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GLOBAL LEGAL REVIEW Faculty of Law Universitas Pelita Harapan Building D 4th Floor Jl. M. H. Thamrin Boulevard 1100 Lippo Village, Tangerang 15811 - Indonesia
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Global Legal Review
Published by Universitas Pelita Harapan
ISSN : 27760308     EISSN : 27761347     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
Global Legal Review, published by the Universitas Pelita Harapan Faculty of Law, is a forum for published research and the scientific discussion of law. It serves as an input to the development of both national and international law. The journal is also a place to accommodate publications expected from doctoral candidate completing their dissertation both from domestic and foreign universities and/or research institutions.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 74 Documents
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CURATORS ARE VULNERABLE TO BE CRIMINALIZED AND CRIMINATED IN BANKRUPTCY AND PKPU PROCESSES Ranto Parulian Simanjuntak
Global Legal Review Vol 3, No 2 (2023): October
Publisher : Universitas Pelita Harapan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/glr.v3i2.7424

Abstract

The Curator is one of the important organs in the debt settlement process between debtors and their creditors through bankruptcy law instruments. Based on Law Number 37 of 2004 concerning Bankruptcy and Postponement of Debt Payment Obligations (PKPU), the Curator is given broad and broad duties and powers in managing and settling the assets of a bankrupt debtor. Because since being declared bankrupt by the court, the debtor has lost his right to manage his business and assets. The duties and authorities to administer the business and assets of the bankrupt debtor rest in the hands of the Curator, who works under the supervision of the Supervisory Judge. In carrying out its duties and authorities, the Curator must adhere to the provisions of the Law and the Professional Code of Ethics, namely being independent, having no conflict of interest and not handling more than 3 (three) Bankruptcy and PKPU cases. If in carrying out its duties and authorities it causes damage to the bankrupt assets, then the Curator must be legally responsible. That means, the Curator does not have the right of immunity or impunity in carrying out his duties and authorities to manage and settle bankruptcy assets in accordance with the provisions of the law. The Curator is not a public official. The Curator may be punished if his actions and decisions in administering and settling the bankrupt assets cause harm to the bankrupt assets. However, Law Number 37 of 2004 concerning Bankruptcy and PKPU does not include criteria for criminal acts and criminal sanctions for Curators. Because of this, Curators are vulnerable to being criminalized and punished.The Curator is one of the important organs in the debt settlement process between debtors and their creditors through bankruptcy law instruments. Based on Law Number 37 of 2004 concerning Bankruptcy and Postponement of Debt Payment Obligations (PKPU), the Curator is given broad and broad duties and powers in managing and settling the assets of a bankrupt debtor. Because since being declared bankrupt by the court, the debtor has lost his right to manage his business and assets. The duties and authorities to administer the business and assets of the bankrupt debtor rest in the hands of the Curator, who works under the supervision of the Supervisory Judge. In carrying out its duties and authorities, the Curator must adhere to the provisions of the Law and the Professional Code of Ethics, namely being independent, having no conflict of interest and not handling more than 3 (three) Bankruptcy and PKPU cases. If in carrying out its duties and authorities it causes damage to the bankrupt assets, then the Curator must be legally responsible. That means, the Curator does not have the right of immunity or impunity in carrying out his duties and authorities to manage and settle bankruptcy assets in accordance with the provisions of the law. The Curator is not a public official. The Curator may be punished if his actions and decisions in administering and settling the bankrupt assets cause harm to the bankrupt assets. However, Law Number 37 of 2004 concerning Bankruptcy and PKPU does not include criteria for criminal acts and criminal sanctions for Curators. Because of this, Curators are vulnerable to being criminalized and punished.
THE FREEDOM OF OPINION EXPRESSION THROUGH SOCIAL MEDIA AND THE IMPACT OF ACTS OF DEFAMATION TO THE PERPETRATOR Ario Setra Setiadi
Global Legal Review Vol 3, No 2 (2023): October
Publisher : Universitas Pelita Harapan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/glr.v3i2.6738

