scholarly journals RECONSTRUCTION OF PRINCIPLES OF LEGALITY IN CRIMINAL LAW BASED ON JUSTICE VALUE OF PANCASILA

2017 ◽  
Vol 4 (3) ◽  
pp. 307
Author(s):  
Muhammad Yahya Selma
Keyword(s):  
Criminal Law ◽  
Fourth Amendment ◽  
The State ◽  
State Law ◽  
Fundamental Change ◽  
Written Law ◽  
The Republic ◽  
Principle Of Legality ◽  
Unwritten Law

Amendment of the Constitution 1945 after the fourth amendment, reinforce the concept of the state law and put it in Article 1 paragraph 3 of the Constitution of the Republic of Indonesia in 1945 which reads : "The State of Indonesia is a state of law". The enactment of the provisions of Article 1 Paragraph (3) the Constitution of the Republic of Indonesia in 1945 brought a fundamental change to the principle of legality, which was previously law in Indonesia based on written law only, being based on written law and unwritten law or law that lives and grows in society. Law in Indonesia is based on the value of justice living in society based on the values of Pancasila.

scholarly journals POLITIK PLURALISME HUKUM DALAM HUKUM UNDANG-UNDANG KEKUASAAN KEHAKIMAN : KAJIAN TERHADAP PENGAKUAN HUKUM TIDAK TERTULIS DALAM UNDANG-UNDANG NOMOR 48 TAHUN 2009 TENTANG KEKUASAAN KEHAKIMAN

2012 ◽  
Vol 1 (2) ◽  
Author(s):  
Mohammad Jamin
Keyword(s):  
Key Words ◽  
Legal Pluralism ◽  
The State ◽  
Judicial Power ◽  
The Political ◽  
State Law ◽  
Political Unity ◽  
Written Law ◽  
Power Code ◽  
Unwritten Law

<p align="center"><strong>Abstract</strong></p><p><em>It is empirical fact in Indonesia not only has written  law which imposed by state power ( state law). Beside written law there is also unwritten law  which often called the non state law. Political of law to  uniting as one political unity and enforce the legal sentralism has disregarded the  fact of legal pluralism ( the political of ignorance). Political of law  of the Judicial Power Code  which imposed during the time does not clearly arrange the state recognation to unwritten law, even unwritten law is recognnized, but still very sumir and floating. Although  Code No. 48/2009 about Judicial Power adopt the politics of legal pluralism and recognizes the existence unwritten law, but it is still sham (weak legal pluralism), causing that in fact predominate the state law still happened and unwritten law only becoming complement to state law. Political forwards legal pluralism in   Judicial Power Code ideally is not made conditional. The   political legal  pluralism of Judicial Power Code must to adopt strong legal pluralism,  so can accommodate pluralism in society.</em></p><p><em>Key Words</em><em> : </em><em>Legal Pluralism</em><em>, </em><em>Judicial Power</em><em>, </em><em>Unwritten Law</em><em>.</em></p>

scholarly journals Copyright and Trademark Crimes in the Nordic Countries: Analysis from the Perspective of the Principle of Legality

2020 ◽  
Vol 8 (1) ◽  
pp. 30
Author(s):  
Laura Tammenlehto
Keyword(s):  
Criminal Law ◽  
Nordic Countries ◽  
The State ◽  
Moral Rights ◽  
Principle Of Legality

The principle of legality limits criminalisation in the Nordic countries. The purpose of the principle is to uphold the legitimacy of the penal authority of the state and to protect the rights of an accused by ensuring the clarity and foreseeability of the criminal law. The Nordic IPR crime provisions are extensive but determining the limits of criminalisation from them is difficult. This article focuses on the on the phrasing and style of the current Nordic copyright and trademark offences and analyses the extent to which these provisions fulfil the requirements of the principle of legality. Particular problem-causing elements in this legislation are multiple internal references and a blanket criminalisation technique combined with inaccurate definitions of objects of protection. Attention is given to three problematic aspects in the fields of copyright and trademark: copyrighted work threshold (teoskynnys/verkshöjd), moral rights, and establishing trademark through use.  

