INTERPRETASI MODERN MAKNA MENYALAHGUNAKAN WEWENANG DALAM TINDAK PIDANA KORUPSI

2020 ◽  
Vol 12 (3) ◽  
pp. 327
Author(s):  
A'an Efendi
Keyword(s):  
Supreme Court Decision ◽  
Administrative Law ◽  
Legal Certainty ◽  
Legal Research ◽  
Conceptual Approach ◽  
Core Element ◽  
The Core ◽  
The Supreme Court ◽  
Definition Of ◽  
Contemporary Interpretation

ABSTRAKKetiadaan kejelasan makna menyalahgunakan wewenang sebagai bagian inti tindak pidana korupsi dalam Pasal 3 Undang-Undang Nomor 20 Tahun 2001 (UU PTPK), berimplikasi pada kewajiban bagi hakim yang menerapkan pasal tersebut terhadap kasus konkret (kasus tindak pidana korupsi), untuk melakukan interpretasi guna menemukan apa makna yang sebenarnya. Penelitian ini fokus pada masalah interpretasi modern untuk menemukan makna menyalahgunakan wewenang dalam tindak pidana korupsi. Tipe penelitian yang digunakan adalah penelitian hukum doktrinal dengan pendekatan peraturan perundang-undangan, pendekatan konseptual, dan pendekatan kasus. Penelitian ini menghasilkan kesimpulan: pertama, menyalahgunakan wewenang dalam tindak pidana korupsi berdasarkan UU PTPK harus ditafsirkan dalam konteks tindak pidana dalam ruang lingkup hukum pidana bukan hukum administrasi. Kedua, Putusan Mahkamah Agung Nomor 977 K/Pid/2004 yang menafsirkan makna menyalahgunakan wewenang dalam Pasal 3 UU PTPK dengan mengambil alih konsep menyalahgunakan wewenang dalam hukum administrasi adalah tidak tepat. Menafsirkan menyalahgunakan wewenang dalam Pasal 3 UU PTPK sama dengan menyalahgunakan wewenang dalam hukum administrasi, berimplikasi pada dualism pengaturan dan penyelesaian menyalahgunakan wewenang, dan hal ini berakibat pada tidak adanya kepastian hukum.Kata kunci: interpretasi modern; menyalahgunakan wewenang; korupsi. ABSTRACT The lack of clarity on the definition of the term “abusing authority” as the core element of corruption, as stated in Article 3 of Law Number 20 of 2001 (PTPK Law), implies the obligation for judges who apply the article against concrete cases to interpret the real meaning. This research focuses on the problem of modern (contemporary) interpretation to find the purpose of abusing the authority in corruption. The type of research is doctrinal legal research with the legislation approach, conceptual approach, and case approach. This research concludes: First, abusing authority in corruption must be interpreted in the context of criminal acts within the scope of criminal law rather than administrative law. Second, the Supreme Court Decision Number 977 K/Pid/2004 that understanding the meaning of abusing authority in Article 3 of the PTPK Law by taking over the concept of abusing authority in administrative law is inappropriate. Interpreting the term “abusing authority” in Article 3 of the PTPK Law is similar to that in administrative law, can be implicated in the dualism of regulation and resolution of this problem, and this can cause the absence of legal certainty. Keywords: modern interpretation; abuse of authority; corruption.

scholarly journals Menakar Tujuan Hukum dibalik Putusan MA No. 46 P/HUM/2018 Yang Pro Koruptor

2019 ◽  
Vol 4 (2) ◽  
pp. 99-134
Author(s):  
Nurlindah Nurlindah ◽  
A. Sugirman ◽  
Rosita Rosita
Keyword(s):  
Islamic Law ◽  
Supreme Court Decision ◽  
Vice President ◽  
Legal Certainty ◽  
Legal Research ◽  
Conceptual Approach ◽  
Track Record ◽  
General Elections ◽  
Election Commission ◽  
Executive Body

