Jurnal Ilmiah Hukum LEGALITY
Jurnal Ilmiah Hukum Legality (JIHL) is a peer-reviewed open access Journal to publish the manuscripts of high quality research as well as conceptual analysis that studies in any fields of Law, such as criminal law, private law, bussiness law, constitutional law, administrative law, international law, islamic law, criminal justice system, and the others field of law as a forum to develop the science of Law. JIHL published by University of Muhammadiyah Malang twice in a year every March and September.
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<![CDATA[LINGKUNGAN HIDUP SEBAGAI SUBJEK HUKUM: REDEFINISI RELASI HAK ASASI MANUSIA DAN HAK ASASI LINGKUNGAN HIDUP DALAM PERSPEKTIF NEGARA HUKUM ]]>
<![CDATA[Abdurrahman Supardi Usman]]>
<![CDATA[ Legality : Jurnal Ilmiah Hukum Vol. 26 No. 1 (2018): Maret ]]>
Publisher : <![CDATA[Faculty of Law, University of Muhammadiyah Malang ]]>
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<![CDATA[Inspired by “Should Trees Have Standing? Toward Legal Rights for Natural Objects” (Christopher D. Stone, 1974) that popularized the doctrin: “environment as a legal subject”. This thesis was directly elaborating the relation between the constitutional aspect of the “state of law” and its admission of environmental rights, not just about the dimention of the philosophy of law but beyond of it: this thesis was discuss about the theoretical dimention of law and its relevance in Indonesia. At least there are two monumental cases in the world which were become the landmark case of environmental disputes resolution based of by the doctrin of ecocracy. In the dissenting opinion of the judge William O. Douglas in Sierra Club vs Morton’s case, United Stated of America (1972) and in the appeal decision of the Wheeler vs the Government of the provincial of Roja’s case, Ecuador (2011). Those cases had opened a new perspective in the legal proceeding that the environment had be approved as a legal person. In other words, the environment had recognized as a legal subject. Then, by using the conseptual approach and comparative of law approach, this thesis had elaborated the relevance of this doctrin: “The Environment as a Legal Subject” in Indonesian context then verified it with the related legal theories. Besides it all, in this thesis also discuss the relation between of the environmental legal protection and the state of law concept in the ecocracy and constitualism perspective framework. Hopefully this thesis would be the steping stone to realize the constitutionalisation the environment rights and to realize the legal standing innovation in the environmental disputes resolution.]]>
<![CDATA[TINJAUAN ATAS PERMASALAHAN PENEGAKAN HUKUM DAN PEMENUHAN HAK DALAM KONTEKS UNIVERSALIME DAN RELATIVISME HAK ASASI MANUSIA DI INDONESIA ]]>
<![CDATA[Ridwan Arifin]]>;
<![CDATA[Rasdi Rasdi]]>;
<![CDATA[Riska Alkadri]]>
<![CDATA[ Legality : Jurnal Ilmiah Hukum Vol. 26 No. 1 (2018): Maret ]]>
Publisher : <![CDATA[Faculty of Law, University of Muhammadiyah Malang ]]>
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<![CDATA[The four principles of freedom (four freedoms) include freedom of speech and expression, freedom of religion and belief, freedom from want, and freedom from fear, are basic principles recognized by countries and translated into many more specific forms of human rights fulfillment human. The fulfillment and protection of human rights is one indicator of the progress of a country. The scope of fulfilling human rights that covers a very broad field, from education, health, to law enforcement, is a challenge. The UN Security Council 2017 Universal Periodical Review (UPR) session provides recommendations for strengthening human rights in Indonesia, including the ratification of international human rights instruments, the continued cooperation of UN human rights, the abolition of the death penalty, matters related to sexual orientation and efforts to protect tolerance and diversity. The Commission for Missing Persons and Victims of Violence (Kontras) 2017 records 84 cases of violence and human rights violations that occurred. The issue of interpreting different human rights standards is one of the causes of this high problem in Indonesia. Many different interpretations are caused by the running of different political systems of state administration, causing the implementation of human rights fulfillment to be different. This paper looks at and compares the practices of human rights enforcement covering the four principles of freedom in Indonesia. This paper will compare the implementation of human rights standards and norms in national domestic practices based on international human rights principles and norms.]]>
<![CDATA[PERAN PENGADILAN NEGERI INDONESIA DALAM PENYELESAIAN SENGKETA TRANSAKSI ELEKTRONIK INTERNASIONAL ]]>
