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ULTIMUM REMEDIUM AS A MECHANISM FOR STATE LOSS RECOVERY IN CORPORATE TAX CRIMES: AN ISLAMIC LAW PERSPECTIVE Hakim, Nur; Yuhelson, Yuhelson
Pena Justisia: Media Komunikasi dan Kajian Hukum Vol. 23 No. 1 (2024): Pena Justisia
Publisher : Faculty of Law, Universitas Pekalongan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.31941/pj.v23i1.7174

The principle of ultimum remedium in tax criminal law is designed as thefinal boundary of law enforcement, to be used only when administrativemeasures are no longer effective. However, in the practice of handlingcorporate tax crimes in Indonesia, this principle is often disregarded,resulting in punishment becoming the first step rather than the last resort.This study aims to analyze the effectiveness of ultimum remedium as amechanism for state loss recovery and to assess the extent to which itsimplementation reflects the principles of justice and fiscal efficiency.Additionally, this study examines the relevance of this principle from anIslamic law perspective, particularly in relation to the concept ofrestorative justice and the state's role in realizing public welfare(maslahah). Using a normative juridical approach supported byempirical data from court decisions and interviews, this study finds thatthe ultimum remedium principle has not been consistently applied andtends to have no significant impact on state financial recovery. From anIslamic law standpoint, these findings reinforce the argument that asystem prioritizing the restoration of state rights (the rights of Baitul Mal)should take precedence over physical sanctions, in accordance with thespirit of justice oriented toward public benefit. As a novel contribution,this study proposes a restorative fiscal justice approach model thatpositions ultimum remedium as an active strategy for recovering losses,not merely as a principle of criminal limitation. These findings areexpected to strengthen the direction of economic criminal law reformtoward a system that is more proportional, efficient, and adaptive to stateneeds, while aligning with ethical and religious values.

Reconstruction Of Tax Criminal Law Enforcement Based On Digital Transformation: A Juridical And Economic Review To Strengthen National Stability Nur Hakim; Yuhelson
International Journal of Educational Review, Law And Social Sciences (IJERLAS) Vol. 5 No. 6 (2025)
Publisher : CV. RADJA PUBLIKA

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.54443/ijerlas.v5i6.5395

Tax crimes constitute a fundamental threat to fiscal sovereignty, as they distort the stability of the national economy. This study examines the urgency of reconstructing the tax criminal law enforcement system, which currently faces increasingly complex challenges arising from cross-border modus operandi, including the manipulation of transfer pricing and the abuse of tax havens. Employing a juridical-normative research method combined with the economic analysis of law, this study evaluates the weaknesses of the existing regulatory framework in responding to the rapid digitalization of global financial transactions. The findings reveal that the disparity between conventional regulatory mechanisms and the growing sophistication of tax crime schemes has resulted in significant leakage of state revenue. Accordingly, a legal reconstruction is required that places digital transformation including the integration of Big Data analytics, the Automatic Exchange of Information (AEOI), and digital forensics as the principal foundation of the tax monitoring and criminal evidentiary system. This reconstruction aims to establish legal certainty grounded in justice, while simultaneously optimizing state financial loss recovery through asset recovery mechanisms, thereby strengthening national resilience and stability.

PERLINDUNGAN HUKUM TERHADAP KURATOR TERKAIT FEE/IMBALAN JASA DALAM MELAKSANAKAN PROSES GOING CONCERN KEPAILITAN Irwandi Husni; Nur Hakim; Roni Pandiangan
SINERGI : Jurnal Riset Ilmiah Vol. 2 No. 8 (2025): SINERGI : Jurnal Riset Ilmiah, Agustus 2025
Publisher : Lembaga Pendidikan dan Penelitian Manggala Institute

