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
282 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[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[The Supremacy of the Dispute Settlement Mechanism (DSM) under the World Trade Organization (WTO) ]]>
<![CDATA[Widiatedja, I Gusti Ngurah Parikesit]]>
<![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.2019.006.01.05
<![CDATA[The existence of inequality and poverty in some countries doubted the contribution of the WTO. The overwhelming spirit of national interest through the imposition of discriminatory and protective measures has deteriorated the WTO. Given its role for enforcing trade commitments, the dispute settlement mechanism is crucial to save the future of WTO. This paper aims to analyse the existence of the dispute settlement mechanism of WTO, whether it is still supreme in upholding the vision of trade liberalization. This paper argues that the supremacy of this mechanism has ensured the future of WTO by looking at two parameters. Firstly, it has a ruled-based character with a high level of legalism. Next, by looking at the decision of the Panel and the Appellate Body, the dispute settlement mechanism has effectively controlled the overwhelming spirit of national interest. This mechanism shows its supremacy by limiting the capacity of the WTO member states to impose discriminatory and protective measures, particularly related to public morals exception and cultural concern.]]>
<![CDATA[Restorative Justice: an Alternative Process for Solving Juvenile Crimes in Indonesia ]]>
<![CDATA[Jufri, Mahfud]]>;
<![CDATA[Nazeri, Norbani Mohamed]]>;
<![CDATA[Dhanapal, Saroja]]>
<![CDATA[ Brawijaya Law Journal Vol 6, No 2 (2019): State Regulations and Law Enforcement ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2019.006.02.03
<![CDATA[Restorative justice concept may refer to an alternative process for solving disputes including criminal law violation has been well known in Indonesia. The Act Number 11, 2012 on Juvenile Justice System has acknowledged restorative justice approach as a part of criminal justice system in dealing with a child in conflict with the law. It has become an essential provision in the Act as it provides option for law enforcers to avoid punishing juvenile offenders through traditional criminal approach. This research aims to examine restorative justice for juvenile offenders in Indonesia based on the Juvenile Justice System Act Number 11, 2012 as a form of alternative dispute resolution for juvenile crimes and other related laws and to provide a brief of the implementation of restorative justice in Indonesia that is integrally enforced in Indonesian criminal justice system dealing with a child in conflict with the law. It divides the discussion into two parts restorative justice in the juvenile justice system act 2012 and the implementation of restorative juvenile justice in Indonesia. In order to response to these research aims, this paper employs doctrinal legal research.]]>
<![CDATA[State Regulation on Business Entities Owned by State Universities: Losses and Liability ]]>
<![CDATA[Hadiyantina, Shinta]]>;
<![CDATA[Ramadhan, Nandaru]]>
<![CDATA[ Brawijaya Law Journal Vol 6, No 2 (2019): State Regulations and Law Enforcement ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2019.006.02.08
<![CDATA[The Act of Higher Education stated that Higher Education Management Autonomy is carried out by the basis and objectives and abilities of tertiary institutions. This causes not all State Universities to have the same status, one of which is Legal Entity State University. Legal Entity State University is a state university established by the government which is an autonomous public legal entity. Implementing regulations related to Legal Entity State University is Government Regulation Number 26 in 2015 on the Form and Mechanism of Legal Entity State University Funding. The Government Regulation indicates that Legal Entity State University can have a business entity. The problem is, if the Legal Entity State University carries out a business activity, there will be a possibility that the business will suffer losses. If there is a loss, how is the liability for the loss of the Legal Entity State University?Based on the business judgment rule doctrine, not every business loss is classified as a state loss. If the financial loss is not caused by intentional acts against the law or abuse of authority, then that matter is not classified as a state loss. If the losses included state losses, then the liability losses caused by the activities of those business entities owned by state universities are carried out in three ways, there are criminal liability, civil liability, and accountability in the state administrative law.]]>
<![CDATA[Functionalization of the Village Head as Customary Leader in the Social Field in South Sumatra ]]>
<![CDATA[Abdullah, Abdullah]]>;
<![CDATA[Hasan, KN. Sofyan]]>;
<![CDATA[Rumesten, Iza]]>;
<![CDATA[Pasyah, Taroman]]>
<![CDATA[ Brawijaya Law Journal Vol 7, No 1 (2020): Contitutional Issues: Economic, Social and Cultural Rights ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2020.007.01.04
