scholarly journals Konstruksi Nalar Rechtvinding Hakim dalam Pemberian Izin Poligami yang Berkeadilan Gender dalam Putusan Pengadilan Agama Jombang No. 0899/Pdt.G/2016/PA.Jbg

AL-HUKAMA ◽  
2019 ◽  
Vol 9 (2) ◽  
pp. 496-517
Author(s):  
Abdullah Taufik ◽  
Ilham Tohari
Keyword(s):  
Content Analysis ◽  
Research Method ◽  
Islamic Law ◽  
Gender Justice ◽  
Legal Research ◽  
Analysis Techniques ◽  
Positive Law ◽  
The One ◽  
Legal Discovery ◽  
Religious Courts

The practice of polygamy in Indonesia until now has drawn criticism from some feminists who did not agree. But on the one hand, both Islamic law and positive law permit various conditions. In this case, the Religious Court (PA) becomes the last fence which becomes the determining point for a man to be able to polygamy. For this reason, researchers conducted a study of PA decisions on polygamy, namely Jombang PA Decision No. No. 0899 / Pdt.G / 2018 / PA.Jbg . The focus of the problem is (1) the value of gender justice in the decision and (2) reasoning rechtvinding(legal discovery) judge. The method used in this study is a normative-qualitative legal research method with content analysis techniques from Charles Purse. The results showed that the practice of polygamy licensing in the Religious Courts had actually gone through processes that reflected gender justice. This is reflected in the obligation of the Religious Court to summon the longest wife of the applicant for polygamy to be asked for willingness and information. The results of subsequent studies show that PA Jombang judges used hermeneutic techniques in making legal discovery efforts. Because, they not only focus on aspects of legality, but also consider the contextualization.

scholarly journals The Legal Status of Appraisal of Materials Guarantee for Bancruptcy Process of Indonesia

2020 ◽  
Vol 16 ◽  
pp. 1-12
Author(s):  
Anne Rusiana ◽  
Jamal Wiwoho ◽  
Adi Sulistiyono
Keyword(s):  
Research Method ◽  
Legal Status ◽  
Legal Certainty ◽  
Legal Research ◽  
Positive Law ◽  
Legal Case ◽  
The Status ◽  
The Law ◽  
Legal Discovery ◽  
As If

This research studies the legal status of a material guarantee for the bankruptcy process of Indonesia. The purpose of this research is to find out the legal status of whether the material guarantee that has been declared bankrupt by the appraisal because of not fulfill of repayment of the debtor to the creditor can be transferred on non-bankruptcy status? Moreover, what is the creditor's execution rights to the debtor's material guarantee? This research uses a normative legal research method, namely: legal research that is done with the purpose of discovering the principles and philosophical base (dogma or doctrine) of positive law, and the research of legal discovery efforts in concreto that is suitable to be implemented to solve a particular legal case. The result of this research is that material guarantees that have been determined as Bankruptcy cannot be transferred to their status when they are sold with a non-bankrupt status before a written decision by the judge justified the status. This shows obedience to the principles of legality and legal certainty, that selling the bankrupt assets with the status of (non-bankrupt assets) cannot be justified according to the law. If the curator still continues to sell the bankrupt assets, that process is illegal, including the execution of the selling according to the law. When it was being declared of bankrupt the total value of the material guarantee is assessed by the appraisal to be sufficient for paying all debts to the creditor, then it became the guarantee of repayment of the debtor, but if the value of the material guarantee valued by the appraisal is smaller than the debt, then there must be a reassessment in order to make justice for debtors and creditors. Mortgage-holding creditors, fiduciary guarantees, mortgage rights, mortgages, or other collateral rights, can execute their rights as if Bankruptcy did not occur, but there are several receivables that must be matched before executing their separatist rights.

scholarly journals TINJAUAN YURIDIS SANKSI ADAT KAILI RAI TERHADAP PELAKU PELECEHAN SEKSUAL

