JURNAL MAGISTER HUKUM UDAYANA
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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<![CDATA[PENJABARAN STANDAR INTERNASIONAL TRIMS DAN OECD DALAM KETENTUAN HUKUM PENANAMAN MODAL INDONESIA ]]>
<![CDATA[Ni Ketut Supasti Dharmawan]]>;
<![CDATA[Putu Tuni Caka Bawa Landra]]>;
<![CDATA[Putu Aras Samsithawrati]]>
<![CDATA[ Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 4 No 3 (2015) ]]>
Publisher : <![CDATA[University of Udayana ]]>
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DOI: 10.24843/JMHU.2015.v04.i03.p11
<![CDATA[As a member of the WTO-TRIMs Agreement basically Indonesia has stipulated the NationalTreatment Principle to the legal provisions relating to investment activities. However, theIndonesian investment Law (Law No. 25 of 2007) still remains that the regulation of NationalTreatment with regard to national interests. In order to the difficulties may exist in domesticlevel such as the social, economic as well as values may be different in some member countries,the WTO-TRIMs provide exceptions for the member with notify mandatory requirement tothe Board of TRIMs. Relating to investment activities other International standards alsorelevant to study is the GCG principles developed by the OECD. Although Indonesia is notOECD member countries, the GCG principles adopted in various Indonesian laws relatedto investment activities doe to it relevant and harmony to the economic, social as well ascommunity values in order to develop capital investment.]]>
<![CDATA[PENYELENGGARAAN SISTEM INFORMASI HUKUM PERUSAHAAN PADA BADAN USAHA BANK DALAM PELAKSANAAN GOOD CORPORATE GOVERNANCE ]]>
<![CDATA[I Gusti Agung Eka Pertiwi]]>
<![CDATA[ Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 4 No 3 (2015) ]]>
Publisher : <![CDATA[University of Udayana ]]>
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DOI: 10.24843/JMHU.2015.v04.i03.p02
<![CDATA[Good Corporate Governance is the definitive system to regulate and control the companyto create value-added to all stakeholders. The concept can be interpreted of GoodGovernance in Indonesia. There are two things that are emphasized in this concept. First,the importance of the right of shareholders to obtain information correctly (accurately)and timely. Second, the company’s obligation to make disclosure is accurate, timely andtrasnparan to all information of corporate performance, ownership and stakeholder. Thistype of research is a kind of juridical empirical research. This study on the effectiveness ofthe law, namely Legal Information Systems Company On Enterprise Bank in ImplementingGood Corporate Governance. This study is limited to the legal aspects of good corporategovernance of banking, in particular systems company policy, in particular the company’sdecision-making system,the implementation of the decision making proces accountable,fast, and accurate, which determines the performance of bank corporate governance. GoodCorporate Governance provisions have not been able to support the banking corporategovernance, as expected, especially in terms of decision-making performance. Becausetheunavailability of adequate Legal Information System whichcan be used as abasis to organizethe decision-making process that is fast and accurate. Slowness and hesitation in makingdecisions on some banks are generally determined by the availability of Legal InformationSystems Company which is a data bank on bank policies that have been established.]]>
<![CDATA[DASAR KEWENANGAN PEMERINTAH DAERAH KABUPATEN BADUNG DALAM MEMBERIKAN STANDAR PELAYANAN BAGI PEREMPUAN DAN ANAK KORBAN KEKERASAN ]]>
<![CDATA[Anak Agung Istri Ari Atu Dewi]]>
<![CDATA[ Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 4 No 3 (2015) ]]>
Publisher : <![CDATA[University of Udayana ]]>
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DOI: 10.24843/JMHU.2015.v04.i03.p16
<![CDATA[Base on Article 28 G paragraph (1) The Constitution of the Republic of Indonesia to declare,that every person has the right to protection of self, family, material, dignity, and propertyunder his control, and has the right to feel secure and protection from threats to do ornot to do that is a human right. In addition, under Article 20 of act Child Protection toregulate that the State, government, society, family, and the parents are obliged responsiblefor the implementation of child protection. In article 5 of act on the Elimination of DomesticViolence to declare that every person is prohibited from domestic violence against people inthe scope of the household by means of: physical violence; psychological violence; sexualviolence; or neglect of household.Based on the reality that exsistence of women and children are the group who are becomingvictims of violence. Many factors contribute to the violence against women and children,among which is a factor of a patriarchal culture that is still views women is lower than inmen. Another thing is also very influence violence as a false perception of violence whichconsiders that violence as a matter of course, and the rights of the offender.The purpose of research is to determine the authority of local