scholarly journals The Development of Evidence Law in Civil Cases Towards the Unification of Civil Procedural Law

Yuridika ◽  
2019 ◽  
Vol 35 (1) ◽  
pp. 31
Author(s):  
Deny Haspada ◽  
Efa Laela Fakhriah
Keyword(s):  
Law Enforcement ◽  
Burden Of Proof ◽  
Legal Certainty ◽  
Important Stage ◽  
Procedural Law ◽  
Public Nature ◽  
Evidence Law ◽  
The Law ◽  
Settlement Of Disputes ◽  
Rules Of The Game

The proof is the most important stage in settlement of a case in court because it aims to prove that a particular legal event or relationship has been made as a basis for a lawsuit. Through the burden of the proof stage, the judge will get the bases to decide between settling a case. Nevertheless, the burden of proof regulation remains plural. There are even some regulations which regulate not only the material law but also the formal law. Such a situation affects the achievement of order and legal certainty in law enforcement efforts. As is known, the nature of the procedural law is formal law, namely the law concerning the rules of the game in settlement of disputes through the court, and is binding on all parties and cannot be deviated. That is why procedural law has a public nature. For the certainty of law, therefore, the procedural law must be in the codification form of unification nature so that it can generally apply to and binding on all parties. Therefore, it is necessary to reform the civil procedural law that is codified and nationally applicable.

scholarly journals Perbuatan Melawan Hukum Terhadap Tindak Pidana Pengambilan Benda Bergerak Sebagai Objek Pembiayaan Leasing

2020 ◽  
Vol 3 (1) ◽  
pp. 111-119
Author(s):  
Tito Alhafezt ◽  
Triono Eddy ◽  
Alpi Sahari
Keyword(s):  
Law Enforcement ◽  
Financial Institutions ◽  
Criminal Liability ◽  
Legal Certainty ◽  
Procedural Law ◽  
Debt Collectors ◽  
The Law ◽  
Notary Public ◽  
Debt Collection ◽  
The Right

The principle of the pacta sun servanda agreement stating that the agreement made by the parties to the agreement, will be the law for both, remains in force and becomes the main hope in the law of the agreement. But the agreement that provides fiduciary guarantees under the hand cannot be executed. The execution process must be carried out by submitting a lawsuit to the Negri Court through normal procedural law so that the court's ruling decreases. This paper aims to analyze or examine the legal arrangements for the taking of movable objects as objects of leasing financing and criminal liability for the actions of taking movable objects as objects of leasing financing. The results of this study indicate that criminal policies against financial institutions in the execution of fiduciary guarantees by debt collectors who have changed hands under the law number 42 of 199 concerning fiduciary guarantees to ensure legal certainty are made akata by the notary public and registered with the fiduciary office. Law enforcement against leasing parties in withdrawing fiduciary collateral by debt collectors based on law number 42 of 1999 concerning fiduciary explains that the right of execution is the authority of the court, not the authority of the seller of debt collection services that are usually leased by the leasing party.

scholarly journals Institute investigating judge to the theory of the «lesser evil»

2015 ◽  
Vol 2 (4) ◽  
pp. 131-136
Author(s):  
A A Tymoshenko
Keyword(s):  
Law Enforcement ◽  
Criminal Liability ◽  
Criminal Proceedings ◽  
Practical Situation ◽  
Judicial Control ◽  
Procedural Law ◽  
The Law ◽  
Legal Mechanism ◽  
Rules Of The Game ◽  
Lesser Evil

The article estimates the prospects of the introduction of Russian Institute of investigating judges. Along with the assessment of current proposals to reform the criminal procedural law, in relevant part, the author is invited to consider the very feasibility of creating a new form of judicial control over pre-trial proceedings. It is proposed to consider the essence of criminal procedural law, its purpose as the establishment of «rules of the game» in criminal proceedings. It is noticed that exhaustively for the law to all possible practical situation is impossible, and the law itself may become a formal justification for malfeasance. Therefore, to avoid the appear- ance of unlimited repression of the state is necessary to disseminate the legal mechanism for binding rules of morality. As well as the activities of the judicial and law enforcement is not only connected to social and justified response to the crime, but also to damage (or «lesser evil» (greater evil - the consequences of the offense)) the interests of a particular person, subject to criminal liability is required to establish unspecified restrictions for the officials concerned. Therefore, the author answers the question of the admissibility of the institute investigating judges by addressing the possibility of establishing for the judge personally responsible for the prospects which began with his participation prosecution.