2020 ◽  
Vol 1 (1) ◽  
pp. 37-51
Author(s):  
Moh. Ansar ◽  
Suhri Hanafi ◽  
Sitti Nurkhaerah ◽  
Wahyuni Wahyuni ◽  
Taufan B.
Keyword(s):  
Child Protection ◽  
Research Method ◽  
Islamic Law ◽  
Research Data ◽  
Research Approach ◽  
Sexual Crimes ◽  
Violence Against Children ◽  
Analysis Techniques ◽  
Positive Law ◽  
Second Amendment

The problem of how castration sanctions for perpetrators of crimes of sexual violence against children in the perspective of positive law in Indonesia and how Islamic criminal law views castration as a sanction are the focus of the problem in this study. The research method consists of the type of research, data and data sources, data collection techniques and data analysis techniques using a qualitative research approach. Then, as a result of the research, there are differences in Islamic law among scholars regarding the punishment of castration Law Number 17 of 2016 Regarding the stipulation of PERPU Number 1 of 2016 Second Amendment to Law Number 23 Year 2002 Concerning Child Protection Becomes Law against perpetrators of sexual crimes against children, and Islamic law has stipulated penalties for perpetrators of sexual crimes in detail of the facts of their actions, so they cannot (haram) carry out the type of castration punishment in accordance with the argument, namely the hadith of the Prophet Muhammad saw., which prohibits his companions from being castrated.

scholarly journals Dilema Hakim Pengadilan Agama dalam Menyelesaikan Perkara Hukum Keluarga Melalui Mediasi

2021 ◽  
Vol 4 (1) ◽  
pp. 115-124
Author(s):  
Erie Hariyanto ◽  
Moh. Efendi ◽  
Sulistiyawati Sulistiyawati
Keyword(s):  
Supreme Court ◽  
Research Methods ◽  
Research Method ◽  
Family Law ◽  
Legal Research ◽  
The One ◽  
Religious Courts

This article aims to determine the role of judges in resolving family law cases through mediation in the Religious Courts, where judges have the position as state officials as regulated in Law Number 43 of 1999 concerning Basic Personnel, can also be a mediator in the judiciary. as regulated in Supreme Court Regulation Number 1 of 2016 concerning Mediation Procedures where judges have the responsibility to seek peace at every level of the trial and are also involved in mediation procedures. The research method used in this article uses normative legal research methods. Whereas until now judges still have a very important role in resolving family law cases in the Religious Courts due to the fact that there are still many negotiating processes with mediation assisted by judges, even though on the one hand the number of non-judge mediators is available, although in each region it is not evenly distributed in terms of number and capacity. non-judge mediator.

scholarly journals ASAS KEADILAN DAN AHLI WARIS PENGGANTI DALAM PRAKTIK KEWARISAN MASYARAKAT BERDASARKAN HUKUM ISLAM DIKECAMATAN BANTAN KABUPATEN BENGKALIS

2018 ◽  
Vol 17 (1) ◽  
pp. 1
Author(s):  
Hasan Basri ◽  
Muhammad Azani
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Legal Research ◽  
Male And Female ◽  
Positive Law ◽  
The Family ◽  
The Law ◽  
Sense Of Justice

<p><em>This article analyzes the inheritance practices carried out by the community in Bantan District, Bengkalis Regency Based on Islamic Law. The research method used is a sociological legal research that discusses the application of positive law regarding the practice of community inheritance in Bantan District, Bengkalis Regency. The results showed: a. The community in Bantan Subdistrict turned out to be wrong in understanding the principle of balanced justice which was considered to be contrary to the sense of justice for the heirs. They understand the principle of balanced justice must be in the same sense. Whereas the meaning of the principle is that each heir, both male and female, has the same rights in obtaining inheritance rights. Men get more rights which do not mean unfair, but in Islamic law it stipulates that men are responsible for the burden of the family; b. The community in Bantan District in understanding radd in Islamic law does not fully refer to the KHI which is a reference in determining the law. They divide radd based only on habits that can be shared with the heirs who want it or the mosque; c. The community in Bantan Subdistrict considers that the heirs who passed away first from the heir, cannot be replaced by the heir's child. Whereas based on Article 185 paragraph (1) the KHI position of the heir can be replaced by the offspring of both male and female.</em></p>