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62335/sinergi.v2i8.1739

In bankruptcy practice, not all bankrupt assets can be immediately liquidated, because Law Number 37 of 2004 opens opportunities for debtors who are still economically prospective to continue their business (going concern ). The purpose of going concern is to maintain asset value, maximize debt payments, and reduce socio-economic impacts, with judge supervision and creditor approval. However, there is still a legal vacuum regarding the protection of curator service Fees for additional risks and workloads. The formulation of the research problem is: how is the legal regulation of the implementation of going concern in bankruptcy, and how is the legal protection for curators related to Fees/service Fees in carrying out the process of continuing the debtor's business (going concern ) in bankruptcy. The theory used is Satjipto Rahardjo's legal protection and M. Hadi Shubhan's bankruptcy theory. The method used in this research is a normative juridical research, namely library legal research or secondary data with primary, secondary, and tertiary legal materials as sources. The research approach used is a legislative approach, a conceptual approach, and legal material collection techniques are carried out by identifying and inventorying positive legal regulations, literature books, journals, and other legal material sources. The legal material analysis technique is carried out using grammatical legal interpretation, systematic interpretation, teleological interpretation, and functional interpretation. The results of the study indicate that legal protection for curators in going concern cases is inadequate. Clear legal regulations are needed regarding the mechanism for implementing going concern cases, including the regulation of compensation for curators in carrying out going concern cases. It is recommended that Law Number 37 of 2004 be revised, as well as the Regulation of the Minister of Law concerning Guidelines for the Amount of Remuneration for Curators and Administrators, and that intensive training related to the implementation of going concern cases be conducted by the Ministry of Law of the Republic of Indonesia to improve the capacity of curators in managerial, financial, and business governance aspects

KEPASTIAN HUKUM PEMBIAYAAN DALAM UPAYA PENEMPATAN PEKERJA MIGRAN INDONESIA DI LUAR NEGERI Heru Herdiman; Maryano Maryano; Nur Hakim
CORPUS JURIS : JURNAL ILMU HUKUM Vol. 2 No. 1 (2026): CORPUS JURIS : Jurnal Ilmu Hukum, April 2026
Publisher : Lembaga Pendidikan dan Penelitian Manggala Institute

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62335/corpusjuris.v2i1.2434

Financing the placement of Indonesian Migrant Workers (PMI) abroad still faces the problem of unclear schemes, cost transparency, and potential losses for PMI. The existence of legal certainty in financing that is fair, transparent, and guarantees the protection of PMI rights in accordance with laws and regulations. The legal norm has not been fully implemented consistently in the field, so a study is needed on the legal certainty of financing in order to realize the placement of PMI that is fair and protected. The method used in this study is normative legal research conducted as an effort to obtain the necessary data in connection with the problem. Data used with secondary data and tertiary legal materials. In addition, primary data is also used as supporting secondary data legal materials. For data analysts conducted by the method of qualitative juridical analysis. The results of the study that the arrangement of financing the placement of Indonesian Migrant Workers (PMI) has actually been regulated comprehensively in law No. 18 of 2017 and its Implementing Regulations, but the legal certainty is not optimal due to regulatory inconsistency, weak implementation of cost transparency, and ineffective implementation of zero cost policy and the principle of Employer Pays, especially in destination countries such as Saudi Arabia, Malaysia, and Singapore. Therefore, it is necessary to strengthen legal certainty through harmonization and codification of financing regulations, affirmation of transparent and binding Employer Pays principles, integrated digital supervision, and strengthening law enforcement through cross-agency coordination such as BP2MI, the Ministry of manpower, the Indonesian National Police, the Attorney General's Office of the Republic of Indonesia, and the Financial Services Authority

PERLINDUNGAN HUKUM TERHADAP DIREKSI DAN DEWAN KOMISARIS PERSEROAN ATAS PEMBERHENTIAN TANPA PEMBERITAHUAN DALAM RAPAT UMUM PEMEGANG SAHAM Elida Marbun; Nur Hakim; Wira Franciska
SINERGI : Jurnal Riset Ilmiah Vol. 2 No. 1 (2025): SINERGI : Jurnal Riset Ilmiah, Januari 2025
Publisher : Lembaga Pendidikan dan Penelitian Manggala Institute

