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JURNAL MAGISTER HUKUM UDAYANA

jmhu
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Published by Universitas Udayana

ISSN : 25023101 EISSN : 2302528X DOI : -

Core Subject : Social,

Law, Crime, Criminology & Criminal Justice

Jurnal Magister Hukum Udayana adalah jurnal ilmiah hukum yang mempublikasikan hasil kajian bidang hukum yang diterbitkan secara online empat kali setahun (Februari-Mei-Agustus-Nopember). Redaksi menerima tulisan yang berupa hasil kajian yang berasal dari penelitian hukum dalam berbagai bidang ilmu hukum yang belum pernah dipublikasikan serta orisinal. Jurnal ini selain memuat tulisan / kajian dari para pakar ilmu hukum (dosen, guru besar, praktisi dan lain-lain.) juga memuat tulisan mahasiswa Magister Ilmu Hukum baik yang merupakan bagian dari penulisan tesis maupun kajian lainnya yang orisinal. Tulisan yang masuk ke Redaksi akan diseleksi dan direview untuk dapat dimuat

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Articles 13 Documents

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Search results for , issue "Vol 3 No 3 (2014)" : 13 Documents clear

PELAKSANAAN UNDANG-UNDANG NOMOR 6 TAHUN 2011 TENTANG KEIMIGRASIAN MENGENAI TANGGUNG JAWAB PENJAMIN ATAS KEBERADAAN DAN KEGIATAN ORANG ASING DI BALI Ngurah Mas Wijaya Kusuma
Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 3 No 3 (2014)
Publisher : University of Udayana

According to Article 1 (26) of the Laws Number 6/2011 concerning Immigration, the term guarantor is well known. The guarantor is a person or a corporation responsible for the existence and activities of foreigners while they are in Indonesia. The term guarantor, at the time when the Laws Number 9/1992 concerning Immigration come into force has been replaced with the term sponsor whose meaning is not far from the term guarantor. The purpose of a guarantor for certain foreigners is that there are parties who are responsible for them during their stay and activities in Indonesia and even the parties see to their going home when their stay permit ends or finance them in their process for going home if they are deported. The other purposes are to make their stays and activities beneficial and advantageous to the local community so that stability and public interests remain to be maintained. However, the reality field in Bali, many underwriters foreigners who are not responsible and do not obligations stipulated in law No.6 of 2011. Irresponsible guarantor can be seen from the caresless for the existence and activities of foreigners so often misuse a residence permit or concurrent positions without permission and is located in Indonesia exceeded the time limit given or overstayed. Guarantors obligations can not be seen from the number of foreigners who do not report any change of address to the immigration office. This study is an empirical legal research based on under law No 6 of 2011 on immigration is associated with the fact that the field deskriptif qualitative approach. The research condected in the area that includes counties delinquent bali, Denpasar city, district and county Gianyar and Buleleng. Data is sourced research on primary data and secondary data. The main source of this study is that the guarantor strangers individual and corporate guarantor. Secondary data obtained from the immigration officer. Primery data and secondary data sources supported by primary legal materials that Undang-undang No.6 in 2011 and legislation on immigration. Data collection techniques used are interview techniques and questionnaire techniques. Lack of responsibility of the quarantors of the existence and activities of foreigners, due to lack of knowledge will be the quarantor liable as quarantor in particular the activities of foreigners. Assume that the quarantor has a limited residence permit foreigners can work anywhere. Lack of responsibility of a quarantor is also caused by the still weak immigration law enforcement in investigating any criminal cases immigration. Quarantor responsibility for the existence and activities of foreigners in bali, yet runs effectiveness.

KEWENANGAN PEMBUBARAN PARTAI POLITIK OLEH MAHKAMAH KONSTITUSI DITINJAU DARI PERSPEKTIF HAK ASASI MANUSIA (HAM) Putu Eva Ditayani
Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 3 No 3 (2014)
Publisher : University of Udayana

