scholarly journals CRIMINAL ACT OF THEFT IN PENAL CODE PRESPECTIVE AND ISLAMIC LAW

2017 ◽  
Vol 2 (2) ◽  
pp. 140
Author(s):  
Ahmad Syafii
Keyword(s):  
Violent Crime ◽  
Criminal Law ◽  
Islamic Law ◽  
Criminal Code ◽  
Penal Code ◽  
Positive Law ◽  
The Family

Crime is regulated in Indonesian Criminal Code or positive law has been classified into several types of theft crimes, ranging from theft of ordinary crimes (Article 362 of the Criminal Code) punishable with imprisonment of five years, the crime of theft by weighting (Article 363 of the Criminal Code) punishable by a maximum imprison­ment of seven years, minor theft crimes (Article 364 of the Criminal Code) punishable with imprisonment of three months, theft and violent crime (Article 365 of the Criminal Code) threatened with imprisonment of twelve years, the crime of theft in the family (Article 367 of the Criminal Code) is absolutely not possible prosecution. In Islamic criminal law, crime is known as jarimah. Jarimah is any Syara’ prohibition which had been threatened with had punishment or ta’zir. Therefore in jarimah theft included under Islamic criminal law may be using cut hands had punishment {Surah Al-Maidah (5): 38}. Had punishment by cut the and is applied when reaching a predetermined nishab, while ta’zir law done if not fulfilled the terms of theft that requires had punishment.

scholarly journals Criminalization on Husband Wife Relationship towards Nushuz in the Perspective of Islamic Law and Criminal Code

2016 ◽  
Vol 4 (2) ◽  
pp. 64
Author(s):  
Oom Mukarromah ◽  
Asep Ubaidillah
Keyword(s):  
Domestic Violence ◽  
Criminal Law ◽  
Research Method ◽  
Islamic Law ◽  
Physical Violence ◽  
Criminal Code ◽  
Normative Approach ◽  
Positive Law ◽  
The Family ◽  
The Subject

The purpose of this study was to determine the criminalization law of nusyuz behavior both in Islamic law and the Criminal Code, and to know the relevance of Islamic law with the Criminal Code and Law No. 23 of 2004 in criminalization law of nusyuz behavior. The study used juridical normative approach in order to find the principle or the doctrine of positive law relevant to the issues studied, such as the opinions and ideas of jurists on the criminalization of the nusyuz behavior. This study used literature research method, which is a research conducted with data resources obtained from books or other writings relevant to the subject matter. The sources drawn from various works that discuss the problems of the family, the rights and protection of women, domestic violence and some literature on criminal law from the perspective of Islamic law and positive law. From the study, it can be concluded that: First, under the Islamic law, any form of physical violence against the wife is categorized in the form of jarimah (a criminal act) which is regulated in Islamic criminal law (fiqh jinayah). Second, in a substance, criminal law of physical violence against wife in the Domestic Violence Act is part of jarimah, a criminal act besides the soul. According to the Islamic criminal law, criminal act is classified into jarimah takzir.

scholarly journals Studi Komparatif Tindak Pidana Aborsi dalam Perspektif Hukum Article Positif dan Hukum Pidana Islam (Imam Madzhab)

2021 ◽  
Vol 1 (2) ◽  
pp. 204-213
Author(s):  
Moh. Faqih
Keyword(s):  
Criminal Law ◽  
Islamic Law ◽  
Secondary Data ◽  
Criminal Code ◽  
Research Approach ◽  
Legal Research ◽  
Medical Reason ◽  
Positive Law ◽  
Approach Method

