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Nagari Law Review
Published by Universitas Andalas
ISSN : 25812971     EISSN : 25977245     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
Nagari Law Review (NALREV) is a peer-reviewed journal published by Faculty of Law, Andalas University. NALREV published twice a year in October and April
Arjuna Subject : -
Articles 218 Documents
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Kepastian Hukum Pada Pengajuan dan Jangka Waktu Klaim Konstruksi Berdasarkan Standar Kontrak FIDIC Putra, Muhammad Imam Dani; Ferdi, Ferdi; Rosari, Anton
Nagari Law Review Vol 8 No 1 (2024): Nagari Law Review
Publisher : Faculty of Law, Andalas University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25077/nalrev.v.8.i.1.p.115-126.2024

Abstract

In construction services law, claims or compensation are part of the construction implementation period. There are several cases where the contractor submitted the claim after the final work handover period. Claims are submitted through an arbitration institution based on the principle of separation. Apart from that, Article 1967 of the Civil Code stipulates that all material and personal legal claims are extinguished due to the expiration of thirty years. This argument makes the arbitration panel declare that the claim submission is valid. This causes legal uncertainty regarding the contract period, especially claims. The construction work contract uses FIDIC standards with specific references for submitting claims. The research methodology is empirical juridical, which emphasizes the legal awareness of the parties regarding the contract that has been agreed upon and the claim clause and whether it violates the expiration rules. The research results found that in the principle of pacta sunt servanda, the principle of freedom of contract, and the principle of justice in the construction services law, the parties have agreed to the rules regarding claims in Subclause 20.1, namely the provision that claims must be submitted in writing to the engineer within 28 days after the contractor becomes aware of an incident to claim a right. Article 1381 of the Civil Code also explicitly states that payment for achievement is one of the conditions for ending a contract, so claims should not be submitted after the final handover of work. The principle of separation of arbitration provides opportunities for contractors to submit claims even though the main contract has ended.
Peran Negara dalam Perlindungan Hak Komunal atas Ekspresi Budaya Tradisional ditinjau dari Hukum Internasional Dan Nasional Enggriyeni, Dewi; Medina, Dayu
Nagari Law Review Vol 8 No 2 (2024): Nagari Law Review
Publisher : Faculty of Law, Andalas University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25077/nalrev.v.8.i.2.p.245-260.2024

Abstract

Traditional Cultural Expression (TCE) is a indigenous people’s Communal Intellectual Property (CIP), whose copyright is owned by the state. As author of copyright, the state has moral and economic rights. However, in the fact, indigenous people that preserve and guard TCE from generation to generation. This article was produced through normative juridical research, namely research carried out by analyzing secondary data in the form of primary, secondary and tertiary legal materials related to TCE. This research found that TCE as communal intellectual property based on the international regime is found in the WIPO and WIPO-IGCGRTKF drafts, while the national regime is found in Undang-Undang Hak Cipta Nomor 28 Tahun 2014, Undang-Undang Merek dan Indikasi Geografis Nomor 20 Tahun 2016 and Peraturan Pemerintah Nomor 56 Tahun 2022 tentang Kekayaan Intelektual Komunal. This regulation legitimizes the state as author of the copyright but ignores the rights of indigenous peoples on TCE. In Indonesia TCE’s legal protection consist of positive and defensive protection. The positive protection is found in Undang-Undang Hak Cipta Nomor 28 Tahun 2014 and defensive protection in Peraturan Pemerintah Nomor 56 Tahun 2022 tentang Kekayaan Intelektual Komunal. Therefore, sui generis legal regulations are needed to recognition of indigenous peoples’s copyright on TCE.
Implementasi Sanksi Daftar Hitam Terhadap Penyedia Dalam Pengadaan Barang/Jasa Pemerintah Mukti, Danu Tejo; Yasniwati, Yasniwati; Rosari, Anton
Nagari Law Review Vol 8 No 1 (2024): Nagari Law Review
Publisher : Faculty of Law, Andalas University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25077/nalrev.v.8.i.1.p.183-202.2024