scholarly journals Rekonstruksi Politik Hukum Pidana Nasional (Telaah Kritis Larangan Analogi dalam Hukum Pidana)

2016 ◽  
Vol 12 (3) ◽  
pp. 524
Author(s):  
Tongat Tongat
Keyword(s):  
Criminal Law ◽  
Paradigm Shift ◽  
The State ◽  
Law Reform ◽  
Basic Principles ◽  
Draft Code ◽  
The Republic

A paradigm shift in the state of life—especially post the Constitution of the Republic of Indonesia 1945 amendments—have not been fully understood  properly. Up to now—included in the lawless life—is still a gap between the paradigm and its implementation . This paradigmatic gap visible example of the lack of a comprehensive implementation of the basic principles of the Constitution of the Republic of Indonesia 1945 in a national criminal law reform ( draft Code of Criminal Law ) . The draft Code of Criminal Law as one form of national criminal law reform is seen has not fully represent constitution demands. Prohibiting the   use of analogy in criminal law is still seen at odds with the provisions of Article 1 ( 3 ) of the Constitution of the Republic of Indonesia 1945. The gap is not only paradigmatic potential to cause difficulties in its application, but also potentially the cancellation clause in the legislation  concerned.

scholarly journals RECONSTRUCTION OF THE LEGALITY PRINCIPLE IN PENAL LAW ENFORCEMENT FOR THE REALIZATION OF JUSTICE

2018 ◽  
Vol 2 (1) ◽  
pp. 12
Author(s):  
Iskandar Wibawa
Keyword(s):  
Law Enforcement ◽  
Criminal Code ◽  
Court Decision ◽  
Important Principle ◽  
Penal Reform ◽  
Penal Law ◽  
Written Law ◽  
Principle Of Legality ◽  
Sense Of Justice ◽  
Unwritten Law

<span>The legality principle is an important principle in the enforcement of penal law </span><span lang="IN">in addition to</span><span> the culpability principle. These two principles are a requirement that must be fulfilled by the person to be penalized. However, law enforcement officers in the Criminal Justice System often only pay attention to the formulation of the legality principle in Article 1 (1) of the Criminal Code (KUHP)</span><span lang="IN"> than the other principle that is culpability principle. </span><span>So that court decisions often do not reflect a sense of justice. This is due to the interpretation of the legality principle contained in Article 1 paragraph (1) of the Criminal Code (KUHP) as </span><span lang="IN">“</span><span>lex scripta</span><span lang="IN">”</span><span>, </span><span lang="IN">“</span><span>lex stricta</span><span lang="IN">”</span><span> and </span><span lang="IN">“</span><span>lex certa</span><span lang="IN">”</span><span> and </span><span lang="IN">also the unformulated </span><span>culpability principle in the Criminal Code (KUHP). Therefore, it is necessary to reconstruct the meaning of the legality principle so that it is not only understood formally, but </span><span lang="IN">materially by regarding </span><span>the living la</span><span lang="IN">w</span><span> referred to Pancasila as </span><span lang="IN">a </span><span>ground</span><span>norm and constitution of the UUD 1945, the legality principle is not interpreted </span><span lang="IN">as a</span><span> certainty of law </span><span lang="IN">but </span><span>interpreted as the principle of legal certainty. The law is not</span><span lang="IN"> only</span><span> interpreted </span><span lang="IN">as</span><span> a written law, but also an unwritten law, so it is expected to bring about a court decision in accordance with the sense of justice</span><span lang="IN">.</span><span>In law enforcement </span><span lang="IN">“</span><span>in abstracto</span><span lang="IN">”</span><span> implemented through formulation policy by penal reform in the formulation of a New Criminal Code (New KUHP), the principle of legality has been interpreted in material term that states that the source of law used by the Criminal Code is written law (Article 1) and unwritten law/ the living law (Article 2), also the culpability principle has been formulated explicitly (Article 38</span><span lang="IN">)</span><span>. Based </span><span lang="IN">“</span><span>in abstracto</span><span lang="IN">”</span><span> law enforcement is expected to be implemented </span><span lang="IN">“</span><span>in inconcreto</span><span lang="IN">” </span><span>law enforcement so as to realize court decision in accordance with the sense of community justice.</span>

scholarly journals The Legal Aspect of The Implementation of Dual Citizenship In Indonesia: Demands Of The Diaspora

