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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 653 Documents
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THE PHILOSOPHICAL BASIS OF THE COMPETENCE TO ADJUDICATE BANKRUPTCY CASES INVOLVING AN ARBITRATION CLAUSE Adhypratama, Bayu
Jurnal Hukum dan Peradilan Vol 10 No 1 (2021)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.10.1.2021.89-113

Abstract

This research stems from the conflict of competence between Commercial Court and Arbitration in a bankruptcy case involving an arbitration clause. This occurs when parties make an agreement including arbitration as a mechanism of dispute resolution. Nevertheless, when a dispute occurs, one of the parties file a bankruptcy petition to Commercial Court as contained in Article 303 of the Bankruptcy Law. Meanwhile, according to Article 3 and 11 of the Arbitration Law, agreements containing arbitration clause as a mean of dispute resolution provides absolute competence, which is consistent with the pacta sunt servanda principle outlined by Article 1338 of the Civil Code. This raises the question of whether Article 303 of the Bankruptcy Law is inconsistent with pacta sunt servanda or to the arbitration clause as the agreed mechanism of dispute resolution by the parties, because the substance of legal norms has philosophical basis. This research uses normative juridical approach which examines legal materials through the study of documents. The research show that Commercial Court is an extra ordinary court which settle bankruptcy filed to the court. Therefore, the competence cannot be set aside by arbitration in the sense of its legal position and capacity as extra judicial even though it originates from an agreement containing arbitration clause. The philosophical basis that can be applied in the conflict of law refers to the principles governing legislation, namely lex specialis derogat legi generalis, lex posterior derogat legi priori, and integration principles of Article 303 of the Bankruptcy Law.
ANALYSIS AND EVALUATION OF LEGAL AID IN THE INDONESIAN COURT Suhariyanto, Budi; Mustafa, Cecep
Jurnal Hukum dan Peradilan Vol 11 No 2 (2022)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.11.2.2022.176-194

Abstract

This article examines the regulation and application of legal aid services in Indonesian Courts. Normatively, the guidelines for the provision of legal aid in court are based on the Law on Judicial Power, Law on General Courts, Law on Religious Courts and Law on State Administrative Courts, and Supreme Court Regulation Number 1 the year 2014 (Perma). On the one hand, there is incoherence in the provision where the law determines that free legal service (Posbakum) service supported any level of the court until the decision is legally binding and executable, whereas in Perma applicable for the district court. On the other hand, there is an expansion of the provision of legal aid services regulated by Perma, namely that the recipient of services is not required by the poor as stipulated by law, but also for those who cannot afford to pay for advocate services. The leniency of this requirement is to facilitate people who are not categorized as poor but cannot pay for the services of a lawyer. In addition, Perma also provides services in the form of Sessions Outside the Court Building (SLGP) to facilitate justice seekers who have limited access to transportation and accommodation for the distance from the court. So the inability of the justice-seeking community is also interpreted as the inability to access trials or litigate cases in court due to the remote location or difficulty in transportation and accommodation. There are several obstacles in providing legal aid services at the court, namely related to budget constraints, lack of socialization, and availability of facilities and infrastructure. This article contributes to the role of the Indonesian Court in providing unique access to justice.
PROGRESSIVE READING OF CHILD CUSTODY RIGHTS IN INDONESIA: A GENDER JUSTICE PERSPECTIVE ON MARRIAGE LAW Rohman, Adi Nur; Putri, Elfirda Ade
Jurnal Hukum dan Peradilan Vol 11 No 1 (2022)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.11.1.2022.43-63

