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Warkat
Published by Universitas Brawijaya
ISSN : 2775721     EISSN : 30259657     DOI : https://doi.org/10.21776/warkat
Core Subject : Humanities, Social,
Humanities Law, Crime, Criminology & Criminal Justice
Warkat is open access, double-blind peer-reviewed journal of Notary Science published by the Faculty of Law, Universitas Brawijaya biannual in June and December. Warkat is a forum for lecturers, researchers, and practitioners to publish research results or book review results. Realizing the global challenges and ever-increasing legal interaction among developing countries, Warkat also welcomes articles on legal development in the ASEAN region and the larger Global South. Warkat has a broad scope related to notarial science. Examples include civil law, criminal law, constitutional law, state administrative law, international law, Islamic law, etc.
Arjuna Subject : Ilmu Sosial - Hukum
Articles 50 Documents
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PERTIMBANGAN PEMBERIAN PENGURANGAN PAJAK BPHTB PADA PANDEMI COVID-19 Raja Mohamad Rozi; Nisya
Warkat Vol. 1 No. 2 (2021): Desember
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/warkat.v1n2.3

Abstract

Tax is an obligatory contribution of the people to the state which functions to finance all public interests, including finance development to aims for the welfare of the people. The current condition of the Covid 19 pandemic provides a responsive idea to provide taxpayers with “relief” as regulated in Governor Regulation Number 103 of 2011 concerning Granting of Deductions, Relief and Exemption of Duty on Acquiring Rights on Land and Buildings (BPHTB). Pro contra arise in relation to criteria issue for granting relief conflicting regulations with the legal concept of the phrase "economic and / or financial crisis and natural disasters", as stipulated in the provisions of Article 3 paragraph (1), (2) points a and b as well as paragraph (3). In this regard, this article will discuss several things, including: How is the provision of tax breaks in certain circumstances such as "economic and / or financial crisis and natural disasters"? From the results of the discussion, severalthings were found: (1) The argument which is alleged to be the legal reason for not granting relief is derived from the “tax debt write-off doctrine” where that doctrine has been normalized in Article 1381 of the Civil Code; (2) The provisions of Article 3 paragraph (1) and paragraph (2) points a and b The phrase "economic and / or financial crises and natural disasters" regulate different customs, so that the pandemic-19 variable is not regulated in the two articles as a natural disaster. which caused theeconomic crisis, meaning that there was a lack of rules; and paragraph (3) The governor has the authority to regulate and interpret the situation.
Kedudukan Bank dalam Perjanjian Kredit dengan Klausul Negative Pledge of Assets: Bank Position in Credit Agreements with Negative Pledge of Assets Clauses Tjahjono, Monica
Warkat Vol. 1 No. 1 (2021): Juni
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/warkat.v1n1.3

Abstract

Development is one of the important pillars in the economy and business financing is one of its sources. When applying for a loan, debtors are generally required to collateralize assets to guarantee to creditors that they are able to pay off their debts. With this guarantee, a creditor becomes a separatist creditor. However, there is also the concept of negative pledge of assets, where debtors do not need to pledge their assets. However, in financing businesses, banks must always apply prudential principles, including the 5C principle, which requires collateral. This research was conducted to determine the position of creditors when bound by credit agreements that use the Negative Pledge of Assets clause, as well as to find solutions for implementing the Negative Pledge of Assets clause that can fulfill the precautionary principle. Juridical normative research is used in this research accompanied by a statutory approach and a conceptual approach. Although the Negative Pledge of Assets clause can be used in the practice of granting credit agreements, there are no regulations that specifically regulate the use of this clause. Creditors who are bound by a credit agreement with a Negative Pledge of Assets clause will become concurrent creditors and in the event of bankruptcy of the debtor, repayment of the debt will be carried out proportionally in accordance with the provisions of Article 1132 of the Civil Code. However, there are several clauses that can be used in conjunction with the Negative Pledge of Assets clause in addition to the prohibitory provisions for guaranteeing debt repayment. This clause is a clause that requires creditor permission before the debtor submits a new credit application as well as an Automatic Crystallization clause.
Pergulatan Mazhab Hukum dalam Pengadaan Tanah Milik Masyarakat Adat untuk Kepentingan Umum: The Struggle of Legal Schools in Procuring Land Owned by Indigenous Peoples for Public Interest Kukuh Tejomurti; Denie Amiruddin; Andi Sasongko; Imam Sukadi
Warkat Vol. 2 No. 1 (2022): Juni
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/warkat.v2n1.1

