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Jurnal Hukum dan Peradilan
Published by Pusat Penelitian dan Pengembangan Hukum dan Peradilan MA RI
ISSN : 23033274     EISSN : 25281100     DOI : https://doi.org/10.25216/jhp
Core Subject : Economy, Social,
Economics, Econometrics & Finance Environmental Science Law, Crime, Criminology & Criminal Justice
Jurnal Hukum dan Peradilan (JHP) is published by the Research Center for Law and Judiciary of the Supreme Court of the Republic of Indonesia. JHP aimed to be a peer-reviewed platform and an authoritative source of information on legal and judiciary studies. The scope of JHP is analytical, objective, empirical, and contributive literature on the dynamics and development of legal studies, specifically in Indonesia. JHP welcomes scientific papers on a range of topics from research studies, judicial decisions, theoretical studies, literature reviews, philosophical and critical consultations that are analytical, objective, and systematic. However, from a wide range of topics that researchers can choose from, JHP puts more attention to the papers focusing on the sociology of law, living law, legal philosophy, history of national law, customary law, literature studies, international law, interdisciplinary, and empirical studies. Jurnal Hukum dan Peradilan (JHP) is a media dedicated to judicial personnel, academician, practitioners, and law expertise in actualizing the idea of research, development, and analysis of law and judiciary. Jurnal Hukum dan Peradilan comes out three times a year in March, July, and November.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 8 Documents
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Search results for , issue "Vol 6, No 3 (2017)" : 8 Documents clear
PERKARA FIKTIF POSITIF DAN PERMASALAHAN HUKUMNYA Enrico Simanjuntak
Jurnal Hukum dan Peradilan Vol 6, No 3 (2017)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.6.3.2017.379-398

Abstract

Law of Administration (UUAP) has adopted a conception of Lex Silencio Positivo, a legal mechanism that requires the administering authority to respond or issue a decision/action brought before it within the limit of a certain time and if these preconditions are not met, the administering authority is deemed to have granted the application for the issuance of the decision/action it. As a new legal concept, rules of lex silentio positivo the realm of administrative law that Indonesia is known as “fictitious approval” or “tacit authorization” requires assessment, harmonization with the provisions of the previous law, namely the concept of fictitious negative decision. This paper intends to discuss some key notes concerning the conception of fictitious positive in Indonesia administrative law.Keywords: law of administration, fictitious approval, fictitious rejection
POLITIK HUKUM PENGUATAN FUNGSI NEGARA UNTUK KESEJAHTERAAN RAKYAT (Studi Tentang Konsep Dan Praktik Negara Kesejahteraan Menurut UUD 1945) Agus Riwanto; Seno Wibowo Gumbira
Jurnal Hukum dan Peradilan Vol 6, No 3 (2017)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.6.3.2017.337-360

Abstract

According to the constitution, the state concept in constitutional practice can be divided into two opposite poles, namely welfare and liberal state. They have different characteristics in which the first concept (welfare state) requires a strong and extensive state functions to regulate an economic justice, on the contrary the second concept (liberal state) relies on the free market economy which state’s role should be marginalized. Sosio-legal research is used in this article. Based on the Article 33 of Indonesian post constitutional amendment of 1945, Indonesia embraced the concept of welfare state. Yet, the practice sociologically tends to embrace a liberal state that is not suitable with the welfare of the people. There are challenges, in the context of liberal state, faced by Indonesia, such as applying the capitalist economic system. We may fight the capitalist economic system by two legal policy, namely: first one, we may re-create the role of state functions as a controller and regulator of the economy. The second one, we may increase the state income through taxes along with the higher social spending to achieve the social welfare and economic justice.Keywords: welfare state, the constitution of 1945, legal policy
NEGARA BERDASARKAN HUKUM (RECHTSSTAATS) BUKAN KEKUASAAN (MACHTSSTAAT) Zahermann Armandz Muabezi
Jurnal Hukum dan Peradilan Vol 6, No 3 (2017)
Publisher : Puslitbang Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.6.3.2017.421-446

Abstract

The vision of the rule of law was first forwarded by Plato and then confirmed by Aristotle. Plato’s concept stated that a good state administration is based on a good (law) arrangement, this term called nomoi. In further development Rudolf von Gneist name this term with rechtsstaat where earlier Albert Venn Dicey named it the rule of law. In principle rechtsstaat or rule of law aims to limit the rulers (government in a broad sense) attitudes and acts based on laws and regulations that apply at a certain place and time on the people. The doctrine of rechtsstaats or rule of law can only grow in a democratic country. Without the rule of law and democracy there will be only totalitarian, fascist, absolute and repressive ideology. Politics becomes the highest commander where the law become a means of maintaining the power which is inconsistent with the government. This form is called the state of power (machtsstaat). This article is trying to use empirical analysis. The doctrine of the state of law and democracy are both the attributes of the modern state of a political system built more than two centuries ago. The transformation of the democratic transition ensures that authoritarian rule becomes democracy based on the rule of law implying that both can be achieved together by involving all stakeholders given their respective roles and chance simultaneously according to the agreement.Keywords : rule of law, power sate, rule of law measurement, democracy
BUKTI ELEKTRONIK SEBAGAI ALAT BUKTI YANG SAH DALAM HUKUM ACARA PIDANA Ramiyanto Ramiyanto
Jurnal Hukum dan Peradilan Vol 6, No 3 (2017)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.6.3.2017.463-484

