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INDONESIA
LAW REVIEW
Published by Universitas Pelita Harapan
ISSN : 14122561     EISSN : 26211939     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
Law Review is published by the Faculty of Law of Universitas Pelita Harapan and serves as a venue for scientific information in the field of law resulting from scientific research or research-based scientific law writing. Law Review was established in July 2001 and is published triannually in July, November, and March. Law Review provides immediate open access to its content on the principle that making research freely available to the public supports a greater global exchange of knowledge. The aim of this journal is to provide a venue for academicians, researchers, and practitioners for publishing original research articles or review articles. The scope of the articles published in this journal deals with a broad range of topics, including Business Law, Antitrust and Competition Law, Intellectual Property Rights Law, Criminal Law, International Law, Constitutional Law, Administrative Law, Agrarian Law, Medical Law, Adat Law, and Environmental Law.
Arjuna Subject : -
Articles 226 Documents
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Breach of Non-Competition Clause in Franchise Agreements Related to Unfair Business Competition Indrawati, Etty; Widiyastuti, Y. Sari Murti
Law Review Volume XXII, No. 3 - March 2023
Publisher : Faculty of Law, Universitas Pelita Harapan | Lippo Village, Tangerang 15811 - Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/lr.v22i3.6537

Abstract

The non-competition clause in the franchise agreement is the franchisee's commitment not to run a similar business or potentially become a competitor to the franchisor's business within a certain period as a form of protection of the franchisor's intellectual property rights and appreciation for the transfer of know-how that the franchisor has carried out in the form of knowledge, concept, and experience to the franchisee. There are two purposes of this article. First is to explore and analyze cases of breach of the non-competition clause in franchise agreements in Indonesia carried out by franchisees can be qualified or not as a form of unfair business competition as regulated in Article 1 number 6 Law Number 5 of 1999 concerning Prohibition of Monopolistic Practices and Unfair Business Competition. Second is to investigate the legal remedies taken by the franchisor against the franchisee who breaks the non-competition clause in the franchise agreement. This research project uses qualitative method. This research involved respondents and informants from business owners of national franchisors. There are two results of this study. First, breaking non-competition clauses in franchise agreements, which have been read before signing, can qualify as unfair business competition. Second, if a franchisee or former franchisee breaks a non-competition clause, it is necessary to communicate with the violating party first before giving a summons/warning. Moreover, if it is still not heeded, the franchisor can file a lawsuit in court or submit a complaint to The Indonesia Competition Commission (KPPU). 
Fair Value of Pancasila in the Framework of Criminal Code Renewal Ginting, Yuni Priskila; Wartoyo, Franciscus Xaverius
Law Review Volume XXII, No. 3 - March 2023
Publisher : Faculty of Law, Universitas Pelita Harapan | Lippo Village, Tangerang 15811 - Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/lr.v22i3.5974

Abstract

Pancasila is the ideological foundation of the Indonesian state that guarantees the unity and integrity of Indonesians entering the era of globalization. Current Indonesian criminal law is obsolete because it does not consider Indonesia's philosophical, sociological, and cultural values and does not follow the changing mindset of modern criminal law. Social policy must be woven into and placed in a carefully integrated social plan, especially to prevent unwanted access related to crime. Indonesian criminal law will continue to apply colonial values that are not based on Pancasila values. The codification of laws that live in society is regulated specifically for public awareness of the potential for the law that can be used as a reference for regional regulations. The basic idea of Pancasila's balance is based on the religious moral paradigm, the human paradigm, the nationality paradigm, the democracy and wisdom paradigm, and the social justice paradigm. Justice is an abstract value that must be realized in the form of legal norms to realize these values in social life without ignoring religious law, customary law, and Western law. This does not correspond to the value contained in Pancasila.
Judicial Review of Hospitals' Legal Responsibility of Patients' Rights After the Covid-19 Pandemic Irawati, Jovita
Law Review Volume XXIII, No. 1 - July 2023
Publisher : Faculty of Law, Universitas Pelita Harapan | Lippo Village, Tangerang 15811 - Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/lr.v23i1.6892

Abstract

Normatively, the legal responsibilities of hospitals in fulfilling patient rights are stipulated in the Health Act, the Hospital Act, and the Medical Practice Act. During the Covid-19 pandemic, which was declared a health emergency, various statutory provisions were also enacted, such as Infectious Disease Outbreak Law, Health Quarantine Law, Presidential Decree Number 11 of 2020 concerning the Determination of the National Public Health Emergency of Corona Virus Disease 2019 (Covid-19) and Minister of Health Regulation Number 4 of 2018 concerning Hospital Obligations and Patient Obligations. In practice, the increasing number of Covid-19 cases in Indonesia has resulted in hospitals being unable to accommodate patients who need treatment, especially patients with severe and critical conditions who require ICU treatment rooms. This study aims to find out hospital’s legal responsibility after the Covid-19 pandemic, especially for the protection of patient’s medical record security under the scheme of telemedicine services. In terms of facilities and infrastructure, the government needs to provide support by increasing the number of emergency hospitals to accommodate patients. This study uses normative juridical research methods supported by empirical studies. The results show that despite limitations in providing excellent health services to patients, hospitals must still maintain the rights of patient’s medical record security and safety while undergoing hospitalization. Legal umbrella is neeeded to guarantee the rights of health workers and hospitals in providing services to patients during this pandemic, especially the protection of Occupational Health and labor social security norms.
Parameters of the ‘Honor and Dignity’ Element in the Criminal Act of Sexual Violence Marpaung, Jessica Vincentia; Triwinata, Jiu Jiu
Law Review Volume XXIII, No. 1 - July 2023
Publisher : Faculty of Law, Universitas Pelita Harapan | Lippo Village, Tangerang 15811 - Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/lr.v23i1.7142