Abstract

In the discourse on land acquisition for development in the public interest, problems often arise regarding the amount of compensation to land rights holders. The problem becomes even more widespread when the land acquired intersects with and originates from customary land. This article aims to provide an elaboration of thoughts from a philosophical perspective on law and justice, especially on positive legal formalism in the implementation of land acquisition belonging to customary law communities in Indonesia. The research used in this article is normative legal research using a legislative approach, a conceptual approach and a case approach. The legal materials used are primary legal materials and secondary materials which are connected with schools of legal philosophy, such as the Natural Law School, Legal Positivism, and the Historical School. The research results show that the sharp gap between the legal positivism school and the historical legal school lies in the sources and forms of law. If legal positivism prioritizes formal forms and the authoritative institutions that create them, then the historical legal school states that laws are not made but are found in society. Sociological Jurisprudence describes a "middle way" to bridge the flow of historical law in traditional law communities whose existence is respected in the formation of law to provide just legal certainty. In the context of Indonesia, which has a civil law tradition, we can consider the formation of legislation as an important component for the social engineering process. Therefore, laws and regulations related to land acquisition should involve indigenous communities in the formation process because most of Indonesia's territory is still customary territory/land in the form of fields, forests, and so on.
Konflik Norma Kewenangan Pembuatan Akta yang Berkaitan dengan Pertanahan: Conflict of Norms for the Authority to Make Deeds Relating to Land Andreasari, Letizia Dessy
WARKAT Vol. 2 No. 1 (2022): Juni
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/warkat.v2n1.2

Abstract

The authority of Notaries and Land Deed Officials in making land deeds is still conflicting (conflict of norms). Land deeds made by Notaries based on Article 15 paragraph (2) UUJN were rejected by the National Land Agency (BPN) on the grounds that the deeds were under the authority of the Land Deed Making Official. BPN insists that the authority to make land deeds is the authority of Land Deed Making Officials based on Government Regulation Number 37 of 1998 concerning Position Regulations for Land Deed Making Officials which are implementing regulations of Law Number 5 of 1960 concerning Basic Agrarian Principles Regulations. On the other hand, if it is based on the provisions of the Notary Position Regulations (PJN) according to Article 1 Staatblad 1860 Number 3, the official appointed to make deeds of transfer and assignment of land rights is a Notary. These two things make the notary's authority and the PPAT's authority in making deeds related to land become disharmonious and ultimately result in conflicting norms. Resolving the legal disharmony in regulating the authority of Notaries and PPATs in making land deeds can be carried out based on the principle of lex superiori derogate lex inferiori as in legal theory (Preference Theory). There needs to be harmonization of these two norms by creating a PPAT Law so that the positions of Notaries and PPATs are equal and also that PPAT deed products become authentic because they fulfill the elements of Article 1868 BW, namely the form of the deed is regulated in the Law.
Analisis Yuridis Asas Keseimbangan dalam Klausula Baku Aplikasi Shopee: Juridical Analysis of the Principle of Balance in the Standard Clauses of the Shopee Application Olivia Nabila Sambas; Setiawan Wicaksono; Prawatya Ido Nurhayati
Warkat Vol. 1 No. 2 (2021): Desember
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/warkat.v1n2.4