<![CDATA[Isdiyana Kusuma Ayu]]>
<![CDATA[ Legality : Jurnal Ilmiah Hukum Vol. 26 No. 1 (2018): Maret ]]>
Publisher : <![CDATA[Faculty of Law, University of Muhammadiyah Malang ]]>
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<![CDATA[Electronic transactions or E-commerce are buying and selling transactions carried out through the internet. As a result of over the internet, the nature of e-commerce can be done without knowing the borders. When a default or fraud occurs in e-commerce conducted by one of the parties who are abroad, it must pay attention to the principle of International Private Law related to the Court forum, Arbitration, or other dispute resolution institutions. That means that it is necessary to pay attention to the basic arrangements for dispute resolution of international business transactions that have been regulated in Indonesia and the authority of the Indonesian District Court in resolving international electronic transaction disputes. In the juridical perspective as the basis for solving electronic transaction cases to be legal strengthening takes a sense of justice so that it can be seen that the basis of international e-commerce arrangements in accordance with Article 18 Paragraph (4) of the ITE Law. District Courts has a role to be the main and complementary institution in dispute resolution international electronic transactions.]]>
<![CDATA[MODEL PENYELESAIAN ALTERNATIF PERKARA PIDANA DALAM HUKUM ISLAM DAN RELEVANSINYA DENGAN PEMBAHARUAN HUKUM PIDANA INDONESIA ]]>
<![CDATA[Hambali Yusuf]]>;
<![CDATA[Saifullah Basri]]>
<![CDATA[ Legality : Jurnal Ilmiah Hukum Vol. 26 No. 1 (2018): Maret ]]>
Publisher : <![CDATA[Faculty of Law, University of Muhammadiyah Malang ]]>
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<![CDATA[Many criminal cases that are not resolved either at the level of appeal or cassation level is an indication that there are problems in law enforcement. Islamic Criminal Justice provides much alternative settlement of criminal cases by maintaining a balance of the interests of the victim, the community, the State and the offender. This research aims to analyze the model, explain the alternative settlement of criminal cases in the Islamic law; how setting the model settlement of criminal cases in the Islamic law can be used as a model settlement of criminal cases in the criminal law of Indonesia, to find a model settlement of criminal cases in the Islamic law of relevance to criminal law updates Indonesia. This research got that setting jarimah qishas-diyat placed as a kind of private law as rights adami. Setting model jarimah-diyat can allow made a model in settlement of a criminal offence in the criminal law of Indonesia in line with developments in the modern criminal law sanctions governing sanctions fines or compensation for victims. Setting model jarimah-diyat can allow made a model in settlement of a criminal offence in the criminal law of Indonesia in line with developments in the modern criminal law sanctions governing sanctions fines or compensation for victims.]]>
<![CDATA[HYBRID COURT SEBAGAI ALTERNATIF PENYELESAIAN PELANGGARAN HAK ASASI MANUSIA ]]>
<![CDATA[Cholidah Cholidah]]>
<![CDATA[ Legality : Jurnal Ilmiah Hukum Vol. 26 No. 1 (2018): Maret ]]>
Publisher : <![CDATA[Faculty of Law, University of Muhammadiyah Malang ]]>
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<![CDATA[The establishment of the International Criminal Court (ICC) in 1998 provided a hope for certainty in resolving cases of international human rights crimes that occurred after the Rome Statute which formed the basis of this court ratification in 1998, the Non-Retroactive Principles adopted in the Rome Statute did not open this courtroom Human rights crimes that occurred before 1998, so that a new court model is needed to resolve human rights cases that occur namely the Hybrid Court Judicial model, also known as the Mixed Court model, seeks to combine national legal and judicial elements with the International. This Alternative Model is then chosen in resolving cases of human rights crimes that occurred in Sierra Leone and Cambodia, but given the different human rights crimes that occur, different approaches and models are needed in the formation of selected Hybrid Court Courts. So it needs to be explored about the urgency, the legal status of Hybrid Court formation, as well as the technical mechanisms of the trial, both Special Court for Sierra Leone and Extra Chamber Court of Cambodian/ECCC. The results of this study are first, the urgency of the formation of Hybrid Court is to fill the limitations of temporis jurisdiction from the ICC as an institution in prosecuting perpetrators of international crimes so as to close the impunity of perpetrators because the State can still try its citizens by using its domestic legal system without having to fully use the International mechanism. Second, Hybrid Court can be formed through agreements between the United Nations and the government of a country which is then used as a legal basis for the court, as implemented in Cambodia, besides that the formation of Hybrid Court can also be formed through national laws as applied in Sierra Leone.]]>