The rise of promiscuity and free sex is the reason for a large number of abortion perpetrators in Indonesia. In the enactment of the law stipulated in the Criminal Code (KUHP) regarding abortion, it is very clear that abortion is prohibited as well as from the perspective of Islamic law it is forbidden to abort the fetus unless there is a medical reason that an abortion must be performed. However, in the opinion of Madzhab, there is still a classification of permissibility before the blowing of the spirit and the scholars agree that it is haram to abort the fetus after blowing the spirit. The research approach used in this study is the Normative Juridical Research Method, namely the approach method used in this study is the normative juridical approach or doctrinal legal research, which is legal research that uses secondary data sources. The results of the research conducted by the author are to provide insight to readers so that they better understand the meaning of abortion and also the punishment of the perpetrators of the crime of abortion both in terms of positive law and Islamic criminal law. In finding the comparison of the punishment between positive law and Islamic criminal law lies in the age limit of the fetus that is in the content of the sanction based on Islamic criminal law, the punishment is to pay ghurrah or diyat Kamilah Dari before the blowing of the spirit or after the blowing of the spirit.

scholarly journals TINJAUAN YURIDIS TENTANG GABUNGAN TINDAK PIDANA SEBAGAI HAL YANG MEMBERATKAN PIDANA Studi Kasus: Putusan Perkara Nomor:141/Pid.B/2018/PN Mrj (Pencurian)

2021 ◽  
Vol 3 (2) ◽  
pp. 212-226
Author(s):  
Failin Failin
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
Criminal Code ◽  
Deterrent Effect ◽  
District Court ◽  
Prison Sentence ◽  
Legal Certainty ◽  
The Family ◽  
Sense Of Justice

In criminal law there is no penalty if there is no wrongdoing, this basis is about the accountability of a person for the actions he has done. Therefore, in criminal law there are exceptions to such criminal liability, for example contained in Articles 48, 49, 50 and so forth. In addition, there are burdensome things that will be imposed on the accused for crimes committed, such as samenloop, recidive and so on. In the Muaro Sijunjung District Court there is one case concerning a combination of criminal acts, namely theft crimes accompanied by violence and moreover this theft is carried out among families (theft in the family). In this case the judge has decided the prison sentence for 6 (six) Years. But according to the analysis of the author there is no sense of justice for the victim because this perpetrator is the husband of the victim's child so that there is no deterrent effect for the perpetrator, the reason that there is no more theft in this family because no matter how small the crime committed by a person must be taken action in order to obtain justice and legal certainty. In principle, judges have the freedom to determine the measure of punishment to be imposed on the perpetrators of crimes, as long as it does not exceed the maximum provisions specified in the Criminal Code. Therefore, the sentencing of the accused for a combination of crimes committed by means of pure absorption Stelsel that is If a person commits several acts that are several delik each threatened with a different kind of criminal

THE SOCIALDANGEROUSOF SOME CRIMES AGAINST THE FAMILY IN CRIMINAL LAW AND THE ISSUES OF CRIMINALIZATION OF CERTAIN ACTS IN THIS AREA

2021 ◽  
Vol 6 (7) ◽  
pp. 87-96
Author(s):  
Zulkhumor Ibrokhimova ◽  
Keyword(s):  
Criminal Law ◽  
Family Relations ◽  
Disabled Persons ◽  
Criminal Code ◽  
Child Disclosure ◽  
The Social ◽  
The Family ◽  
Practical Standpoint ◽  
The Republic ◽  
Objective Side

This article deals with the social danger of some crimes against family and family relations in the Criminal Code of the Republic of Uzbekistan. From a scientific, theoretical and practical standpoint, the author analyzes the signs of the objective side of the elements of some crimes against the institution of the family, defined in Chapter V "Crimes against family, youth and morality" of the Criminal Code of Uzbekistan. In particular, such crimes as evasion from the maintenance of minors or disabled persons, evasion from the maintenance of parents, substitution of a child, disclosure ofthe secret of adoption, violation of the legislation on marriageable age were comprehensively considered. In addition, the issues of criminalization of certain acts against the family, which are not recognized as criminal in the Criminal Code, were raised and relevant proposals were presented

scholarly journals RELIGIOSITY IN CRIMINAL LAW: ISLAMIC PERSPECTIVE

2019 ◽  
Vol 4 (1) ◽  
pp. 1
Author(s):  
Abdurrahman Raden Aji Haqqi
Keyword(s):  
Criminal Law ◽  
Islamic Law ◽  
Common Law ◽  
The Body ◽  
Religious Ritual ◽  
Belief Statement ◽  
The Family ◽  
The Holy Quran ◽  
The Common ◽  
Human Kind