E-Court

2021 ◽  
pp. 1-16
Author(s):  
Yordan Gunawan ◽  
Rizaldy Anggriawan
Keyword(s):  
Industry 4.0 ◽  
Research Method ◽  
Access To Justice ◽  
Legal Research ◽  
The Public ◽  
Positive Law ◽  
Legal Provisions ◽  
The Supreme Court ◽  
Court Proceedings ◽  
Legal Discovery

Facing the advanced Industry 4.0, where everything is closely tied to technology and is characterized by digitalization, the Supreme Court of Indonesia has introduced the implementation of e-justice by developing an electronic justice system (e-court) in 2018. The study aims to highlight the current practice of e-court in Indonesia. It also examines the existing implementation and legal provisions regulating the electronic-based court proceedings. The research method used is normative legal research. It analyzes the positive law, principles, doctrines of law, legal discovery in particular cases, legal systematics, legal comparison, and legal history. The study revealed that e-court has provided easier access to the public in order to make the court more accessible, effective, and efficient. Nevertheless, several improvements in particular sectors such as access to justice, case delays, human resource readiness, public internet facility, evidence management, and hearing session procedures need to be highlighted and updated by the court.

scholarly journals Tinjauan Hukum Islam terhadap Pernikahan dengan Wali Hakim (Studi Kasus di KUA Kecamatan Bulo, Kabupaten Polman)

2021 ◽  
Vol 2 (2) ◽  
pp. 301-313
Author(s):  
Mukran H. Usman ◽  
A. Hawariah ◽  
Rosmita Rosmita ◽  
Nurfatimah Muh. Tahir
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Descriptive Analysis ◽  
Field Research ◽  
Analysis Techniques ◽  
Normative Approach ◽  
Positive Law ◽  
The Guardian

This study aimed to determine the cause of the marriage of guardian judges in the KUA, Bulo District, Polman Regency and to find out the review of Islamic law on this phenomenon. The research method used was field research with descriptive analysis techniques and applies a phenomenological and juridical-normative approach. The results showed that; 1) Among the factors in the occurrence of marriage with the guardian judge at the KUA, Bulo Sub-district, Polman Regency, is because there are no living lineage guardians and or no Muslim lineage guardians; 2) According to Islamic law, marriage with a guardian judge is legal if it has fulfilled the conditions and pillars that have been determined both in positive law and Islamic law, where the KUA Kecematan Bulo, Polman Regency stipulates that the guardian judge is a Muslim, akil, and balig.

scholarly journals Asas Keadilan dan Ahli Waris Pengganti dalam Praktik Kewarisan Masyarakat berdasarkan Hukum Islam di Kecamatan Bantan Kabupaten Bengkalis

2017 ◽  
pp. 1-14
Author(s):  
Hasan Basri ◽  
Muhammad Azani
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Legal Research ◽  
Male And Female ◽  
Positive Law ◽  
The Family ◽  
The Law ◽  
Sense Of Justice

This article analyzes the inheritance practices carried out by the community in Bantan District, Bengkalis Regency Based on Islamic Law. The research method used is a sociological legal research that discusses the application of positive law regarding the practice of community inheritance in Bantan District, Bengkalis Regency. The results showed: a. The community in Bantan Subdistrict turned out to be wrong in understanding the principle of balanced justice which was considered to be contrary to the sense of justice for the heirs. They understand the principle of balanced justice must be in the same sense. Whereas the meaning of the principle is that each heir, both male and female, has the same rights in obtaining inheritance rights. Men get more rights which do not mean unfair, but in Islamic law it stipulates that men are responsible for the burden of the family; b. The community in Bantan District in understanding radd in Islamic law does not fully refer to the KHI which is a reference in determining the law. They divide radd based only on habits that can be shared with the heirs who want it or the mosque; c. The community in Bantan Subdistrict considers that the heirs who passed away first from the heir, cannot be replaced by the heir's child. Whereas based on Article 185 paragraph (1) the KHI position of the heir can be replaced by the offspring of both male and female.

scholarly journals Efektifitas Pemberian Dispensasi Kawin Pada Anak Di Bawah Umur Menurut Undang-undang No.1 Tahun 1974 (Studi Kasus Di Kab. Polewali Mandar)

