scholarly journals A Comparative Study on the Principles of Online Buying and Selling from the Perspectives of Islamic Law and Indonesian Positive Law

2021 ◽  
Author(s):  
Dwiyana Achmad Hartanto
Keyword(s):  
Comparative Study ◽  
Consumer Protection ◽  
Qualitative Method ◽  
Islamic Law ◽  
Civil Code ◽  
Normative Approach ◽  
Positive Law ◽  
Online Trading ◽  
Analytical Research ◽  
Online Buying

The study aims to analyze the comparative perspectives between Islamic Law and Indonesian Positive Law in the practices of online buying and selling (trading). This study uses a juridical and normative approach with a specification of descriptive-analytical research. The data comes from primary law, secondary law, and tertiary law, and the researcher used a qualitative method to analyse the data. The shift and development of offline-based buying and selling (trading) practices to online practices today has required special regulation in the Indonesian Positive Law. The absence of specific rules regarding the practice of online buying and selling indicates that these activities should be subjected to the existing positive Indonesian laws. The principle of freedom of making contracts in the Civil Code (KUH Perdata) provides freedom to make any trade agreements. For the sake of legal certainty in the execution of online buying and selling, the parties must refer to the provisions of the Civil Code, the Information and Electronic Transaction Law (ITE Law), and the Consumer Protection Law (UUPK Law) that are relevant to the trading practice. In addition to these provisions, Islamic Law within the scope of mu’amalah also provides guidelines for the practice of direct buying and selling, but not online buying and selling; however, Islamic law also provides freedom in mu’amalah. The existence of these provisions makes it interesting to conduct a comparative study on the principles of online trading practices from the perspectives of Islamic law and Indonesian positive law. Islamic Law considers it legal to conduct online buying and selling if the terms and conditions of buying and selling are fulfilled, if it provides benefits and negates harm, and if it does not conflict with Al-Qur’an and Al-Hadith, and if it can be designated as al-‘adatu muhakkamah (a custom which is defined as law). According to the Indonesian positive law, in principle, online trading is legal as long as it fulfills the provisions of trading, that is the fulfillment of the terms, elements, principles, rights, and obligations of the parties regulated in the provisions of the Civil Code, Information and Electronic Transaction’s Law, and Consumer Protection Law, along with providing legal assurance and protection for the parties. Keywords: comparative study, online buying and selling, Islamic law, Indonesian positive law

scholarly journals ONLINE LOANS THROUGH SMART CREDIT APPLICATION; A COMPARATIVE STUDY OF ISLAMIC LAW AND POSITIVE LAW

2021 ◽  
Vol 21 (1) ◽  
pp. 86
Author(s):  
Slamet Abidin
Keyword(s):  
Comparative Study ◽  
Islamic Law ◽  
Civil Code ◽  
Literature Study ◽  
Legal Requirements ◽  
Qualitative Design ◽  
The Public ◽  
Positive Law ◽  
Library Research ◽  
Very High

This article aimed to describe and analyze the comparison of the two laws, namely Islamic Law and Positive Law, regarding online loans in the Smart Credit application. This study was a literature study using a qualitative design that was the basis for library research by exploring the postulates of Islamic law and articles of positive law that were directly related to the object studied and analyzing and concluding the comparison of the two laws. The results of this study indicated that the legal requirements for online loans in the Smart Credit application was based on the provisions of Islamic Law and Civil Code. In addition, according to Islamic Law and Positive Law, the online loan mechanism through the Smart Credit application had differences, including in Islamic Law allowing online loans. However, if the loans process used usury or interest, Islamic law forbade the lender. While the Positive Law, in this case, was contained in Article 1320 of the Civil Code, which explained that if a lender has agreed to the process of terms and conditions that the Smart Credit application has made and has bound himself in the applicable provisions, whether a loan that was known to have an interest or a delay in paying would be given a fine, then the loans process was legal in the eyes of the law. This was because they have tied themselves to the online loan process, the Smart Credit application. This study implies that online loans are allowed to be used by the public. However, people must remain careful in using online loan applications that lend funds because the interest from lending these funds is very high and will result in very large losses. 