<![CDATA[PERLINDUNGAN HUKUM TERHADAP BANK ATAS PERJANJIAN KREDIT KONSUMSI BAGI ORANG ASING ]]>
<![CDATA[Rachmadani Eka Husnul Khotimah]]>;
<![CDATA[Thohir Luth]]>;
<![CDATA[Hanif Nur Widhiyanti]]>
<![CDATA[ Legality : Jurnal Ilmiah Hukum Vol. 26 No. 1 (2018): Maret ]]>
Publisher : <![CDATA[Faculty of Law, University of Muhammadiyah Malang ]]>
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<![CDATA[Since 2005 the rule of Bank Indonesia is already issued a policy about consumer credit facilities in order to get a place or a home for foreign people who live in Indonesia, but it is not enough to make all the bank that took place in Indonesia give that facilities. One of the reasons discrepancy of a number banks to give that credit facilities to foreign people is because the risk in case there is a failure or the person is not fulfilling the obligation. Considering the debtor is a foreigner, while the object of the guarantee is a land with a right of use that has a limited period, and until now there is still no regulations from both the Indonesian government and from Bank Indonesia that specifically provide protection against banks on consumer credit facilities for foreigners. In this paper, the writer will discuss the effort of legal protection that can be done by the Bank are preventive effort and repressive effort. Preventive legal protection efforts undertaken by banks is with credit agreements. Repressive legal protection effort, if the foreign debtors can not fulfill the obligation one of them is to stop the consumer credit agreement.]]>
<![CDATA[ANALISIS TENTANG PARLIAMENTARY THRESHOLD DAN CALON PERSEORANGAN BERDASARKAN UNDANG-UNDANG NOMOR 10 TAHUN 2016 DALAM PERSPEKTIF DEMOKRASI DAN PRINSIP CHECK AND BALLANCES ]]>
<![CDATA[Surya Darma Kardeli]]>
<![CDATA[ Legality : Jurnal Ilmiah Hukum Vol. 26 No. 1 (2018): Maret ]]>
Publisher : <![CDATA[Faculty of Law, University of Muhammadiyah Malang ]]>
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<![CDATA[The application of the parliamentary threshold in the conduct of the elections is still a problem for political parties. Determination of the limits of the requirements to be met by political parties to be able to register candidates as set forth in the provisions of article 40 paragraph (1) of Act No. 2016 10 years about the election of the Governor, Governor and Mayor, was by fulfilling the most gains of at least 20% of the total area of the House of representatives seats or 25% of the accumulated gains of legitimate votes in the general election of members of the House of representatives in the Regions concerned. In addition, the mechanism of elections nowadays also provides the opportunity for individual candidates to be able to advance in the implementation of the elections. This is a real form of the implementation of the people's democracy, due to the demands of the people to get the leaders of his country who have the attitude that aspirational, competent, legitimate and not just think of the interests of political parties. But in fact, the spirit of democracy through mechanisms of individual candidates much have obstacles, one of which is to embody the principle of checks and balances in the Organization of the functions of Government. Based on the above description, then the legal research is trying to give the explanation with regard to whether the reason that the application of parliamentary threshold in the law No. 10 The year 2016 could hinder the implementation of democracy and how are the dynamics of the working relationship between parliament and the prospective head of the area of an individual who is not capable of embodying the principle of checks and balances. This study derives the conclusion that implementation the parliamentary threshold in the conduct of the elections could hinder the implementation of democracy because it is contrary to the laws and regulations and may also harm the justice the coveted by society and are protected by the Constitution of 1945. With regard to the inability to realize the principle of checks and balances in the relationship between Government function of organizing local and regional head of individual candidates that caused a political attitude which parliament does not provide support politics to the head area of an individual.]]>
<![CDATA[PENANGANAN PRAKTIK PENCURIAN IKAN ILLEGAL DI PERAIRAN INDONESIA ]]>
