Lentera Hukum
E-Journal Lentera Hukum merupakan sarana ilmiah bagi mahasiswa untuk menyalurkan pemikiran-pemikiran ilmiah di bidang ilmu hukum. Artikel yang dikirim belum pernah dipublikasikan atau tidak dalam proses penerbitan dalam berkala ilmiah lain. E-Journal Lentera Hukum terbit tiga kali dalam setahun yaitu April, Juli, dan Desember. Diterbitkan secara elektronik atas kerjasama Fakultas Hukum dan UPT Penerbitan Universitas Jember
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<![CDATA[Warrant of Termination of Investigation (SP3) Issued Based on Peace Agreement Between Suspects and Reporters in Ordinary Offences ]]>
<![CDATA[Hakiki, Azizul]]>
<![CDATA[ Lentera Hukum Vol 6 No 2 (2019): LENTERA HUKUM ]]>
Publisher : <![CDATA[University of Jember ]]>
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DOI: 10.19184/ejlh.v6i2.10501
<![CDATA[Warrant of Termination of Investigation (SP3 – Surat Perintah Penghentian Penyidikan) is applied as the power granted to the investigator of a criminal act. Article 109 paragraph (2) of Law No. 8 of 1981 on the Criminal Procedure Code (KUHAP – Kitab Undang-Undang Hukum Acara Pidana) states that there are three requirements to stop a criminal investigation: (a) insufficient evidence; (b) the act committed by the suspect is not a criminal offence; and (c) the investigation is stopped by law. These three conditions are alternative conditions. At the implementation level, there are many cases that are terminated because they fulfill these three requirements. However, it is not uncommon for cases that have progressed to the stage of investigation be stopped as well because the suspected and the reporter reached a peace agreement through mediation facilitated by police investigators. The mediation condition will impact the ongoing investigation since the investigation should be stopped and police should revoke the report of the investigation concerned. Whereas, in this context, the status of this case is an ordinary offence status which means that the revocation of the report has no consequences with the ongoing investigation. Peace agreements impact ongoing investigations. Whereas the investigation should be stopped and police should revoke the offense report, under extant legislation, investigations maintain ordinary offence status, meaning revocation of the offense report has no effect on the ongoing investigation. The investigation cannot be stopped with any other reasons excepts those that stated in Article 109 paragraph (2). The fact that the revocation of the report of investigation leads to the termination of the ongoing investigation as evidenced by the issuance of SP3. While the issuance of SP3 enables termination of an ongoing investigation by revoking the report of investigation, investigation termination requirements explicitly state that an agreement reached through a mediation mechanism cannot provide legal grounds to issue SP3. This paper provides a normative legal analysis of the validity of investigation termination as the result of an agreement reached through a mediation mechanism. Investigations that terminated based on an agreement achieved by mediation mechanism will create space for third parties to utilize a pre-trial mechanism whose purpose is to test the validity or termination of the investigation. Keywords: Termination of Investigation, Criminal Law, Criminal Procedure.]]>
<![CDATA[Third Parties’ Legal Protection over Agreed Authorized Capital Amount by Founders in Limited Liability Companies ]]>
<![CDATA[Nugraha, Xavier]]>;
<![CDATA[Murti, Krisna]]>;
<![CDATA[Putri, Saraswati]]>
<![CDATA[ Lentera Hukum Vol 6 No 2 (2019): LENTERA HUKUM ]]>
Publisher : <![CDATA[University of Jember ]]>
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DOI: 10.19184/ejlh.v6i1.9676