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62335/zmvg7z62

Article 119 of the Company Law states that the provisions regarding the dismissal of members of the Board of Directors as referred to in Article 105 apply mutatis mutandis to the dismissal of members of the Board of Commissioners. Members of the Board of Directors and Board of Commissioners can be dismissed at any time through the GMS by stating the reasons for their dismissal clearly, but there is no more specific regulation regarding notification obligations or procedures that must be followed, so this causes members of the Board of Directors and Board of Commissioners to be unable to defend themselves. The formulation in this research is what are the legal consequences of dismissal without notification of the Company's Directors and Board of Commissioners at the General Meeting of Shareholders? And what is the legal protection for the Company's Directors and Board of Commissioners for dismissal without notification at the General Meeting of Shareholders? The theories used in this research are the Legal Protection theory according to Satijipto Rahardjo and the Legal Consequences Theory according to R. Soeroso.The method used in this research is normative juridical research in the form of library legal materials or secondary data with primary, secondary and tertiary sources of legal materials. The research approach used is statutory, conceptual, analytical and case approaches as well as techniques for collecting legal materials by identifying and inventorying positive legal rules, book literature, journals and other sources of legal materials. The analysis technique for legal materials is carried out using systematic, grammatical legal interpretation.The research results show that the legal consequences of dismissal the Company's Directors and Board of Commissioners without notification at the GMS are that it is invalid if members of the Board of Directors and Board of Commissioners object to their dismissal. This is because the Board of Directors and Board of Commissioners have the right to know the reasons for dismissal and the right to defend themselves at the GMS as regulated in Article 105 paragraphs (2) and (3) of the Company Law. Thus, all matters relating to the consequences of dismissal which are contrary to applicable regulations are deemed to have never existed. Legal protection for the Company's Directors and Board of Commissioners for dismissal without notification at the GMS is in the form of repressive legal protection, in this case the Directors and Board of Commissioners have the right to file a lawsuit at the District Court in accordance with the location of the Limited Liability Company in question and can make legal appeals to High Court and Supreme Court. The lawsuit filed contains unlawful acts as stipulated in Article 1365 of the Civil Code because the GMS was held contrary to the provisions of the Company Law. Thus, the Board of Directors and Board of Commissioners have the right to obtain compensation for unlawful actions committed by shareholders

PERLINDUNGAN HUKUM KREDITUR TERHADAP DEBITUR YANG PAILIT KARENA FORCE MAJEURE Afad Pratama Usasra; Nur Hakim; Roni Pandiangan
SINERGI : Jurnal Riset Ilmiah Vol. 3 No. 2 (2026): SINERGI : Jurnal Riset Ilmiah, February 2026
Publisher : Lembaga Pendidikan dan Penelitian Manggala Institute

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62335/sinergi.v3i2.2349

Bankruptcy is a legal mechanism intended to provide legal certainty and fairness for the parties involved, particularly creditors and debtors, in situations where the debtor is unable to fulfill debt obligations. However, in practice, bankruptcy caused by force majeure raises specific legal issues, especially regarding the form and scope of legal protection for creditors. Conditions of force majeure may place the debtor in a position of non-performance without fault, which potentially creates an imbalance of interests between creditors and debtors. The method used in this research is normative legal research, conducted as an effort to obtain the necessary data related to the problem. The data used are secondary data and tertiary legal materials. In addition, primary data is also used to support the secondary legal materials. Data analysis is conducted using qualitative legal analysis methods. The theories used in this research are the Legal Protection Theory and the Risk Theory. The results of the study indicate that legal protection for creditors in bankruptcy caused by force majeure is still provided through the principle of paritas creditorum and the mechanism of bankruptcy estate settlement conducted by the curator. However, the Bankruptcy Law has not explicitly regulated differentiated treatment for debtors who become bankrupt without fault. Therefore, equitable legal interpretation and more comprehensive legal policies are required to ensure a balance of rights and obligations between creditors and debtors in bankruptcy situations caused by force majeure.