Abstract

Disputes over child custody often occur after a divorce. Although the regulation on child custody has been regulated in the Marriage Law and Compilation of Islamic Law (KHI), it is allegedly not responsive enough to gender justice that gives child custody to one party based on the particular type genitals. So this triggers gender inequality and injustice. This article analyses the problem of establishing child custody descriptively analytically with a gender approach as a tool of analysis. This article concludes that the laws and regulations in Indonesia regarding the determination of child custody are still classified as gender-biased and have not been responsive enough to the issue of gender justice. Reciprocal interpretation model (qira'ah mubadalah), as a new approach in understanding the text, if applied in following the rules can be interpreted with the perspective of distinction between men and women who place women and men as human subjects that are whole and equal. Thus, both mothers and fathers alike have the same opportunities in child custody as long as they have qualified abilities in terms of childcare.
THE DYNAMICS OF RATIFICATION ACTS OF INTERNATIONAL TREATY UNDER INDONESIAN LEGAL SYSTEM Dinata, Ari Wirya
Jurnal Hukum dan Peradilan Vol 10 No 2 (2021)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.10.2.2021.197-218

Abstract

The Ratification Act is a legal product that states Indonesia's commitment to an international treaty. The constitutionality of these laws has been tested before the Constitutional Court. In its decision, the Constitutional Court stated that the Ratification Acts is the object of judicial review as stipulated in article 24 C paragraph (1) of the 1945 Constitution. Even though there were two differences of opinion in the verdict on the ASEAN Charter Ratification Laws review, namely the Justice: Hamdan Zoelva and Maria Farida. The two judges categorized the Laws on the Ratification of International Treaties, not in the category of laws reviewed by the Constitutional Court. This decision explains the position of the Ratification Law in the Indonesian legal system and its future implications. This paper discusses the position of the Ratification Acts under the Indonesian legal system and the implications that will occur after the future Constitutional Court decisions on the development and relations of national law and international law. This writing uses secondary data and also primary, secondary, and tertiary legal material. This writing found the inconsistency of Indonesia in making ratification acts of International Law. It emerges that implication to the status of ratification acts. Moreover, The Constitutional Court decision tries to clarify ratification acts under the Indonesian legal system.
DEVELOPMENT OF TRAINING FOR THE POSITION OF REGISTRARS IN THE SUPREME COURT ridwan, moch
Jurnal Hukum dan Peradilan Vol 10 No 3 (2021)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.10.3.2021.380-406

Abstract

The registrar's position within the Supreme Court is a career position with the status of a Civil Servant, who is specifically tasked with regional and central courts to receive, examine, adjudicate and settle registered cases. The clerk of the court who serves in the Court has an important role in handling the administration of the trial and the execution of the judge's decision in the Court. This role further clarifies the position and orientation of the function of the part of justice services for citizens optimally. This study aims to develop an education and training policy plan that supports the profession of court officials before carrying out their duties and functions as Registrars.This study uses a qualitative method with a normative juridical approach in the field of education and training. The results of this study found that the current administration of education and training for registrars, such as curriculum content and learning time is still lacking as a basis for competencies and specifications for job career paths required by the organization. This needs to be adjusted to the needs of the organization in meeting the professional standards of the clerkship position within the Supreme Court.
LEGAL EXPLANATION (RESTATEMENT) OF THE CONCEPT OF GOVERNMENT ADMINISTRATIVE ACTIONS ACCORDING TO LAW NO. 30 OF 2014 CONCERNING GOVERNMENT ADMINISTRATION Bimasakti, Muhammad Adiguna
Jurnal Hukum dan Peradilan Vol 11 No 1 (2022)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.11.1.2022.64-92

Abstract

Law No. 30 of 2014 concerning Government Administration (UU AP) stipulates two types of Administrative Actions, namely Government Decrees and Government Administrative Actions. In judicial practice in the administrative courts, the term Government Administrative Action is often interpreted differently from the concept of Real Action. This study aims to determine the concept of Government Administrative Action according to Law No. 30 of 2014 concerning Government Administration. The writing method used in this research is normative juridical method using statutory approach and conceptual approach. The results of the study show that the concept of "Government Administrative Action" in Article 1 point 8 of the UU AP can be interpreted grammatically, historically and systematically as Real Action as referred to in Article 87 letter a of the UU AP. The jurisdiction for administrative dispute where the objects are “real act” (government administrative action) and “written decision” (government decrees) lays on administrative court, where as for other legal acts which cannot be classified as real act (government administrative action) or written decision (government decrees) lays on the general court as residual jurisdiction (resrechter).
HOW CAN ENVIRONMENTAL DISPUTE RESOLUTION BE RESOLVED WITHOUT GOING TO COURT Pandiangan, Leo Nora Elly AM; Koeswidi, Nanin; Silitonga, Norti Retiana
Jurnal Hukum dan Peradilan Vol 10 No 2 (2021)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.10.2.2021.245-254