Abstract

This study aims to conduct a juridical review of Article 27 Paragraph (3) of Law Number 11 of 2008 concerning Information and Electronic Transactions relating to freedom of expression and acts of defamation through social media. This study uses a normative legal research method with a literature study approach. The effectiveness of Article 27 Paragraph (3) of Law Number 11 of 2008 in protecting freedom of opinion and overcoming acts of defamation through social media is still limited. Some of the obstacles faced include unclear regulations, limited law enforcement capacity in dealing with cases of defamation on social media, and problems in gathering legal and acceptable electronic evidence in court. Several recommendations to increase the effectiveness of Article 27 Paragraph (3) in overcoming acts of defamation through social media are; further clarification regarding the provisions of Article 27 Paragraph (3) ITE so can be interpreted clearly and do not leave room for different interpretations, increasing the capacity of law enforcement, regulations regarding the collection of electronic evidence that is valid and admissible in court needs to be clarified, wider outreach to the public regarding the risks and legal consequences of acts of defamation through social media and periodic evaluation of the implementation of Article 27 Paragraph (3) of ITE in dealing with defamation cases through social media. Therefore, continuous efforts are needed to increase understanding, awareness, and law enforcement regarding Article 27 Paragraph (3) in overcoming acts of defamation through social media so that freedom of expression can be exercised in a balanced way by avoiding actions that violate the law
Regulations on Access to Financial Information to Improve Taxpayer Compliance with Law No. 9/2017 and its Implementation Rules Tjhai, Fung Njit
Global Legal Review Vol 4, No 1 (2024): April
Publisher : Universitas Pelita Harapan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/glr.v4i1.6348

Abstract

The purpose of this research is to explore and analyze regulations for access to financial information for tax purposes to increase taxpayer compliance. The research approach in this study is qualitative normative based on literature and field studies in the form of collecting access data and following up on inbound and domestic AEOI based on access to information by tax administration. This study finds that for easy access to financial information for tax purposes both in the context of AEOI and the implementation of the tax laws, Law No. 9/2017 authorizes access to financial information to the Director General of Taxes (DGT) by setting aside the confidentiality of financial information in the Law of Tax Procedures and the Banking Law, access to banking financial information has positively increased tax compliance, but compulsory reporting of accounts with minimum balance of Rp1 billion have the potential to trigger rush of bank funds. On the other hand, it had reduced the effectiveness of Law No. 9/2017 to increase tax compliances for individuals who have accounts’ balance less than Rp1 billion at the end of the reporting calendar year.  It can be suggested to amend the formulation of the provisions of Article 2 paragraph (3) of Law 9/2017 refers to the Common Reporting Standard (CRS) which must contain financial information, including NPWP with NIK (Resident Identification Number) for certainty and to eliminate doubts.
Parate Execution After the Indonesian Constitutional Court’s Judicial Review of Fiducia Law and Mortgage Law Wardani, Kusuma
Global Legal Review Vol 4, No 1 (2024): April
Publisher : Universitas Pelita Harapan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/glr.v4i1.6628

Abstract

According to the Law No. 42 of 1999 on Fiducia Security (“Fiducia Law”) as well as the Law No. 4 of 1996 on Mortgage, if there is a breach of fiduciary guarantee and mortgage rights, the secured creditors can undertake a parate execution, as the expedient, simple and cost-efficient method by means of a public auction. However, the Indonesian Constitutional Court’s (MKRI) Decision Number 18/PUU-XVII/2019 has interpreted Parate Execution of Fiduciary Guarantee must firstly obtain the debtor’s consent that a breach has indeed occurred and the voluntarily surrenders of the guarantee object to the creditor. On the other hand, in the Decision No. 21/PUU-XVIII/2020, MKRI did not define the same process for Parate Execution of Mortgage Rights. From the substance point of view, the two MK verdicts provide a different interpretation of the principle of “pacta sunt servanda” and fiducia security. This has caused the execution of Fiduciary Guarantee becomes not easy, expedient and cost efficient any longer. This normative research attempts to analyse the legal and economic impact of the two verdicts and their implementation from a law and justice perspective. The results show the need of consistency in the implementation of Parate Execution for both. This means that an agreement regarding the existence of a breach is not required. In addition, if the debtor does not voluntarily surrender the guarantee object, then the creditor by law reserves the rights to seize the object. Arguably, it is necessary to amend the Fiducia Law in accordance with the MKRI’s Decisions, in line with the general principles of security in parallel with the principles of justice, legal certainty and utility.
The Effectiveness of the Government Regulation Concerning Franchises in Resolving Franchise Business Disputes in Indonesia Setiadi, Ario Setra
Global Legal Review Vol 4, No 1 (2024): April
Publisher : Universitas Pelita Harapan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/glr.v4i1.6747