KEPASTIAN HUKUM PUTUSAN ARBITRASE DALAM KONTEKS PEMBATALAN DITINJAU DARI ASAS FINAL AND BINDING Popy Nurjanah; Wira Franciska; Nur Hakim
SINERGI : Jurnal Riset Ilmiah Vol. 3 No. 2 (2026): SINERGI : Jurnal Riset Ilmiah, February 2026
Publisher : Lembaga Pendidikan dan Penelitian Manggala Institute

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62335/sinergi.v3i2.2363

Law Number 30 of 1999 concerning Arbitration and Alternative Dispute Resolution stipulates that arbitration awards are final and binding. This nature is a manifestation of legal certainty. Final means the last, while binding means that the disputing parties are legally bound from the moment the award is pronounced to implement the arbitration award. However, the same law also regulates the annulment of arbitration awards that are final and binding. Parties who are dissatisfied with an arbitration award use the grounds for setting aside an arbitration award to avoid their obligations under the arbitration award. Such actions will certainly cause legal uncertainty for arbitration awards. The method used in this study is normative legal research conducted as an effort to obtain the data needed in relation to the problem. The primary data used in this study are laws and regulations and court decisions. The secondary legal data used are books/literature and journals. Meanwhile, the tertiary legal data are derived from general dictionaries and legal dictionaries. All data were then analyzed using qualitative legal analysis methods. Since the issuance of Constitutional Court Decision Number 15/PUU-XII/2014 on November 11, 2014, the grounds for annulment of an arbitration award no longer need to be proven by a court decision. Court judges are given the discretion to assess the existence of document forgery, document concealment and/or deception. The legal certainty of arbitration awards, which are final and binding, must be maintained. The annulment of arbitration awards as regulated in Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution must be interpreted as an effort to ensure that arbitration awards remain final and binding. Annulment is not an attempt to avoid obligations that have been decided. The role of the Court is also very important in maintaining the finality of arbitration awards. The Court must be able to issue decisions that have clear legal consequences for arbitration awards.

KEPASTIAN HUKUM BAGI DEBITOR TERKAIT UPAYA HUKUM KASASI ATAS PUTUSAN PENUNDAAN KEWAJIBAN PEMBAYARAN UTANG PASCA PUTUSAN MAHKAMAH KONSTITUSI REPUBLIK INDONESIA Andhika Putera Perdana; Yuhelson Yuhelson; Nur Hakim
SINERGI : Jurnal Riset Ilmiah Vol. 3 No. 2 (2026): SINERGI : Jurnal Riset Ilmiah, February 2026
Publisher : Lembaga Pendidikan dan Penelitian Manggala Institute

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62335/sinergi.v3i2.2364

The Constitutional Court of the Republic of Indonesia, through Decision Number 23/PUU-XIX/2021, opened the possibility for debtors to file a cassation appeal against Postponement of Debt Payment Obligation (PKPU) decisions submitted by creditors when the debtor’s proposed settlement plan has been rejected. This ruling serves as a constitutional correction to Article 235(1) and Article 293(1) of Law No. 37 of 2004, which previously denied debtors any legal remedies. However, the practical implementation within the Commercial Court remains inconsistent with the Constitutional Court’s mandate. Administrative mechanisms of the Supreme Court, including SEMA No. 1 of 2022 and Decree No. 109/2020, have yet to be aligned with this decision, resulting in debtor cassation petitions being rejected on formal grounds, as seen in several PKPU cases. This research employs a normative legal research method, utilizing statutory, case-based, historical, and analytical approaches. The study examines primary, secondary, and tertiary legal materials through qualitative juridical analysis to assess the implications of the Constitutional Court’s ruling and the form of legal certainty that should be afforded to debtors. The findings indicate that Decision 23/PUU-XIX/2021 normatively grants debtors a constitutional right to seek cassation. Nevertheless, inconsistencies in the Supreme Court’s procedural regulations have generated significant legal uncertainty for debtors. When viewed through the lens of the rule of law and legal certainty theories, such conditions contradict the principles of justice, clarity, and protection of legal subjects. Therefore, regulatory harmonization, procedural reform, and administrative adjustments at the Commercial Court level are required to ensure the effective implementation of the Constitutional Court’s decision and to guarantee genuine legal certainty for debtors

PERLINDUNGAN HUKUM KREDITOR SEPARATIS DALAM RENVOI PROSEDUR TERHADAP BANTAHAN OBJEK AGUNAN YANG TERDAFTAR DI KANTOR PERTANAHAN Humaltike Kristine; Nur Hakim; Achmad Fitrian
SINERGI : Jurnal Riset Ilmiah Vol. 3 No. 2 (2026): SINERGI : Jurnal Riset Ilmiah, February 2026
Publisher : Lembaga Pendidikan dan Penelitian Manggala Institute