Abstract

This research aims to find out the standard clauses in the Shopee application service conditions that fulfill the principle of balance in contract law. The principle of balance requires that the parties to an agreement have an equal position in having rights and carrying out obligations. However, in practice, especially the inclusion of standard clauses implemented between Shopee and traders does not fulfill the principle of balance. This is due to the unequal position between Shopee and traders where Shopee has an economic advantage which is marked by Shopee's existence as one of the largest marketplaces in Indonesia and the most sought after by traders to offer their products. On the other hand, traders are positioned as weak parties in the agreement because the take it or leave it principle applies. The clause that attracts the author's attention is the clause that states the user's submission to any additional rules that apply in the future and are determined unilaterally by Shopee. One example is Shopee's action of automatically including merchants in the Free Shipping program, where the included merchants do not necessarily want to take part in the program because there are other costs that must be incurred. These unilateral decisions then bring various material losses to traders. This type of research is normative juridical using a statutory approach method by means of literature study to collect information regarding standard clauses and the principle of balance. The data analysis used by the author is a systematic interpretation carried out by interpreting the law as a unified system. Based on the results of this research, it can be seen that the standard clauses in Shopee's terms of service do not fulfill the principle of balance both in terms of forming and implementing the agreement.
Pengaturan Perizinan Berusaha Pemerintah Kota Batam Sebelum dan Sesudah UU Cipta Kerja: Batam City Government Business Licensing Arrangements Before and After the Job Creation Law Shinta Pangesti
Warkat Vol. 1 No. 2 (2021): Desember
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/warkat.v1n2.5

Abstract

In the new normal era, the impact of the Covid-19 pandemic is still very much felt, especially in the economic sector. In line with the investment recovery agenda in Indonesia, the Government has taken steps to simplify regulations, one of which is in managing business permits as mandated by the Job Creation Law and its implementing regulations. In order to obtain a comparison of business licensing arrangements in Batam City before and after the enactment of the Job Creation Law, the author examines how business licensing arrangements in Batam City are reviewed from the Mayor of Batam No. 40/2020 jo. Batam Mayor Regulation no. 56/2020 jis. Job Creation Law jo. PP No. 5/2021 jo. PP No. 6/2021? This research is normative legal research using primary, secondary and non-legal legal materials. Because the new Batam mayoral regulations regarding business licensing have not yet been established, the existing old provisions remain in effect as long as they have not been revoked. Adjustment of mayor regulations to the provisions in PP no. 5/2021 jo. PP No. 6/2021 needs to be implemented immediately to realize legal certainty in business licensing.
Hubungan Antara Tingkat Pendapatan Masyarakat dengan Kejahatan Penyerobotan Tanah Negara dan Kerusakan Hutan di Kelurahan Manutapen Kecamatan Alak Kota Kupang: The Relationship Between Community Income Levels and Crimes of Invading State Land and Forest Damage in Manutapen Village, Alak District, Kupang City Charles Banoet; Fransina Pattiruhu
Warkat Vol. 2 No. 1 (2022): Juni
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/warkat.v2n1.3

Abstract

Land is a gift from God Almighty to mankind on earth. Tanak raids, whether intentional or unintentional, in Indonesia in general and especially in Kupang City, NTT, specifically in Manutapen Village, Alak District, also attract the attention of many people. Specifically related to cases of state land grabbing that occurred in the teak forest area in Manutapen Subdistrict, historically this has occurred since 1985. Weak supervision from the relevant agencies that have a direct interest in state forest areas, is one of the factors that causes/triggers cases of state land grabbing. which has an impact on environmental damage to the forest (teak) area in Manutapen Village, Alak District, Kupang City.
Urgensi Analisis Kelayakan Sebagai Mitigasi Risiko dalam Menjaga Tingkat Kesehatan Penyelenggara LPMUBTI: The Urgency of Feasibility Analysis as Risk Mitigation in Maintaining the Health Level of LPMUBTI Organizers Meidiana Indah Lestari; Reka Dewantara; Ranitya Ganindha
Warkat Vol. 2 No. 1 (2022): Juni
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/warkat.v2n1.5