The rights of the defendant and public interest in proving insanity under the law of New York

2021 ◽  
Vol 30 (3) ◽  
pp. 108-124
Author(s):  
Aleksey Grin'ko
Keyword(s):  
New York ◽  
Law Enforcement ◽  
Public Interest ◽  
Due Process ◽  
Burden Of Proof ◽  
Public And Private ◽  
Whole Process ◽  
History Of ◽  
The Law ◽  
Legislative Changes

Allocation of the burden of proof is a key issue of criminal procedure that is affected by multiple legal and social factors. Under due process principles, the defendant’s right to a fair and impartial trial is deemed to be the epicenter of the whole structure. However, efficient law enforcement is a prominent public interest that must be considered. This article explores the correlation between public and private interest in proving insanity under the law of New York, which provides great empirical background due to its long history of legal disputes and legislative changes. Considering the nature and structure of the burden of proof, the author concludes that there are several principles for its fair allocation: the due party that bears both the burden and the risk of its nonperformance; the feasibility of the burden; the adequate opportunity for the other party to rebut; the concentration of resources upon needs that are not presumed but in fact exist. All the mentioned principles lay the ground for the harmonization of constitutional guaranties for the defendant as well as the successful enforcement of criminal law. The current New York approach to insanity defense as an affirmative one along with the history of its implementation tends to prove its compliance with such requirements. This finding suggests that bearing the burden shall not be treated as impairment by default, but can protect both the interest of this party and the integrity of the whole process.

scholarly journals PENEGAKAN HUKUM TERHADAP TINDAK PIDANA KORUPSI DENGAN KERUGIAN NEGARA YANG KECIL DALAM MEWUJUDKAN KEADILAN

FIAT JUSTISIA ◽  
2017 ◽  
Vol 10 (2) ◽  
Author(s):  
Ahmad Muchlis
Keyword(s):  
Law Enforcement ◽  
Key Words ◽  
Attorney General ◽  
Legal Basis ◽  
Legal Certainty ◽  
Small Loss ◽  
Circular Letter ◽  
Law Enforcement Officials ◽  
The Law ◽  
Court Proceedings

The Circulars letter of deputy attorney of general for special crimes number: B-113/F/ Fd.1/05/2010 can be used as a reference by prosecutors in doing law enforcement against corruption with small losses, but in practice law enforcement, this circular letter is making trouble in practice. The results of this research, namely: the law enforcement against corruption with a small loss of state must pay attention to the values of justice, expediency, and legal certainty. In enforcing the law against corruption with small losses only can be stopped during an investigation by utilizing the exchequer and redress demanded. the reason corruption cases with small losses were still continued by the prosecutor to the court proceedings after enactment of circulator letter because circulator letter contrary to corruption constitution and it has no the strength or binding in legal basis. The Suggestions are addressed for law enforcement officials (police, prosecutor, and judge) in order to do the law enforcement against corruption with small losses in order consider the value of a legal basis, namely: fairness, expediency and certainty. The circular letter of deputy attorney general for special crimes number: B-1113/F/Fd.1/05/2010 in order to be taken as government consideration in formulating the new rules (Ius constituendum). Key words: Corruption, Law Enforcement, Justice

scholarly journals Penal Mediation as the Concept of Restorative Justice in the Draft Criminal Procedure Code

2021 ◽  
Vol 5 (1) ◽  
Author(s):  
Emmanuel Ariananto Waluyo Adi
Keyword(s):  
Law Enforcement ◽  
Restorative Justice ◽  
Criminal Procedure ◽  
Criminal Cases ◽  
Law Enforcement Agencies ◽  
The Public ◽  
Procedural Law ◽  
Private Realm ◽  
Procedure Code ◽  
The Law

The law recognizes both litigation and non-litigation settlement mechanisms, but it is almost not explicitly regulated for non-litigation settlement in criminal cases. Non-litigation in criminal recognizes the concept of restorative justice for the public interest, which is different from the private realm in civil. The concept of restorative justice exists to rehabilitate the state of criminals so that they are accepted back into the community. The concept of restorative justice is manifested in the mediation mechanism in criminal law in the form of penal mediation, but penal mediation does not yet have a legal umbrella. The non-progressive normative application of the law results in the overcapacity of prisons/remand centres. Currently, the Draft Criminal Procedure Code (hereinafter as RKUHAP) is being drafted, which does not yet regulate the application of non-litigation solutions. Later, it can be applied by law enforcement agencies so that problems such as overcapacity prisons are resolved and the creation of peaceful order in the community. This study aims to provide a view of the concept of penal mediation in criminal procedural law to serve as an aspiration for the consideration of the parties involved in the preparation of the substance of the RKUHAP. This paper uses a normative approach with technical analysis using hermeneutic analysis and interpretation methods.