2019 ◽  
Vol 15 (1) ◽  
pp. 73
Author(s):  
Ade Rahayu
Keyword(s):  
Research Method ◽  
Legal Research ◽  
Positive Law ◽  
Age Limit ◽  
The Law ◽  
Family Based ◽  
The One ◽  
Husband And Wife

Marriage dispensation is the relief of something (age limit) in bonding between a man and a woman as husband and wife with the aim of forming a happy and eternal family based on the One Godhead. The purpose of this study was to determine and analyze the effectiveness of Marriage Dispensation in Underage Children in Polewali Mandar Regency and the factors that influence the judge's decision to grant the request for mating dispensation in minors in Polewali Mandar district. The research method used is empirical legal research. The results showed that underage marriage in Polewali Mandar district had not been implemented effectively because underage marriage was still found without going through mating dispensation and the factors that influenced the judge's decision to grant the request were because the prospective bride had been pregnant out of wedlock. Because the judge is not bound by positive law so the judge is given the opportunity to find the law. The judge prioritizes the concept of maslahah mursalah, where the judge chooses consideration of goodness and rejects damage in society and prevents harm.

scholarly journals Implementation of Itsbat Nikah as A Way To Get The Legal Power Which is not Recorded

2018 ◽  
Vol 1 (2) ◽  
pp. 517
Author(s):  
Achmad Budi Waskito
Keyword(s):  
Islamic Law ◽  
Legal Protection ◽  
Legal Rules ◽  
Positive Law ◽  
Legal Power ◽  
Religious Law ◽  
The Law ◽  
The One ◽  
Religious Courts

Article 2 (1) states the Marriage Act, marriage is valid if it is done according to the law of each religion and belief. Furthermore, Article 2 (2) states every marriage is recorded in accordance with the legislation in force. Thus a marriage must comply with religious law and positive law. Statements about the validity of marriages taking place before Act No. 1 of 1974 concerning marriage and run other regulations. Solutions that marriage is not recorded can be reached by way of itsbat nikah propose marriage to the Religious Courts under Article 7 Compilation of Islamic Law (KHI). According to Article 7 paragraph (1) KHI marriages under Islamic law can only be proven with Marriage Certificate made by the Registrar of Marriage Officer. On the one hand Regulation Legislation Indonesia expressed registration of marriage is the only evidence of the occurrence of marriage, but on the other side of the law provide a way out for people who can not prove their marriage with the street Determination of Marriage (Itsbat nikah). Itsbat nikah as the authority of the PA need for legal protection should be equivalent law or legal rules included in the sort order legislation.Keywords: Implementation of Itsbat nikah, Religious Courts Authority, Marriage Not Recorded.

scholarly journals ANALISIS PEMBAGIAN HARTA BERSAMA DALAM KONDISI MATI KALALAH (Studi Kasus Putusan Nomor 197K/AG/2015)

2018 ◽  
Vol 1 (1) ◽  
pp. 488
Author(s):  
Tetty Hariyati ◽  
Wahyuni Retnowulandari
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Secondary Data ◽  
Legal Research ◽  
Domestic Life ◽  
Positive Law ◽  
Community Property ◽  
The Law ◽  
Husband And Wife

The division of community property is a very essential issue in domestic life. Regarding the positive law taking in force in Indonesia, the division of community property for Islam is regulated in the Compilation of Islamic Law (KHI) where the Compilation of Islamic Law regulates the division of community property for both widowed (widowed and not remarried) and divorced (divorced and not remarried). The widowed is regulated in article 96 of the Compilation of Islamic Law and the divorced is regulated in article 97 of the Compilation of Islamic Law. If examined from these two articles, both equally regulates  if the marriage relationship broke up, the community property is divided for husband and wife, each will get a 50:50 part. However, this is different based upon  Decision Number 197K / AG / 2015 The division is greater for the wife of 60% and 40% for husband. In this case the problem raised here is how the regulation makes an arrangement for division of community property in dead condition without father and children (mati kalalah) under the law of inheritance in Indonesia and how the judge's consideration related to the division of community property in dead condition without father and children (case study: Decision number 197K / AG / 2015)? The author here used normative legal research method that is descriptive and primary and secondary data and also supported by interviews in this study.

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