In welcoming 2019 concurrent general elections, the General Election Commission issued PKPU No. 20 of 2018, one of which banned former convicts of corruption from becoming legislative candidates on the grounds that corruption is an extraordinary offense that is commonly practiced by legislators both individually and in congregation. The regulation is stated in Article 4 paragraph (3) PKPU No. 20 of 2018 concerning Nominations for Members of DPR, Provincial DPRD and Regency / City DPRD. However, the regulation was canceled with the issuance of Supreme Court decision No. 46 P / HUM / 2018. Based on this, the limitation of the problem of this research is how to measure the aspects of the legal objectives behind the decision No. 46 P / HUM / 2018 which are more pro-corrupt so that they can understand the judge's decidendi ratio in canceling the prohibition of ex-convicts from becoming legislators. This type of research is normative legal research with a statutory approach and conceptual approach. The theoretical basis in the presentation of research results is the theory of legal goals by Gustav Radbruch namely justice, certainty and usefulness which is compared with Islamic law. The results of this study indicate that the Supreme Court's consideration overturned PKPU No. 20 of 2018 because it is considered contrary to Article 240 of Law No. 7 of 2017 concerning General Elections and Article 12 of Law No. 12 of 2011 concerning Formation of Laws and Regulations. The Supreme Court's considerations in the a quo ruling contain the three legal objectives. However, it is more inclined to legal certainty, so it does not reflect the value of justice that lives in the community. The cause of not achieving the values of justice that live in the community in the a quo decision is because the basis for testing the regulation is Law No. 7 of 2017 concerning General Elections does not prohibit such matters, even though the nomination rules on the executive body namely the President and Vice President require that they do not have a bad track record. Likewise when viewed from Islamic law which requires legislative candidates called ahlul ahli wal aqdi must have a fair way which means having integrity and a good image in the society.

scholarly journals Standard Issuance of Circular Letters in The Implementation Of Judicial Power

2018 ◽  
Vol 54 ◽  
pp. 03021
Author(s):  
Rahadi Wasi Bintoro ◽  
Abdul Shomad ◽  
Trisadini Prasastinah Usanti
Keyword(s):  
Supreme Court ◽  
State Institution ◽  
Administrative Law ◽  
Judicial Power ◽  
Legal Research ◽  
Conceptual Approach ◽  
State Institutions ◽  
The Supreme Court

Circular issued by state institutions in the framework of the freies ermessen principle. Circular in administrative law is known as policy regulation/ belleidsregel. The Supreme Court as a state institution also has the authority to issue circular letters. This paper focused on the standard circular issued by the Supreme Court. This paper was legal research that was carried out with the statute approach and conceptual approach. Based on the analysis, circulars issued by the supreme court contained restrictions, namely that they should not influence the judge in examining the case.

scholarly journals KEWENANGAN MENGUJI KONSTITUSIONALITAS PERATURAN DAERAH TERHADAP UUD 1945

2015 ◽  
Vol 4 (4) ◽  
Author(s):  
Indah Permatasari
Keyword(s):  
Judicial Review ◽  
Constitutional Court ◽  
Constitutional Rights ◽  
Legal Certainty ◽  
Legal Research ◽  
Conceptual Approach ◽  
Local Regulation ◽  
Constitutional Review ◽  
Analysis Techniques ◽  
The Supreme Court

The local government is given authority by the constitution to establish local regulations. Problems are arise when there are local regulation that not compatible with the constitution. The next question that arises is who is authorized to examine local regulations that not compatible with the constitution. In contrary with those considerations, the substantial problems are formulated into two, regulations about examine local regulations with the constitution and  who is authorized to examine local regulations with the constitution. This legal research is normative legal research. This research used the statute approach and conceptual approach. Legal materials analysis techniques that are used in this research are description and interpretation techniques. There is no regulation about examine local regulations with the constitution. The way that can be done to examine local regulations with the constitution is lodge a judicial review to the Supreme Court and than lodge a constitutional review to the Constitutional Court. The other way to do is through a constitutional complaint, but this mechanism is not owned by the Constitutional Court. The establishment of examine local regulations with the constitution is important to provide legal certainty and the protection of constitutional rights to the citizens.

scholarly journals Creating Legal Certainty in Sharia Banking Law Systems through the Embodiment of Sharia Compliance Principle

2017 ◽  
Vol 8 (4-1) ◽  
pp. 153-159
Author(s):  
Muh. Nasikhin ◽  
L. M. Hayyanul Haq ◽  
Zainal Asikin ◽  
Keyword(s):  
Literature Review ◽  
Extensive Literature ◽  
Legal Certainty ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Core ◽  
Extensive Literature Review ◽  
Core Issues ◽  
Islamic Values

Abstract This work is aimed at creating legal certainty sharia compliance arrangements in sharia banking law systems. This idea is highly required to improve the credibility of the sharia-based business activities. Certainly, this study is relevant to solve some normative problems in regulating and managing of the sharia banking activities, particularly regarding sharia compliance. In detail those normative problems can be seen from the inconsistence and ambiguous norms, conflicted norms and legal vacuum in regulating sharia compliance principle. To visualize and elaborate the above issues, these works apply normative legal research, where all data are collected through intensive and extensive literature review. Those data will be analysed by philosophical, statute and conceptual approach. The core issues that will be elaborated in this work are: (i) formulating Islamic values to the some relevant sharia banking law principles; (ii) some normative problems construction of sharia compliance principles in sharia banking law systems; (iii) reconstructing of regulating sharia compliance principles to creating legal certainty. At the end, this work will offer appropriate model in coherence those normative problems in order to creating legal certainty in managing and regulating sharia banking law.