<![CDATA[On July 14, 2016, the Government enacted the Government Regulation Number 29 of 2016 regarding Amendments in Authorized Capital of a Limited Liability Company (LLC). Article 1 paragraph (3) of the regulation showed that the amount of authorized capital was submitted to the agreement of the LLC founders. This regulation was issued in order to increase Indonesia’s ‘ease of doing business’ rank, especially in ‘starting a business.’ This article aims to examine the legal protection for the third party over the amount of authorized capital based on the agreement of the LLC founders using the study of dogmatic law. Regulations referenced are Law Number 40 of 2007 regarding Limited Liability Companies and Government Regulation Number 29 of 2016 regarding Amendments in Authorized Capital of LLC. Based on the results of this study, it was found that the determination of authorized capital based on the agreement of LLC founders has neglected the protection of the third parties. This manifested particularly in protecting minority investors and resolving insolvency. Through the enactment of authorized capital based on the agreement of the founders, the mechanism of preventive and repressive legal protection to the third parties are assumed to be eliminated. Keywords: The Authorized Capital, Limited Liability Company, Agreement, Legal Protection.]]>
<![CDATA[The Perspective of Islamic Law on a Mismatched Object in Online Sales and Purchases Transactions ]]>
<![CDATA[Mustikawati, Intan Mukarromah]]>;
<![CDATA[Handono, Mardi]]>;
<![CDATA[Zulaika, Emi]]>
<![CDATA[ Lentera Hukum Vol 6 No 2 (2019): LENTERA HUKUM ]]>
Publisher : <![CDATA[University of Jember ]]>
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DOI: 10.19184/ejlh.v6i2.10839
<![CDATA[Online transaction is a cross-personal action done by two or more parties to reach an agreement. The law of sales and purchases in Islam requires the double coincidence of wants as a measure of transaction validity. However, humans will always find the double coincidence of wants as a remote probability. Therefore, the previous Ulamas set an ijab-qabul as a symbolization of the double coincidence of wants. A qabul is an expression of the handed over of one's ownership rights to a particular party, and vice versa, as well as a sign that both of the parties have agreed on the contract (akad). Keywords: Online Transactions, Buying and Selling in Islamic Law, Object Mismatches.]]>
<![CDATA[The Enforcement of Business Competition Law by the Police: An Indonesian Experience ]]>
<![CDATA[Disemadi, Hari Sutra]]>;
<![CDATA[Roisah, Kholis]]>
<![CDATA[ Lentera Hukum Vol 6 No 2 (2019): LENTERA HUKUM ]]>
Publisher : <![CDATA[University of Jember ]]>
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DOI: 10.19184/ejlh.v6i2.12013
<![CDATA[In Indonesia, the Commission for the Supervision of Business Competition or Komisi Pengawas Persaingan Usaha (KPPU) is granted the power according to Law Number 5 of 1999 but such a power cannot be optimally implemented. KPPU often experiences difficulties and obstacles in the process of enforcing business competition law due to a large number of business actors and uncooperative witnesses so that this hinders the process of examining cases. In particular, KPPU has lack of cooperation of involved parties during the inspection process. However, the KPPU in carrying out its authority can include the role of the Indonesian police to assist in the process of enforcing business competition law. This paper shows that the role of the Indonesian police in the enforcement of business competition law can be initiated during the investigation process if the KPPU requests assistance to present the reported party, witnesses, and expert witnesses. Until the decision is issued by the KPPU, investigators can follow up with relevant individuals that may have cases that contain criminal aspects. Keywords: Business Competition Law, the Commission for the Supervision of Business Competition, Indonesian Police]]>
<![CDATA[The Iddah Period as A Reason for Cancellation of Marriage ]]>
<![CDATA[Romadoni, Rahayu Mulia]]>
<![CDATA[ Lentera Hukum Vol 6 No 2 (2019): LENTERA HUKUM ]]>
Publisher : <![CDATA[University of Jember ]]>
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DOI: 10.19184/ejlh.v6i2.11253