Abstract

This research aims to analyse the implementation of Blacklist Sanctions in Government Procurement, analyse the factors that can caused Providers who are subject to Blacklist Sanctions to sign contract with PPK, analyse sanctions for negligence of Procurement Actors from the Government and Legal Actions that can be taken by Service Providers subject to Blacklist Sanctions. This research adopts a normative-empiric and descriptive approach, utilizing a statute approach to legal provisions and equipped with empirical data. Research results: the implementation of Blacklist Sanctions is carried out by determining and displaying Blacklist Sanctions on the National Blacklist Portal, the sanctions are valid from the date of the Decree of Determining Blacklist Sanctions, Blacklist Sanctions do not apply retroactively (non-retroactive). The factors that can cause the Providers who are subject to Blacklist Sanctions to signed contract with PPK, among others any mistake is found in the evaluation process carried out by Selection Committee, PA/KPA being late in displaying Blacklist Sanctions on the National Blacklist Portal and the Blacklist Sanctions for Provider not appearing due to system errors. Government Procurement Actors may be subject to administrative sanctions for their negligence in contract with providers who are subject to Blacklist Sanctions. Providers can take legal action in the form of objections, postponements and cancellation of Blacklist Sanctions in accordance with applicable regulations.
Penyelesaian Kontrak Konstruksi Dalam Hal Terjadi Keterlambatan Pengadaan Tanah Untuk Kepentingan Umum Arfando, Mohamad Sondan; Azheri, Busyra; Hasbi, Muhammad
Nagari Law Review Vol 8 No 1 (2024): Nagari Law Review
Publisher : Faculty of Law, Andalas University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25077/nalrev.v.8.i.1.p.127-136.2024

Abstract

As a follow-up to the Decree of the Governor of DKI Jakarta Province Number 2779 of 2015 concerning Determination of Locations for the Construction of the Ciliwung River Sudetan Inlet Towards the East Flood Canal in Bidara Cina Subdistrict, the East Jakarta Land Office together with Ciliwung Cisadane River Basin Organization from Ministry of Public Works and Housing carried out the Inventory and Identification implementation stages for land acquisition for the inlet location. In its implementation, there were problems in RW.04 Bidara Cina Subdistrict, namely a land dispute between residents affected by the project and the legal land owners. The affected residents challenged the Governor's location determination to the PTUN with decision no. 59/G/2016/PTUN-JKT on March 15 2016. This hampered the land acquisition process and had an impact on the implementation time of the Sudetan development. This research aims to describe and analyze how land acquisition is carried out in the construction of the Ciliwung River Sudetan Inlet to the East Flood Canal, what factors cause obstacles to land acquisition and what is the strategy for completing construction contracts in the event of delays in land procurement for the public interest. This research is a qualitative descriptive research with an empirical juridical approach. The results of the research were that the affected residents' lawsuit was caused by the socialization of the project carried out by the government which did not meet the residents' wishes so that an agreement on the value of adequate compensation was not reached. On the government side, delays in the land acquisition process at that time were caused by a lack of funds and the administrative process for resolving compensation payments was not yet 100% complete. There was a delay in the completion of the construction contract in terms of land acquisition for public interests for the construction of the Ciliwung River Sudetan Inlet to the East Flood Canal, which was carried out by the government in terms of dispute resolution, land acquisition and contracts.
Pengaturan Persetujuan Bangunan Gedung Di Kota Payakumbuh Haswin, Olvi Sri Hilda; Fendri, Azmi; Rosari, Anton
Nagari Law Review Vol 8 No 1 (2024): Nagari Law Review
Publisher : Faculty of Law, Andalas University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25077/nalrev.v.8.i.1.p.65-78.2024

Abstract

Building Approval is a change in nomenclature from Building Permit. It has been the case since Law Number 11 of 2020 concerning Job Creation took effect. When organizing a building, whether constructing a new one or making changes to an existing one, ownership of the Building Approval (PBG) is required. The authority for issuing PBGs has shifted from the One-Stop Investment and Integrated Service (DPMPTSP) through the OSS Site (Online Single Submission) to the Public Works and Public Housing Office (PUPR) through SIMBG (Building Management Information System) managed by the Ministry of PUPR. In this change, the problems that will be studied are: 1. How is the building approval regulation in Payakumbuh City? 2. What are the benefits of implementing building approvals in Payakumbuh City? The author uses empirical juridical research methods and a descriptive-analytical approach to answer these questions. The primary data in this research was obtained through interviews. Secondary data is obtained by conducting document studies. Data analysis is conducted qualitatively. The research yielded the following results: 1. During the transition period from IMB to PBG, there is no local regulation related to PBG in Payakumbuh City. However, the PUPR and DPMPTS offices continue to exercise their authority based on the law and its implementation regulations. Several impacts exist, including reduced local revenue, challenges in employee capabilities and qualifications, issues with technology implementation, a lack of community understanding regarding the procedures and requirements for PBG applications through the SIMBG system, and overlapping regulations related to Building Approval Retribution. 2. The research also identified several benefits of having a PBG, including enhanced Legality, Security, Order, Commercial Advantages, Ease of Licensing, A Healthier Environment, and Increased Local Revenue.
The Liberalization Aspect Of Trademark Law Of Indonesia In The Asean Free Trading Delfiyanti, Delfiyanti
Nagari Law Review Vol 8 No 2 (2024): Nagari Law Review
Publisher : Faculty of Law, Andalas University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25077/nalrev.v.8.i.2.p.261-268.2024

