Brawijaya Law Journal : Journal of Legal Studies
BRAWIJAYA LAW JOURNAL, Journal of Legal Studies Brawijaya Law Journal (BLJ) is a newly established journal in the field of legal studies. The Journal is published annually by Law Faculty Brawijaya University, Indonesia. BLJ is an open access, peer-reviewed e-journal which aims to offer an international scientific platform for national as well as cross-border legal research. The materials published include major academic papers dealing critically with various aspects and field of laws as well as shorter papers such as recently published book review and notes on topical issues of law. Printed version of the series can be printed on demand (POD). The website of the journal can be accessed through lawjournal.ub.ac.id
Articles
287 Documents
<![CDATA[Population Administration Policy: An Empirical and Juridical Examination ]]>
<![CDATA[Setiabudhi, Donna Okthalia]]>;
<![CDATA[Palilingan, Toar Neman]]>;
<![CDATA[Kermite, Jeany Anita]]>
<![CDATA[ Brawijaya Law Journal Vol. 5 No. 2 (2018): The Role of State in Contemporary Legal Development ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2018.005.02.05
<![CDATA[Manado is a city that has a large population, high population mobility and activities in all fields that are increasingly complex. However, actually it does not have a legal product that regulates population administration technically. This paper aims to analyse the population administration policies in the city of Manado and propose an ideal policy that can be pursued to establish an appropriate population administration service in this region. The research is a socio-juridical research. The method used is descriptive by giving a systematic, factual and accurate description of the issues of research.The results indicated that population administration services in the city of Manado were still minimal and not optimal because there were no local regulations which accommodate all the typical conditions of communities. The lack of human resources both in quality and quantity in providing the population administration service to the community and the lack of attention the public to the importance of population administration for their lives, have made inappropriate populatuion administration service. Thus, it is argued that the existence of local regulations are needed to regulate population administration which can accommodate the conditions of the communities in Manado and can be a reference for the implementers in providing optimal services to the community.]]>
<![CDATA[Analysis of State Control Over Natural Resources Oil and Gas (According to Law No. 22 of 2001 Concerning Oil and Gas) ]]>
<![CDATA[Sibarani, Sabungan]]>
<![CDATA[ Brawijaya Law Journal Vol. 5 No. 2 (2018): The Role of State in Contemporary Legal Development ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2018.005.02.06
<![CDATA[Most gas-producing companies are the same foreign companies as oil-producing companies. Investment to produce gas is funded by government banks in industrialized countries. Thus, the exploration and exploitation of natural gas is intended to meet export needs to industrialized countries. Article 33 of the 1945 Indonesian Constitution envisages that the use of natural resources should be prioritized to the maximum extent possible to meet domestic needs and the greatest prosperity of the people. This implies state control over the use of natural resources. It is argued that mining business arrangements, especially Oil and Gas, can be considered as a part of the implementation of state control over natural oil and gas resources. This means that the authority in controlling natural resources of Oil and Gas is only controlled by the State and carried out by the Government as the executor of Oil and Gas business activities. Such arrangement is in accordance with the provisions of Article 4 paragraph (1) and (2) Law No . 22 of 2001 concerning Oil and Natural Gas. This paper analyses the State control over the use of oil and gas as natural resources. The analyses was carried out through the study of the Decision of the Constitutional Court of the Republic of Indonesia Number: 002 / PUU-I / 2003. Using normative juridical approach, this paper argues that the Indonesian Laws on oil and gas are incontrary with the 1945 Indonesian Constitution.]]>
<![CDATA[Right to Information, Judicial Activism and the Rule of Law: The Case of Indonesia's Mining Litigation ]]>
<![CDATA[Safitri, Myrna Asnawati]]>
<![CDATA[ Brawijaya Law Journal Vol. 5 No. 2 (2018): The Role of State in Contemporary Legal Development ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2018.005.02.07
<![CDATA[The right to information is fundamental in environmental protection. Lack of access to information regarding environmental planning and licensing has often lead to public interest environmental litigation. The right to information is also an element in the formation of the rule of law in both its formal and substantive aspects. Mining must be cautionary conducted due to its high potential for environmental damage and pollution. This paper discusses the extent to which is the right to environmental information protected in Indonesia through several cases of mining litigation. Using statutory and court cases methods, it discusses laws on the rights to information in general and in the field of environmental protection, how Indonesian courts have interpreted the government obligations to fulfill citizens' access to mining information, and the extent to which that legal interpretation contributes to the rule of law elements. This paper then concludes that the right to mining information is still difficult to attain. Public bodies tend to prioritize formal-procedural aspects in providing information and setting up a public consultation. However, the cases studied indicate that judicial activism has provided corrections to such a procedural approach. More substantive rule of law principles used by the courts to interpret mining zones and environmental permits procedures.]]>
