Legal Spirit
Legal Spirit journal is managed by the Postgraduate Masters of Law, Universitas Widya Gama Malang. Legal Spirit Journal can be used as a reference in an effort to achieve the ideals of the rule of law that everyone dreams of in accordance with Pancasila and the 1945 Constitution. LEGAL SPIRIT published two times annually, on June and December. Each of the issue has more than five articles both on review and research article use English and Indonesian language. The scope of the articles published in this journal deal with a broad range of topics, including: Administrative Law; Civil Law; Criminal Law; Constitutional Law; Economic and Business Law; Environmental Law; International Law; Law and Society; Human Rights
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<![CDATA[Indonesia Sebagai Anggota International Centre For Settlement Of Investment Disputes ]]>
<![CDATA[Casily, Stephanie]]>
<![CDATA[ Legal Spirit Vol 8, No 1 (2024): Legal Spirit ]]>
Publisher : <![CDATA[Pascasarjana Ilmu Hukum, Universitas Widya Gama Malang ]]>
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DOI: 10.31328/ls.v8i1.5191
<![CDATA[International Centre For Settlement Of Investment Disputes (ICSID) is an effort to settle investment disputes by means of arbitration. This institution aim to create a just, effective, and fair treatment towards both contracting parties which are (a) investor from another state and (b) host state. As dispute might rise within an investment contract, Indonesia believes that by joining ICSID, the investors will be given the ultimate protection of unfair treatment from Indonesia. This is due to the fact that investors are allowed to bring such dispute into the arbitration of ICSID, should a violation is being conducted. Even if the intention of Indonesia to join ICSID was made in good faith, many violations of the investor’s responsibility result in many cases of ICSID. Moreover, ICSID’s claim to solve a dispute with effective, and fair treatment towards both contracting parties are at stake, considering there are a lot of cases that require more than 10 (ten) years to be settled. Therefore, many people are expressing their concern of Indonesia’s status as one of the ICSID member. The method of this research is based on a Case Based Approach and considered as a normative legal research as it’s type in order to answer the research question regarding Indonesia’s status as an ICSID member. ]]>
<![CDATA[Tindak Pidana Kesusilaan Di Media Sosial ]]>
<![CDATA[Agustina, Agustina]]>;
<![CDATA[Purnomo, Sagita]]>
<![CDATA[ Legal Spirit Vol 8, No 1 (2024): Legal Spirit ]]>
Publisher : <![CDATA[Pascasarjana Ilmu Hukum, Universitas Widya Gama Malang ]]>
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DOI: 10.31328/ls.v7i2.5047
<![CDATA[This study aims to examine the elements of criminal acts of decency on social media, as well as comprehensively discuss policies and law enforcement against perpetrators of criminal acts of decency. This type of research is normative juridical with a descriptive-analytical approach discussing existing legal symptoms and problems, and testing them aware of laws and legal norms. The results of this study show that the elements of criminal acts of decency on social media as regulated by Article 281 of the Criminal Code are: whoever, intentionally, in public, distributes, distributes or transmits content that violates decency refers to the object of action in the Pornography Law. Policies and law enforcement against perpetrators of criminal acts of decency include penal policies regulated in Law Number 19 of 2016 concerning Electronic Information and Transactions, Law Number: 44 of 2008 concerning Pornography, and criminal acts of decency regulated by the Criminal Code. Non-penalty policy: supervision of sites or content on social media that contain moral content, understanding religious values from an early age, increasing healthy internet understanding, and parental supervision of minors in using social media/internet]]>
<![CDATA[Legal Review of Environmental Law Concerning Illegal Sand Mining ]]>
<![CDATA[Prastiyo, Laode Agung]]>;
<![CDATA[Fitri, Winda]]>
<![CDATA[ Legal Spirit Vol 8, No 1 (2024): Legal Spirit ]]>
Publisher : <![CDATA[Pascasarjana Ilmu Hukum, Universitas Widya Gama Malang ]]>
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DOI: 10.31328/ls.v8i1.5225