scholarly journals TINJAUAN HUKUM ISLAM TERHADAP PERLINDUNGAN KONSUMEN PADA TRANSAKSI JUAL BELI ONLINE

2017 ◽  
Vol 2 (1) ◽  
Author(s):  
Masyitah
Keyword(s):  
Consumer Protection ◽  
Islamic Law ◽  
Legal Certainty ◽  
Financial Loss ◽  
Online Transactions ◽  
Criminal Sanctions ◽  
Positive Law ◽  
Electronic Transactions ◽  
Online Trading

Abstract:This paper purpose to find out how the consumer protection of online transactions according to positive law and review of Islamic law about consumer protection in online transactions. Based on resultof study found that the legislation can be used as the basis of consumer protection law in onlinetransactions areUU/11/2008 about Information and Electronic Transactions, supplemented by PP/82/2012 about  the Implementation of Electronic Transaction System and Transactions,  and UU/8/1999 about  Consumer Protection. Forms of consumer protection in online transaction  according to positive law such as legal certainty for consumers and businessmen of online shop, provide criminal sanctions to businessmen  who inflict a financial loss on consumers, and also protect the rights and obligations of consumers. The form of consumer protection in online transactionaccording to Islamic law is interdiction in al-Quran and hadith about gharar, fraudulent practices and prohibition of cheating. The cancellation of online trading, compensation and  application of khiyar are also a form of consumer protection in online transaction.  Bagaimana perlindungan konsumen pada transaksi jual beli online menurut undang-undang  dan tinjauan hukum islam terhadap perlindungan konsumen pada transaksi jual beli online. Berdasarkan hasil penelitian ditemukan bahwa perundang-undangan yang dapat dijadikan sebagai dasar hukum perlindungan konsumen pada transaksi jual beli online adalah UU No. 11 tahun 2008 tentang Informasi dan Transaksi Elektronik, dilengkapi dengan PP No. 82 tahun 2012 tentang Penyelenggaraan Sistem dan Transaksi Elektronik dan UU No. 8 Tahun 1999 tentang Perlindungan Konsumen. Bentuk perlindungan konsumen pada jual beli online menurut undang-undang diantaranya berupa kepastian hukum bagi konsumen dan pelaku usaha jual beli online, memberikan sanksi pidana kepada pelaku usaha yang merugikan konsumen, dan melindungi hak dan kewajiban konsumen. Bentuk perlindungan hukum jual beli online menurut hukum Islam adalah berupa larangan dalam al-Quran dan hadis tentang jual beli gharar, praktik penipuan dan larangan berbuat curang. Pembatalan jual beli online dan ganti rugi serta penerapan hak khiyar dalam jual beli online juga merupakan bentuk dari perlindungan konsumen jual beli online. Kata kunci: hukum Islam, perlindungan konsumen dan transaksi jual beli online.

COMPARATIVE STUDY ON GONO GINI'S ASSETS DUE TO A DEATH ACCORDING TO THE ISLAMIC LAW AND POSITIVE LAW

2019 ◽  
Vol 1 (1) ◽  
Author(s):  
Pardan Syafrudin
Keyword(s):  
Comparative Study ◽  
Common Property ◽  
Islamic Law ◽  
Positive Law ◽  
Community Property ◽  
Communal Property ◽  
Islamic Jurisprudence ◽  
Legal Restriction ◽  
The Common ◽  
Husband And Wife

The Common properties (community property) is an asset that the husband and wife acquired during the household lifes, which both of them is agree that after united through marriage bonds, that the property produced by one or both of them will be common property. It shows, that if there's an agreement between husband and wife before marriage (did not to unify their property), then the property produced both will not become a joint treasure. Thus, if a husband or wife dies, or divorces, then the property owned by both of them can be distributed in accordance with their respective shares, another case when the two couples are not making an agreement, then the property gained during marriage bonds can be divided into types of communal property. In Islamic law, this kind of treasure is not contained in the Qur'an or Sunnah. Nor in Islamic jurisprudence. However, Islamic law legalizes the existence of common property as long as it is applicable in a society and the benefit in the distribution of such property. In contrast to the positive law, this property types have been regulated and described in the Marriage Law, as well as the Islamic Law Compilations, which became the legal restriction in the affairs of marriage in force in Indonesia. In this study, the author tries to compile the existence of common property according to the Islamic law reviews and positive law.