<![CDATA[Conflict in Management of Passive State Administrative Decision in State Administrative Dispute ]]>
<![CDATA[Wereh, Agustien Cherly]]>;
<![CDATA[Istislam, Dr]]>
<![CDATA[ Brawijaya Law Journal Vol. 5 No. 2 (2018): The Role of State in Contemporary Legal Development ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2018.005.02.08
<![CDATA[The government's task to achieve the state's objective is provided in the preamble of the 1945 Constitution of the Republic of Indonesia. In the governance system, societies often encounter tough situation, while administrative law has specially actualised constitutional norms of correlation between the state and its societies. The administrative management in the Law is seen as essential instrument of a democratic state of law, in which decision and/or act is determined by an entity and/or a government official or government apparatus involving executive, judicative, and legislative entities that run governmental functions which are possible to be examined at court. The research problem presented in this research is why there are differences between positive-passive system (stelsel) and negative-passive system regarding the management of state administrative decision. This research employed normative legal research along with prescriptive analysis method. The research result indicates that the emergence of conflict in passive administrative state management is caused by the inaccuracy of legislation in formulating laws.]]>
<![CDATA[Pornography and Sexual Crimes towards Children in Indonesia: A Judicial Approach ]]>
<![CDATA[Sulistyo, Faizin]]>;
<![CDATA[Manap, Nazura Abdul]]>
<![CDATA[ Brawijaya Law Journal Vol. 5 No. 2 (2018): The Role of State in Contemporary Legal Development ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2018.005.02.09
<![CDATA[Pornography and sexual crimes against children are two forms of crime in Indonesia. Both of these crimes in various cases have a linkage with each other, whether one of which is a crime or pornography becomes a criminogenic factor for the onset of sexual crimes against children. The review in this article attempts to look at the approach used by judges in deciding cases of sexual crimes against children that correlate with pornographic crimes. This research employs normative juridical research using legislation and case approach.The results of the review found that, in sum, there are two model of approach used by the Court in deciding criminal cases, especially pornography related to sexual crimes, which include the approach in understanding and assesing cases; and theories of punishment approach. While the rfirst model of approach emphasizes on the understanding the impact of the action, the secodn model look more at the retaliation, prevention, combination and contemporary approach. It is further argued that those two models are not necessarily used separately. The combination of the two models can also be employed, such as in the case of Tanjung Pati District Court's Ruling no. 58 /Pid.B/ 2011 /PN.Tjp. In fact, in the case, the judges combine several approaches in deciding cases and punishing defendants. It is submitted that the objective of a judge is crucial since the objectivity resulted in a fairer verdict for the victim, the community or the perpetrator himself.]]>
<![CDATA[An Assessment of the 'Lawfulness' of Use of Force as Dispute Settlement Method ]]>
<![CDATA[Rahman, Md Mustakimur]]>;
<![CDATA[Tushi, Mohsina Hossain]]>
<![CDATA[ Brawijaya Law Journal Vol. 6 No. 1 (2019): Alternative Dispute Resolution ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2019.006.01.03
<![CDATA[Public international law has been developing and working with international humanitarian law & international human rights law together. As it developes, international law is renovating its nature from softer to harder. Although it is a great achievement to see that international (criminal) law has the influence to deal with some particular international criminals, however, the world is still far beyond from its ambition. Sometimes states are behaving very unusual against other states and using force for various reasons. While using force against other states is prohibited under Article 2(4) of the UN Charter. Nevertheless, states can use force under Article 51 if it is necessary for self-defence and only if it is approved by the Security Council under Chapter VII of the UN Charter. However, it is a question of fact that how a state can use force(s) and how it will be legitimate under several international laws? Hague law prohibits the use of new weapons and engine in the war because it seems disproportionate and unnecessary while the UN Charter is silent about the method of using force. Hence, it seems not clear that how a 'force' would be measured and will pass the 'legality' test. The indicator, thus remain unclear and very subjective.]]>
<![CDATA[Arbitration and Other Alternative Dispute Resolution for Commercial Dispute (Reviewed from the Strengths of ADR and Decision of Arbitration) ]]>
<![CDATA[Suherman, Suherman]]>
<![CDATA[ Brawijaya Law Journal Vol. 6 No. 1 (2019): Alternative Dispute Resolution ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2019.006.01.08
