RechtJiva
RechtJiva is published by the Faculty of Law, Universitas Brawijaya periodically 3 times a year, namely in March, July and November. This journal is a journal with the theme of Legal Science, with benefits and objectives for the development of Legal Science, by prioritizing originality, specificity and recency of articles in each issue. The purpose of the publication of this Journal is to provide space to publish original research thoughts, academics, namely students and lecturers who have never been published in other media. The focus and scope of writing in this Journal focuses on publishing legal scientific articles on the following topics: Civil Law Constitutional Law Administrative Law Criminal Law International Law Islamic Law Customary Law Business Law Agrarian and Natural Resources Law Law and Society Human Rights Law Contemporary Law
Articles
62 Documents
<![CDATA[Analisis Pembentukan Perjanjian Internasional untuk Menangani Krisis Penipisan Ozon akibat Emisi Orbital Spacecraft ]]>
<![CDATA[ RechtJiva Vol. 1 No. 2 (July 2024) ]]>
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DOI: 10.21776/rechtjiva.v1n2.2
<![CDATA[This research aims to establish the regulatory framework for emissions generated by orbital spacecraft within the scope of international law, particularly space law and international environmental law, and to formulate a new international agreement that can address the emissions issues arising from orbital spacecraft. In analyzing these issues, the author employs a normative legal method, utilizing legislative and conceptual approaches. The Outer Space Treaty, as the primary agreement regulating all activities in outer space, proves inadequate in addressing the existing problems. Article IX, considered the closest provision to addressing the issue of orbital spacecraft emissions, still falls short and fails to provide a comprehensive solution. The Montreal Protocol, as the principal agreement related to compounds potentially causing ozone depletion, also falls short in evaluating the threat posed by orbital spacecraft emissions due to the limited coverage of regulatory jurisdiction. The regulatory vacuum concerning the impact of orbital spacecraft emissions on ozone depletion needs to be promptly addressed through the creation of a new international agreement. The formation of such an agreement should adhere to existing systematic structures, and the substance of the new agreement must be able to accommodate on-the-ground issues while maintaining an environmental perspective.]]>
<![CDATA[Urgensi Pengaturan Larangan Penyebaran Konten Bunuh Diri di Media Sosial Dalam Hukum Positif di Indonesia ]]>
<![CDATA[ RechtJiva Vol. 1 No. 2 (July 2024) ]]>
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DOI: 10.21776/rechtjiva.v1n2.7
<![CDATA[This research addresses the issue of Criminalization of Suicide Content Spread on Social Media. Indonesia is one of the countries with a suicide rate reaching 1.12 per 100,000 population. Suicide is believed to be contagious, especially among individuals with similar backgrounds to the suicide victim, necessitating suicide postvention to reduce the risk of copycat suicides. This imitation effect is known as suicide contagion or The Werther Effect. The 2024 Amendment to Law Number 11 Year 2008 concerning Electronic Information and Transactions is expected to protect Indonesian society from the negative impacts of technological advancements. Based on these points, this paper formulates the following research questions: (1) Are there regulations prohibiting the dissemination of suicide content in Indonesia? (2) What are the future legal regulations concerning the prohibition of disseminating suicide content in Indonesia? This study employs a juridical-normative method with a legislative approach and comparative approach. The findings indicate that disseminating suicide content is hazardous, supported by psychologists confirming that suicide can spread even through social media content alone. Currently, there are no specific articles in the ITE Law that can prosecute disseminators. Therefore, preventive efforts are needed to minimize the high suicide rates caused by exposure to suicide content on social media, thereby fulfilling the law's role as social control.]]>
<![CDATA[Alternative to Detention Sebagai Pemenuhan Prinsip Freedom From Arbitrary detention Untuk Pengungsi Rohingya Di India ]]>
<![CDATA[ RechtJiva Vol. 1 No. 2 (July 2024) ]]>
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DOI: 10.21776/rechtjiva.v1n2.3
