scholarly journals Adultery Criminalization Spirit in Islamic Criminal Law: Alternatives in Indonesia’s Positive Legal System Reform

2021 ◽  
Vol 5 (2) ◽  
pp. 913
Author(s):  
Supardin Supardin ◽  
Abdul Syatar
Keyword(s):  
Criminal Law ◽  
Legal System ◽  
Human Life ◽  
Criminal Code ◽  
Law Reform ◽  
System Reform ◽  
Law System ◽  
Applicable Law ◽  
The Future ◽  
New Ideas

This study aims to provide new ideas in the criminal law reform discourse in Indonesia, especially concerning the adultery issue, by employing a socio-legal approach and Islamic criminal law. The socio-legal approach was performed by combining normative analysis and non-legal scientific tactics in observing the applicable law. Meanwhile, the Islamic criminal law was used to assess and contribute new ideas to the Indonesian legal system in the future, presuming criminal law reforms are implemented. The results indicated fundamental weaknesses in Article 284 of the Criminal Code (KUHP) in terms of defining adultery and the prescribed sanctions. Hence, the community’s need for efforts to reform the adultery penalty following the national culture is inevitable. The best solution is that the spirit of adultery sanctions in Islamic criminal is expected to be an alternative to renew Indonesia’s criminal law system in the future. Although some elements of the nation may not expect the form of adultery sanction in Islamic penalties, the spirit in it aims to have strong legal certainty and maintain human life

scholarly journals PARADIGM OF DEATH PENALTY (COMPARATIVE STUDY IN INDONESIA, SAUDI ARABIA AND CHINA)

2020 ◽  
Vol 2 (1) ◽  
Author(s):  
Tedy Nopriandi ◽  
Risky Fany Ardhiansyah
Keyword(s):  
Saudi Arabia ◽  
Death Penalty ◽  
Criminal Law ◽  
Capital Punishment ◽  
Islamic Law ◽  
Human Life ◽  
Criminal Code ◽  
Comparative Approach ◽  
Law System ◽  
The Right

The death penalty is one of old criminal type as the age of human life, and the most controversial crime in of all criminal systems, both in countries that adhere to the Common Law System and in countries that embrace Civil Law, Islamic Law and Socialist Law. There are two main thoughts about the death penalty, namely: first, those who want to keep it based on the force provisions, and second are those who wish to the abolition as a whole. Indonesia includes a country that still maintains capital punishment in a positive legal system. This paper aims to resolve problems of the death penalty concept concerning the controversy purpose of the death penalty and to analyze the regulations, procedures and philosophies regarding the death penalty in Indonesia, Saudi Arabia and China. This paper uses normative juridical research and the methods based on the doctrine and developed by the author. The approach used the legal approach, historical approach and comparative approach, then analyzed by the customary method.The result of the study shows that the death penalty can be seen from the philosophical aspects of Indonesian criminal law, as well as the philosophical aspects of Islamic and Chinese criminal law. So that everything can not be separated from the essential legal objectives, namely for the creation of justice. Death penalty in Islamic law turns out the concept of restorative justice specifically for the crime of deliberate killing (al-qatl al-'amd), which the execution highly depends on the victim’s family. The victim’s family, in this case, has the right to choose whether qisas (death penalty) or their apologize for the murder suspect, and diyat payment. While China in the implementation of death penalty applies the concept of rehabilitation, which in the execution of the death penalty is called a death penalty delay for two years and in its implementation, the defendant is given a job and control them. Whereas in Indonesia, capital punishment is a specific criminal offence and threatened with alternatives and is still a draft Criminal Code.

Vulnerability of the modern criminal legal system of Russia from the methods and means of conducting hybrid wars

2021 ◽  
Vol 7 (3) ◽  
pp. 30-44
Author(s):  
Leonid V. Goloskokov
Keyword(s):  
Russian Federation ◽  
Criminal Law ◽  
Legal System ◽  
Legal Protection ◽  
Criminal Code ◽  
The State ◽  
Law System ◽  
The Russian Federation ◽  
Hybrid War ◽  
Criminal Legal System

The features of the manifestations of hybrid wars were investigated by examples of its action in certain sectors of science, education, economics, finance, and criminal law. Certain characteristics of actions and events have been identified as elements of a hybrid war and not as random events. The Criminal Code of the Russian Federation does not contain the necessary articles that would allow sufficient legal protection of the rights of citizens and the interests of the state from the actions and consequences of hybrid wars. In general, the criminal law system is not ready to identify and classify events as elements of a hybrid war, repel hybrid war attacks and waging confrontation, and work on the initial preemption and prevention of hybrid wars. This article, which is proposed to be introduced into the Criminal Code of the Russian Federation, reveals the concept of hybrid war and provides its full definition in a new article. In conclusion, criminal legal measures and the possibilities of only the criminal legal system cannot solve the problems of confrontation in hybrid wars, and involvement of all the forces and resources of the state is necessary. A proposal was made on the need to move to organizing the work of Russian law enforcement agencies on new principles: preemptive and prevention of hybrid wars instead of merely identifying their consequences and fragmentary application of criminal punishment for actions that are insignificant in comparison to the scale and damage caused by a hybrid war.