<![CDATA[Arbitration and other alternative dispute resolution (ADR) can be used as an option for parties who conduct commercial transactions. This research is crucial to analyse what is the best dispute method for parties to be able to resolve their commercial business disputes. It is argued that the most important of ADR is the efficiency and effectivines in relation to the enforcement of a judgement on the commercial dispute especially foreign arbitral award. This research also seeks to analyse strengths and weaknesses of each ADR method because it is very important to know in resolving disputes in the field of trade and also related to the implementation of decisions, especially in foreign arbitral award and how to improve decisions and applied in Indonesia in relation to commercial dispute. The research method used in this research is normative juridical consisting of primary, secondary and tertiary legal materials, which were collected by conducting a literature review and interview technique and then processed qualitatively according to the problems and the theoretical framework logically and systematically to achieve the objective of this research, namely finding the best alternative dispute resolution in commercial dispute resolution in business transactions. This paper argued that while each of ADR method has their own strengths and weaknesses, business actors mostly prefer too have arbitration method as their ADR method in solving their disputes. However,the applying mechanism of foreign arbitration awards need further attention from Indonesian government.]]>
<![CDATA[Legal Status of Cryptocurrency in Indonesia and Legal Analysis of the Business Activities in Terms of Cryptocurrency ]]>
<![CDATA[Chang, Soonpeel Edgar]]>
<![CDATA[ Brawijaya Law Journal Vol. 6 No. 1 (2019): Alternative Dispute Resolution ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2019.006.01.06
<![CDATA[Indonesia's recent development in legal policy toward cryptocurrency is pertinent to ask whether this new investment market has any more risk to throw over Indonesia than how to protect the existing variable parties by overall structural formation. This tendency has prevented the government to implement the machinery of more fundamental keynote of policy. Against this backdrops, this research first analyzes the existing laws and regulations to examine the current legal status of virtual currency in Indonesia with the method of conceptual analysis. Despite the Government's skeptical stance about economic soundness that cryptocurrency market leads, however, how to protect the various parties in the existing market is a different issue which still needs an urgent attention from policy makers, legal practitioners, judiciary and academic researchers. Therefore, this paper further studies the relevant laws and regulations governing the actual operation of cryptocurrency exchange in Indonesia to discuss the more practical aspects by interviewing an Indonesian cryptocurrency exchange and professional lawyers at Dentons HPRP. Subsequently, the most worrisome legal risks in the industry are diagnosed by interviewing a global cryptocurrency exchanges. This study concludes that BAPPEBTI Regulation No. 5 of 2019 cannot be the good answer to minimize the risk and will only harm bona fide market participants without a good-standing authority.]]>
<![CDATA[Legal Protection for Investee Company in Venture Capital Agreement in Indonesia ]]>
<![CDATA[Sihabudin, Sihabudin]]>
<![CDATA[ Brawijaya Law Journal Vol. 6 No. 1 (2019): Alternative Dispute Resolution ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2019.006.01.07
<![CDATA[Business and entrepreneurship are one of the fundamental and important factors in the economy of a nation. In Indonesia lending is being intensified to small and medium-sized companies that are unable to borrow capital from banks through the establishment of venture capital by the government. The existence and role of financial institutions in the form of venture capital in Indonesia is important to study, because it is a new institution that is starting to develop, which certainly has an influence on the development of the business world and legal institutions and institutions. The research method used is empirical juridical, which is qualitative by means of descriptive analysis. The results of the study are that although venture capital has not been based on clear legal aspects, in practice, venture capital activities are complemented by an agreement. Venture Capitalist has a stronger position on the investee company, while freedom of contract can only be applied well when both parties have the same position. However, venture capital tends to protect interest (capital) with special provisions, including its responsibilities. Therefore there is a need for a model and further regulation of the contents of the "standard venture capital agreement", especially the financing mechanism as well as its implementation instructions, so as to provide clearer, more complete and stronger implementation guidelines. A financing agreement made between a venture capital company and its partner company is based on a standard contract that requires supervision and protection to maintain balance. Measures of protection and supervision are through the basis of legislation, control carried out by the government, control carried out by judges (courts) and legal consultants and notaries.]]>
<![CDATA[The Shifting of Alternative Dispute Resolution: from Traditional Form to the Online Dispute Resolution ]]>
<![CDATA[Latifah, Emmy]]>;
<![CDATA[Bajrektarevic, Anis H]]>;
<![CDATA[Imanullah, Moch Najib]]>
<![CDATA[ Brawijaya Law Journal Vol. 6 No. 1 (2019): Alternative Dispute Resolution ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2019.006.01.02
<![CDATA[The emergence of disruptive technologies has transformed how the conflict is resolved. If Alternative Dispute Resolution (ADR) has been understood as a more efficient method of resolving dispute than through the court, then in line with the development of technologies, Online Dispute Resolution (ODR) considered as the most efficient mechanism in ADR. Through ODR, access barriers are reduced, effectiveness increases, software becomes smarter and some ADR elements are challenged. This article focuses on the shifting of dispute resolution from the traditional approach to the new generation one which called digital justice.]]>