government in providingprotection for women and children victims of violence. So, want to know the forms andmechanisms of a given service standards Badung regency administration especially to womenand children victims of violence. Specific targets to be achieved is to provide information tothe public that is legally local governments have the authority to provide service standardsand to determine also whether local governments already have a minimum service standardsand other forms of care is given to women and children victims of violence , given the manywomen and children victims of violence have not got a good service or minimum service asa form of protection for women and children victims of violence. The method is normativeresearch.Base on discussion can be presented , the first, that authority Badung Government in providingservice standards for women and children victims of violence. That service standards hasbeen regulated in act Number. 15 of 2013, that is the title of act the Protection of Womenand Children Victims of Violence. Second, that the standard services forms of BadungGovernment have five (5) types of shapes minimum service standards.]]>
<![CDATA[INSTRUMEN REKOMENDASI DPRD DALAM PENYELENGGARAAN KEWENANGAN PERIJINAN OLEH PEMERINTAH DAERAH ]]>
<![CDATA[Made Jayantara]]>
<![CDATA[ Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 4 No 3 (2015) ]]>
Publisher : <![CDATA[University of Udayana ]]>
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DOI: 10.24843/JMHU.2015.v04.i03.p07
<![CDATA[Recommendation of the Local House of Representative (DPRD) is a common administrativeinstitution employed in the local government decision making process. However, thisinstitution does not recognized by the law. Hence, its presence dan used in the processof decision of public license contains various problem, such as: (1) its status under theadministrative law; (2) its implication to the validity of the license; (3) and the positionof the head of the local government, the degree of the local government responsibility asthe recommendation receiver and the DPRD as the recommendation giver to the negativeimpact of the license. These facts resulted in needs for conducting research for clarifyingthe status, measuring the implication of the recommendation over the validity of the license,and the range of responsibility head of the local government and the DPRD to the impact ofthe license.This research is focused into two issues, namely: (1) how is the position and function ofthe DPRD in the process of issuing of license; and (2) how would be the implication ofthe DPRD’s recommendation over the range of responsibility of the head of the localgovernment and DPRD in the issuing of license. This research is limited to the practice ofissuing of recommendation in the Local Government Province of Bali.This research shallemploy normative approach and uses both primary and secondary legal resources.The research resulted in two inventions: firstly, recommendation of DPRD is not recognizedby the law in the level of province local government neither it’s the authorithy of the DPRDon supervising the governor. The recommendation recognized by law is the recommendationas an administrative legal instrument in the performance of local government by thegovernor, particularly for performing the function of decision making or the conductingof governmental act. Hence, recommendation of DPRD is a state custom in performingstate governmental function. Secondly, recommendation has two functions, namely: acondition and confirmation. In the function of condition, recommendation is a prerequisitefor adopting public decision. In the function of confirmation, recommendation is a merely anexpression of an agreement provided by a certain instution for adopting a public decision.Recommendation in the function of condition, binds the recommendation giver to bearresponsibility over the result of the implementation of the decision. While, in the functionof confirmation the giver may not necessarily responsible to the result of the performanceof the decision. However, under the principle of good faith, the giver is under obligationto bear responsibility over the result of the implementation of the decision whenever therecommendation is given under a bad faith.]]>
<![CDATA[PENGATURAN PERKAWINAN PADA GELAHANG DALAM AWIG-AWIG DESA PAKRAMAN ]]>
<![CDATA[I Ketut Sudantra]]>;
<![CDATA[Ni Nyoman Sukerti]]>;
<![CDATA[A.A. Istri Ari Atu Dewi]]>
<![CDATA[ Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 4 No 3 (2015) ]]>
Publisher : <![CDATA[University of Udayana ]]>
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DOI: 10.24843/JMHU.2015.v04.i03.p12