scholarly journals New Paradigm of Indonesian Criminal Law Policy to Formulate Sanctions for Cases of Customary Crimes

2021 ◽  
Vol 8 (2) ◽  
pp. 275-291
Author(s):  
I Made Wirya Darma
Keyword(s):  
Criminal Law ◽  
Secondary Data ◽  
Legal Framework ◽  
Criminal Code ◽  
Law Reform ◽  
New Paradigm ◽  
Library Research ◽  
The Future ◽  
Severe Punishment ◽  
Legal Substances

Legal politics examines changes within present law due to consistent demands and needs of people. Legal politics continue to develop the rule of law, from the Ius Constitutum, which is based on the previous legal framework, to the formulation of the law in the future, the Ius Constituendum. The Indonesian 2019 draft of Criminal Code formulates customary sanctions as the fulfillment of customary obligations in several articles. These articles provide a new paradigm of criminal law policy to formulate criminal law reform in the future for customary sanctions in cases of customary crimes. The study used normative juridical or library research on normative legal substances. It aims to reveal the truth based on scientific logic from the normative side by examining library materials or secondary data consisting of primary and secondary legal materials. The results show that the fulfillment of customary obligations can be expected to become criteria or signs/guidelines for judges to determine “law that lives in society” or “The Living Law” as a source of law (material legality) in the future. It is a form of new paradigm in the renewal of customary criminal law. Thus, customary (criminal) law can become (1) a positive source of law, in the sense that customary criminal law (sanctions) can be the legal basis to examine cases at the Court; and (2) negative sources of law, in the sense that the provisions of customary criminal law (sanctions) can be justified reasons, reasons for mitigating punishment or providing more severe punishment.

scholarly journals Aspek Religius dalam Pembaharuan Hukum Pidana melalui Politik Hukum Nasional

2021 ◽  
Vol 23 (1) ◽  
pp. 27
Author(s):  
Brian Septiadi Daud ◽  
Awaluddin Awaluddin
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Legal System ◽  
Research Method ◽  
Holistic Approach ◽  
Law Reform ◽  
Law System ◽  
Legal Thinking ◽  
Religious Aspects

The purpose of writing is to see about the Indonesian National Law System which is based on Pancasila, especially precepts I, and also to see the accommodation of religious aspects in carrying out Criminal Law Reform through National Law Politics. The research method used in this paper is normative juridical research. The results of research in creating a Pancasila-based legal system can be carried out by applying the juridical-religious principle (for the sake of justice based on divinity) not just a formality of decisions but a substantive / material justice. Then also the paradigm of legal thinking from positivistic to positistic-empirical, which is necessary to make genuine science and law enforcement more useful, including the use of a holistic approach by taking into account the conditions of society. And in carrying out a good reform of the National Criminal Law, it is better to look at religious-based aspects / values ​​and create policies that are in accordance with society in general.

scholarly journals Kebijakan Penjara pada Pidana Ringan dalam Hukum Pidana Yang Berkeadilan dan Berkeindonesiaan

Wajah Hukum ◽  
2021 ◽  
Vol 5 (2) ◽  
pp. 629
Author(s):  
Sahabuddin Sahabuddin ◽  
Warfian Saputra
Keyword(s):  
Cultural Values ◽  
Criminal Law ◽  
Legal System ◽  
Law Reform ◽  
Criminal Sanctions ◽  
The Future ◽  
Dutch Colonial

There are quite a lot of problems faced by this nation in creating a just legal system regarding minor crimes (tipiring), this is because a legal system adopted by Indonesia today is a Dutch colonial heritage that is not in accordance with Indonesian cultural values, not to mention the problems The current legal system is based on the origin of written legality which is very rigid, causing the values that live in society to be increasingly eroded. For this reason, there is a need for a policy in criminal law reform in the future that is fair and Indonesian, so that the use of criminal sanctions is more appropriate and efficient in tackling crime.