This research examines the dissolution of political party by Constitutional Court, that becomes its authorities based on Article 24C UUDNRI 1945, from human right perspective. Indonesia as the state that implemented law of state of law acknowledge human rights as stated in the Constitution. Neverttheless, freedom of association as one of the principle of human rights as regulated in the Constitution, which used as the base of formation of a political party, can be ruled out and has limited implementation in which norms conflict arises. Limitation of freedom association is reflected in the sanction imposed by the Constitutional Court regarding dissolution of political party. The dissolution of political party by the Constitutional Court refers to certain regulation as Act No. 39 of 1999 that regulating Human Rights, Act No. 24 of 2003 that regulating The Constitutional Court, Act No. 2 of 2008 regulating Political Party, and The Constitutional Court Regulation governing the dissolution of a political party procedures by the Constutional Court. This research is a normative legal research that investigates the dissolution of a political party by the Constitutional Court that contrasts with formation of a political party as a representation of freedom of association, one of the human rights principle, without assessment on implementations or practices regarding those norms. According to descriptive analysis based on legal material regarding this issue, the limitation of freedom to associate can be performed based on Article 4 ICCPR 1966 because it can be considered as a right that its fulfillment can be limited by law. That dissolution by the Constitutional Court is not considered as violation of freedom to associate since the sanction only be imposed to violation of regulations by political parties. The purpose of limitation is only to protect the integrity of Republic of Indonesia and the discipline of the community, nation, and state members.

PELAKSANAAN PERATURAN DAERAH PROVINSI BALI NOMOR 9 TAHUN 2009 TERKAIT DENGAN POGRAM WAJIB BELAJAR 12 TAHUN Ni Nyoman Budi Sentana
Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 3 No 3 (2014)
Publisher : University of Udayana

The local government of Bali Province issued a policy that was formulated in The Local Regulation of Bali Province Number 9 of 2009. In appendix of The Local Regulation Number 9 of 2009 is described a 12-year compulsory education. This study discusses the effectiveness of The Local Regulation of Bali Province Number 9 of 2009 related to the implementation of 12-years compulsory education in Bali Province and the factors that influence the effectiveness of the implementation of The Local Regulation Number 9 of 2009 related to the implementation of 12-years compulsory education in Bali Province. This research is empirical legal research. The nature of research is descriptive. The data in this study include primary data that was collected through interview techniques and secondary data that was collected through the study of literature. The research location is in Bali Province with sample in Denpasar and Bangli regency. The data collected was analyzed qualitatively and descriptively presented analytically. Effectiveness of The Local Regulation of Bali Province Number 9 of 2009 related to the implementation of 12-years compulsory education in Bali Province is not optimal in some areas. The factors that influence the effectiveness of the implementation of The Local Regulation Number 9 of 2009 related to the implementation of 12-years compulsory education in Bali Province are legal factors, law enforcement factor, means and facilities in law enforcement factor, community factors and cultural factors

EKSISTENSI OTONOMI DESA PAKRAMAN DALAM PERSPEKTIF PLURALISME HUKUM Anak Agung Istri Ari Atu Dewi
Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 3 No 3 (2014)
Publisher : University of Udayana

The purpose of this research is to discover the existence of autonomy of Desa Pakraman in legal pluralism perspective. Related with that purpose, there are two issues that will be discussed, first, how does the existence of the autonomy of Desa Pakraman in Indonesia’s legal system?,Second, how does the existence of the autonomy of Desa Pakraman in legal pluralism perspective?. The research method is normative legal research using statue approach, concept approach and analytical approach and law analysis by using legal interpretation. Based on the problems, the results of discussion are : first, the existence of the autonomy of Desa Pakraman within the Indonesia’s legal system has regulated in the 1945 Constitution of the Republic of Indonesia, national and local Regulations. In the Constitution, specifically Article 18 B of paragraph (2), declare that the states recognizes Desa Pakraman and their traditional rights. In regulation of Law No.5 of 1960 concerning basic Agrarian Law (UUPA), regulation of Human Rights, and regulation of Desa (Village) are clearly recognize Desa Pakraman as traditional institution has traditional rights, one of it is the autonomy of Desa Pakraman. At the local regulation, autonomy Desa Pakraman has regulated in Local Regulation about Desa Pakraman. Second, that existence of autonomy Desa Pakraman in perspective legal pluralism is that the existence autonomy Desa Pakraman is a weak legal pluralism. In perspective weak legal pluralism the state law as a superior and the customary law as an inferior, its position in the hierarchy under State law. As a theory, the semi-autonomous social field from Sally Falk Moore perspectives that Desa Pakraman is semi-autonomous. Desa Pakraman has capacity to hold their village based on the customary law and outomaticly Desa Pakraman to be in framework of state law.