2021 ◽  
Vol 3 (3) ◽  
pp. 1329-1337
Author(s):  
Emma Desy Wulansari ◽  
Nafi Oktavia Farikha ◽  
Thomas Yanuar Joko Prabowo ◽  
Swastika Prima Yunita
Keyword(s):  
Civil Rights ◽  
International Relations ◽  
Legal Aspect ◽  
The State ◽  
State Law ◽  
Residence Permit ◽  
Dual Citizenship ◽  
Agents Of Change ◽  
The Republic ◽  
The Government

The demand of the Diaspora for the enactment of dual citizenship has not been fulfilled by the Indonesian Government since the state still subscribes to the principle of “one person one citizenship.” This single citizenship principle has been adhered to since the independence of Indonesia, stemming from the 1945 Constitution as the highest state law, Law no. 3 of 1946 on Citizens and Residents of the State, Law no. 62 of 1958 on the Citizenship of the Republic of Indonesia, up until the Law no. 12 of 2006 as the current Citizenship Law of the Republic of Indonesia, which is currently applicable. In the present, the Government has issued a policy alternative in the form of Indonesian Overseas Card to ensure the civil rights of citizens and foreigners of Indonesian national descent who reside overseas so that they can enjoy facilities in Indonesia. This policy is also intended to revise the validity period for Visit Visa to be applicable for several visits and the period of residence permit, specifically for foreigners who are former citizens of Indonesia and their families, as a means of accommodating the diaspora’s demands. With the issuance of the policy, there is a recognition towards the existence of the Indonesian diaspora overseas as one of the non-state actors for international relations and as agents of change for their homeland.

scholarly journals Relevansi Hukum Pidana Adat Dalam Pembaharuan Hukum Pidana di Indonesia

2015 ◽  
Vol 10 (2) ◽  
pp. 195
Author(s):  
Galuh Faradhilah Yuni Astuti
Keyword(s):  
Indigenous Peoples ◽  
Criminal Law ◽  
The State ◽  
Customary Law ◽  
Law Reform ◽  
Criminal Offense ◽  
Community Or ◽  
Key Issues ◽  
The Law ◽  
Principle Of Legality

Penelitian ini mengkaji dua persoalan pokok. Pertama, relevansi Hukum Pidana Adat sebagai kontribusi dalam pembaharuan Hukum Pidana di Indoneisa. Kedua, penerapan hukum dalam penyelesaian tindak pidana berdasarkan Hukum Pidana Adat di Suku Tengger. Hasil penelitian ini menunjukkan bahwa kontribusi Hukum Pidana Adat, berupa penyelesaian perkara di luar pengadilan atau mediasi penal yang dilakukan masyarakat atau masyarakat adat secara turun temurun, sudah relevan dengan pembaharuan Hukum Pidana di Indonesia. Praktik semacam ini selaras dengan nilai dan cita-cita Bangsa Indonesia, sesuai dengan sila keempat Pancasila sebagai dasar negara. Selain itu selaras dengan ide keseimbangan Hukum Pidana, teori sifat melawan hukum, pemenuhan kewajiban adat serta perluasan asas legalitas. Masyarakat Adat Suku Tengger menggunakan mediasi penal sebagai alternatif pertama dalam menyelesaikan perselisihan atau tindak  pidana yang terjadi pada daerah mereka, kemudian menyerahkan kepada pihak yang berwajib ketika mediasi penal tidak mencapai kesepakatan yang adil. <br /><br /><br /><em>This study examines two key issues. First, the relevance of Criminal Customary Law as a contribution to the renewal of Criminal Law at Indoneisa. Second, application of the law in the resolution of a criminal offense under the Criminal Customary Law in Tengger tribe. These results indicate that the contribution of Criminal Customary Law, in the form of settling disputes out of court or penal mediation conducted community or indigenous peoples from generation to generation, it is relevant to the Criminal Law reform in Indonesia. Such practices are aligned with the values and ideals of the Indonesian nation, according to the fourth principle of Pancasila as the state. Moreover tune with the idea of the balance of the Criminal Law, the theory of nature against the law, customary obligations fulfillment and expansion of the principle of legality. Indigenous Peoples Tengger tribe using penal mediation as the first alternative in resolving disputes or criminal acts that occur in their area, and then handed over to the authorities when the penal mediation does not reach a fair deal.</em>

scholarly journals ASAS LEGALITAS DALAM DOKTRIN HUKUM INDONESIA: PRINSIP DAN PENERAPAN

