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INDONESIA
Jurnal Penelitian Hukum De Jure
Published by Badan Strategi Kebijakan Hukum, Kementerian Hukum Republik Indonesia
ISSN : 14105632     EISSN : 25798561     DOI : 10.30641
Core Subject :
The De Jure Legal Research Journal, known as Jurnal Penelitian Hukum De Jure, is a legal publication issued three times a year in March, July, and November. It is published by the Law Policy Strategy Agency of the Ministry of Law of the Republic of Indonesia, in collaboration with the Indonesian Legal Researcher Association (IPHI). This association was legalized under the Decree of the Minister of Law and Human Rights Number AHU-13.AHA.01.07 in 2013, dated January 28, 2013. The journal serves as a platform for communication and a means of publishing diverse and relevant legal issues, primarily for Indonesian legal researchers and the broader legal community. In 2024, the management of the De Jure Legal Research Journal will include various stakeholders, as outlined in the Decree of the Head of the Law and Human Rights Policy Agency Number PPH-18.LT.04.03 for 2024, dated February 20, 2024, which establishes a publishing team for the journal. Based on the Decree of the Director General of Higher Education, Research and Technology, Ministry of Higher Education, Science and Technology of the Republic of Indonesia Number 177/E/KPT/2024 concerning the Accreditation Ranking of Scientific Journals Period II of 2024, dated October 15, 2024, the De Jure Legal Research Journal has received a Scientific Journal Accreditation Ranking of Rank 2 (Sinta-2 or S2). This re-accreditation at Rank 2 applies from Volume 23 Number 1 (2023) through Volume 27 Number 4 (2027), covering publications issued during this period.
Arjuna Subject : -
Articles 345 Documents
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Prinsip Periodik dalam Pemilihan Umum: Orientasi dan Implikasinya di Indonesia Muhammad Mutawalli; Zulhilmi Paidi
Jurnal Penelitian Hukum De Jure Vol 23 No 3 (2023): Edisi September
Publisher : Law Policy Strategy Agency, Ministry of Law of The Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30641/dejure.2023.V23.357-374

Abstract

The general election is one part of the practice of democracy in Indonesia. In this case, the general election is a manifestation of people's sovereignty. In general, the principles of elections include the principles of direct, general, free, confidential, honest, and fair. This study seeks to explore the legal construction related to the periodic principle of general elections which must be held periodically every five years to become a separate principle in elections. The issue of periodization in general elections really needs to be emphasized as one of the principles in general elections as the main basis for creating a cycle of replacement and filling of public positions in the state administration system. This research is a normative legal research with statutory and conceptual approaches. The results of the study confirm that the orientation of legal construction on the periodic principle has actually been expressly stated in the 1945 Constitution of the Republic of Indonesia and is based on a systematic interpretation. In this case, the orientation of the periodic aspect is part of the general election principle which is obligatory and must be implemented. This implies that the principles of general elections include the principles of direct, general, free, confidential, honest, and fair, and must be held periodically for five years. In this case, the periodic principle becomes very important to be recognized and explicitly stated in the general election law as a new principle in the technical implementation of general elections. this has implications for the implementation of elections that are inconsistent and tend to change in each implementation. Whereas in holding general elections, the periodic principle will uniformize the holding of elections simultaneously, both national elections and elections at the regional level by setting forth and affirming in the general election law that periodization is a technical principle in holding general elections in Indonesia.
Perluasan Tafsir Frasa Tahap Penyelidikan melalui Interprestasi Sistematis sebagai Solusi Perselisihan Prayudisial Suwitno Yutye Imran; Abdul Madjid; Apripari Apripari
Jurnal Penelitian Hukum De Jure Vol 23 No 3 (2023): Edisi September
Publisher : Law Policy Strategy Agency, Ministry of Law of The Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30641/dejure.2023.V23.341-356

Abstract

This study examined two things; the first is related to the relationship between judicial disputes, legal protection, and the role of the preliminary investigator; the second is related to the expansion of the phrase of preliminary investigation stages in the Criminal Procedure Code through systematic interpretation. This study applied normative legal research methods specified on the type of legal research for in-concreto cases. To strengthen the study, a statutory approach, a case approach, and a theoretical approach were used. The results of the study found that the actions of preliminary investigator who were limited to carrying out preliminary investigation without paying attention to cases that had a direct relationship with the cases being investigated could not yet provide legal protection, because they opened up opportunities for judicial disputes to occur. Speaking of which, judicial disputes need to be avoided through the use of systematic interpretation carried out by preliminary investigator in the preliminary investigation stages to expand the interpretation of the phrase of preliminary investigation stages in the Criminal Procedure Code and its derivative regulations. The systematic interpretation referred to is carried out in a limited manner, by simply reading opportunities for civil lawsuits and state administrative requests from parties involved in the case being investigated. In addition, it ensured the similarity of the parties involved in criminal cases as well as civil cases or state administrative cases in question.
Kedudukan Negara sebagai Pemegang Saham Dwiwarna dalam Privatisasi Perusahaan Anggota Holding BUMN Huta Disyon; Elisatris Gultom; Ema Rahmawati
Jurnal Penelitian Hukum De Jure Vol 23 No 3 (2023): Edisi September
Publisher : Law Policy Strategy Agency, Ministry of Law of The Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30641/dejure.2023.V23.299-312