<![CDATA[The iddah period is a waiting period that applies to a woman whose marriage is broken legally through a divorce or physically through the death of a husband. Any woman who has not had a prior marriage must observe the iddah period. As one of the legal conditions of marriage, failure to complete the iddah period can result in the cancellation of any secondary marriages. In this study, judges release a verdict in accordance with the laws and legislation of Indonesia, namely Law No. 1 of 1974 on Marriage and a compilation of Islamic law found in Al-Qur'an and Hadith. This article uses legal research based on positive laws including judicial decision. This study concluded that if a marriage is prohibited for a failure to satisfy the condition of iddah, that marriage must be canceled. This article employs statute and conceptual approaches to legal research, as well as case study methodology, with the aim of departing from the views and doctrines that develop in law in order to build a legal argument that addresses legal issues. Analyzing the Decision of the Mojokerto Religious Court Number 1365/Pdt.G/2014/PA.Mr, this study argues that prospective spouses are responsible for awareness of their prospective partners’ marriage eligibility and fulfillment of all requirements, material and formal, clearly stipulated in state and religious law. Keywords: Iddah, Islamic Law, Marriage Cancellation]]>
<![CDATA[The Application of the MFN Principle into 'the Over Top Companies' in Investment Activities of Indonesia ]]>
<![CDATA[Ansory, Wachid Aditya]]>;
<![CDATA[Widiyanti, Ikarini Dani]]>;
<![CDATA[Kumala Sari, Nuzulia]]>
<![CDATA[ Lentera Hukum Vol 6 No 2 (2019): LENTERA HUKUM ]]>
Publisher : <![CDATA[University of Jember ]]>
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DOI: 10.19184/ejlh.v6i2.11254
<![CDATA[The Most-Favored-Nation (MFN) principle is one of international consensuses, especially for countries registered as members of the World Trade Organization (WTO). The principle is related to investment and international trade within the framework of economic liberalization. At its core, the MFN principle ensures equitable treatment of all parties economically active within a country. Recently, in Indonesia, the Over Top company conducted business activities without paying taxes to the government. The case of the Over Top company highlights an unfair business situation in Indonesia, enabled by the Indonesian government through a poorly established monitoring system and codification of laws. This study argues that the absence of taxation, regulation, and fraud laws for the Over Top Companies in Indonesia, and the Indonesian government is responsible for the enforcement and maintenance of tax laws and the MFN principle for all entities conducting business in the state. Keywords: MFN Principle, Over Top Companies, Investment in Indonesia.]]>
<![CDATA[The Evaluation of Surrogacy’s System in Indonesia as Comparison to India’s Legislation ]]>
<![CDATA[Ambarwati, Mega Dewi]]>;
<![CDATA[Azmita Kamila, Ghina]]>
<![CDATA[ Lentera Hukum Vol 6 No 2 (2019): LENTERA HUKUM ]]>
Publisher : <![CDATA[University of Jember ]]>
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DOI: 10.19184/ejlh.v6i2.10842
<![CDATA[In today’s age, marriage life is can be complicated with problems like infertility. In the face of this problem, couples have used surrogacy as a potential fix. Surrogacy poses a unique problem in Indonesia, because such a concept remains culturally taboo and no legal system exists to regulate the process and the responsibilities of the surrogate mother. Thus, other countries that have created a legal infrastructure for surrogacy offer valuable paradigms and best practices. This study seeks to compare surrogacy law between Indonesia and India, with the overall goal of suggesting policies to better regulate surrogacy within the former country. This study uses comparative legal research methodology through the functional method because Indonesia and India face the same social problem of surrogacy. The result reveals that it needs a legal system on surrogacy and surrogate mother as the legal certainty for any individual especially spouse who could not have offspring along with some reasons such as minimalize prostitution and unregistered marriage, prevent dispute, and to develop scientific field. The study concludes that Indonesia requires stronger legal infrastructure for surrogacy that will not only provide legal certainty for surrogate mothers and families using surrogacy but will also minimize prostitution and unregistered marriages, mitigate domestic disputes, and catalyze scientific innovation. Keywords: Surrogate Mother, Surrogacy, Indonesia, India.]]>