Abstract

Intellectual property rights are rights that are protected by law and one of them is related to brands. The use of brands in trade both nationally and internationally has increased from year to year. Along with global trade liberalization, brand use continues to increase. In regional trade, it is known as liberalization in ASEAN. There are various agreements made by ASEAN member countries to improve the welfare of the ASEAN Community as contained in the 2008 ASEAN Charter. Meanwhile, for brand protection, an ASEAN Intellectual Property Rights Action Plan agreement was created. This agreement contains ASEAN's action plan to protect brands and use of brands without permission. For Indonesia, this is an agreement that is harmonized with Law no. 20 concerning Marks and Geographical Indications.
Kepastian Hukum Persyaratan Evaluasi Kualifikasi Sisa Kemampuan Paket Untuk Usaha Non Kecil Pada Dokumen Pemilihan Tender Pekerjaan Konstruksi Raharjo, Dandy Ilham; Yuslim, Yuslim; Mannas, Yussy Adelina
Nagari Law Review Vol 8 No 1 (2024): Nagari Law Review
Publisher : Faculty of Law, Andalas University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25077/nalrev.v.8.i.1.p.203-213.2024

Abstract

This research aims to analyze the legal certainty of the qualification evaluation requirements for the remaining capability packages for non-small businesses for tenders for construction work carried out by the Procurement Committee. The tender has 4 (four) requirements that must be met, namely administrative, qualification, technical and price requirements. One of the qualification requirements that must be fulfilled Provider is the remaining capacity of the non-small business package. The remaining package capacity is the maximum limit on the amount of work that may be carried out by the construction work provider at the same time as the procurement contract is signed. Normative research is understood as research to test applicable norms or provisions. Research results: SKP qualification evaluation requirements for non-small businesses have 2 (two) provisions for non-small businesses, the Package Capability (KP) value is determined as 6 (six) or 1.2 (one point two) N, Providers who have more experience from 6 (six) after this regulation is promulgated and submits a list of jobs that have been handled simultaneously in the last 5 (five) years, the results of the evaluation of being able to handle packages simultaneously will increase, for example 1.2 (one point two) x 6 ( six) becomes 7.2 (seven point two). However, in terms of determining the results of decimal numbers, there are no more detailed and strict provisions for rounding up or down for decimal numbers. Legal certainty seen from the opinion of Gustav Radbruch stated that legal certainty is achieved if it fulfills 4 (four elements), one of which is that the facts contained in the law must be formulated in a clear way, then the requirements for evaluating the remaining capabilities of non-small business packages which have not been regulated are related to provisions 1.2 ( one point two)N has not been fulfilled.
Pertanggungjawaban Tim Penjamin Mutu Dalam Penetapan Penyedia Jasa Konstruksi Pada Pengadaan Barang/Jasa Pemerintah Wulandary, Siti Zulaika; Rembrandt, Rembrandt; Syam, Misnar
Nagari Law Review Vol 8 No 1 (2024): Nagari Law Review
Publisher : Faculty of Law, Andalas University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25077/nalrev.v.8.i.1.p.137-152.2024

