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All Journal International Journal of Educational Review, Law And Social Sciences (IJERLAS) Mahadi : Indonesia Journal of Law
Lucky Endrawati
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Religion Humanities Environmental Science Languange, Linguistic, Communication & Media Law, Crime, Criminology & Criminal Justice Library & Information Science Social Sciences Other

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Legal Discovery Through Judicial Activism By Judges In Criminal Cases Situmorang, Septriono; Nurini Aprilianda; Lucky Endrawati
Mahadi: Indonesia Journal of Law Vol. 4 No. 01 (2025): Vol. 04 NO. 01 (2025): February Edition 2025
Publisher : Universitas Sumatera Utara

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Abstract

In exercising the authority to decide criminal cases, Judges sometimes cannot decide proportionally according to their beliefs because they are often faced with binding to written laws that are rigid, both material and formal criminal law. So that in order to resolve disputes it is felt that Judges must play an active role in using a new rule or changing an old rule, that is where Judges create law (Judge made law) through Judicial Activism. The purpose of this study is to describe, examine, and analyze the factors underlying Judges in implementing Judicial Activism practices in criminal cases in order to ensure the upholding of the Objectives of Law, namely Justice, Benefit and Certainty. Then what obstacles are faced, and parameters or benchmarks that can be done so that Judges can implement Judicial Activism in criminal cases. This study uses a sociological juridical approach method, with the research specification being descriptive analytical. The data used in this study are secondary data, obtained through literature studies which are then analyzed qualitatively using Progressive Legal Theory and the Theory of Judicial Freedom and Legal Discovery (Rechstvinding). The results of this study are: (1). Judges' decisions that apply Judicial Activism in criminal cases at least consider several factors, including legal developments that always follow a society that moves quickly, in addition, laws or other regulations are not always complete to solve a legal case concretely, and also several other factors. (2). Obstacles that arise in the practice of Judicial Activism in criminal cases are divided into two factors, namely internal factors that originate from the personality and emotionality of the judge himself, then external factors related to the legal system of a country. (3). The solution presented is to encourage judges to use their authority as guaranteed by the Law on Judicial institution to carry out rechtsvinding and not just apply the law (rechtoepassing) through the method of legal discovery, namely the interpretation method and the argumentation method.
BASIS FOR JUDGES TO ADJUDICE IMMANTARIL COMPENSATION THAT CAN BE GIVEN TO VICTIMS IN RESTITUTION FOR CRIMINAL ACTS OF SEXUAL VIOLENCE BY CHILD PERPETRATORS Yola Eska Afrina S; Nurini Aprilianda; Lucky Endrawati
International Journal of Educational Review, Law And Social Sciences (IJERLAS) Vol. 5 No. 6 (2025): November
Publisher : RADJA PUBLIKA

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.54443/ijerlas.v5i6.4009

Abstract

Immaterial restitution for victims of Sexual Violence (TPKS) is an increasingly pressing issue in the criminal justice system. Although there are legal provisions governing victims' rights to receive compensation for non-material losses, court practice shows that the application of immaterial restitution in judges' decisions is still very limited. This causes immaterial restitution, an important aspect for victims accommodated in the justice system, but is often overlooked. This study aims to explore the basis used by judges in adjudicating immaterial restitution, as well as the guidelines that serve as a reference in the decision-making process. Understanding the basis for judges adjudicating immaterial restitution and the legal guidelines in making decisions is intended to ensure that judges' positions and powers to grant victims' rights can be freely used to adjudicate immaterial restitution in accordance with law and justice. Using a normative juridical approach, this study analyzes court decisions related to immaterial restitution, in order to identify the legal principles underlying judges' decisions. Through a review of various court decisions, this study found that there is a lack of clarity in the legal guidelines governing immaterial restitution, resulting in variations in their application by judges. Furthermore, this study also revealed that judges' understanding of the psychological and social impacts experienced by victims significantly influences their decisions. The lack of adequate training and resources for judges in this regard is a hindering factor. The results of this study are expected to contribute to the development of clearer and more comprehensive guidelines regarding immaterial restitution, as well as to encourage judges' increased understanding of the importance of this aspect in the judicial process. Thus, it is hoped that victims' rights can be recognized and protected more effectively, so that justice can be achieved not only through law enforcement against perpetrators, but also through appropriate reparations for victims.
Co-Authors Nurini Aprilianda Situmorang, Septriono Yola Eska Afrina S