<![CDATA[This research aims to analyze the regulations, enforcement, and legal sanctions related to illegal sand mining in Batam City. Additionally, the study seeks to assess the environmental impact of illegal sand mining activities and evaluate the efforts made by the Batam City Government and law enforcement authorities in combating illegal sand mining practices. A normative juridical approach, particularly the statute approach, is employed in this research. The research methodology involves data collection, examination of legal regulations, doctrines, juridical aspects, and societal norms. The results indicate that authorities with jurisdiction should anticipate potential issues and environmental damage arising from illegal sand mining. Therefore, the protection of the environment and natural resources needs to be strengthened to ensure the safety of Batam City residents. The Batam City Government is expected to take decisive measures to halt illegal sand mining, including the implementation of criminal sanctions and confiscation of tools used by illegal actors in accordance with applicable regulations.]]>
<![CDATA[The Urgency to Renew Bankruptcy Law Requirements and Summary Proof in Indonesia ]]>
<![CDATA[Tan, David]]>;
<![CDATA[Sudirman, Lu]]>;
<![CDATA[Fiorentine, Jasisca]]>
<![CDATA[ Legal Spirit Vol 8, No 1 (2024): Legal Spirit ]]>
Publisher : <![CDATA[Pascasarjana Ilmu Hukum, Universitas Widya Gama Malang ]]>
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DOI: 10.31328/ls.v8i1.5081
<![CDATA[The provisions pertaining to bankruptcy and summary proof in Law Number 37 of 2004 present various drawbacks in their application, particularly impacting debtors. Debtors can be declared bankrupt with relative ease, and the requirement for declaring bankruptcy does not directly indicate the debtor’s insolvency. This can present difficulties for other creditors, as the leniency in bankruptcy requirements for debtors is viewed as means to accelerate debt resolution, even though not all face the same circumstances. This research will focus on the issues regarding the urgency of revising Law Number 37 of 2004, specifically with regard to the conditions for bankruptcy and summary proof. The method used in this research is the doctrinal legal research method, which entails scrutinizing literary sources, legal theories or principles, research journals, and legislative regulations to analyze the subject of the research. Furthermore, a comparative approach is adopted to evaluate the development of Indonesian law by examining the bankruptcy legal frameworks in France and the Netherlands. The study concludes that the pressing need for amendments to the conditions for bankruptcy and summary proof in Law Number 37 of 2004 necessitates a responsive legal system. This can be achieved through a comprehensive review of problematic regulations. Therefore, the incorporation of additional measures, such as an insolvency test and a proactive approach by judges, establishes a regulatory mechanism that can be viewed as a responsive outcome in the future.]]>
<![CDATA[Implementation of Plea Bargaining in the Indonesian Criminal Justice System ]]>
<![CDATA[Nurana, Desi]]>
<![CDATA[ Legal Spirit Vol 8, No 1 (2024): Legal Spirit ]]>
Publisher : <![CDATA[Pascasarjana Ilmu Hukum, Universitas Widya Gama Malang ]]>
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DOI: 10.31328/ls.v8i1.5195
<![CDATA[There is a need for a new system in the Indonesian Criminal Justice System that is thought to make case handling more efficient, specifically by adopting plea bargaining as a problem-solving method for the Indonesian criminal justice system. In this study, the issue formulation is how to implement plea bargaining in the present criminal justice system and the urgency of plea bargaining in the renewal of the Indonesian criminal justice system. The Normative Juridical Research technique was employed to generate this research. Normative Juridical Research is a type of legal research that involves literature study or just secondary information. The regulation on the application of Plea Bargaining in the current criminal justice system is not based on the value of justice, as Article 4 paragraph (2) of Law No. 48 of 2009 concerning Judicial Power mandates that the judicial process must be carried out quickly. At a low cost, but based on the problems that the author described in the previous sub-chapter, the criminal justice process has not been able to reach a simple judicature to this day. The complexity of the criminal justice process in Indonesia now prevents simple, quick, and low-cost judicial implementation from being accomplished in the criminal justice process in Indonesia. In this case, there is a need for a renovation of Indonesia's criminal justice system. This is the legal basis for the urgent need to establish Plea Bargaining in Indonesia.]]>