<![CDATA[This article was written based by result of normative legal research about the regulation of padagelahang marriage on customary law that created by customary law society of desa pakraman inBali. That research was aimed to identify legal norms in awig-awig desa pakraman that regulateabout pada gelahang marriage.From that research’s result, it was known that aspect of matrimonial law has been regulated inawig-awig, whic is on certain chapter that regulate family law. That chapter titled Sukerta TataPawongan, that regulate the legal aspects about marriage, divorce, lineage, and inheritance.Although, the research result aslo shown that on nine awig-awig desa pakraman researched, onlyone that regulate about pada gelahang marriage, which is Awig-Wig Desa Pakraman Gadungan(Tabanan). The regulation is rather ambigious, only regulate about recognition of pada gelahangmarriage existance, without any further regulation about requirements, procedure or it’s legalconsequences.]]>
<![CDATA[URGENSI PENYELESAIAN SENGKETA PILKADA OLEH MAHKAMAH KONSTITUSI ]]>
<![CDATA[Ida Puspa Jaya Miha]]>
<![CDATA[ Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 4 No 3 (2015) ]]>
Publisher : <![CDATA[University of Udayana ]]>
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DOI: 10.24843/JMHU.2015.v04.i03.p03
<![CDATA[The rise of the disputed local elections assessed due to poor direct voting system that alwaysend with anarchic conflict. Direct voting system is briefly diverted to be chosen by the Houseof Representatives (DPR) through Law 22 of 2014 concerning Election of Governors,Regents and Mayors but this law received widespread rejection by the people so that thePresident issued Government Regulation in Lieu of Law No. 1 of 2014 which regulates thesame things that later passed into Law No. 1 of 2015. Article 157 paragraph (1) of Law No.8 of 2015 on the Amendment of Act No. 1 of 2015 mandates the establishment of a specialtribunal to deal with the settlement of disputes nationwide simultaneous election to be heldin 2027. If the judiciary is not yet formed, the implementation of election dispute resolutionmade by the Constitutional Court (MK). Based on the description above background, asfor the formulation of the problem to be studied is; What advantages and disadvantages ofthe establishment of a special judicial body which handles dispute resolution election? Andwhat is the urgency of the election dispute resolution by the Constitutional Court? This typeof research is a kind of normative legal research descriptive analysis using the approach oflegislation, the legal concept analysis approach, historical approach, and the approach ofcase law derived from the source material of primary, secondary and tertiary using a cardsystem as its legal material collection technique.The conclusion of this study is the establishment of a special judicial body has advantagesand disadvantages. The drawback is; unconstitutional existence of the judicial authoritiesfor not guided by Article 24 paragraph (1) of the 1945 Constitution and Article 27 paragraph(1) of Act 48 of 2009 on Judicial Power, the magnitude of the amount of the budget that willbe issued by the state to establish such institutions. The advantage is ease the burden on theMK, more focused and rapid election dispute resolution process.]]>
<![CDATA[ANALISIS INDEPENDENSI ODITUR MILITER DALAM MELAKSANAKAN FUNGSINYA DI ODITURAT MILITER III-14 DENPASAR DENGAN BERLAKUNYA KEBIJAKAN RENCANA TUNTUTAN ]]>
<![CDATA[Misran Wahyudi]]>
<![CDATA[ Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 4 No 3 (2015) ]]>
Publisher : <![CDATA[University of Udayana ]]>
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DOI: 10.24843/JMHU.2015.v04.i03.p08
<![CDATA[Military Prosecuting Attorney is one of the main components in enforcing the criminallaw in the military judicature system. Moreover, the Military Prosecuting Attorneys is asa prosecutor in the Indonesian National Armed Forces (TNI). Confidently, it has majorfunction in demanding based on legitimating evidences in military court. Military ProsecutingAttorney can work its duty well, if it has independently in the function as general presector ofIndonesian military court system. Afterwards, the first problem is wheter Military ProsecutingAttorney independently achieve its function in Oditurat Militer III-14 Denpasar by conductedthe plan demans policy as of Military Prosecuting Attorney General Indonesian NationalArmed Forces? Whereas, the second problem is whether the efforts shoud be accomplishedin establishing independent Military Prosecuting Attorney? This research was conducted byempirical legal research methods, and the study was a descriptive analytic research by usingprimary data and secondary data. Based on this research, it can be concluded that; first,Military Prosecuting Attorneys in Oditurat Militer III-14 Denpasar became less independent,it was occured because the implementation of the plan demand policy by Military ProsecutingGeneral Attorney. It can be stated that the demand was only established by upper position andfinally, the judgments are not merely according conscience. Secondly, Military ProsecutingAttorney attempt to independently in military justce system in three aspects such as technicalfield of prosecution, field supervision and control, as well as education and training.]]>
<![CDATA[KEWAJIBAN PENGUSAHA MENYEDIAKAN ANGKUTAN ANTAR JEMPUT BAGI PEKERJA/BURUH PEREMPUAN YANG BERANGKAT DAN PULANG PADA MALAM HARI DI BALI SAFARI AND MARINE PARK ]]>
<![CDATA[I Made Udiana]]>;
<![CDATA[I Ketut Westra]]>;
<![CDATA[Ni Ketut Sri Utari]]>