Abstract

According to Government Regulation 72/2016, the formation of state-owned-holding-companies ("SOHC") is accomplished using the transfer mechanism, which transforms State shares in SOEs into equity in other SOEs, resulting in a change in the status of share ownership of holding-member-companies from being owned directly by the State to being owned by the holding company. GR 72/2016 also requires the state to own shares with special rights in holding-members-companies originating from ex-SOE, which can only be owned by the state, known as Dwiwarna shares. Potential issues arise because of the ambiguity of the controlling authority role in managing a SOHC, whether the state still holds it or has been transferred to the parent company, including in terms of selling shares of holding-member-companies. Hopefully, this study will provide the State with legal certainty, benefits, and justice in privatizing holding-member companies. The research methodology used is a normative juridical approach with qualitative normative legal research that relies on secondary data from the library. This study indicates that the State's Controlling Rights are based on state ownership of Dwiwarna shares in holding-member companies originating from ex-SOE, implying that the sale of company shares only sometimes results in reduced state control and ownership. As a result, the sale of series B shares may be accomplished using corporate regulations in line with their respective authorities. Meanwhile, the State must carry out the sale of Dwiwarna shares, per GR 33/2005. The author recommends that the State create a new mechanism for exercising Dwiwarna shareholder privileges so that the implementation of the absolute authority and rights for Dwiwarna shareholders can proceed in an orderly and legal manner.
Perbandingan Ketentuan Pidana Legislasi Nasional Negara Sponsor Deep-Seabed Mining Ratna Galuh Manika Trisista; Farhana Farhana; Hamdan Azhar Siregar
Jurnal Penelitian Hukum De Jure Vol 23 No 3 (2023): Edisi September
Publisher : Law Policy Strategy Agency, Ministry of Law of The Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30641/dejure.2023.V23.375-388

Abstract

National legislation is the requirement established by the International Seabed Authority (ISA) for each country sponsoring Deep-seabed Mining (DSM) and criminal provisions and sanctions are an inseparable part of it. A total of 38 states are listed as sponsoring states, while Indonesia, with its potential as a maritime country and member of UNCLOS 1982, has not participated in DSM activities. This article aims to explore and compare the criminal provisions in the national legislation of sponsoring states that have been approved by the ISA so that the formulation of sanctions in Indonesian national legislation can be illustrated in order to prepare Indonesia's contribution as a sponsoring state for DSM activities in the International Seabed Area. The research method used is normative juridical with a statute and comparative approach. The research results show that the majority of sponsoring states in their criminal provisions stipulate criminal sanctions in the form of fines as well as the possibility of imprisonment and several administrative sanctions. Based on the results of this comparative study, it can be concluded that the formulation of sanctions that can be regulated in Indonesian national legislation is a maximum fine of more than 100 billion Rupiah and a maximum prison sentence of not less than 5 years, as well as additional criminal penalties and administrative sanctions in the form of termination or revocation of DSM activity permits, confiscation of profits resulting from illegal DSM acquisition, and compensation for environmental damage caused by DSM activities.
Interlegality Perkawinan Beda Agama Vis a Vis Surat Edaran Mahkamah Agung Nomot 2 Tahun 2023 tentang Penolakan Permohonan Pencatatan Perkawinan Beda Agama di Indonesia Noer Yasin; Musataklima Musataklima; Ahmad Wahidi
Jurnal Penelitian Hukum De Jure Vol 23 No 4 (2023): Edisi Desember
Publisher : Law Policy Strategy Agency, Ministry of Law of The Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30641/dejure.2023.V23.389-402