<![CDATA[The guarantees contained in article 9(1) of the ICCPR are not being properly implemented for Rohingya refugees residing in India. The article asserts the principle of freedom from arbitrary detention, which is jus cogens. However, India has not implemented the principle as it has not fully ratified the guarantees or categories of arbitrary detention of refugees which has left a void in the application of the principle to refugees in India. This vacuum is supported by a non-existent system of handling and detention and supported by national laws that do not regulate the principle which has led to massive arbitrary arrests and violence against Rohingya refugees in Jammu and Kashmir. So in this case, the researcher raises the issue of the applicability of the Freedom from Arbitrary detention principle as Jus Cogens for the handling of Rohingya refugees in India. India, which is a state of law, adheres to dualism and monolism simultaneously, so that the principle of jus cogens can enter and force erga ormes. To fulfil this right, UNHCR established the Alternative to Detention system which has elements of necessity and proportionality to avoid arbitrary detention in the region. So that India as a state, has an obligation to fulfil this right in full based on international law and its constitution. This research uses statute approach, case approach, and conceptual approach to help researchers analyse this writing which is in the form of normative juridical.]]>
<![CDATA[Urgensi Pembentukan Hukum Penggunaan Algoritma Rekomendasi Dalam Menciptakan Persaingan Usaha Sehat di Ranah PMSE ]]>
<![CDATA[ RechtJiva Vol. 1 No. 2 (July 2024) ]]>
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DOI: 10.21776/rechtjiva.v1n2.1
<![CDATA[This writing is motivated by the existence of a legal vacuum related to the use of recommendation algorithms in trading through electronic systems (PMSE), coupled with the emergence of various problems related to the use of recommendation algorithms in PMSE which can adversely affect business competition in the PMSE realm and threaten small business actors such as UMKM and local traders in Indonesia. The purpose of this paper is to analyze and identify the urgency of regulating the use of recommendation algorithms in PMSE and formulate the right form of regulation in Indonesian legislation. This legal writing uses normative juridical research methods with a statutory approach and conceptual approach. As for the results of this study, first, the realization of the regulation of the use of recommendation algorithms in PMSE is an urgency due to the regulatory vacuum in this field so that it has the potential to cause legal implications in the form of misuse of algorithms by service providers which can threaten the sustainability of local traders and create a climate of unfair business competition in the realm of PMSE in Indonesia. Second, the appropriate form of regulation on the use of recommendation algorithms in PMSE in terms of the Internet Information Service Algorithm Recommendation Management Regulations is to regulate the limits of use, obligations and prohibitions of service providers, as well as the protection of the rights and interests of its users.]]>
<![CDATA[Precautionary Principle dalam Penghitungan Pemulihan Kerusakan Lingkungan Hidup Akibat Kebakaran Hutan dan Lahan ]]>
<![CDATA[ RechtJiva Vol. 1 No. 2 (July 2024) ]]>
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DOI: 10.21776/rechtjiva.v1n2.5
<![CDATA[This research was conducted because there is a high number of environmental crimes committed by corporations, especially land and forest fires. One of the cases of forest and land fires that often occur is due to corporate activities in the field of oil palm plantations. There are five decisions related to forest and land fires analyzed, in these decisions the analysis will focus on additional punishment in the form of environmental damage recovery costs. The calculation of the cost of restoring environmental damage will be linked to the precautionary principle. This research was conducted to find out whether the panel of judges in handling criminal cases of forest and land fires had applied the precautionary principle, what was the ratio decidendi in applying the principle, and whether the application was in accordance with the UUPPLH and KKMA P3LH. The research was conducted using the normative juridical method and used a statutory, conceptual, and case approach. The results showed that not all forest and land fire criminal cases, especially in calculating additional criminal costs, require the application of the precautionary principle. The judges who apply the precautionary principle are of the view that the decline in environmental quality cannot fully return, the application is also based on the results of laboratory analysis and expert opinions. The application of the precautionary principle can refer to the UUPPLH and KKMA P3LH. In the five decisions analyzed, the precautionary principle applied by the judges based on these two regulations was not all of its elements fulfilled.]]>