<![CDATA[Quo Vadis Landasan Hukum Pengangkatan Penjabat Kepala Daerah ]]>
<![CDATA[Kusnanto, Andi]]>
<![CDATA[ Legal Spirit Vol 8, No 1 (2024): Legal Spirit ]]>
Publisher : <![CDATA[Pascasarjana Ilmu Hukum, Universitas Widya Gama Malang ]]>
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DOI: 10.31328/ls.v7i2.5049
<![CDATA[The Ministry of Home Affairs issued Permendagri No. 4 of 2023 as a legal basis for the appointment of acting regional heads. In fact, viewed from various aspects, the legal basis in the form of Permendagri is not sufficient and inappropriate to accommodate the needs of the mechanism for appointing acting regional heads. The research methods used in this study belong to the normative juridical type of research. The type of data used is secondary data, so the data collection uses literature studies. The data analysis method used is qualitative analysis. This article finds the problem of non-conformity in the formation of appointment regulations in the form of Permendagri, and finds several issues that will be discussed: First, the position of the Ministerial Regulation in the legal system in Indonesia. Second, Permendagri 4/2023 contradicts Article 86 Paragraph (6) of Law No. 23 of 2014 concerning Regional Government. Third, Permendagri 4/2023 ignores the recommendations of Constitutional Court Decision No. 67/PUU-XIX/2021. This article concludes that harmonization is needed in the issuance of technical regulations for the appointment of acting regional heads, so it is recommended to issue laws and regulations in the form of Government Regulations as mandated by the Constitutional Court and laws.]]>
<![CDATA[Pemeliharaan Anak Setelah Perceraian ]]>
<![CDATA[Budiman, Fernanda Akbar]]>;
<![CDATA[Salam, Abdul]]>
<![CDATA[ Legal Spirit Vol 8, No 1 (2024): Legal Spirit ]]>
Publisher : <![CDATA[Pascasarjana Ilmu Hukum, Universitas Widya Gama Malang ]]>
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DOI: 10.31328/ls.v8i1.5238
<![CDATA[Child care involves parents, namely father and mother, as parties who have responsibility for their children. As time goes by, sometimes disputes occur between husband and wife which result in divorce. The purpose of this writing is to find out about child maintenance after divorce according to statutory regulations. Child care after divorce is regulated in Law Number 35 of 2014 concerning Child Protection and Law Number 1 of 1974 concerning Marriage. Child maintenance after marriage in the case study of Decision Number 395/Pdt.G/2021/PN Jkt.Utr. It started with the Plaintiff (Wife) and the Defendant (Husband) who divorced, they had two sons, namely Brother A and Brother B. In this case there has been a divorce, then the parents, either father or mother, are obliged to provide maintenance for their children. until they are adults or able to stand on their own. These children's rights are supported by Article 14 of the Child Protection Law where children have the right to meet directly or have personal contact with their parents, children have the right to receive care, maintenance, education and protection for the growth and development process from their parents according to their abilities, talents and interests, the right to receive living expenses from both parents, and the right to obtain other children's rights. So that the two children of the Plaintiff and Defendant are entitled to receive maintenance in the form of a place to live with the mother because she is the closest person to the child and receives support and education from father to adult.]]>
<![CDATA[Prinsip Itikad Baik Terhadap Merek MS Glow ]]>
<![CDATA[Rachman, Taslim Abd.]]>;
<![CDATA[Alauddin, Rusdin]]>;
<![CDATA[Alwan, Sultan]]>
<![CDATA[ Legal Spirit Vol 8, No 1 (2024): Legal Spirit ]]>
Publisher : <![CDATA[Pascasarjana Ilmu Hukum, Universitas Widya Gama Malang ]]>
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DOI: 10.31328/ls.v8i1.5091