Abstract

Law Number 12 Year 2022 concerning the Criminal Acts of Sexual Violence (UU Tindak Pidana Kekerasan Seksual/“Sexual Violence Law”) seems to provide a moment of calm amidst the high number of sexual violence cases that occur in Indonesia, but does Sexual Violence Law really adhere to the principles of utility, justice, and especially, certainty? One of the focuses of the Authors’ research is the element of ‘honour and dignity’ (harkat dan martabat) contained in Articles 5 and 6 of Law Number 12 Year 2022 on Criminal Acts of Sexual Violence regarding sexual harassment that is carried out physically or non-physically. Honor and dignity are abstract concepts and cannot be measured because they are parts of the nature of human beings as God’s creation. The assessment of what ‘honor and dignity’ is and its worth is highly relative and can be very different when viewed from not only the perpetrator and victim’s perspectives. Therefore, this article seeks to assess whether there is a more definitive set of elements to define sexual violence. This article uses normative research study to investigate into and apply the concept of a “Reasonable Person”, the application of which can also be useful in the ambit of criminology, especially victimology, especially to address sexual violence cases where the victim’s position should be considered (pro-victim approach).
Arbitrator’s Authority to Decide Ex Aequo et Bono: A Juridical Review Hadylaya, Michael Herdi
Law Review Volume XXIII, No. 1 - July 2023
Publisher : Faculty of Law, Universitas Pelita Harapan | Lippo Village, Tangerang 15811 - Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/lr.v23i1.7338

Abstract

Arbitration is a dynamic practice. One of the issues to consider is the implementation of ex aequo et bono by arbitrators, which many parties see as requiring prior approval from the parties so that arbitrators can make decisions based on ex aequo et bono. This study concludes that the arbitrator's authority to decide ex aequo et bono is not derived from the parties' agreement but rather from the arbitrator's inherent authority. First, because this principle is consistent with the spirit of arbitration, the Arbitrator has the authority to decide ex aequo et bono. Second, Law Number 48 Year 2009 concerning Judicial Authority imposes an obligation to investigate, adhere to, and comprehend legal values and the sense of justice in society. Third, no provision in Law Number 30 Year 1999 concerning Arbitration and Alternative Dispute Resolution requires the parties to agree in advance on the grant of ex aequo et bono.
The Establishment of State-Owned-Holding-Company: A State's Controlling Rights Perspective Based on Radbruch's Theory Disyon, Huta; Gultom, Elisatris; Rahmawati, Ema
Law Review Volume XXIII, No. 1 - July 2023
Publisher : Faculty of Law, Universitas Pelita Harapan | Lippo Village, Tangerang 15811 - Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/lr.v23i1.6995

Abstract

The constitutional basis for the state's role in implementing the national economy is Article 33 of the 1945 Constitution of the Republic of Indonesia. The mandate of Article 33 of the 1945 Constitution regarding the State's Controlling Rights, one of which is realized through the existence of state-owned enterprises (“SOEs”) as one of the business actors in the economy. The expansion of the global economy necessitates the improvement of SOEs, and the government's strategic policy choice is establishing a state-owned holding company (“SOHC”) to strengthen value and efficiency. This research aims to determine how the state's controlling rights in the SOHC scheme relate to three basic legal values identified by Gustav Radbruch, namely justice, certainty, and benefits. Through normative juridical research methods, the approach taken is a conceptual approach and a statutory approach, conducted by researching theory or doctrine and relevant laws and regulations, including Supreme Court and Constitutional Court decisions. The results of this study show that the establishment of a SOHC has, in theory, met Gustav Radbruch's legal objectives of justice, certainty, and benefits. State's controlling rights must be widely understood with authority to formulate policies and actions for regulation, control, management, and supervision. In the management function, state control in the SOHC structure can be protected through special share ownership by the state. However, state control based on a sense of social justice, legal certainty, and benefit-oriented must still respect the principles of GCG in SOEs and do not mean monopolizing all national economic activities.
The Influence of China’s Belt and Road Initiative of Economic Crisis in Sri Lanka Gunawan, Yordan; Napitupulu, Ichwan Rizki Akbar
Law Review Volume XXIII, No. 1 - July 2023
Publisher : Faculty of Law, Universitas Pelita Harapan | Lippo Village, Tangerang 15811 - Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/lr.v23i1.6593