scholarly journals ALTERNATIF MEDIASI PENAL DALAM SISTEM PERADILAN PIDANA DI INDONESIA

2018 ◽  
Vol 1 (2) ◽  
pp. 127
Author(s):  
Reyner . ◽  
Dian Andriawan Daeng Tawang
Keyword(s):  
Law Enforcement ◽  
Customary Law ◽  
Legal Certainty ◽  
Criminal Cases ◽  
Wide Society ◽  
Procedural Law ◽  
Law Enforcement Officials ◽  
Special Rule ◽  
Investigation Process ◽  
Regulations And Guidelines

In general, penal mediation can be said as a concept that brings together the victims and criminals to discuss their interests and willingness in order to resolve criminal cases that have occurred between them, and are assisted by a mediator who is neutral and help to resolve criminal cases by giving advice and mediating as mediators. The results of the research conducted by normative research and through several literature such as legal books, regulations, and guidelines, show that in fact, reason mediation has been carried out in the community and carried out by several law enforcement officials in the framework of the settlement process criminal. What is done in the midst of Indonesian society is only a peace process that shows customary law as its branch and many are applied within the police in the investigation process to carry out procedures for resolving criminal acts. The importance and need for penal mediation to be applied in formal law that is developing and prevailing in society can be a special rule that is regulated and is part of criminal procedural law for the sake of legal certainty. Penal mediation can be applied at the level of investigation by the police in the process of resolving criminal cases and creating equal welfare and justice in the wide society for sure

EKONOMI SYARIAH DAN PENYELESAIANNYA DI PENGADILAN AGAMA

2018 ◽  
Vol 16 (1) ◽  
pp. 93
Author(s):  
Wildana Arsyad ◽  
Edi Gunawan
Keyword(s):  
Supreme Court ◽  
Qualitative Method ◽  
Dispute Settlement ◽  
Education And Training ◽  
Legal Certainty ◽  
The Supreme Court ◽  
The Law ◽  
Settlement Of Disputes ◽  
Religious Courts ◽  
And Training

This study aims to provide information about procedure of dispute settlement of sharia economy in the Religious Courts. This research uses qualitative method with juridical approach. The dispute procedure of sharia economic in religious court runs in accordance with the mandate of the Law contained in article 49 to article 53 Act no. 7 years 1989, Law No. 3 year 2006, Law No. 50 of 2009 about Religious Courts. Sharia economic dispute is basically due to three things, namely because one of the parties to break the promise (wanprestasi), due to unlawful acts against the agreements agreed upon and because of coercive circumstances. Settlement of disputes is held with the aim of enforcing the law which contains the value of legal justice, the value of legal certainty, and the value of legal benefit. The settlement of the sharia economic dispute in the Religious Courts is very new, so the Supreme Court up to now still conducts education and training of sharia economic certification for all Religious Court judges.Penelitian ini  bertujuan   untuk memberikan informasi mengenai prosedur penyelesaian sengketa ekonomi syariah di Pengadilan Agama. Penelitian ini menggunakan metode kualitatif dengan pendekatan yuridis Prosedur penyelesaian sengketa ekonomi syariah di pengadilan agama berjalan sesuai dengan amanat Undang-Undang yang tertera dalam pasal 49 sampai pasal 53 Undang-Undang No. 7 tahun 1989 jo. Undang-Undang No. 3 tahun 2006 jo.Undang-Undang No.50 tahun 2009 tentang Peradilan Agama.Sengketa ekonomi syariah pada dasarnya disebabkan karena tiga hal, yaitu karena salah satu pihak melakukan ingkar janji (wanprestasi), karena perbuatan melawan hukum terhadap perjanjian yang disepakati dan karena keadaan memaksa. Penyelesaian sengketa diadakan dengan tujuan untuk menegakan hukum yang di dalamnya mengandung nilai keadilan hukum, nilai kepastian hukum, dan nilai kemanfaatan hukum.Penyelesaian sengketa ekonomi syariah di Pengadilan Agama merupakan hal yang sangat baru, sehingga Mahkamah Agung sampai saat ini masih melaksanakan pendidikan dan latihan sertifikasi ekonomi syariah bagi seluruh hakim Pengadilan Agama.