<![CDATA[Legal protection is an important aspect that needs to be considered in the controversy between MS Glow and PS Glow trademarks. PT Kosmetika Global Indonesia, the MS Glow brand holder that has registered its brand with the Director General of Intellectual Property Rights, requires adequate legal protection. The public sees that the products of the MS Glow brand are better known than the products of the PS Glow brand, and there is a view that PS Glow is trying to hijack the popularity of MS Glow. Through normative juridical legal research, it was found that in the context of the principle of good faith, MS Glow is entitled to legal protection as a brand owner. The brand owner has the exclusive right to the use of its brand and the government is responsible for ensuring this protection. The judge's decision in the dispute between the MS Glow and PS Glow trademarks (Decision Number 2/Pdt.Sus.HKI/Merek/2022/PN.Niaga.Sby) has fulfilled the principle of legal certainty. The judge refers to Law Number 20 Year 2016 on Trademark Registration and Geographical Indications as well as the principle of "first to file". However, the decision has not fully reflected justice and expediency. In the context of trademark registration, the "first to file" principle needs to be evaluated by the government to make it fairer. The lengthy trademark registration process must pay close attention to every detail, the Director General of IPR must be more active in socializing Law Number 20 Year 2016, including the principle of "first to file" to the public so that understanding of the trademark and the registration process becomes better.]]>
<![CDATA[Reorientasi Hukum Terhadap Anak Sebagai Pelaku Tindak Pidana Narkotika ]]>
<![CDATA[Alhakim, Abdurrakhman]]>;
<![CDATA[Manurung, Intan Feronika]]>;
<![CDATA[Tantimin, Tantimin]]>
<![CDATA[ Legal Spirit Vol 8, No 1 (2024): Legal Spirit ]]>
Publisher : <![CDATA[Pascasarjana Ilmu Hukum, Universitas Widya Gama Malang ]]>
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DOI: 10.31328/ls.v7i2.5028
<![CDATA[This study aims to review the legal aspects or legal reorientation towards children who are determined as perpetrators of narcotics crimes in Indonesia. This research is very important to be carried out conceptually to be able to provide measurable firm sanctions in accordance with the provisions of the Law on Narcotics and the Law on the Juvenile Criminal Justice System. This research is a normative juridical research using primary legal materials and secondary legal materials. The results of the study found that re-orientation of the legal aspects of children as perpetrators of narcotics crimes is very important to do because there is ambiguity related to the process of punishing children as drug offenders. First, the use of the Law on Narcotics as a basic object is still borne by the perpetrator in accordance with the stipulated articles, evidence that results in criminal sanctions according to the provisions. Second, for minors, the defense is still carried out in accordance with the Law on the Juvenile Criminal Justice System, where there is a reduction in sanctions that take into account the mental and physical condition of the child. When the verdict has been determined, the offender must be placed in a special correctional institution for children and given the right to medical rehabilitation and social rehabilitation because they consider the child's future. Third, the rehabilitation aspect can be prioritized as is the case when children are only designated as victims, or there is no evidence against them as the main perpetrators of Narcotics.]]>
<![CDATA[Anak Mengalami Kebutaan Akibat Kekerasan Fisik: Apa Hukumnya? ]]>
<![CDATA[Amara, Nouna Shaina]]>;
<![CDATA[Zubaedah, Rahmi]]>
<![CDATA[ Legal Spirit Vol 8, No 1 (2024): Legal Spirit ]]>
Publisher : <![CDATA[Pascasarjana Ilmu Hukum, Universitas Widya Gama Malang ]]>
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DOI: 10.31328/ls.v8i1.5199
<![CDATA[Cases of physical violence committed by minors continue to occur and increase in Indonesia. One of them was a case of physical violence that befell an elementary school student in Gresik which resulted in permanent blindness due to a meatball stab attack by her senior in one eye. This research is intended to find out about legal protection for minor victims who experience physical violence and how the law in Indonesia regulates the justice of minors who commit criminal acts. By using normative juridical research methods and using secondary data in the form of articles, published news and previous research and using positive law in Indonesia, namely, Law Number 23 of 2002 concerning Child Protection, Law Number 35 of 2014 concerning Amendments to Law Number 23 of 2002 concerning Child Protection, Law Number 11 of 2012 concerning the Juvenile Criminal Justice System. It is hoped that this research will provide comprehensive insight regarding law enforcement efforts and the protection of minors in Indonesia.]]>