<![CDATA[Law Enforcement of Criminal Defamation Through Electronic Media ]]>
<![CDATA[Putri, Septavela Gusti]]>;
<![CDATA[Irianto, Echwan]]>;
<![CDATA[Prihatin AN, Dodik]]>
<![CDATA[ Lentera Hukum Vol 6 No 2 (2019): LENTERA HUKUM ]]>
Publisher : <![CDATA[University of Jember ]]>
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DOI: 10.19184/ejlh.v6i2.8033
<![CDATA[Defamation through Electronic Media as regulated in Article 27 paragraph (3) of Law No. 19 of 2016 on amendments to Law No. 11 of 2008 on Information and Electronic Transactions does not explain in detail the elements of "insulting content and/or defamation;” therefore, the understanding of this term is subjective to the victim. Article 27 also includes the phrase "no rights," suggesting that victims' legal rights in response to defamation are limited. Even so, the Information and Electronic Transactions Law (ITE Law - Undang-Undang Informasi dan Transaksi Elektronik) itself does not provide a detailed explanation of these elements. The results found in this study are an objective criteria to assess whether electronic information or electronic documents which can be qualified as defaming. This study argues that defamation occurs if: (a) information or documents are built based on the clarity of the insulted person's identity; (b) the purpose of words is deemed insulting; (c) defamation is addressed to natural person or legal person (d) the content and context of each case, and (e) the allegations. In addition, a person is said to have the right to commit criminal defamation if carried out in the public interest and by being forced to defend himself. Keywords: Criminal Defamation, Electronic Media, Indonesia]]>
<![CDATA[Post-Notification Arrangements in Merging Business Entities (Mergers) as an Effort to Prevent Unfair Business Competition ]]>
<![CDATA[Fahamsyah, Ermanto]]>;
<![CDATA[Suri, Fadillah Atika]]>
<![CDATA[ Lentera Hukum Vol 6 No 2 (2019): LENTERA HUKUM ]]>
Publisher : <![CDATA[University of Jember ]]>
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DOI: 10.19184/ejlh.v6i2.9970
<![CDATA[One way a business actor strengthens their business is through cooperation with other business actors. One form of cooperation is a "merger" or another term, "merging." Mergers carried out by business actors can result in monopolistic practices or unfair business competition. A merger of competition aspects is regulated in Article 28 and 29 of Law No. 5 of 1999 on the Prohibition of Monopolistic Practices and Unfair Business Competition which provides regulation regarding post-notification of mergers. Commission Regulation No. 1 of 2009 on Pre-Notification of Mergers, Consolidations, and Acquisitions gives a different arrangement, namely in the form of pre-notification to business actors. This difference in notification arrangements provides ineffectiveness and inefficiency for business actors. Keywords: Post-Notification, Mergers, Unfair Business Competition.]]>
<![CDATA[Citizen Lawsuit in Environmental Cases ]]>
<![CDATA[Fatah, Abdul]]>
<![CDATA[ Lentera Hukum Vol 6 No 2 (2019): LENTERA HUKUM ]]>
Publisher : <![CDATA[University of Jember ]]>
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DOI: 10.19184/ejlh.v6i2.9675
<![CDATA[The citizen law suit is one of the effective alternatives for the environmental law enforcement. The citizen lawsuit in environmental disputes has been regulated in the PPLH Law specifically Article 91 paragraph (1) and the Chief Justice of the Indonesian Supreme Court Number 36/KMA/SK/II/2013 concerning the Implementation of Guidelines for Handling Environmental Cases. However, there are no specific rules governing citizen lawsuits in Indonesia because it’s not widely known in the Indonesian legal system. This paper argues that there are three main constraints to the practice of citizen lawsuits in environmental cases, namely: (1) the absence of legal rules that specifically regulate citizen lawsuits, especially the reading mechanism; (2) lack of understanding of law enforcement officials (especially judges) regarding citizen lawsuits; and (3) lack of environmental-certified judges in Indonesia, especially in regions. Keywords: Citizen Lawsuit, Environment, Government.]]>