Abstract

Franchising is a business system that is growing with the current in Indonesia and the legal relationship between the franchiser and the franchisee is regulated in a contract that regulates the rights and obligations of the parties who have a relationship to comply with the contents of the agreement, which if violated can have consequences for the future law according to the agreement in the franchise agreement. Since the enactment of Government Regulation No. 42 of 2007, franchise business disputes still occur in Indonesia, such as abuse of franchisor authority, quality of technical and managerial support provided by franchisors to franchisees, and unfairness in profit sharing between franchisees and franchisees. This study aims to examine the effectiveness of Government Regulation No. 42 of 2007 as a legal basis for resolving franchise business dispute cases in Indonesia. The research method used is normative legal research with a literature study approach. The results showed that Government Regulation No. 42 of 2007 is a regulation that regulates the mechanism for resolving business disputes in Indonesia, including in the case of franchise business disputes. This research also identifies several challenges that may be faced in the application of Government Regulation No. 42 of 2007 in resolving franchise business dispute cases, such as the complexity of the dispute resolution process, limited access to dispute resolution institutions, and low awareness and understanding of business people regarding the dispute resolution mechanism regulated in the regulation. Steps are needed such as counseling and persuasive approaches to franchise business actors regarding the importance of resolving business disputes through the mechanisms regulated in the regulation, monitoring, and evaluation of the dispute resolution process carried out by the appointed institution.
The Existence of Regional-Owned Liability Companies as Profit-Oriented Regional-Owned Enterprises Suratminingsih, Endang
Global Legal Review Vol 4, No 1 (2024): April
Publisher : Universitas Pelita Harapan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/glr.v4i1.4719

Abstract

Regional-Owned Enterprise (“BUMD”) is a business entity owned by the regional government as a source of local revenue, especially to provide benefits to the regional economy based on Good Corporate Governance. In addition to seeking profit, Regional Companies also carry out social functions for the residents of their regions. Before the era of regional autonomy, regional companies were regulated by Law No. 5 of 1962 concerning Regional Companies. Responding to this, the government together with the People's Representative Council (“DPR”) replaced the Law on Regional Companies with the Law on Regional Government and Government Regulations on BUMD. The two regulations were drafted to improve the performance of regional companies, as well as to fill the legal vacuum regarding regulations regarding BUMD. In practice, the purpose of establishing the BUMD has not been achieved because BUMD is required to have a social function in society, which makes it less focused on its main mission. Using a normative juridical research method and statutory approach as well as conceptual approach, this paper comprehensively examines Regional Liability Company (“Perseroda”) regulations and offers an ideal concept for the existence of profit-oriented Perseroda in Indonesia. The legal theories used are the Theory of Three Fundamental Legal Values (Gustav Radbruch) and the Legal Entity Theory. The results of the research show that the most appropriate solution is to have the management of BUMD separate from the Regional Government Law and that the issuance of Government Regulations regarding BUMD is proven yet to be able in addressing the problem of BUMD management. Therefore, it is recommended that the DPR and the Government immediately organize and harmonize regulations regarding BUMD management so as to realize good BUMD governance and performance, especially to support the strength of the regional economy.
Effectiveness of Law Enforcement on Corporate Bankruptcy Status Siregar, Benito
Global Legal Review Vol 4, No 1 (2024): April
Publisher : Universitas Pelita Harapan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/glr.v4i1.6077

Abstract

This study aims to evaluate the effectiveness of law enforcement on the status of bankruptcy in Indonesia. Lawrence M. Friedman's legal system theory is used because it has a comprehensive scope to evaluate the effectiveness of enforcing legislation. This study uses juridical-normative research with statutory and case approach. The laws and regulations studied are Law no. 37 of 2004 concerning Bankruptcy and Postponement of Debt Payment Obligations (KPKPU), while the case study takes the case of the bankruptcy of Telkomsel in 2012. This study finds that bankruptcy law enforcement in Indonesia has not been effective. This is because Indonesian bankruptcy law still has weaknesses in terms of substance, structure, and legal culture. In addition, this study finds that the fundamental weakness of Law no. 37 of 2004 is the application of simple proof as a mechanism for imposing bankruptcy statements to debtors. The application of this simple evidence makes law enforcers (judges) tend to ignore facts other than the two conditions stipulated in Law no. 37 of 2004 to impose bankruptcy status, namely the existence of two or more creditors and the existence of one debt that is due and collectible. In the end, the simple evidence mechanism does not open up opportunities for law enforcement officials to assess the debtor's ability to pay off their debts.
THE PREPARATION OF OWNER ESTIMATE IN RIG SERVICE CONTRACTS IN UPSTREAM OIL AND GAS BUSINESS ACTIVITIES ACCORDING TO LEGAL CERTAINTY PRINCIPLES. Radjagoekgoek, Robert Pangihutan
Global Legal Review Vol. 3 No. 1 (2023): April
Publisher : Universitas Pelita Harapan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/glr.v3i1.4716