KAJIAN KRIMINOLOGIS KENAKALAN ANAK DALAM FENOMENA BALAPAN LIAR DI WILAYAH HUKUM POLRES BULELENG Ni Putu Rai Yulia
Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 3 No 3 (2014)
Publisher : University of Udayana

Illegal race is one manifestation of juvenile delinquency, and if not dealt with quick and appropriately respons it will be a big problem. The illegal race is a “prohibited activity” and it is rule by Article 297 jo. Article 115letter b Law No. 22 of 2009 about Road Traffic and Road Transportation. In fact, in Singaraja there are many violations of these rules. Therefore, from the perspective of criminology needs to be known about the factors that cause child doing the wild race and mitigation efforts from the police. This research is a law studies with the empirical aspec, which is primary data and secondary data as a source. Processing and data analysis was done by qualitatively. Overall results of the analysis of these data are presented descriptively, and fully explained about the problem that studied and also accompanied by a critical review. Based on Containment theory proposed by Walter C. Reckless and research results, it can be seen that the factors that cause the child or juvenile do the illegal race, which is divided into 2 ( two ) that are inner and outer containment. Furthermore, It is described about the reduction of the illegal races by Buleleng Police, which is based on the results of research, there are 2 (two) reduction, that are by penal and non- penal facilities.

PERLINDUNGAN HUKUM TERHADAP KEASLIAN CERITA RAKYAT Desyanti Suka Asih K.Tus
Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 3 No 3 (2014)
Publisher : University of Udayana

Requirement of originality is determined by Article 1 paragraph (3) Act Number 19 of 2002 on Copyright can be easily applied to new creations, but when it comes to creations such as traditional folktale takes more search to determine their originality. Folktale began to transferred into another form that is more interesting, but reduce the element of originality to the story so the younger generation may not know the real form of the folktale. Based on that background, this study discussed problem about originality concept on copyright in a work, Act Number 19 of 2002 on Copyright and the Berne Convention and the legal protection on originality of folktale. This study is a normative legal research, using the statute approach and the conceptual approach. The outcome of this study show that the provisions of the originality of an inventions as set forth in Article 1 paragraph (3) of Act Number 19 of 2002 on Copyright defined creativity as the basis for determining the originality of a work. Protection for the originality of folktale can be done with the passage and implementation of documentation Article 15 and Article 35 of Act Number 19 of 2002 on Copyright.

KONSEKUENSI YURIDIS PUTUSAN MAKAMAH KONSTITUSI NO. 46/PUU-VIII/2010 TERHADAP KEDUDUKAN ANAK ASTRA DALAM HUKUM ADAT BALI I Gede Pasek Pramana
Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 3 No 3 (2014)
Publisher : University of Udayana

This research aims to analyze about the significance of the Constitutional Court Decision No.46/PUU-VIII/2010 the position of anak astra in Bali customary law. The research method used is a normative study by selecting the type of statue approach and the conceptual approach. Sources of legal materials that were examined in this study consisted of primary legal materials and secondary legal materials and techniques were analyzed with the description, systematic, evaluation and argumentation. Based on the perspective ( review ) Constitutional Court Decision No. 46/PUU-VIII/2010, anak astra have a civil relationship with her biological father and his family along can be proved by science and technology and / or other evidence according to the law. The juridical consequences of the Constitutional Court Decision No. 46/PUU-VIII/2010 to the norms of Bali customary law about anak astra Bali is must conform to the directions of law in the Decision of the Constitutional Court.

IMPLEMENTASI TUGAS DAN WEWENANG PENYIDIK TERHADAP PERLINDUNGAN PENYU HIJAU Budi Prasetyo
Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 3 No 3 (2014)
Publisher : University of Udayana