scholarly journals Pengelolaan Wakaf Ditinjau Dari Hukum Islam dan Hukum Positif; Studi Kasus Yayasan Taman Mandiri Syari’ah Tangerang Banten

2021 ◽  
Vol 8 (1) ◽  
Author(s):  
Heru Birowo
Keyword(s):  
Qualitative Method ◽  
Islamic Law ◽  
Empirical Approach ◽  
Poor People ◽  
Community Groups ◽  
Positive Law ◽  
The Social

Yayasan Taman Mandiri Syari’ah merupakan lembaga yang bergerak di bidang sosial, kemanusiaan dan keagamaan. Yayasan ini dibangun dengan tujuan mengangkat harkat sosial kemanusiaan kaum yatim dan dhuafa dengan dana zakat, infak, shodaqoh serta wakaf dan dana-dana yang dihalalkan oleh syariat dan legal, baik dari perorangan, perusahaan, kelompok masyarakat, atau sumber lembaga lainnya. Penelitian ini menggunakan metode penelitian Kualitatif, dengan pendekatan literatur dan empiris. Hasil penelitian ini menyatakan bahwa Pengelolaan wakaf di Yayasan Taman Mandiri Syari’ah, berdasarkan tinjauan Hukum Islam dan Hukum Positif, proses perwakafan di Yayasan Taman Mandiri Syari’ah, ketentuan wakafnya sudah memenuhi rukun dan syarat. Namun dalam kelengkapan surat wakaf, YTS sebagai Nadzir atas wakaf tanah di Depok, belum melengkapi surat wakaf yang seharusnya didaftarkan ke Badan Pertanahan Nasional (BPN). Pengelolaan wakaf yang sudah berjalan di Yayasan Taman Mandiri Syari’ah berupa wakaf tanah dan wakaf tunai.Kata Kunci: Pengelolaan, Wakaf, Hukum AbstractTaman Mandiri Syari'ah Foundation is an organization in the social, humanitarian and religious. The foundation aims to raise the social dignity of orphans and poor people with zakat, infaq, shodaqoh, and waqf that are permitted by the Shari'a and legal funds from individuals, companies, community groups, or other institutions. The study uses Qualitative method with literary and empirical approach. The findings of this study are state waqf management of Taman Mandiri Syari'ah Foundation, based on the perspective of Islamic Law and Positive Law, the waqf process of Taman Mandiri Syari'ah Foundation, the provisions of the waqf have required the pillars and conditions. Yet the waqf letter, YTS as Nadzir for land waqf in Depok, has not completed the waqf document by register to National Land Agency. The waqf management has doing are land waqf and cash waqf.Keywords: Waqf, Management, Law.

scholarly journals PERKEMBANGAN PERJANJIAN DALAM PRAKTIK PERDAGANGAN (PERSPEKTIF HUKUM ISLAM DAN HUKUM POSITIF)

JURISDICTIE ◽  
2017 ◽  
Vol 7 (2) ◽  
pp. 219
Author(s):  
Cindawati Cindawati
Keyword(s):  
Islamic Law ◽  
Human Life ◽  
Contract Law ◽  
Civil Code ◽  
Public Order ◽  
Freedom Of Contract ◽  
Positive Law ◽  
Legal Consequences

Agreement in human life to protect the rights and obligations are balanced. Differences in Islamic Law Perspective: Halal, agreed, able, without coercion, consent and Qobul. While the perspective of Positive Law: agree, capable, certain things, certain circumstances in accordance with Article 1320 of the Civil Code. The equation embracing principle of freedom of contract (al-Hurriyah) Islamic law is based on freedom of contract and volunteerism of each of the parties to a transaction (Q.S.An-Nisa ', 29). Give freedom to every person doing contract as desired, specify its legal consequences are religious teachings. The development of standard agreements in practice must be based on Sharia Principles provide benefits both parties, within the limits of lawful and unlawful, and the limits of public order and contract law, the provisions of Islamic law which is original. Perspective Positive Law: Principles embraced Open, gives the broadest freedom has entered into agreements contain anything, does not violate public order and morality. Rapid trade development followed the model "Standard Agreement". Business actors prepare raw clauses in the Agreement and can be accepted by the community. Raw agreements as a form of efficiency, the parties benefit and advantage to both parties.