Abstract

The Criminal Procedure Code as a general criminal procedure does not recognize electronic evidence as one of the admissible types of evidence. In practice, electronic evidence is also used as an admissible evidence to prove the criminal offenses in court. From the results of the discussion it can be concluded that electronic evidence in criminal procedure law is a dependent evidence and an independent evidence (substitution of letter proof if it meets the principle of functional equivalent approach and expansion of evidence) as specified in several special laws and instruments issued by the Supreme Court. The electronic evidence is not regulated in the Criminal Procedure Code as a lex generalis, however, to achieve material truth it can also be used as a valid evidence for the provision of all types of criminal offenses in court. It is based on recognition in the practice of criminal justice, some special laws, and instruments issued by the Supreme Court.Keywords: electronic evidence, admissible evidence, criminal procedure code, proof
PENGAKUAN TERHADAP PIHAK NON-ADVOKAT DALAM PEMBERIAN BANTUAN HUKUM (Politik Hukum Bantuan Hukum Dalam Peraturan Perundang-Undangan Di Indonesia) Akmal Adicahya
Jurnal Hukum dan Peradilan Vol 6, No 3 (2017)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.6.3.2017.399-420

Abstract

Access to justice is everyone rights that have to be fulfilled by the government. The regulation number 16 year 2011 of legal aid is an instrument held by the government to guarantee the right. The regulation allowed the participation of non-advocates to provide the legal aid. Through this policy, government emphasizes that:1) Indonesia is a state law which legal aid is an obliged instrument; 2) the prohibition of non-advocate to participate in legal aid is not relevant due to inadequate amount of advocate and citizen seek for justice (justiciabelen), and the advocate is not widely extended throughout Indonesia; 3) Non-Advocates, especially lecturer and law student are widely spread; 4) there are no procedural law which prohibits non-advocate to provide a legal aid. Those conditions are enough argument for government to strengthen the participation of non-advocates in providing legal aid. Especially for The Supreme Court to revise The Book II of Guidance for Implementing Court’s Job and Administration.Keywords: legal aid, non-advocate, justice
URGENSITAS PENDEKATAN PSIKOLOGI DALAM PELAKSANAAN MEDIASI DI PENGADILAN M Natsir Asnawi
Jurnal Hukum dan Peradilan Vol 6, No 3 (2017)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.6.3.2017.447-462

Abstract

The court mediation tends to ignore psychological aspect of the parties. It was frequently put aside by mediator judges as the mediation held just for formality process. It caused the lack percentage of successful mediation and the parties failed to recognize the primary problem. The research’s aim was to analyze the importance of implementation psychological approach to court-annexed mediation and its implication to the result of the mediation process. The research also aims to identify the implication of psychological approach toward parties’ perspective of their dispute. The result of the research has shown that implementation of psychological approach through mediation has arisen the probability of successful mediation. If otherwise happened, the parties have a broader perspective on their problem and released a new constructive way of thinking.Keywords: mediation, court, psychology, perspective
MENAKAR RASA KEADILAN PADA PUTUSAN HAKIM PERDATA TERHADAP PIHAK KETIGA YANG BUKAN PIHAK BERDASARKAN PERSPEKTIF NEGARA HUKUM PANCASILA Abdul Hakim
Jurnal Hukum dan Peradilan Vol 6, No 3 (2017)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.6.3.2017.361-378

Abstract

Law is a set of words that are systematically linking an authoritative text, according to Gustav Radbruch, it should contain three (3) elements, namely fairness, certainty and expediency. The application of the authoritative text in social life was an absolute authority of a judge in resolving a civil case. The judge, in the checking-hearing-deciding a case, not only expected to return the case to the original state (restitutio in integrum) before the advent of the dispute, but should attempt made every effort to not create new disputes or disputes derived from the subject matter examined. Therefore, it becomes very important role of the paradigm for a judge in deciding the case in order to fulfill a sense of justice. Therefore, deciding the case in a precise sense of justice will be a judge most important role. Nowadays, the meaning of "justice" in Civil Procedure Code only limited to the authority of the power of the parties bound by the principle of consensualism and the principle of freedom of contract. Therefore, based on the Law Paradigm (Philosophy) of Pancasila, Judge as an interpreter, in defining and applying the law, legal science must have the ability to deconstruct and reconstruct an authoritative text based paradigm embraced by a nation.Keywords: the principle of consensualism, justice, pancasila, paradigm, civil procedural law
DINAMIKA UPAYA MELAKUKAN SINERGI ANTARA HUKUM PERDAGANGAN INTERNASIONAL DAN HUKUM LINGKUNGAN Endra Wijaya; Kikin Nopiandri; Habiburrokhman Habiburrokhman
Jurnal Hukum dan Peradilan Vol 6, No 3 (2017)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.6.3.2017.487-508

Abstract

In international trade activity, the law exists and becomes one of the important components to ensure the trading activity runs effectively, efficiently, and fair. Gradually, international trade system has started to embed environmental law issue to become its part of the system, and this process has begun since people realized that environment should be protected in order to support the sustainable development process. Currently, environmental law issue becomes an important condition for most of the international trade relations which are being done or will be done by subjects of the international trade. This paper focuses on how environmental law is being synergized within international trade system. The library research method will be used to explore that topic.Keywords: environmental law, international trade, international agreement

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