Abstract

Fintech Peer to Peer Lending or Information Technology Based Money Lending and Borrowing Service (LPMUBTI) which brings together loan recipients (borrowers) with lenders (lenders) directly through a provider platform, apart from providing convenience for the public, can also provide risks, especially the risk of default, so it is needed mitigating risks in the event of payment default. In the Financial Services Authority Regulation Number 77/POJK.01/2016, it regulates risk mitigation obligations that must be carried out by administrators, but there are no specific risk mitigation aspects. There are no risk mitigation arrangements in the form of loan recipient eligibility analysis. Until now, standards regarding analysis have not been set. eligibility of loan recipients in LPMUBTI. Referring to the problem formulation and objectives of this research, the author uses three types of approaches, including, namely, the statutory approach, the analytical approach, and the conceptual approach. The legal materials used in this research are primary legal materials and secondary legal materials obtained by researchers and then analyzed using descriptive techniques and evaluation techniques. From the results of the review according to the problem definition and techniques described above, LPMUBTI organizers can minimize payment defaults that occur in order to provide protection for lenders who have funds and maintain the health level of LPMUBTI organizers. The conceptualization of the loan recipient eligibility analysis arrangements refers to POJK Number 42/POJK.03/2017 which regulates debtor eligibility analysis in banks, in this case the bank and LPMUBTI have the same risk of default, money lending and borrowing system, the object of money as an agreement and function. intermediation.
Kebijakan Pembatasan Kepemilikan Tanah Non-Pertanian oleh Perorangan Untuk Menyelesaikan Ketimpangan Kepemilikan Tanah yang Berkeadilan: Policy for Restricting Non-Agricultural Land Ownership by Individuals to Resolve Inequalities in Fair Land Ownership Silviana, Ana; Emha, Zidney Ilma Fazaada
Warkat Vol. 1 No. 1 (2021): Juni
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/warkat.v1n1.1

Abstract

Until now there are no regulations governing the maximum limit of land ownership, especially non-agricultural, so that there is increasing inequality in land ownership. This research aims to determine and analyze the causes of inequality in land ownership and the policies implemented in setting maximum limits on non-agricultural land ownership for individuals. The method used is socio-legal research, namely a legal research method that attempts to see the law in a real sense or examine how the law works in society. Research data was taken from field research with official sources within the Central Java BPN Regional Office, Semarang City and Semarang Regency Land Offices as well as literature study research using legal materials, which were then analyzed qualitatively using inductive methods. The results show that inequality in land ownership will continue to occur as long as there is no legal certainty governing non-agricultural land ownership limits, so far it has only been in the form of internal administrative regulations. In order to realize a land policy for social welfare and justice, it is necessary to immediately issue regulations regarding restrictions on non-agricultural land ownership in the form of a law.
Klausula Boiler Plate dalam Pembuatan Kontrak Dagang Internasional: Boilerplate Clauses in Making International Trade Contracts Widhiyanti, Hanif Nur
Warkat Vol. 1 No. 1 (2021): Juni
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/warkat.v1n1.2

Abstract

In an international trade contract, the parties are bound by different legal provisions, different languages and also different customs and cultures. This condition creates a big risk in implementing the substance of the contract. To anticipate this risk, there are several steps that can be taken by the parties in terms of arranging and creating the contents of their contracts. This article will discuss the part of the contract that is often regulated in international trade contracts, called the boiler plate clause. This article is the result of normative research, both related to national legal norms, namely the Civil Code, Uniform law and examples of international trade contracts. A contract is a mechanism for expressing all the wishes of the parties agreed to by other parties. In current developments, contract clauses are no longer just the essentials of the agreement. There are other clauses which have the function of further clarifying how the contract must be interpreted and as an effort to cover all opportunities for contract failure, including what are called boilerplate clauses. In the practice of making international trade contracts, there are several substances that need to be regulated in boilerplate clauses, including choice of law provisions, choice of forum provisions, language provisions, severability provisions, integration provisions, notices provisions, force majeure provisions, duration of contract provisions, obligation after termination provision.

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