The research of officer task and authority implementation towards green turtle conservation (study case of Marine Police Directorate Regional Bali) aims to describing and analizing officer task and authority implementation in deep based on both KUHAP or Conservation Law. Besides, this research also aims to figure out the enabling and inhibiting factors in implementing officer task and authority towards green turtle conservation, also researching the steps taken by of Marine Police Directorate Regional Bali. The need for green turtle in Bali is rising up to this time. Although many criminal offensers got caught by of Marine Police Directorate Regional Bali officers but it is still going on. Based on this situation, a question arises how is the implementation of officer task and authority towards green turtle conservation and what are the enabling and inhibiting factors. The method used in this research is empirical legal research with descriptive research using prime and secondary data resouces with interview and also related available documents. This research uses non probability sampling technique which is purpose sampling with quota sampling that is a process of sample withdrawing by observing the easiest sample to take and the sample has special features that attracts the researcher. With all collected data, managed using qualitative analysis and the data presented descriptively and sistematically. Based on the research done before, it is noticed that the implementation of officer task and authority towards green turtle conservation based on KUHAP and Conservation Law has been going well. Granting rights for the suspects of green turtle trading during the investigation has been done by the officers based on KUHAP. The factors which becomes the enabling task for officer task and authority towards green turtle is the law factor, law enforcement, equipment and facilities, and culture. Meanwhile the society factor is the main inhibiting factor for implementing officer task and authority towards green turtle conservation. The habit of consuming turtle meat and guise of religious ceremony are mostly used as the reasons in trading this protected animal.

EFEKTIFITAS PENERAPAN ANCAMAN SANKSI PIDANA TAMBAHAN GUNA PENGEMBALIAN KERUGIAN KEUANGAN NEGARA DALAM TINDAK PIDANA KORUPSI (STUDI KASUS DI PENGADILAN NEGERI DENPASAR) Kadek Krisna Sintia Dewi
Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 3 No 3 (2014)
Publisher : University of Udayana

Research on the effectiveness and the application of criminal sanctions and punishment in addition to return financial losses caused by corruption ( case study at the Denpasar District Court ) aims to describe and analyze deeply, about the effectiveness of additional punishment, including the return of financial loss caused by corruption. In addition, this study also aims to determine and assess the constraints in the implementation of court decisions related to the return of financial loss. Based on this articles, the question that is whether the application of additional criminal sanction and punishment, including the return of state losses can be effective pursuant to the provisions of Article 18 of Law No. 31 Year of 1999 on Eradication of Corruption Jo . Law No. 20 year of 2001 on the Amendment of the Law No. 31 Year of 1999 on Eradication of Corruption. The method used in this research is the method of empirical juridical legal research of the descriptive research using primary and secondary data sources by document studying and interview techniques as well as articles related to the issues. Based on the research that has been done, it can be seen that the application of the additional sanction and punishment, including the return of state losses have applied but unfortunately have not been able to be effective in the aim of recovery effort of state losses due to corruption, and reduce the amount of corruption that occurred in the Denpasar District Court Jurisdiction . It is based on the data corruption cases in the year of 2012 increased from 20 cases to 25 cases in 2013. Returns of state losses in 2012 - 2013 amounted Rp.871.273.192 which is the corruption amount cases in the year of 2010 - 2011 . While the corruption cases in the year of 2012 – 2013, until recent time there are no recorded return of state losses. The constraints in the implementation of the court decisions related to the return of state losses, is convicted assets and property that has been transfered, multiple population administration, and duration of the judicial process to verdict and binding execution to be carried out .

PELANGGARAN MEREK TERKENAL DAN PERLINDUNGAN HUKUM BAGI PEMEGANG HAK DALAM PERSPEKTIF PARIS CONVENTION, TRIPS AGREEMENT DAN UU MEREK INDONESIA Dayu Windari
Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 3 No 3 (2014)
Publisher : University of Udayana

Legal protection for well-known mark owner is important to study because many well-known mark have been infringed domestically and internationaly causing damage to the well-known mark owner. This research discusses 2 (two) main issues namely the legal protection for well-known mark owner and legal action and sanctions imposed against to the infringer by the Paris Convention, TRIPs Agreement and Indonesia Trademark Law. This research applies normative research method. Meanwhile the approach method use statute approach method and comparative approach method which is compares The Paris Convention, TRIPs Agreement and Indonesia Trademark Law regarding the protection of well-known mark. Analysis technique use qualitative analysis. The study shows, from the perspective of the Paris Convention, TRIPs Agreement and Indonesia Trademark Law, well-known mark owner have legal protection in the form of exclusive rights through registration process to obtain legal certainty. When well-known mark infringement occured, the legal action can be done are litigation and non litigation process. The form of legal sanction are payment of compensation and criminal sanction, determined by each member state but still refer to the provisions of the Paris Convention and TRIPs Agreement. However, Indonesia set up more details about the sanctions that can be imposed for the infringemer in the form of penalties or criminal sanction ranging from 4 (four) to 5(five) years and a fine of Rp. 800.000.000 up to Rp. 1.000.000.000

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