<![CDATA[ Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 4 No 3 (2015) ]]>
Publisher : <![CDATA[University of Udayana ]]>
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DOI: 10.24843/JMHU.2015.v04.i03.p13
<![CDATA[This study examined the obligations of entrepreneur as stated in the regulations minister. Byusing normative method, this study showed the obligations of the entrepreneur in accordancewith the laws and regulations governing between entrepreneurs and workers. By taking thecase study of Bali Safari and Marine Park, which is located in Gianyar, Bali, it showedthe significance of regulatory policies, the accompanying rights and obligations that wasinherent in industrial relations.]]>
<![CDATA[KEBIJAKAN HUKUM PIDANA MEMPERTAHANKAN JENIS PIDANA MATI (STUDI KASUS PEMBUNUHAN BERENCANA DISERTAI MUTILASI KORBAN) ]]>
<![CDATA[A.A. Sagung Mas Yudiantari Darmadi]]>
<![CDATA[ Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 4 No 3 (2015) ]]>
Publisher : <![CDATA[University of Udayana ]]>
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DOI: 10.24843/JMHU.2015.v04.i03.p04
<![CDATA[The research was policy of criminal law maintains kind of death penalty (the case study ofplan murder while mutilates the victim), aims to describe and analyze the existence of thedeath penalty to the crime of plan murder. In addition, this study also aims to determinepolicies of criminal law related to death penalty for the crime of plan murder accompanied bymutilation as an aggravating. The method used in this research was conducted normativelyby reviewing the primary and secondary which was collected based on collecting methodof normative law and for the technique of collecting its legal entity were used documentertechnique i.e the technique to analyze and collect on various documents that already existsby applying some kind of approach, namely, the approach of legislation, and analyticalapproaches. The analysis of research was presented in form of descriptive-analytical,systematic, constructive and argumentative.The death penalty against the crime of murder is still maintained and in force today inIndonesia, as contained in the provisions of Article 340 of the Criminal Code. Capitalpunishment are recognized in the criminal offense of premeditated murder, but the deathpenalty was alternatifed with other criminal types namely life imprisonment and a maximumof 20 years. Death penalty imposed in the case of things that are burdensome. By it didnot published things that incriminate a crime in the Criminal Code, the judge only includethings that are burdensome and ease generally. This certainly can not be released that theprovisions of Article 197 paragraph (1) Criminal Code incriminating things was imperatively.Regarding the criminal law policy relating to the death penalty for the crime of murder waslisted in Article 581 of the Criminal Code. In this case, the RUU KUHP did not include theCriminal Code specifically mutilation as a criminal aggravating reasons, however whenseen from the provisions of Article 55 paragraph (1), the mutilation may be a motive andpurpose of committing a crime (letter b); how committed the crime (letter e); as well as theattitudes and actions of after committing a crime (letter f).]]>
<![CDATA[KERJASAMA LEMBAGA PEMBERDAYAAN MASYARAKAT (LPM) KUTA DENGAN KEPOLISIAN DALAM MENANGGULANGI TINDAK PIDANA PENCURIAN ]]>
<![CDATA[Ni Komang Ratih Kumala Dewi]]>
<![CDATA[ Jurnal Magister Hukum Udayana (Udayana Master Law Journal) Vol 4 No 3 (2015) ]]>
Publisher : <![CDATA[University of Udayana ]]>
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DOI: 10.24843/JMHU.2015.v04.i03.p09
<![CDATA[The rampant of crime of theft by pickpocket mode in the Kuta area has given a negative impacton tourism. In Kuta area, there are an institution is engaged in community empowermentwhich is called Lembaga Pemberdayaan Masyarakat (LPM). LPM has a mission which isparticipate to increase law awareness and encourage law enforcement, through this missionwas related a cooperation from police Department and LPM. Therefore, it is importantthat is studied in depth about the cooperation of LPM and Police Department in mitigatingthe crime of theft by pickpocket mode in Kuta area and also its constraints and preventioneffort. The method of research which used is the empirical law research by the qualitativedescriptive method. The data consists of primary data and secondary data. The technique ofcollecting data which is used the document study and interview technique. The technique ofdetermine the sample used non probably sampling. The result found that the LPM role is toassist the police officer if it found a crime in area when the jagabaya and hansip (securityofficer) do their job. Related to the constraints which is faced by LPM and police officerthat LPM does not has infrastructure, technical, and administrative. It is also does not hasa legal protection to do investigation. Those constraints is tried to fulfill by the police officerand LPM however the legal protection of LPM is still does not found a solution. The role ofLPM is still assist to catch and prosecute the executants in a while.]]>