Historical Experience of Criminalization: to the Centenary of the Guiding Principles on Criminal Law of the RSFSR

2019 ◽  
pp. 31-35
Author(s):  
Ivan Kozachenko
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Historical Experience ◽  
Law System ◽  
Political Situation ◽  
Historical Method ◽  
Advantages And Disadvantages ◽  
Concept Planning ◽  
Guiding Principles ◽  
Definition Of

The creation of the Guiding Principles on the Criminal Law of the RSFSR of 1919 is studied taking into account extremely complicated internal and external political situation in the country at the beginning of the twentieth century. Using the methods of analysis, synthesis, as well as comparative and historical method, the author determines the significance of the Guiding Principles in the law system of the young Soviet state. Some key norms of the document are examined. In particular, the definition of criminal law is analyzed and its advantages and disadvantages are identified. It is noted that the definition of a crime was formulated too broadly, and more significant steps in criminalization of different acts were made with the adoption of the RSFSR Criminal Code of 1922. It is indicated which persons were not punished according to the Guidelines. Attention is drawn to the way in which such a method of protection as necessary defense was set forth in this act. The Guiding Principles are not without certain disadvantages: for example, the institution of complicity is not sufficiently disclosed, there is lexical redundancy in the definition of the concept «planning the offence». However, the discrepancies between the main provisions covered in the Guidelines are explainable and excusable, taking into account the historical situation at the time of their adoption. The analyzed document became the basis for Russian criminal law, and some of its provisions are still relevant.

Killing through negligence and its distinction with other kinds of murder

2021 ◽  
Author(s):  
Vladimir Myslivyy ◽  
Angelina Mykyta
Keyword(s):  
Criminal Law ◽  
Human Life ◽  
Criminal Liability ◽  
Criminal Code ◽  
The State ◽  
Sufficient Information ◽  
Main Body ◽  
Common Features ◽  
Criminal Offenses ◽  
The Common

Problem setting. According to Art. 27 of the Constitution of Ukraine, everyone has an inalienable right to life, no one can be arbitrarily deprived of life, and the state, in turn, is obliged to protect human life. Protection of a person’s life, as a duty of the state, is manifested in the establishment of criminal liability, enshrined in Section II “Criminal offenses against life and health of a person” of the Criminal Code of Ukraine, who commit socially dangerous acts. whether there are criminal offenses and what punishments they should be committed. The distinction between crimes such as premeditated murder and negligent deprivation of another’s life is important, as criminal law theory still does not have sufficient information on this issue and does not have a complete list of features of the above crimes, but we tried to identify them in our article. Target of research. Deepening their knowledge on the caution of a person’s life due to inconsistency and drawing the line between possible offenses and conditional authority, clarifying the special characteristics of the perpetrator and the victim, outlining the essential features of the perpetrator and the victim, and researching the regulation of negligent proposal of a new version of the Criminal Code of Ukraine. Analysis of resent researches and publications. The theoretical basis for the study of the problem of murder through negligence are the works of legal scholars, in particular, M. Bazhanov, V. Borisov, S. Borodin, V. Glushkov, O. Gorokhovskaya, I. Zinchenko , V. Tyutyugin, O. Us, E. Kisilyuk, V. Kuts, M. Yefimov, S. Likhova, V. Stashis, V. Shablisty and others. Article’s main body. According to Art. 3 of the Constitution of Ukraine, man, his life and health, honor and dignity, inviolability and security are recognized in Ukraine as the highest social value. Given this constitutional provision, the legislator should pay special attention to the criminal law protection of human life and health as the most important public relations. So it is no coincidence that considering such encroachments as one of the most dangerous in the criminal law dimension, the legislator established criminal liability for their commission in Section II “Criminal offenses against life and health” of the Special Part of the Criminal Code of Ukraine. Due to the high public danger and the high prevalence of criminal offenses against human life and health, criminal law theory and law enforcement practice are under increasing scrutiny. Thus, the analysis of judicial practice in recent years shows that, for example, among all murders (Articles 117-119 of the Criminal Code of Ukraine) the number of persons convicted of deprivation of life due to negligence is about 15 percent annually. In our opinion, it is also advisable to analyze the concept of “murder” by comparing the common and distinctive features of the offenses referred to in Art. Art. 115 and 119 of the Criminal Code of Ukraine. According to scientific results, we can conclude that these offenses have many common features. It is possible to understand the common features and preconditions for the spread of these types of offenses. Conclusions and prospects for the development. A study of issues related to the criminal law analysis of murder through negligence and its difference from other types of murder, shows that these acts encroach on the identical object, which is “human life as a set of social relations.” Unfortunately, nowadays the dynamics of offenses committed in Art. Art. 115 and 119 is intensifying, so consideration of their delimitation and characterization of their features is very important. The study examines the main features of these types of crimes, as well as analyzes some provisions of national law and proposes some adjustments to them.

scholarly journals QUALIFICATION OF CRIMES AGAINST LIFE: COMPARATIVE LEGAL ANALYSIS