Abstract

This article analyses the quality assurance activity to determine the winner carried out by the Budget User. Quality assurance activity is carried out by the Quality Assurance Team, which was established by the instruction of the Minister of Public Works and Housing Number 01 of 2022. Government goods/services procurement, which is government legal action, generates state administrative decisions. This decision is often made by other parties who feel aggrieved. The existence of the Quality Assurance Team (QAT) as a government organ that participates in the process of determining the winner by Budget User is not regulated by its accountability in the process of government goods/services procurement. Therefore, the authority of QAT to determine the form of accountability is important to understand. The first result of the study is suggested that the authority of QAT in the process of government goods/services procurement in the Ministry of Public Works and Housing in the form of checking the completeness of the proposal document for determining the winner and preparing the concept of recommendation for determining winner carried out by Budget User is the authority obtained from delegation. The authority of QAT is stated as delegation because it meets the elements required to obtain delegation authority, according to experts. However, if referring to Government Administration Law, the authority given to QAT cannot be categorized as delegation because, according to Government Administration Law, delegation can only be assigned by the Government Regulation/Presidential Regulation/Regional Regulation. Second, because the authority of QAT is obtained delegatively, then QAT has legal accountability. However, the accountability of QAT is only limited to accountability for duties to the Budget User, which is in the form of internal accountability. The authority of assigning a winner, which is still carried out by the Budget User, gives the Budget User the burden of legal accountability towards the verdict issued, which is the Letter of Assigning the Winner of Provider by the Budget User.
Pengelolaan Pajak Bumi dan Bangunan Sektor Perkebunan Dalam Kerangka Desentralisasi Fiskal di Sumatera Barat Putra, Gustinof Hase; Warman, Kurnia; Rosari, Anton
Nagari Law Review Vol 8 No 1 (2024): Nagari Law Review
Publisher : Faculty of Law, Andalas University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25077/nalrev.v.8.i.1.p.79-89.2024

Abstract

Land and Building Tax (LBT) in the Plantation sector is a tax on land and buildings that are owned, benefited from, owned, or controlled by an individual or legal entity located in the area stated in the plantation business permit and plantation business use rights. The management is the authority of the Central Government. In the plantation business, every business actor with a particular land area must have a plantation business permit issued by the Regional Government. The results of this LBT collection are handed over entirely to the regional government through profit-sharing funds. The Problems that will be studied are: How is the management of LBT for plantation businesses in West Sumatra; How is the financial relations between the Central Government and the Regional Governments in managing LBT of Plantation businesses in West Sumatera; and How to delegate the management of LBT in the Plantation Sector to the Regional Government in West Sumatera. The author uses empirical juridical research methods and an analytical description in this writing. The research results concluded that the management of LBT for plantation businesses in West Sumatra is managed by The Central government in the LBT Plantation Sector and The Regional Government in the form of LBT for the Rural-Urban Sector. The Financial relationship between the Central Government and Regional Governments in managing LBT for plantation businesses is to transfer funds to the regions through Tax Profit Sharing and Palm Oil Profit Sharing Funds. Management of LBT in the Plantation Sector should be delegated to The Regional Government, and the Regional Government is capable and ready to manage it.
Penafsiran Hukum Terhadap Pasal 156a Kitab Undang-Undang Hukum Pidana Tentang Tindak Pidana Penodaan Agama Mursalin, Adinda Faradilla; Ismansyah, Ismansyah; Yoserwan, Yoserwan
Nagari Law Review Vol 8 No 2 (2024): Nagari Law Review
Publisher : Faculty of Law, Andalas University

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25077/nalrev.v.8.i.2.p.269-284.2024

Abstract

The criminal offense of religious defamation, regulated under Article 156a of the Indonesian Criminal Code, often triggers social and political issues due to varying interpretations, leading to debates and criminalization. This research discusses a notable case of religious defamation in Indonesia, specifically Verdict Number 1612/Pid.B/2018.Pn.Mdn involving the defendant, Meliana. In this verdict, the court found the defendant guilty of insulting Islam concerning the volume of the call to prayer (adhan) in her neighborhood. Her actions provoked public anger, leading to serious legal consequences. Therefore, this study aims to analyze and provide an in-depth interpretation to address ambiguities in the article's formulation concerning the boundaries of “hostility,” “misuse,” and “defamation.”The research focuses on three main questions: (1) What is the legal interpretation of the criminal offense of religious defamation under the Law on Religious Defamation? (2) How is the concept of religious defamation in Article 156a of the Criminal Code legally interpreted? and (3) How did the judge interpret the criminal offense of religious defamation in Medan District Court Verdict Number 1612/Pid.B/2018/Pn.Mdn? This study adopts a normative research method, focusing on the written rules, principles, and norms within a legal system and analyzing laws, regulations, jurisprudence, and legal doctrines to solve legal issues. The research findings indicate the need to review Article 156a of the Criminal Code to better align it with societal developments. The verdict discussed in this study demonstrates that the criminal sanctions imposed were inconsistent with the substantive law in Article 156a of the Criminal Code. The sanctions included administrative and criminal penalties, highlighting the dual-track system in Law Number 1/PNPS of 1965 and Article 156a of the Criminal Code. Therefore, a more specific legal interpretation is needed to ensure the fair application of Human Rights Principles.

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