DISSENTING OPINION PUTUSAN SENGKETA MEREK PIERRE CARDIN INDONESIA MELAWAN PIERRE CARDIN PERANCIS DALAM KAJIAN HUKUM ISLAM: Studi Putusan Mahkamah Agung Nomor 557 K/Pdt.Sus-HKI/2015

JURISDICTIE ◽  
2017 ◽  
Vol 8 (1) ◽  
pp. 91
Author(s):  
Masrifatun Mahmudah
Keyword(s):  
Supreme Court ◽  
Supreme Court Decision ◽  
Court Decision ◽  
Bad Faith ◽  
Conceptual Approach ◽  
Trademark Law ◽  
The Supreme Court

<p>This article intents to examine the dissenting opinion in the judges consideration on the Supreme Court Decision No. 557 K/Pdt.Sus-HKI/2015. This article is normative research with statute approach dan conceptual approach. The legal material on this research consist of primery legal materials namely Law No. 15 of 2001 on Trademark and Supreme Court Decision No. 557 K/Pdt.Sus-HKI/2015, while the secondary legal materials are books, journals, research related to trademarks. The judge decide to reject the application of Pierre Cardin because the petition of Pierre Cardin has passed a period of five years from the registration of Pierre Cardin Indonesia. However, the conclusion of this study revealed that Pierre Cardin entitled to be protected because it is a well-known mark. Finally, Pierre Cardin Indonesia has violeted the terms of article 4 jo article 6 paragraph (1) letter b of Trademark Law because he has a bad faith and had imitated the well-known mark.</p>

scholarly journals Kekuatan Yuridis Akta Konsen Roya Yang Dibuat Oleh Notaris Sebagai Syarat Pencoretan Hak Tanggungan

Acta Comitas ◽  
2021 ◽  
Vol 6 (01) ◽  
pp. 117
Author(s):  
Putu Silkyamara Nandha Rossana ◽  
Dewa Gede Pradnya Yustiawan
Keyword(s):  
Legal Certainty ◽  
Legal Research ◽  
Conceptual Approach

This study aims to find out and anayze the capacity and the juridical power the deed of consent roya made by a notary as a condition for withdrawal of mortgage rights. This study uses normative legal research with approached by statue and conceptual approach. Based on the findings, it is known the deed of consent roya is a notarial deed which has a functions as a substituted for the lost mortgage certificate, functions as a condition for the write-off ot the mortgage rights. As for the juridicial power of the deed of consent roya can be seen from the perspective of legal certainty where the notary act a role in making the deed to fulfil roya process as the National Land Office and can be a concrete proof that the debt has been paid off and has been written off. Tulisan ini bertujuan untuk mengetahui dan menganalisis mengenai kapasitas serta kekuatan yuridis akta konsen roya yang dibuat oleh notaris sebagai syarat pencoretan hak tanggungan. Studi ini menggunakan metode penelitian hukum normatif dengan menggunakan pendekatan perundang-undangan dan pendekatan konseptual. Berdasarkan hasil temuan, diketahui bahwa akta konsen roya merupakan akta notariil yang memiliki kapasitas sebagai pengganti sertifikat hak tanggungan yang hilang, yang berguna sebagai syarat pencoretan hak tanggungan. Adapun mengenai kekuatan yuridis akta konsen roya dapat dilihat dari perspektif kepastian hukum yang mana notaris berperan dalam pembuatan akta tersebut guna memenuhi proses roya di Kantor Pertanahan Nasional dan dapat dijadikan alat pembuktian yang konkrit bahwa utang sudah lunas dan telah dihapuskan.

scholarly journals Kepastian Hukum Jumlah Modal Dasar Pendirian Perseroan Terbatas Setelah Berlakunya PP Perubahan Modal Dasar Perseroan Terbatas

Acta Comitas ◽  
2020 ◽  
Vol 5 (2) ◽  
pp. 340
Author(s):  
Ida Bagus Putra Pratama ◽  
I Made Dedy Priyanto
Keyword(s):  
Research Method ◽  
Government Regulation ◽  
Limited Liability ◽  
Company Law ◽  
Limited Liability Company ◽  
Legal Certainty ◽  
Legal Research ◽  
Conceptual Approach ◽  
Basic Capital ◽  
Before And After