Abstract

As one of the vital and strategic natural resources, due to its vital role that could impact society, oil and gas is one of the sources of state revenue to support national development. To implement Article 33 of the 1945 Constitution, in particular to realize the welfare and prosperity of the people, UU Migas No 22, 2001 mandated SKK Migas to oversee upstream activity done by contractors (KKKS).Contractors conduct rig procurement processes with their Owner Estimate (OE) in alignment to Perpres No 12, 2021 and PTK 007, 2017. Due to that reason, legal certainty is needed to deal with problems at the implementation level.This dissertation research covers two legal issues, namely the regulation and implementation of the preparation of the HPS Value in the Rig contract.The theoretical basis used is agreement theory, legal certainty theory and Per Se Illegal and Rule of Reason approach. The research analysis is using normative juridicals which are supported by empirical studies.The result of this research concludes that normatively, OE preparation guidelines provide multiple interpretations, inconsistencies and a legal vacuum.In practice, problems related to aspects of legal certainty, namely HPS offers are not confidential and/or confidential, extreme price cut due to offers below 80% of HPS are being allowed, the existence of negotiations even though the price offer is already the lowest and below the HPS . It opens for conspiracy in the procurement. For this reason, it is necessary to amend Perpres and PTK 007 in order to achieve compliance according to the principles of agreement, legal certainty and fair business.The change in regulation will provide legal certainty, efficiency and effectiveness so that SKK Migas and KKKS and Rig Providers can carry out upstream business activities properly and optimally to support the social welfare of the Indonesian. Keywords: Oil and Gas, Owner Estimates Development, KKKS & Rig Provider
The Existence of Regional-Owned Liability Companies as Profit-Oriented Regional-Owned Enterprises Suratminingsih, Endang
Global Legal Review Vol. 4 No. 1 (2024): April
Publisher : Universitas Pelita Harapan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/glr.v4i1.4719

Abstract

Regional-Owned Enterprise (“BUMD”) is a business entity owned by the regional government as a source of local revenue, especially to provide benefits to the regional economy based on Good Corporate Governance. In addition to seeking profit, Regional Companies also carry out social functions for the residents of their regions. Before the era of regional autonomy, regional companies were regulated by Law No. 5 of 1962 concerning Regional Companies. Responding to this, the government together with the People's Representative Council (“DPR”) replaced the Law on Regional Companies with the Law on Regional Government and Government Regulations on BUMD. The two regulations were drafted to improve the performance of regional companies, as well as to fill the legal vacuum regarding regulations regarding BUMD. In practice, the purpose of establishing the BUMD has not been achieved because BUMD is required to have a social function in society, which makes it less focused on its main mission. Using a normative juridical research method and statutory approach as well as conceptual approach, this paper comprehensively examines Regional Liability Company (“Perseroda”) regulations and offers an ideal concept for the existence of profit-oriented Perseroda in Indonesia. The legal theories used are the Theory of Three Fundamental Legal Values (Gustav Radbruch) and the Legal Entity Theory. The results of the research show that the most appropriate solution is to have the management of BUMD separate from the Regional Government Law and that the issuance of Government Regulations regarding BUMD is proven yet to be able in addressing the problem of BUMD management. Therefore, it is recommended that the DPR and the Government immediately organize and harmonize regulations regarding BUMD management so as to realize good BUMD governance and performance, especially to support the strength of the regional economy.
Reconsidering The Mandatory Use Of Indonesian Language In Private Commercial Contract Suyudi, Aria; Budi, Henry Soelistyo
Global Legal Review Vol. 2 No. 2 (2022): October
Publisher : Universitas Pelita Harapan

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/glr.v2i2.4997

Abstract

A decade after the enactment of Law Number 24 Year 2009 on the Flag, Language and Coat of Arms and Anthem which introduces mandatory use of Indonesian language in memorandums of understanding or agreements involving state institutions, government agencies, Indonesian private institutions or Indonesian citizens, there are still many questions arised about the extent of which these norms should apply in the private commercial sphere.  Various litigations filed before the court to declare the agreement null and void for failure to meet the language provisions. While some lawsuit has been successful, but more recent court decisions have been consistently rejecting petition to declare an agreement as null and void for failure to comply with article 31 Law Number 24 Year 2009.This paper will conduct a normative study to determine the extent of which the mandatory use of the Indonesian language in the agreement has affect the private commercial sphere. In what instance violation of the provision has been fully regarded as violation of an Objective Condition for a valid agreement as regulated in Article 1320 of the Civil Code which makes the agreement null and void by law and what does not.This paper will study the laws and regulations related to the mandatory use of the Indonesian language in private commercial contracts to find out about situation and study its implementation in selected court decisions to understand the situation and provide possible recommendation for improvements

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