2021 ◽  
Vol 1 (1) ◽  
pp. 61-67
Author(s):  
Olha Peresada ◽  
Keyword(s):  
Public Relations ◽  
Criminal Law ◽  
Human Life ◽  
Criminal Code ◽  
Legal Analysis ◽  
Right To Life ◽  
Special Part ◽  
Criminal Protection ◽  
The Moment ◽  
The Right

The article considers topical issues of definition and qualification of crimes against human life in Ukraine and abroad. It is proved that the problematic issue of criminal law protection of human life is a significant differentiation of approaches to determining the moment of its onset, which reflects the medical and social criteria for the formation of an individual who has the right to life. It is shown that Ukrainian criminal law gives a person the right to life from birth, while the correct approach is to recognize the beginning of human life and appropriate criminal protection from the moment of onset 10 days after conception, which is consistent with European experience (in particular, France) and sufficiently reflects the medical features of the period of formation of a full-fledged embryo. The article also addresses the issue of the fact that Section II of the Special Part of the Criminal Code of Ukraine combines encroachment on two different generic objects - public relations for the protection of life and public relations for the protection of personal health. This provision of the criminal law of Ukraine does not correspond to the international practice on this issue. In addition, it is reasonable to believe that the two relevant categories of the object of criminal encroachment cannot be considered similar, as such an approach in certain cases can significantly complicate the classification of a criminal offense. It is emphasized that, given the exceptional importance of criminal law protection of human life, it is necessary to formulate a separate section of the Special Part of the Criminal Code of Ukraine, which covers only crimes against life as the main object of criminal encroachment.

scholarly journals Sentencing Reform in Canada: Recent Developments

2019 ◽  
Vol 23 (3) ◽  
pp. 319-355 ◽  
Author(s):  
Julian V. Roberts ◽  
Andrew von Hirsch
Keyword(s):  
Criminal Law ◽  
Law Reform ◽  
Final Report ◽  
Sentencing Guidelines ◽  
Department Of Justice ◽  
Policy Issues ◽  
Sentencing Reform ◽  
Solicitor General ◽  
The Future ◽  
Recent Developments

Changes to the sentencing process in Canada are finally imminent. A number of reports in recent years have called for reforms in the area of sentencing and parole. In 1987, the Canadian Sentencing Commission released its final report Sentencing Reform: A Canadian Approach. This was followed in 1988 by the report of the Daubney Committee following its investigation into sentencing and parole. In addition to these proposals, the now-defunct Law Reform Commission of Canada, the Department of Justice and the Ministry of the Solicitor General all published reports containing reform proposals. In this article, the authors review recent events in the area of sentencing since the publication of the report of the Canadian Sentencing Commission. After a brief introduction, four principal policy issues are examined: (i) statutory statements of sentencing purpose; (ii) sentencing guidelines; (iii) the future of release on parole; (iv) the creation of a permanent sentencing commission for Canada. For each issue, the article critically examines the position taken by major players in the area of criminal law reform. The article concludes with a brief examination of Bill C-90, which recently received first reading, and which will be the object of further parliamentary scrutiny in the fall of 1992. In a subsequent article, the authors offer their own proposals to reform the sentencing of offenders in Canada.

scholarly journals ‘The Very Foundations of Any System of Criminal Justice’: Criminal Responsibility in the Australian Model Criminal Code

2017 ◽  
Vol 6 (3) ◽  
pp. 8-24 ◽  
Author(s):  
Arlie Loughnan
Keyword(s):  
Criminal Justice ◽  
Criminal Law ◽  
Criminal Responsibility ◽  
Criminal Code ◽  
Law Reform ◽  
Reform Process ◽  
Conceptual Level ◽  
Top Down ◽  
The Core ◽  
Reform Project

The Model Criminal Code (MCC) was intended to be a Code for all Australian jurisdictions. It represents a high point of faith in the value and possibility of systematising, rationalising and modernising criminal law. The core of the MCC is Chapter 2, the ‘general principles of criminal responsibility’, which outlines the ‘physical’ and ‘fault’ elements of criminal offences, and defines concepts such as recklessness. This paper assesses the MCC as a criminal law reform project and explores questions of how the MCC came into being, and why it took shape in certain ways at a particular point in time. The paper tackles these questions from two different perspectives—‘external’ and ‘internal’ (looking at the MCC from the ‘outside’ and the ‘inside’). I make two main arguments. First, I argue that, driven by a ‘top down’ law reform process, the MCC came into being at a time when changes in crime and criminal justice were occurring, and that it may be understood as an attempt to achieve stability in a time of change. Second, I argue that the significance of the principles of criminal responsibility, which formed the central pivot of the MCC, lies on the conceptual level—in relation to the language through which the criminal law is thought about, organised and reformed.

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