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All Journal Hang Tuah Law Journal Lex Journal : Kajian Hukum dan Keadilan
Mutmainnah, Luluk
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Law, Crime, Criminology & Criminal Justice

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Restorative Justice for Child Abortion Offenders Mutmainnah, Luluk; Begishev, Ildar
Lex Journal: Kajian Hukum & Keadilan Vol 8 No 1 (2024): July
Publisher : Faculty of Law, University of Dr. Soetomo

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25139/lex.v8i1.8808

Abstract

The application of restorative justice can only be applied in certain cases. For example, cases involving children are explicitly explained in Article 1 point (6) of Law Number 11/2012 concerning the Juvenile Justice System. Then, what about the child as the perpetrator of abortion who has eliminated the life of his flesh and blood, whether restorative justice can be applied. This study aims to examine the restorative justice approach in the criminal justice system and the punishment of children who commit abortion based on restorative justice. The method used in this research is normative legal research, with statutory, and conceptual approaches. The results showed that restorative justice approach in the criminal justice system can be applied to certain cases. For example, corruption, narcotics, children and so on. While the punishment of abortion offenders based on restorative justice is not necessarily applicable. This is because not all abortions are performed by rape victims.
Dualistic View in the Formulation of Criminal Offenses in the National Criminal Code Cahyono, Anton; Vahini Mahiratna, Gusti Ayu Gita Dharma; Mutmainnah, Luluk; Aniqoh, Ihda; Kusuma, Indra Fredika
Hang Tuah Law Journal VOLUME 8 ISSUE 2, OCTOBER 2024
Publisher : Fakultas Hukum Universitas Hang Tuah

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30649/htlj.v8i2.248

Abstract

This article discusses the shift in criminal law perspectives in Indonesia from monist to dualist within the National Criminal Code (KUHP). These reforms were driven by the need for a better criminal legal framework in line with societal developments. The aim of criminal law reform is to achieve legal certainty, justice, and utility. The reasons for reform are influenced by political, sociological, psychological, and practical aspects. Reform efforts include legal discoveries through interpretation, analogy, and legal refinement, covering substantive, structural, and cultural aspects of the law. The National Criminal Code of Indonesia has shifted its perspective from monist to dualist. Monist theory unifies the wrongful nature and culpability as elements of a criminal act, while dualist theory separates them. The National Criminal Code affirms this separation but still formulates the subjective element of negligence in specific criminal acts. This shift in perspective has implications for law enforcement processes in courts. Prosecutors are not required to prove intent, and courts must balance criminal acts and criminal liability. However, there is a need for the development and understanding of these concepts by law enforcement, legal advisors, and judges to maintain a balance between legal certainty and justice. In conclusion, the National Criminal Code adopts a dualist perspective to strengthen the role of criminal law. The separation of criminal acts and criminal liability is expected to enhance the balance between legal certainty and justice in criminal court decisions in Indonesia.
Co-Authors Aniqoh, Ihda Begishev, Ildar Cahyono, Anton Kusuma, Indra Fredika Vahini Mahiratna, Gusti Ayu Gita Dharma