The fundamental premises of Islamic law are that Allah has revealed His will for human-kind in the Holy Quran and the inspired example of the Prophet Muhammad (Peace be Upon Him), and that society's law must conform to Allah's revealed will. The scope of Islamic law is broader than the common law or civil law. In addition to core legal doctrines covering the family, wrongs, procedure, and commercial transactions, Islamic law also includes detailed rules regulating religious ritual and social etiquette. In Islam, religiosity is not asceticism in monasteries nor is it chattering from the pulpits. Instead, it is behaving in a manner that is requested from the Creator under all circumstances, places and times, in belief, statement and actions. Historically, law and religion have never been completely separated. They have never been so independent as to achieve complete autonomy from each other. Religion has essentially been embodied in legal systems, even in those that have aspired to privatize religion. Based on this fact, this paper discusses such fact i.e religiosity on specific theme of Islamic law that is criminal law which means the body of law dealing with wrongs that are punishable in Islamic law with the object of deterrence.

scholarly journals Tindak Pidana Turut Serta Sebagai Perantara Suap Perspektif Hukum Pidana Islam

2018 ◽  
Vol 3 (1) ◽  
pp. 65-90
Author(s):  
Adeng Septi Irawan
Keyword(s):  
Economic Crisis ◽  
Criminal Law ◽  
Capital Punishment ◽  
The State ◽  
Penal Code ◽  
Positive Law ◽  
National Disaster ◽  
Muslim Scholars

Abstract: This article discusses about the sanction of criminal act as a bribery mediator under the perspective of Islamic Criminal Law. The criminal act as a bribery mediator is explained in the Penal Code in Article 55 Paragraph (1) ie those who do, who order to do, and who participate in doing the deed. The bribery crime is also described in Article 12 Sub-Article c of Law No. 31 year 1999 jo Law No. 20 year 2001 on the “eradication of corruption cases that punishment for the perpetrator of bribery, gratification, etc., will be imprisoned and/or sanction. Even in the specific provision, if corruption is done by causing harm to the state, such as a national disaster or at a time when the country is in a state of economic crisis, it can be subject to capital punishment. The purposes of applying punishment in positive law are to create certainty, justice, and legal benefit in Indonesia. The Islamic criminal law has made it clear that unlawful acts in bribery (isytirâk fî al jarîmah al-risywah) according to Muslim scholars are haram (unlawful). The punishment for the perpetrators of isytirâk fî al jarîmah al-risywah is ta'zîr. Keywords: Criminal act, bribery mediator, Islamic criminal law. Abstrak: Artikel ini membahas tentang sanksi tindak pidana turut serta sebagai perantara suap perspektif hukum pidana Islam. Tindak pidana turut serta dijelaskan dalam KUHP dalam pasal 55 ayat (1) yaitu mereka yang melakukan, yang menyuruh melakukan, dan yang turut serta melakukan perbuatan. Adapun tindak pidana suap dijelaskan dalam Pasal 12 huruf c UU Nomor 31 Tahun 1999 jo UU Nomor 20 Tahun 2001 tentang Pemberantasan Tindak Pidana Korupsi bahwa ancaman hukuman bagi pelakunya, baik itu suap, gratifikasi, dan lain-lain, akan dikenakan hukuman penjara dan/atau denda. Bahkan dalam ketentuan khususnya, apabila korupsi dilakukan dengan mengakibatkan bahaya bagi negara, seperti terjadi bencana nasional atau pada saat negara dalam keadaan krisis ekonomi, maka dapat diancam hukuman mati. Tujuan penerapan hukuman tersebut adalah menciptakan kepastian, keadilan, dan kemanfaatan hukum di Indonesia. Hukum pidana Islam telah menjelaskan bahwa perbuatan melawan hukum dalam turut serta suap (isytirâk fî jarîmah al-risywah) menurut para ulama adalah haram dan hukumannya adalah ta’zîr. Kata Kunci: Tindak pidana, perantara suap, hukum pidana Islam.