Abstract

Sri Lanka, as a country in the South Asian region, is bordered by southeastern India and is in the southern Indian Ocean Sea region. This makes Sri Lanka a country with fast trade and maritime traffic, as well as a seaport. Bilateral connections have existed between Sri Lanka and China since the country's inception, and have been enhanced by financial and other aid supplied to the Sri Lankan government throughout the civil war against the separatist organization Liberation Tigers of Tamil Eelam (LTTE). Negotiations between Sri Lanka and China ended in 2017 with a deal for a Chinese-owned business, China Merchant Port Holdings Company Limited, to acquire almost 85% of Hambantota Port shares for 99 years. Because developed countries clearly have a more dominant role in the process of economic globalization, The research method used is normative law research with a case approach. The results show Sri Lanka's dependence on foreign investment to drive a country's economic growth. Therefore, this study aims to determine the legal arrangements governing the effects of the Belt and Road on the economic crisis in Sri Lanka from the perspective of international law and to determine the positive and negative impacts on the planned project.
Inheritance of Extramarital Children Determined as Legal Children After the Constitutional Court Decision No. 46/PUU-VIII/2010 Lestari, Putri Wartina; Judiasih, Sonny Dewi; Nugroho, Bambang Daru
Law Review Volume XXIII, No. 1 - July 2023
Publisher : Faculty of Law, Universitas Pelita Harapan | Lippo Village, Tangerang 15811 - Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/lr.v23i1.7471

Abstract

This article analyzes aspects of family law in terms of inheritance of extramarital-children, from legality to implementation, and the role of judicial institutions in protecting the inheritance rights of extramarital-children who have the status of legal children after the Constitutional Court Decision No. 46/PUU-VIII/2010, whose existence was rejected by their biological father. An out-of-wedlock child designated as a legal child is entitled to civil rights from his father, ensuring the fulfillment of the rights of extramarital-children is the responsibility of the parents, governments, and the state. The purpose of this article is to raise awareness and optimize the implementation of the protection of the inheritance rights of extramarital-children who have been determined as legal children by the court as parties. This article uses normative research by referencing several inheritance laws and regulations in force in Indonesia and factual facts. Two approaches are used, the statutory and conceptual, to obtain the desired research results. The findings showed that extramarital-children who were not recognized by the biological father did not have the right to inherit with the biological father as well as the father's family because they did not have a sexual relationship. The Constitutional Court decision only provides space for the recognition of extramarital-children, but the issue of inheritance is returned to the inheritance law in force in Indonesia. Because of their weak position, extramarital-children must be given protection to ensure the fulfillment of children's rights through the provision of mandatory wills from fathers who do not recognize them.
Problems Faced by Judges in Determining Rehabilitation for Narcotics Abusers Tobing, Christina Natal Megawati; Hutapea, Tumbur Palti D.
Law Review Volume 23 No. 2 (November 2023)
Publisher : Faculty of Law, Universitas Pelita Harapan | Lippo Village, Tangerang 15811 - Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/lr.v23i2.6479

Abstract

Addicts and victims of narcotic abuse should be placed in medical and social rehabilitation institutions. However, in empirical practice in the field, judges rarely exercise their powers to dive into a drug abuser accused of being brought to court through an assessment instrument. An assessment is needed to determine whether the defendant has a network of dealers or is just an addict or victim of narcotics abuse. The focus of this research problem is the obstacle for judges in determining the implementation of rehabilitation for narcotics abusers. The purpose is to identify the judge, in his decision, can determine medical rehabilitation for drug abusers in accordance with the mandate of the law. This research uses normative legal method based on positive legal studies with secondary data. The judge can consider whether the assessment results from the Integrated Assessment Team (TAT) allow them to be attached to the case file. Even the results of the assessment can be equated with expert testimony, which is an expert opinion written in a letter. 
ICSID Annulment: Legal Triumph or Political Galumph? Putri Prakasa, Adinda; Meliala, Aurora
Law Review Volume 23 No. 2 (November 2023)
Publisher : Faculty of Law, Universitas Pelita Harapan | Lippo Village, Tangerang 15811 - Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.19166/lr.v23i2.7475

Abstract

The establishment of the International Centre for Settlement of Investment Disputes (ICSID) was driven by the objective of enabling an arbitration process characterized by complete autonomy, self-containment, and independence. One of the significant features of the ICSID system is the capacity to request the annulment of arbitral awards made under its auspices. The annulment process is governed by Article 52(1) of the ICSID Convention and is limited to the grounds set out there in without examining the merits or legal facts. Under Article 52(1)(a) of the ICSID Convention, either party may submit a written application seeking annulment on the grounds of the improper constitution of the tribunal. This ground is rarely invoked, and an award was only annulled for the first time in 2020. There is no consensus on the conditions under which this ground may be invoked. This research aims to discuss the applicable standard of the ICSID annulment grounds concerning the improper constitution of the Tribunal. A normative legal method focusing on the statute and case approaches is applied to achieve this objective. After reviewing previous legal cases, the annulment standard regarding the tribunal's improper constitution is quite uncertain within the ICSID framework. To improve the awards, scholars have proposed various proposals for reforming the ICSID annulment system, such as establishing a doctrine of "precedent," a single appellate body, and precise requirements for arbitrators to be impartial.

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