<![CDATA[Perlindungan Hukum Terhadap Nasabah Atas Penggunaan Bank Garansi Bersifat Unconditional Ditinjau Dari Prinsip Kehati-hatian Bank ]]>
<![CDATA[ RechtJiva Vol. 1 No. 2 (July 2024) ]]>
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DOI: 10.21776/rechtjiva.v1n2.4
<![CDATA[This research is motivated by the incompleteness of the rules for using unconditional bank guarantees as collateral in government procurement projects for goods and services. This incompleteness can be seen from the absence of regulations regarding the mechanism for disbursing unconditional bank guarantee claims in Bank Indonesia Directors' Decree No. 23/88/KEP/DIR concerning Provision of Guarantees by Banks. This research uses a juridical-normative research method with a statutory approach and an analytical approach. The analysis techniques used are grammatical interpretation techniques and systematic interpretation. The research results obtained are (1) There are incomplete regulations regarding the provision of bank guarantees by banks in the Decree of the Directors of Bank Indonesia Number 23/88/KEP/DIR. Current regulations regarding the use of bank guarantees do not meet the bank's prudential principles. This can be seen from the absence of regulations regarding the process of disbursing unconditional bank guarantees, especially in conditions where there are objections from the guaranteed party. Because the disbursement process is very easy, a provision is needed that stipulates that the bank guarantee is unconditional. (2) Regulations related to bank guarantees in the Directors' Decree Number 23/88/KEP/DIR do not provide legal protection for the guaranteed against the use of unconditional bank guarantees which are currently commonly used in government goods/services procurement activities. So it is necessary to update regulations regarding the use of bank guarantees which give banks the authority to verify the veracity of bank guarantee claims and prove the truth of the default stated by the recipient of the guarantee.]]>
<![CDATA[Inkonsistensi Terhadap Pengakuan Desa Adat Dalam Undang-undang Nomor 6 Tahun 2014 tentang Desa ]]>
<![CDATA[ RechtJiva Vol. 1 No. 2 (July 2024) ]]>
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DOI: 10.21776/rechtjiva.v1n2.6
<![CDATA[The Village Law was supposed to be a breath of fresh air for villages across Indonesia that still have customs or customary laws, as they can use their own customary government format with various provisions. However, administrative constraints become a restraint in the process of determining villages to become customary villages. Based on these problems, the formulation of the problem in this research is: How is the relationship between the boundaries of an indigenous village and the process of establishing an indigenous village? And how is the ideal reformulation in the determination of indigenous villages? This research method uses normative juridical research with statutory and conceptual approaches. This research results in two conclusions: first, that the existence of customary villages cannot be separated from the existence of customary law communities. This is reflected in the requirements of customary villages in the Village Law. However, there is a problem, namely the provision of time limits in the process of determining customary villages. Second, in essence, the elimination of the 1 (one) year period is a form of respect for the constitutional rights of indigenous peoples.]]>
<![CDATA[Kedudukan Korban Tindak Pidana Dengan Kerugian Dibawah UMP Berdasarkan Undang-Undang Sistem Peradilan Pidana Anak ]]>
<![CDATA[ RechtJiva Vol. 1 No. 2 (July 2024) ]]>
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DOI: 10.21776/rechtjiva.v1n2.8