scholarly journals Islamic Law Analysis of Criminal Sanctions for Abortion in the Criminal Code: A Call for Reform

2021 ◽  
Vol 58 (1) ◽  
pp. 5398-5407
Author(s):  
Ishaq, Maratun Saadah
Keyword(s):  
Data Collection ◽  
Criminal Law ◽  
Islamic Law ◽  
Criminal Code ◽  
Criminal Sanction ◽  
Criminal Sanctions ◽  
Library Research ◽  
Legal Literature ◽  
Legal Sanctions

This study aims to contribute to Islamic law regarding the criminal sanction of abortion in the Criminal Code (KUHP) as an effort to reform Indonesian criminal law. The method used is comparison, with data collection carried out by library research, by studying Islamic legal literature, interpretation of the Quran (tafsir), hadith, Criminal Code, and the Draft of Criminal Code. The sanctions for abortion in articles 346, 347, 348 and 349 of the Criminal Code are only imprisonment, not accompanied by fines. According to Islamic law these sanctions are not sufficient, because they tend to make the perpetrators not deterred, as a result the purpose of punishment is not achieved. Therefore, it needs to be updated by including the value of Islamic legal sanctions in the form of fines (diat), so that the purpose of punishment can be achieved.

scholarly journals TINDAK PIDANA PENCURIAN PADA SAAT TERJADI BENCANA ALAM DALAM HUKUM PIDANA ISLAM DAN HUKUM POSITIF PERSPEKTIF MAQASID ASY-SYARI’AH

2020 ◽  
Vol 8 (1) ◽  
pp. 181-212
Author(s):  
Sudarti S
Keyword(s):  
Natural Disaster ◽  
Criminal Law ◽  
Analytical Methods ◽  
Criminal Code ◽  
Positive Law ◽  
Library Research ◽  
Religious Law

The victims of natural disasterswho commit theft cannot be immediately punished penalty in accordance with Islamic criminal law or positive law as contained in the Criminal Code. This study aims to analyze the problem of theft in the event of a natural disaster using the maqasid ash-sharia. This type of research is library research with descriptive analytical methods. The results showed that the daruriyyat aspect related to punishment for the perpetrators of theft was the aspect of maintaining property (ḥifż al-mal). This aspect is an aspect that is related to the obligation in the search for property lawfully without depriving others of their rights and managing property so that assets are maintained and functional in accordance with religious law.

scholarly journals Problema Penyerapan Adat oleh Pengadilan dan Pengaruhnya bagi Pembaruan Hukum Pidana Nasional

2018 ◽  
Vol 30 (3) ◽  
pp. 421
Author(s):  
Budi Suhariyanto
Keyword(s):  
Criminal Law ◽  
Criminal Code ◽  
Penal Code ◽  
Adat Law

AbstractThe draft of Penal Code Bill regulates the living law in society as a form of extension of legality principle, but in its elucidation, there is no further sufficient explanation  about the scope and qualifications of such thing. Thus, there have been some concerns regarding the issue of multi-interpretation in the enforcement of adat criminal law. Having a reflection on the reality of the judges’ interpretation in absorbing adat law while deciding the punishment in accordance with the living and developing justice in society, a further and deeper study in jurisprudence is required to reconsider and reformulate the adat criminal law values in the Draft of Criminal Code Bill. IntisariRancangan KUHP mengatur hukum yang hidup dalam masyarakat sebagai bentuk perluasan asas legalitas, tetapi dalam penjelasannya tidak diatur secara definitif tentang ruang lingkup dan kualifikasi yang memadai. Timbul kekhawatiran persoalan multi tafsir dalam penegakan hukum pidana adat. Bercermin dari realitas penafsiran hakim yang selama ini ada dalam menyerap hukum adat saat memutuskan pemidanaan sesuai dengan keadilan yang hidup dan berkembang di masyarakat, maka diperlukan kajian yang lebih mendalam terkait yurisprudensi yang ada sebagai pertimbangan melakukan reorientasi dan reformulasi nilai-nilai hukum pidana adat dalam Rancangan KUHP. 

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.

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