Abstract

The polemic of interfaith marriages is not a new problem at the legal level in Indonesia, especially with the issuance of Supreme Court Circular Letter (SEMA) Number 2 of 2023 for District Courts to reject requests for registration of interfaith marriages. This has caused pros and cons in the community. The purpose of this research is to elaborate on the impact on the independence of judges and the constitutional rights of marriage actors, as well as the position of SEMA when faced with the rights of interfaith marriages conducted abroad and brought to Indonesia. This research can enrich insights into the discourse of interfaith marriage in Indonesia. This research uses a normative legal research method that relies on primary, secondary, and tertiary legal materials analyzed prescriptively. The results of this study are, First, SEMA can interfere with the independence of judicial power itself, where the Supreme Court is one of the actor of SEMA. Secondly, SEMA impacts the non-fulfillment of the constitutional rights of actors of interfaith marriages to obtain legal certainty, equality before the law, and legal protection. Thirdly, SEMA can trigger smuggling of law in interfaith marriages where the legal consequences must be recognized based on the principles of rights derived from foreign law, the principle of reciprocity, and the principle of comitas gentium. These three principles underlie the inter legality of interfaith marriages, so they have transnational legality. This research recommends that the Supreme Court revoke the SEMA that has been issued.
Aspek Hukum Hak Menguasai Negara DI Bidang Pertambangan Pasca Pembaruan Undang-Undang Mineral dan Batubara di Indonesia Andri Yanto; Faidatul Hikmah
Jurnal Penelitian Hukum De Jure Vol 23 No 4 (2023): Edisi Desember
Publisher : Law Policy Strategy Agency, Ministry of Law of The Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30641/dejure.2023.V23.419-432

Abstract

The concept of State Control Rights, as constitutionally attributed in Article 33 Paragraph (3) of the 1945 Constitution, constitutes a fundamental paradigm. The dialectics of mining policy formulation in Law No. 3 of 2020, which updated the regulation of minerals and coal, ushered in a series of transitions and consequences for the development of the concept of State Control in Indonesia, particularly concerning the substance of Article 4 Paragraph (2) of Law No. 3 of 2020, which introduced the policy of re-centralization. This research employs a juridical-normative method, utilizing a legislative approach and norm analysis pertaining to the concept of State Control Rights. The findings of this study indicate that, firstly, the formulation of state control in Law No. 3 of 2020 aligns intending to implement the concept of State Control as established by the Constitutional Court's decision, emphasizing the permit system as a replacement for the contract system. Secondly, the centralization of authority over mineral and coal mining does not contradict the concept of State Control, as long as it can optimally generate an ideal and effective mining management system in advancing the prosperity of the people. The objective of this research is to provide a comprehensive overview of the application of State Control Rights in the revision of mining legislation, thereby offering policy insights for the development of substantive and just mining law in Indonesia.
Quo Vadis Pengadilan Khusus di Indonesia dalam Batasan Putusan Mahkamah Konstitusi Bagus Hermanto; Nyoman Mas Aryani
Jurnal Penelitian Hukum De Jure Vol 23 No 4 (2023): Edisi Desember
Publisher : Law Policy Strategy Agency, Ministry of Law of The Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30641/dejure.2023.V23.403-418

Abstract

In Indonesia, special courts represent a phenomenon of judicial deference which is associated with an independent judicial system and supports the efficient and effective administration of justice. However, the practice in Indonesia shows that there is a need for further discursive research and thinking in the organization of the special justice system in Indonesia, based on internal and external issues in the realization of a special justice order that promotes substantive justice and is based on effectiveness, efficiency, and justice that is based on the needs of legal specificity under the specialized court context. This article utilizes dogmatic legal research based on a statutory approach, a case law approach, and a conceptual approach on a micro-legal research basis to examine the revamping of special courts in Indonesia, including the elaboration of Constitutional Court Decisions relevant to the strengthening of constitutional consolidation in post-reform Indonesia. Furthermore, the findings of this study show that the dynamics of special justice in Indonesia seem to be based on specific needs, international intervention in several cases, and ideas when the 1945 Constitution was amended by strengthening in accordance with conditions and times to achieve substantive justice. Similarly, the failure to build several special courts has become a discourse in recent decades, as various Constitutional Court decisions have directed topics that may be seen in the formation of special courts in the future. These include the existence of electoral and medical courts, which have also emerged as ideas for revamping specialized courts in Indonesia.
Menguji Posibilitas Transplantasi Variasi Bantuan Keuangan Partai Politik di Indonesia (Studi Perbandingan di Kolombia, Brazil, Korea Selatan, dan Turki) Garuda Era Ruhpinesthi; Muhammmad Hamzah Al Faruq
Jurnal Penelitian Hukum De Jure Vol 23 No 4 (2023): Edisi Desember
Publisher : Law Policy Strategy Agency, Ministry of Law of The Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30641/dejure.2023.V23.433-454