<![CDATA[Osgar S Matompo]]>
<![CDATA[ Legality : Jurnal Ilmiah Hukum Vol. 26 No. 1 (2018): Maret ]]>
Publisher : <![CDATA[Faculty of Law, University of Muhammadiyah Malang ]]>
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<![CDATA[Indonesia became one of the country's fisheries resources that have a very large in the world. But the fisheries potential of the above can be used optimally by the nation of Indonesia, due to rampant illegal fishing practices occurred (illegal fishing) committed by a foreign-fishing that fishing in indonesia. Do not handled the problem of illegal fishing professionally by the Government makes the problem becomes complex and complicated so this condition is exploited by the fisheries from another country to do activities that violating the provisions of the legislation.]]>
<![CDATA[KEBIJAKAN PEMERINTAH PADA BIDANG PERLINDUNGAN SUMBER DAYA GENETIKA LAUT DI INDONESIA DALAM RANGKA MENJAGA DAN MENGELOLA SUMBER DAYA ALAM LAUT ]]>
<![CDATA[Abdul Atsar]]>
<![CDATA[ Legality : Jurnal Ilmiah Hukum Vol. 26 No. 1 (2018): Maret ]]>
Publisher : <![CDATA[Faculty of Law, University of Muhammadiyah Malang ]]>
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<![CDATA[Indonesia is a country that has a wealth of marine genetic resources of interest to researchers and scientists to do research in order to produce findings and new innovations. Thus, the necessary arrangements are clear and unequivocal. The implementation of the system of intellectual property rights requires not only good legislation in the field of intellectual property, but also need to be supported by the Administration, the rule of law as well as the optimal dissemination programs about intellectual property rights. At present, Indonesia has had a device regulation in the field of intellectual property that protects marine genetic resources, namely Act No. 13 of the year 2016 about patents. Since the year 2000, the filing of the application for intellectual property rights can be made at the offices of the Ministry of Justice and human rights areas. This can be seen with the promulgation of Act No. 13 of the year 2016. Through this Act an awful lot of refinement and the addition of the former patent laws i.e. Law No. 14 of the year 2001. As for the formulation of the problem in this research is how Government policy in the field of the protection of genetic resources of the sea in Indonesia in order to maintain and manage the natural resources of the sea. The results showed that decisive action from the Government in preventing violations of patents in the form of damages for Patent holders that have been used by other parties without permission from the patent holder. It also ordered the violators with stops in producing goods that have been patented.]]>
<![CDATA[IMPLIKASI YURIDIS PERJANJIAN PERKAWINAN YANG DIBUAT SELAMA DALAM IKATAN PERKAWINAN TERHADAP UTANG BERSAMA PASCA PUTUSAN MAHKAMAH KONSTITUSI NOMOR 69/PUU-XIII/2015 ]]>
<![CDATA[Priesty Yustika Putri]]>;
<![CDATA[Prija Djatmika]]>;
<![CDATA[Dhiana Puspitawati]]>
<![CDATA[ Legality : Jurnal Ilmiah Hukum Vol. 26 No. 1 (2018): Maret ]]>
Publisher : <![CDATA[Faculty of Law, University of Muhammadiyah Malang ]]>
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<![CDATA[Under the provisions of Article 29 of Law Number 1 Year 1974 on Marriage, a marriage agreement may only be made before or at the time of marriage. However, after the Decision of the Constitutional Court Number 69/PUU-XIII/2015, marriage agreements may also be made during the period of marriage ties. The making of this marriage agreement certainly affects the joint property of husband and wife obtained in the marriage period before the marriage agreement is made. Including if the couple also has a debt together. This then raises problems related to debt settlement. The purpose of this study is to determine the juridical implications of marriage agreements made during the marriage bonds to the joint debt post-Decision of the Constitutional Court. This research is classified as normative juridical research using the concept of law and conceptual. The results of the study show that after the Decision of the Constitutional Court Number 69/PUU-XIII/2015, which stipulates that a marriage agreement may be made during the period of marriage bonds related to the responsibility of the joint debt repayment arising prior to the marriage agreement, the settlement may be contracted as per the second agreement the husband and wife. This is because there are no rules that prohibit the existence of such clauses to be set forth in the marriage agreement. However, if a marriage agreement in which the settlement of the joint debt will result in harm to a third party then the marriage agreement is not allowed, as regulated in Article 29 paragraph (4) Act 1/1974.]]>
