legal Principle of Good Faith (Bona Fides) in Indonesian Courts Yonatan, Yonatan; Agustina, Rosa
Indonesia Law Review Vol. 12, No. 2
Publisher : UI Scholars Hub

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Abstract

Abstract A dispute over ownership of land rights between the real Original Owner and a Good Faith Purchaser can be assumed as a dispute over legal principles in the field of civil law, namely: the legal principle of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet, and the legal principle of Nemo Dat Quad Non Habet (Nemo Dat Rule) against the legal principle of good faith (bona fides). The legal principle of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet and the legal principle of Nemo Dat Quad Non Habet (Nemo Dat Rule) are legal principles that defend the interests of the Original Owner when suing a Good Faith Purchaser. On the other hand, the legal principle of good faith (bona fides) defends and protects Good Faith Purchaser from claims by the real Original Owner. This article discusses and presents 3 (three) main points, all of which are: firstly, analyzing the legal principle of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet, the legal principle of Nemo Dat Quad Non Habet (Nemo Dat Rule), and the legal principle of good faith (Bona Fides); secondly, analyzing the types of claims and determine the most appropriate type of claim for disputes over ownership of immovable property between the real Original Owner and the Good Faith Purchaser; lastly, doing an analysis on how to conceptualize good faith. The research method used in this article is normative juridical research with statutory, case and conceptual approaches. There are several research findings, namely; first, there has been a shift in the paradigm of judges who are initially more inclined to defend the Good Faith Purchaser than the real Original Owner, to become more neutral in placing the legal principle of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet and the legal principle of Nemo Dat Quad Non Habet (Nemo Dat Rule) with the principle of good faith (Bona Fides); second, the application of procedural law practices regarding types of claims for ownership disputes between the real Original Owner and the Good Faith Purchaser, which is commonly used in practice, turns out to be inappropriate; finally, conceptualizing good faith is done by conceptualizing bad faith based on the permanent jurisprudence of court decisions. Keywords: nemo plus iuris, nemo dat, bona fides, good faith.
Optimizing the Role of Notaries in Digital Property Inheritance: A Comparative Legal Analysis Sendrawan, Tjhong; Agustina, Rosa; Makarim, Edmon; Nefi, Arman; Ipfelkofer, Josephine Rus Indra Sapti
Indonesia Law Review Vol. 15, No. 2
Publisher : UI Scholars Hub

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Abstract

One of the provisions in inheritance laws regarding the transfer of digital property after someone's death is a relatively new and evolving area of legal consideration. Inheritance laws were developed long before the widespread adoption of digital property, such as cryptocurrencies, non-fungible tokens (NFTs), online accounts, and other forms of digital property. As a result, existing inheritance laws often lack clear guidance on how to control the legal transfer of these digital assets upon the owner's death. This article aims to analyze the legal concept of digital property to be inherited and to provide solutions for current digital property inheritance issues from a notarial perspective. This study conducts a thorough analysis of digital property under inheritance law and how notaries should play a role in digital inheritance matters. A method of doctrinal legal analysis of current national and international laws and regulations pertaining to digital property succession is also employed, as well as comparative legislative studies examining proposed policies across jurisdictions to garner real-world insights into the operational challenges, emerging practices, and pragmatic considerations surrounding notary participation in digital inheritance procedures. Updating inheritance laws to address the transfer of digital property is crucial to protect the rights and interests of individuals, promote legal certainty, and ensure that these valuable assets are properly accounted for and transferred to rightful heirs or beneficiaries. The law of property in the Indonesian Civil Code needs to be immediately adjusted to the development of the digitalization era. This article suggests optimizing the role of notaries to create authentic deeds on digital property inheritance. Keywords: Digital property, inheritance, notary, will.
Co-Authors Bismar Nasution BISMAR NASUTION Edmon Makarim Gultom, Xander Gorga Harsanto Nursadi Ipfelkofer, Josephine Rus Indra Sapti Nefi, Arman Pujiningrum, Wigati Rahmad HENDRA Ratih LESTARINI Robert Robert Robert, Robert Sendrawan, Tjhong Yonatan, Yonatan