scholarly journals CONSUMER PROTECTION IN THE SUPPLY OF SERVICES: A COMPARATIVE STUDY BETWEEN THE CONSUMER PROTECTION ACT 1999 AND ISLAMIC LAW

2012 ◽  
Vol 18 (1) ◽  
Author(s):  
Elistina Abu Bakar ◽  
Naemah Amin
Keyword(s):  
Comparative Study ◽  
Consumer Protection ◽  
Islamic Law ◽  
Service Providers ◽  
Goods And Services ◽  
Left Behind ◽  
Consumer Protection Act ◽  
The Law

The Consumer Protection Act 1999 (CPA) that came into force on 15 November 1999 represents a milestone in consumer protection in Malaysia.1 It has several important provisions, some of which are more beneficial than those found in the law of contract and law of tort since its objective is specifically to protect the interest of consumers. The statute is applicable to both goods and services but the provisions on services are very important because previously the laws regulating the supply of services seem to be left behind compared to those regulating goods. The aim of this paper is to examine the relevant provisions of the CPA and make a comparative study with the protection available under the Islamic law of muʿāmalāt. The central discussions are on section 53, section 54 and Part IX of the CPA since they deal specifically with the supply of services. The liabilities of the service providers are scrutinised as well as consumers’ rights of redress

scholarly journals THE SETTLEMENT OF SHARIA ECONOMIC DISPUTES IN INDONESIAN ISLAMIC CLASSIC TRADITIONS AND POSITIVE LAW

2021 ◽  
Vol 6 (1) ◽  
pp. 54
Author(s):  
Adriandi Kasim
Keyword(s):  
Capital Market ◽  
Qualitative Method ◽  
Islamic Law ◽  
Rapid Development ◽  
Applicable Law ◽  
Business Transactions ◽  
Positive Law ◽  
Islamic Tradition ◽  
The Government ◽  
Settlement Of Disputes

Using a qualitative method with a sociological-normative approach, it was found that today's rapid development has caused various kinds of disputes. In this article, the author discusses sharia economic disputes and their resolution in the Islamic tradition and positive law in Indonesia to understand the problems of economic disputes and their resolution so that they can become knowledge and guidelines in conducting business transactions. The results of the discussion that the author obtained, namely sharia economic disputes, are disputes that occur in muammalah activities. This occurs in banking, non-banking, capital market, as well as the economy as a whole due to several factors such as default, tadlis, taghrir, or other things that can harm the rights of others. Settlement of disputes in Islamic law, namely sulh and tahkim. As for the applicable law in Indonesia, namely peace both by litigation and non-litigation, ADR, and arbitration includes BANI, BASYARNAS and other arbitration institutions. In this case, the authors conclude that every community that will conduct business transactions requires the principle of prudence and there have been many legal attempts by the government in resolving these disputes.

scholarly journals Keikutsertaan Anak di Bawah Umur Dalam Aksi Demonstrasi Menurut Hukum Islam dan Hukum Positif di Indonesia

2021 ◽  
Vol 8 (1) ◽  
Author(s):  
Sofyan Nur Hardiansyah ◽  
Mufidah Mufidah
Keyword(s):  
Qualitative Method ◽  
Islamic Law ◽  
Data Sources ◽  
Conceptual Approach ◽  
Research Results ◽  
Positive Law ◽  
The Future ◽  
Democratic System