THE EFFECT OF CIVIL PROCEDURAL LAW IN TIME

2021 ◽  
Vol 11 (3) ◽  
pp. 132-152
Author(s):  
V.G. GOLUBTSOV
Keyword(s):  
Law Enforcement ◽  
Theoretical Analysis ◽  
Time And Space ◽  
Temporal Characteristics ◽  
Insufficient Attention ◽  
Procedural Law ◽  
The Law ◽  
Theory Of Law ◽  
The Moment ◽  
Over Time

The theoretical analysis of the features of the application of the norms of civil procedural law over time in the modern agenda is given, it seems undeservedly, insufficient attention. Despite the fact that the operation of legislation in time and space is the basis of theoretical constructions in law, and law enforcement constantly operates with these categories, in the theory of procedural law in this part there is no complete clarity, as well as there is no system of interrelated established views on a number of individual topical issues related to temporality. Not limited to the problem of reversibility/irreversibility of the operation of the law, which is generally accepted in the theory of law, the author addresses the logical and epistemological boundaries of the concept of “change of civil procedural law”, analyzes extraordinary cases of changes in legislation, examines the criterion “the moment of the commission of procedural actions”. In conclusion, the author notes that the same normative act of civil procedural law may have not one, but several temporal characteristics. Variants of this multiplicity may be different. However, in the science of civil procedural law they are not actually studied.

scholarly journals Istota i znaczenie (funkcje) zasad postępowania sądowoadministracyjnego

2019 ◽  
pp. 31-47
Author(s):  
Aleksandra Wiktorowska
Keyword(s):  
Cognitive Function ◽  
Law Enforcement ◽  
Process Model ◽  
The Political ◽  
Procedural Law ◽  
Basic Functions ◽  
Reference Sphere ◽  
The Law ◽  
Administrative Courts ◽  
Law Making

There are two main platforms on which the role and importance of the principles of procedural law can be observed. One concerns the basic functions played by these principles, i.e. the function that orders the process, the function that shapes the process model, the interpretative function and the cognitive function. The other platform concerns the reference sphere i.e. a sphere to which these principles are or may be of importance owing to the functions they have. Thus it comprises the sphere of making and enforcing law and its criticism, the law teaching and researching sphere, the practical sphere, the political-ideological sphere and last but not least the sphere of codifi ed and non-codifi ed law. This division however is not absolute. There exists, for example, convergence between the sphere of law enforcement and law practice as well as between the sphere of law criticism and law teaching or researching. A similar convergence may be observed between the law making and the political-ideological spheres. The two platforms cross over and create meeting points in which individual functions of principles in relevant reference spheres may be marked. At the law-making stage, the ordering function harmonises legal solutions adopted in a legislative act whereas at the law-enforcement stage it facilitates construction of a legal text. The shaping of a model of proceedings in administrative courts by principles means that these principles make it possible to determine the structure of institutions and procedural solutions in proceedings before administrative courts, while the interpretative function occurs only in the sphere of law enforcement and criticism. The cognitive function is mainly signifi cant for the law teaching and researching sphere, but also for the law practice, including criticism.

scholarly journals Visum et Repertum as Evidence for Criminal Acts in Domestic Violence

2020 ◽  
Vol 1 (2) ◽  
pp. 43-53
Author(s):  
Jatmiko Raharjo ◽  
Syamsuddin Muchtar ◽  
Audyna Mayasari Muin
Keyword(s):  
Domestic Violence ◽  
Law Enforcement ◽  
Legal Certainty ◽  
Criminal Cases ◽  
Legal Research ◽  
Law Enforcement Officials ◽  
Valid Evidence ◽  
The Law

The aim of the study is to determine the application of Visum et Repertum as evidence for criminal acts in domestic violence. This study was empirical legal research. The location of this study was conducted in Kejaksaan Negeri Klaten. The result of the research showed that as proof of domestic violence with evidence Visum et Repertum was one of the law enforcements oriented to realize for legal certainty and protection of victims in proving the occurrence of criminal acts in domestic violence. The lack of evidence bothers the process of law enforcement, regarding requirements to determine the victim provided at least two evidence and for the judges to decide on criminal cases with valid evidence at least can be avoided by using Visum et Repertum. The obstacles to prove the evidence for criminal acts in domestic violence with Visum et Repertum includes the differences of understanding among law enforcement officials about the use of Visum et Repertum for criminal acts in domestic violence.

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