Abstract

To protect environmental pollution and/or damage, the government has issued legislation on environmental protection and management supplemented by Ministerial Regulations. Environmental pollution and/or damage can occur due to natural factors and human actions that result in losses to the country and/or society. Environmental polluters and/or destroyers can be prosecuted in court. Before environmental disputes are transferred to court, environmental disputes are first resolved through mediation conducted by a mediator and settled out of court (non-litigation) in accordance with applicable laws. Mediators or the role of third-party services are free and neutral /impartial.
TELEMEDICINE SERVICES OF THE INDIVIDUAL HEALTH RIGHTS IN NEW NORMAL ERA Siregar, Rospita Adelina
Jurnal Hukum dan Peradilan Vol 10 No 2 (2021)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.10.2.2021.300-314

Abstract

Regarding the right to protect and respect individual rights as stated in positive law in Indonesia, these rights are part of the human rights of every citizen. So that the state is obliged to guarantee the availability and fulfillment of these rights, in order to avoid the threat of abuse and violations by various parties, including state officials themselves. During the Covid-19 pandemic the question is how can the right to individual health be obtained and the state can guarantee it? This research uses sociological normative juridical research by conducting a survey of 531 respondents in Jakarta in March 2020. The results of the study were analyzed qualitatively so that the state has the authority to guarantee telemedicine services as a form of state responsibility in the new normal era according to Regulation of the Minister of Health of the Republic of Indonesia Number 20 2019 concerning the Implementation of Telemedicine Services between Health Service Facilities.
ASEAN ATTITUDES TOWARD PATENT PROTECTION OF THE COVID-19 VACCINE VERSUS HUMANITARIAN INTERESTS Situmeang, Tomson; Murniarti, Erni
Jurnal Hukum dan Peradilan Vol 10 No 2 (2021)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.10.2.2021.255-276

Abstract

The global pandemic of the Covid-19 outbreak has caused problems in various aspects of life. Several countries have invented or made the Covid-19 vaccine. However, there are still many countries that have not been able to find or make the Covid-19 vaccine, including ASEAN countries. This raises questions that are the topic of discussion in this article, namely about ASEAN's attitude towards 2 different interests between patent protection for the Covid-19 vaccine and humanitarian interests in overcoming the Covid-19 outbreak. Does Patent protection take priority or humanitarian interest take precedence? To discuss this topic, the authors use normative legal research methods based on secondary data or bibliography. The topic was discussed by comparing various legal provisions, both national and international, in order to obtain the main findings stating that patent protection also prioritizes humanitarian interests
IMPLEMENTATION OF CORUPTION CRIMINAL SANCTIONS AGAINTS COUNTRY OFFICERS WHO CONDUCTED CRIMINAL ACT OF CORUPTION DURING COVID 19 Mulyadi, Mulyadi; Pakpahan, Elvira Fitriyani
Jurnal Hukum dan Peradilan Vol 10 No 2 (2021)
Publisher : Pusat Strategi Kebijakan Hukum dan Peradilan Mahkamah Agung RI

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.25216/jhp.10.2.2021.219-228

Abstract

Corruption has caused damage to various lives of the people, nation, and country. Pandemic Covid 19 is currently increasingly infecting the Indonesian economy. Corruption is one of the causes of the nation's economic system to decline very rapidly. The purpose of this study is to determine the implementation of criminal sanctions against corruption against unscrupulous state officials who commit criminal acts of corruption during the Covid 19 pandemic. The method used in this study is the Normative Juridical Method. The Corruption Eradication Commission (KPK) will provide stricter penalties for those who commit criminal acts of corruption committed in the midst of the corona covid-19 pandemic. Disaster management is an activity or effort carried out in the context of prevention, mitigation, emergency response and recovery related to disasters carried out before and after a disaster.

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