Abstract

There are variations in political party Financial Assistances in various countries with various implications, both positive and negative. Besides, there are problems with political parties in Indonesia which in literatures are suspected to be related to the regulation of political party Financial Assistances. This research focuses on answering two research problems. First, what are the implications for the regulation of various models of Financial Assistances for political parties in Colombia, Brazil, South Korea, and Turkey referring to the aspects of free and fair elections, democratic politics, and corruption index? Second, how is the possibility of legal transplantation of political party Financial Assistances in order to solve the problems of political parties in Indonesia? This research is socio-legal research that analyzes secondary data. The results of this study show two results. First, it shows that the law in four countries have different implications, which there are three notes namely that i) countries that are quite good in the aspect of free and fair elections are South Korea, Brazil, and Colombia, ii) the four countries are not good enough in the aspect of democratic politics, iii) countries that are quite good in the aspect of corruption index is South Korea. Second, it shows that there is the possibility of legal transplantation which there are three notes: i) there is a constant and dynamic variable regulation of political party Financial Assistances in Indonesia, ii) the problem of political party Financial Assistances in Indonesia is in the democratic politics and corruption index which means need to transplant several aspects, iii) there is a possibility of transplanting variations in political party Financial Assistances as long as certain conditions are fulfilled.
Pengaturan Penipuan dalam Hukum Perdata: Studi Perbandingan KUHPerdata Indonesia dengan Nieuw Burgerlijk Wetboek Belanda Ariyanto Ariyanto
Jurnal Penelitian Hukum De Jure Vol 23 No 4 (2023): Edisi Desember
Publisher : Law Policy Strategy Agency, Ministry of Law of The Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30641/dejure.2023.V23.455-472

Abstract

A person who commits fraud will move something as if something happened and was right but the act does not correspond to reality. The purpose of this study is to examine the elements of Fraud in Article 1328 of the Indonesian Civil Code and examine the regulation of fraud (bedrog) in the civil code in the Netherlands. This research is a Normative Legal Research which is legal research carried out by examining library materials or secondary data. Normative legal research is also called doctrinal legal research. The results indicated that the explanation of the definition of fraud (bedrog) has been regulated in Article 1328 of the Civil Code, but the substantial understanding has not been regulated in Article 1328 of the Indonesian Civil Code, fraud in Dutch civil law is regulated in article 3:44 Nieuw Burgerlijk Wetboek. The recommendation that the author can note is that as one of the countries adopted by Indonesia, it is appropriate for Fraud to get elaboration and technical procedures to identify Fraud as a defect of will. Bedrog is defined by definition as an act in which a party entices another party to take certain legal actions by, among others: making false and deliberate statements; deliberately not disclosing the fact that it should be mandatory to disclose, and intentionally withholding or providing incomplete information. The formulation of the definition in the NBW should be a reference in the renewal of the Civil Code related to Bedrog.
Is It Necessary to Include Promise in a Deed of Granting of Mortgage Rights? Mada Apriandi Zuhir; Annalisa Yahanan; Murzal Murzal
Jurnal Penelitian Hukum De Jure Vol 24 No 1 (2024): Edisi Maret
Publisher : Law Policy Strategy Agency, Ministry of Law of The Republic of Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.30641/dejure.2024.V24.019-030

Abstract

To secure the funds that have been granted to the debtor, in loan agreement between creditor and debtor, a guarantee agreement is usually included. One form of collaterals that is most in demand is land collateral. This research aims to analyze funds security that has been handed over to debtors in connection with loan agreement and promises (clauses) inclusion in a Deed of Granting of Mortgage Rights. This normative research uses statutory, conceptual and interpretive approaches. This study examines several deeds to search and analyze the promises (clauses) in the guarantee agreement. The result shows that the loan agreement includes a promise to provide collateral that will be attached with mortgage rights, to secure the credit that has been given to the debtor as security for repayment of credit loan. Therefore, the loan agreement contains rights and obligations of parties as a form of prudential principles. Furthermore, a Deed of granting of mortgage rights considerably needs to include promises (clauses) as a manifestation of conditions related to the guarantee provided. In its regulation (Mortgage Rights Law), these promises are optional (not mandatory) being included in a Deed of granting of mortgage rights. However, in practice these promises are always included in a deed at the creditor's request, with the aim being a kind of self-protection to creditor. However, Mortgage Rights Law also provides a balance of protection to debtors, namely promises that are prohibited from being included that creditors can immediately own the object of mortgage rights when the debtor defaults. If such promise is included, then the Deed of Granting of Mortgage Rights is null and void.

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