2011 ◽  
Vol 10 (2) ◽  
pp. 67-79 ◽  
Author(s):  
Dwi Afrimeti Timoera
Keyword(s):  
Criminal Law ◽  
Written Law ◽  
Principle Of Legality

The principle of legality is a principle which determines that no act which is prohibited and punishable by criminal if not determined in advance in legislation. This principle is usually known as nullum delictum nulla poena sine praevia lege (no offense, no crime without law first. There are four principles of legality that is, the lex scripta (written law), lex chert (which includes criminal law), nonretroaktif (rule not retroactive) and analogy.

Reconstructing Malice in the Law of Punitive Damages

2021 ◽  
Vol 0 (0) ◽  
Author(s):  
Marc O. DeGirolami
Keyword(s):  
Criminal Law ◽  
Tort Law ◽  
The State ◽  
Punitive Damages ◽  
State Law ◽  
Object A ◽  
History Of ◽  
The Subject ◽  
The Common ◽  
Private Wrongs

Abstract Punitive damages present two related puzzles. One concerns their object. If they are punitive, their object is to punish tortfeasors. If they are damages, their object is to compensate tort victims. If they are both, the problem is to reconcile these different objects in applying them. A second puzzle involves their subject. Punitive damages are awarded for egregious wrongdoing. But the nature of that egregiousness is nebulous and contested, implicating many poorly understood terms. The two puzzles are connected, because the subject of punitive damages will inform their object. Once we know the type of wrongfulness that punitive damages deal with, we can understand better whether and how they are punishing, compensating, or both. This Article reconstructs one of punitive damages’ central subjects: malice. In so doing, it clarifies one key object of punitive damages: to offer redress to a victim of cruelty. Malice is a ubiquitous textual element in the state law of punitive damages. But there has been little scholarly commentary about what malice means for punitive damages. Drawing from the common history of tort and criminal law, this Article identifies two core meanings of malice: a desire or motive to do wrong, and a disposition of callous indifference to the wrong inflicted. Though distinct, these meanings broadly coalesce in the concept of cruelty. The Article argues that this reconstructed account of the wrong of malice represents a powerful justification for awarding punitive damages. Malice as cruelty as a justification for punitive damages also fits within a broader view of tort law as redress for specific private wrongs. But malice as a subject of punitive damages clarifies and enriches this account of their object. A victim of a tort done with malice, and who is aware of it, has been wronged more gravely than a victim of a tort done without malice and is, therefore, entitled to greater redress.

COMBATING CRIMES AGAINST ILLEGAL TRANSFERS OF PERSONS ACROSS THE STATE BORDER

2019 ◽  
pp. 226
Author(s):  
Andris Salcevičs
Keyword(s):  
Criminal Law ◽  
Criminal Liability ◽  
The State ◽  
Refugee Crisis ◽  
Migration Control ◽  
The Republic

The refugee crisis has been a problem in Europe in recent years. Solutions are being sought to tackle this crisis. In order to migration control, it is important: breaking up the network of traffickers, protecting the border and disrupting the flow of migrants. Criminal liability is provided for the illegal transfer of persons across the State border in the Republic of Latvia. According to the author, the intentional illegal crossing of the State border and the illegal transfer of persons across the State border are closely linked criminal offences, as in most cases a person has been found to have crossed the State border illegally by illegally moving other persons across the State border, and the person becomes responsible not only under the Criminal Law 285.Article, but also in accordance with Article 284 of the Criminal Law. Criminal liability is proved for the illegal transfer of persons across the State border in the Republic of Latvia.

Sign in / Sign up

Export Citation Format

Share Document