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62335/sinergi.v3i2.2410

The practice of bankruptcy in Indonesia shows that separatist creditors as holders of material security rights on collateral objects registered at the Land Office normatively have a preferred position to execute their guarantees, but in reality the implementation of these rights is often hampered by third party objections through the renvoi procedure mechanism which causes legal uncertainty and delays in execution. Meanwhile, the bankruptcy law system and material security law require certainty, protection, and effectiveness in fulfilling the rights of separatist creditors according to the droit de préférence and droit de suite principles for objects that have been legally registered. The inconsistency between the factual conditions and the normative construction has caused the not optimal regulation and practice of the renvoi settlement procedure for the denial of registered collateral objects, especially related to the limitation of evidence, the protection of land registration certainty, and the guarantee of the certainty of dispute resolution time, so that an in-depth analysis of the form and effectiveness.This research uses normative legal methods with statutory, conceptual, and case approaches. Secondary data consists of primary legal materials such as legislation and court decisions, secondary legal materials including books and scientific journals, and tertiary legal materials. Data collection through library research and analyzed qualitatively using systematic interpretation. The results showed that separatist creditors on collateral belonging to third parties remain as preferred creditors based on the droit de suite principle (Article 7 UUHT), so that the curator's denial that lowers its status to concurrent juridically eliminates the right of independent execution and voting rights guaranteed by law. In this case, the Renvoi procedure becomes a legal protection instrument to correct the curator's actions through proving the validity of the mortgage certificate, as confirmed in Supreme Court Decision No. 689 K / 2012, so that this mechanism serves to restore the material rights of separatist creditors and prevent the unfair distribution of bankruptcy bonds.

KEPASTIAN HUKUM MENGENAI BATAS TANGGUNG JAWAB DIREKSI ATAS TERJADINYA FRAUD DALAM PENGELOLAAN PERSEROAN TERBATAS Efran Dippos M. Sinaga; Nur Hakim; Roni Pandiangan
CORPUS JURIS : JURNAL ILMU HUKUM Vol. 2 No. 2 (2026): Vol. 2 No. 2 (2026): CORPUS JURIS : Jurnal Ilmu Hukum, Agustus 2026
Publisher : Lembaga Pendidikan dan Penelitian Manggala Institute

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.62335/corpusjuris.v2i2.2875

This research is motivated by the absence of legal certainty regarding the scope of the Board of Directors' liability for fraud committed in the management of a Limited Liability Company. Although Law Number 40 of 2007 concerning Limited Liability Companies imposes fiduciary obligations upon directors to act in good faith, with due care, and in the best interests of the company, it does not provide clear legal parameters for determining when directors may be held personally liable for fraudulent conduct. This regulatory ambiguity has resulted in inconsistent legal interpretation and judicial application, particularly in distinguishing between legitimate business risks protected by law and unlawful conduct involving fault, abuse of authority, or fraud. This research employs the Theory of Legal Certainty and Theory of Legal Liability. This research adopts a normative legal research method using statutory, case, analytical, and conceptual approaches. The legal materials consist of primary, secondary, and tertiary legal sources collected through library research and analyzed qualitatively. The analysis focuses on the Indonesian Civil Code, Law Number 40 of 2007 concerning Limited Liability Companies as amended by Law Number 6 of 2023, together with relevant judicial decisions concerning the civil liability of directors in the management of Limited Liability Companies. The findings demonstrate that the personal liability of directors for fraud does not arise automatically merely because the company has suffered financial losses. Instead, such liability must be established through proof of fault, abuse of authority, negligence, or breach of fiduciary duties committed by the directors in performing their managerial functions. The research further reveals that the absence of explicit statutory provisions defining the scope of directors' liability for fraud has created legal uncertainty in judicial practice. Therefore, a consistent interpretation of the statutory provisions governing directors' liability is required by emphasizing the principles of good faith, due care, and corporate accountability in order to achieve a balanced legal framework that protects directors acting in accordance with the law while simultaneously ensuring legal certainty for the company, shareholders, creditors, and other affected stakeholders.

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