ABSTRAKAnak adalah anugerah Allah Yang Maha Kuasa sebagai harapan masa depan bangsa. Sedangkan demonstrasi adalah hal yang lazim dilakukan oleh negara-negara yang menggunakan sistem demokarasi. Belakangan ini terjadi aksi demonstrasi yang melibatkan anak di bawah umur. Jurnal ini bertujuan untuk mengetahui pelaksanaan demokrasi yang ada di Indonesia dan juga menjelaskan tentang keikutsertaan anak di bawah umur dalam aksi demonstrasi menurut Hukum Islam dan Hukum Positif. Penulis menggunakan metode penelitian kualitatif dan pendekatan undang-undang (statue approach) dan pendekaatan konseptual (conseptual approach). Sumber data dalam penelitian ini diperoleh dari peraturan perundang-undangan dan fenomena yang ada di masyarakat. Berdasarkan hasil penelitian, diperoleh kesimpulan bahwa prinsip demokrasi di Indonesia yaitu Demokrasi Pancasila. Keikutsertaan anak di bawah umur dalam aksi demonstrasi yaitu tidak diperbolehkan karena seorang anak belum memenuhi syarat sebagai seorang mukallaf sehingga belum dapat diberikan pembebanan (taklif). Kata Kunci : Anak di Bawah Umur, Aksi Demonstrasi, Demokrasi ABSTRACTChildren are a gift from Allah the Almighty as the hope for the future of the nation. Meanwhile, demonstrations are common in countries that use a democratic system. Recently there was a demonstration involving minors. This journal aims to find out about the implementation of democracy in Indonesia and also explain the participation of minors in demonstrations according to Islamic Law and Positive Law. The author uses a qualitative method and a statue approach and a conceptual approach. Sources of data in this study are law and phenomenon of data sources. Based on the research results, it is concluded that the principle of democracy in Indonesia is Pancasila Democracy. The participation of minors in demonstrations is not allowed because a child has not met the requirements as a mukallaf so that he cannot be charged with taklif.Keywords : Underage Children, Demonstrations, Democracy

scholarly journals HIBAH SEMUA HARTA KEPADA ANAK ANGKAT (TELAAH KOMPARASI ANTARA KUH PERDATA DAN KHI)

2020 ◽  
Vol 8 (1) ◽  
pp. 109-140
Author(s):  
Nor Mohammad Abdoeh
Keyword(s):  
Islamic Law ◽  
Civil Code ◽  
Human Beings ◽  
Normative Approach ◽  
Qualified Person ◽  
Similarities And Differences ◽  
The Law ◽  
The Difference

One of the ways that human beings use to obtain treasure is grants. The grant process cannot be separated from the limit of the donated property. In reality, many people grant his wealth to his adopted son with all his possessions. It is a matter of the adopted child's position in the law. The purpose of this paper is to explain how the views of the Civil Code and the Islamic Law about grant and that comparation. The approach of this research with normative approach, by investigating whether it is according to the norms that apply. The conclusion of this research, that the rules of grant in the Civil Code and KHI actually have similarities and differences. The similarity of the two rules is seen in defining the meaning of the grant, its elements and similarity in judging a qualified person to do the grant. The difference of the rules are both seen in the share of grant distribution. The portion in KHI is a maximum of 1/3. The existence parts and restriction of the treasures in the grant is nothing but to protect from the tendency of the benefactor to ignore their family. While in the Civil Code based on Legitime Portie

Legal and Jurisprudential analysis towards the Possibility of Expanding Scope of the Destruction Rule

2021 ◽  
Vol 12 (2) ◽  
pp. 262-276
Author(s):  
Mojtaba Lotfi Khachk ◽  
Abbas Moghaddari Amiri ◽  
Mehdi Fallah Khariqi
Keyword(s):  
Comparative Study ◽  
Islamic Law ◽  
Civil Code ◽  
The State ◽  
Gas Explosions ◽  
The Subject ◽  
Definition Of ◽  
Limited Scope

In the conventional definition of Destruction, it should be acknowledged that Destruction refers to the state in which the destruction of a place or specific place occurs due to an accident, destruction and demolition of houses, homes and vehicles (such as, cars, trains, planes, etc.) due to a disaster, such as earthquake, accident, gas explosions, bombings, missiles, etc., are examples of Destruction and are covered by Article 873 of the Civil Code. The legislator in Article 873 of the Civil Code believes that if the date of death of the persons who inherit from each other is unknown and the priority and posterority of each of them are not known, the said persons will not inherit from each other, unless the death is due to drowning or Destruction, in which case they inherit from each other. Destruction used to have a limited scope in itself, but with the advancement of science and modern means of life and livelihood, it has expanded beyond the scope and examples of Destruction and will include more cases. Therefore, considering the importance of the subject and the need for a comprehensive and transparent study of that research, by referring to general and special jurisprudential texts through a comparative study of Islamic law, this paper aims to analyze the famous view of the jurists regarding the rule of Destruction and its inclusion and examples.

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