<![CDATA[The provisions of article 9, paragraph (2) of the Criminal Justice System Act stipulate that there are certain conditions in which a different agreement does not require the consent of the victim and/ or the family of the child victim, one of which is when the value of the loss of victim does not exceed the minimum wage of the local province. (UMP). In each province has the size of the Provincial Minimum Wage (UMP) that is relatively different, then it is necessary to know about the basis of thinking of the formulation of the provisions of Article 9 paragraph (2) letter d and also the justice obtained by the victims under these provisions. The type of research used is a normative jurisprudence with a methodological approach to legislation. (statute approach). It was obtained an answer to the existing problem that based on the analysis carried out, according to the researchers there are some basis of thought that was the reason for the legislation making Provincial Minimum Wage (UMP) as a loss parameter in the Child Criminal Justice System Act i.e. First, it is based upon the existence of the Minimum Provincial Wage(UMP) itself; Second, the desire of legislation to expand the possibility of child offenders to obtain diversion; Third, the formulation of Article 9 paragraph (2) letter d, the selection of Provincial minimum wage (UP) is based on priority interests of the child. The provisions of article 9, paragraph (2) letter d of Law Number 11 of 2012 on the Child Criminal Justice System do not give the victim the opportunity to fully engage in the process itself. The child's criminal justice system in the settlement of crimes through the article indirectly seems to give the victim a position only as a witness. Furthermore, the provisions in the article are just impressed to box-up the victim's position that should be the same, either with losses above the Provincial Minimum Wage (UMP) or below it.]]>
<![CDATA[Moderasi dalam Rekrutmen Politik Partai Keadilan Sejahtera (Studi Hukum tentang Inklusivitas Partai Politik) ]]>
<![CDATA[ RechtJiva Vol. 1 No. 2 (July 2024) ]]>
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DOI: 10.21776/rechtjiva.v1n2.9
<![CDATA[The Prosperous Justice Party (Partai Keadilan Sejahtera or PKS), a political party with an ideology based on Islam as stated in its Articles of Association, initially aimed to be a da'wah party with the goal of creating a just and prosperous society based on Islamic principles. However, in recent years, there has been a shift in policies indicating steps towards moderation, especially concerning more inclusive political recruitment. These moderation steps include changes in the party's goals and a more open approach towards members and candidates from diverse backgrounds, as well as equal treatment of gender differences. Using legislative and conceptual approaches, this normative juridical research analyzes the legal considerations behind PKS's adoption of inclusive moderation policies in political recruitment and how the concept of inclusivity in such moderation is implemented by PKS. This study concludes that there are relevant legal considerations as the basis for PKS in determining inclusive and moderate policies, as well as their relevance to Law No. 2 of 2008 on Political Parties and other related laws. This research also provides a legal perspective on the political and ideological dynamics that influence PKS's political recruitment policies.]]>
<![CDATA[Konstruksi Sanksi bagi Pengusaha yang Tidak Mempekerjakan Pekerja Disabilitas Sesuai Kewajiban Sistem Kuota ]]>
<![CDATA[ RechtJiva Vol. 1 No. 2 (July 2024) ]]>
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DOI: 10.21776/rechtjiva.v1n2.10
<![CDATA[Indonesia has adopted the quota system which regulates the minimum number of disabled employees recruited by employer, through Article 53 paragraph (2) of Undang-Undang Republik Indonesia Nomor 8 Tahun 2016 tentang Penyandang Disabilitas. Unfortunately, this regulation has not been effective, evidenced by there are still large number of employers who have not implemented this regulation and the increasing unemployment and the entrepreneurship rate in Indonesia among disabled workers. This allows for inequality of employment opportunities for disabled workers, alongside with their human rights not being protected. Based on these matters, this research raises two research questions, which are (1) what are the implications of the legal vacuum of sanctions for the quota system regulation; and (2) what is the ideal construction of sanctions that can be applied in Indonesia after making comparisons from China and Japan? This research is a normative legal research, with statute, historical, conceptual, and comparative approach. The results of this study are that the legal vacuum condition of sanction for the quota system can create bad precedent for the rule of law visions that Indonesia has, and can lead to a failure to fulfill the principle of labor protection that the labor law has. Furthermore, the sanctions that can be applied are fines/levy and written warnings, with the ULD as the institution authorized to supervise the implementation and impose sanctions, and to support this implementation, technical regulation needs to be issued.]]>