<![CDATA[The presence of the New Order government has brought about changes in the lowest level of government, which fairly basic leads to some institutional unification and uniformity. This has resulted in the loss of legal community units in Indonesia. The loss of indigenous community units began with the beginning of Law Number 5 of 1979 on Village Governance as a follow-up to the birth of Law Number 5 of 1974 on the Principles of Government in the Regions. Correspondingly, in South Sumatra, the lowest institutional governance tool, which is also a territorial indigenous community unit called Marga was abolished through the Decree of the Governor of South Sumatra No.142/ KPTS/1983. With the abolition of the Marga, it implies the loss of a typical indigenous institution of South Sumatra, which was merged into the Village institution as stipulated in Law Number 5 of 1979 on Villages. As a result, all the lowest institutions in South Sumatra switched their names to villages including, their functions and authorities. The removal of the Marga government and being replaced with the Village, has resulted in the loss of social functions and the function of resolving disputes customarily manner in the community. The function shift of the village head was not necessarily the transfer of the authority of the pesirah Margahead to the village head in resolving arising problems in the community. As a result of this obscurity of the function, all arising problems in the community should resolve by the formal public law determined by the state. This results in an imbalance in the lowest community, including in villages in South Sumatra, to break the chain, the research framework has carried out to answer these problems.]]>
<![CDATA[Governing Blockchain-based Token in Indonesia: Legal and Technical Perspective ]]>
<![CDATA[Yun Santoso, Wahyu]]>;
<![CDATA[Anggara Putra, Araya]]>;
<![CDATA[Hendson Passagi, Jonathan]]>;
<![CDATA[Rifky Hanindya, Yoda]]>;
<![CDATA[Azura Tagar, Annisa]]>
<![CDATA[ Brawijaya Law Journal Vol 7, No 1 (2020): Contitutional Issues: Economic, Social and Cultural Rights ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2020.007.01.08
<![CDATA[In the past decade, blockchain technology has caught the world's attention because of its disruptive nature in various industries. Along with blockchain adoption, blockchain-based token, or more popularly known as the "token", are widely used as a representation of a certain asset. In its development, blockchain innovators continue to encourage the birth of new tokens with more diverse attribution. From the regulator's point of view, the above gave rise to problems in the formation of regulations relating to tokens, mainly on its legality whether token will be determined as currency, securites, or commodity. If regulations still cannot catch up with the gap of technological advancement, this will actually hinder the development of blockchain technology in Indonesia.The token regulatory framework has been designed in several countries which have provided clear distinguishing characteristics for each type of token. However, in Indonesia, the absence of a clear and distinct definition of the types of tokens creates legal uncertainty for stakeholders. Therefore, this paper aims to give clarity to the legality of Blockchain-based tokens in Indonesia.]]>
<![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[Development of Non-Litigation Civil Dispute Settlement Model Based on Madurese Local Wisdom to Reduce Cases Accumulation in Court ]]>
<![CDATA[Hasanah, Uswatun]]>;
<![CDATA[Hamzah, Mohammad Amir]]>;
<![CDATA[Winarwati, Indien]]>
<![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.2019.006.01.09
<![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[Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution Based on Constitutional Interpretation ]]>
<![CDATA[Winata, Muhammad Reza]]>;
<![CDATA[Aditya, Zaka Firma]]>
<![CDATA[ Brawijaya Law Journal Vol 6, No 2 (2019): State Regulations and Law Enforcement ]]>
Publisher : <![CDATA[Faculty of Law, Universitas Brawijaya ]]>
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DOI: 10.21776/ub.blj.2019.006.02.04
<![CDATA[Hyper-regulation and disharmonization of regulations is a serious challenge in Indonesia. Ministry of Law and Human Right make a breakthrough stipulates regulation on Regulatory Dispute Resolution through Non-litigation. This mechanism is unique because commonly alternative dispute resolution (ADR) used in civil law however, this instrument exercised in constitutional law. There are two research questions: First, what are the typical characteristics of non-litigation regulatory dispute resolution on Indonesia norm harmonization system; Second, how is the legality of non-litigation regulatory dispute resolution, mainly based on constitutional perspective. Author use statute, conceptual, and historical approach as research methods. The research result found the typical characteristics of non-litigation regulatory dispute resolution that most distinguish from litigation resolution: the resolution institution is Ministry under the executive branch, the final results limited only give a recommendation, and the nature of recommendation not final and binding. Next, the legality of the authority found even though only regulated at the level of Ministerial of Law and Human Rights Regulation. However, in the analysis of constitutional interpretation methods shows clearly this authority is legally based (1) Textual interpretation; (2) Structural interpretation; (3) Prudential interpretation; and (4) Consensus interpretation. Although, by nature, this process limited to resolve the conflict between norms and overregulation because it is voluntary and the result only recommendation, but the important thing is it can open alternative resolution to stimulate the harmonization and streamlining of regulations.]]>