Research on legal certainty the amount of basic capital establishment of limited liability company based on the norms of conflict between article 32 paragraph (1) of the limted liability company law concerning "the limited liability company capital of at least Rp 50,000,000.00" with article 1 paragraph (3) of government regulations The limited liability of the company's capital of limited liability concerning "the founding capital of the company is determined by agreement”. 2 problem are formulated: (1) What is the form for deposit of stock capital on the provisions of article 33 of the limited liability company law, (2) How is the legal certainty of the number of basic capital of the limited liability After the validity of government regulation change of the limited liability company. This purpose research is finding form of the deposit of stock capital and the basic capital of the limited liability company before and after enforcement of government regulation of limited liability of the company. The legal research method used normative legal research method with statute approach and conceptual approach. Capital deposits of shares can be made in the form of money and other forms of immovable tangible objects such as land and intangible objects in the form of bill of Rights; and arrangements regarding the underlying capital applicable in the establishment of the limited liability company is Article 1 paragraph (3) of government regulation of the limited liability of the company.

scholarly journals Regulation of Foreigner Stay Permit as Director of Limited Liability Company and Investor in Foreign Investment

2021 ◽  
Vol 8 (2) ◽  
pp. 89-100
Author(s):  
Tri Sutjiati ◽  
Ida Ayu Sadnyini
Keyword(s):  
Foreign Worker ◽  
Limited Liability ◽  
Foreign Workers ◽  
Limited Liability Company ◽  
Legal Certainty ◽  
Legal Research ◽  
Conceptual Approach ◽  
Presidential Decree ◽  
The Board Of Directors ◽  
Ideal Framework

Based to Article 10 Paragraph (1) on Regulation Ministry of Manpower Number 10 Year 2018 Concerning Procedure of Employ Foreign Worker says that employer of the foreign worker is not required to possess any EPP (working permit) to employ foreign workers who are shareholders with the position of the board of directors or board of commissioners, as it is stated before on Article 10 Paragraph (1) Presidential Decree No. 20 Year 2018 Concerning Foreign Worker. Nevertheless, the facility for investors to possess stay permits in Indonesia which is mentioned in Article 22 Paragraph (3), Regulation of Ministry of Justice and Human Rights Number 51 Year 2016 Concerning Change of Regulation Number 24 Year 2016 Concerning Technical Procedures for Application and Issuance of Visit Visas and Limited Stay Visas, says that the investor prohibited working. This study aims to investigate the procedure and the regulations that govern temporary stay permits of directors and foreign investors in Indonesia. The method used in this study is normative legal research and meanwhile, statute approach and conceptual approach are used as the approach of this study. The results of this study showed that 1) higher norms govern action, as to create lower norms, governs realization of action. Presidential Decree has a higher position in the hierarchy from Ministry Regulations. 2) ideal framework of statutory regulations shall consist of a balance portion of justice, legal certainty and finality.  

scholarly journals Legal Offerings Increase the Effectiveness of Determination of Coercive Money and Administrative Sanctions on State Administrative Decisions

2021 ◽  
Vol 5 (1) ◽  
Author(s):  
Mutiara Hamdalah ◽  
Yudha Chandra Arwana ◽  
Asna Yusrina
Keyword(s):  
Legal Protection ◽  
Legal Culture ◽  
Administrative Law ◽  
The State ◽  
Legal Certainty ◽  
Legal Research ◽  
Law System ◽  
Administrative Sanctions ◽  
Administrative Justice

Legal Offers In Improving the Effectiveness of Forced Money Determination Efforts and Administrative Sanctions On the warning of a valid verdict that is not carried out by the defendant. The assessment of the formulation of the problem in this study is how the legal culture in Indonesia to the application of Article 116 paragraph (4) of Law No. 51 of 2009 on State Administrative Justice. In this paper the author also provides an understanding of the comparison of the State Administrative Law system (Indonesia) with Verwaltungsgerecht (Germany) in order to realize legal justice for the community. By using paradigms in terms of epistemological and axological aspects. In the implementation has not been found a special authority in overseeing the existence of the State Administrative Decision (KTUN) that has been validly decided by the judge, there are still some cases of defendants who do not carry out the warning of the verdict against the verdict. The defendant must pay forced money or administrative sanctions against it. From these cases, there should be special authority in supervising the KTUN that has been decided by the judge. The author in this paper offers a legal offer to improve the effectiveness in the implementation of the KTUN in improving legal certainty and guarantee of legal protection in the field of State Administrative Justice. The authors of this paper use descriptive doctrinal research methods, descriptive legal research that explains what should be communicated with the law in the review of das sollen and das sein.

scholarly journals The Problematics of Simple Lawsuit Implementation To Reduce Civil Cases In Supreme Court

AL-HUKAMA ◽  
2020 ◽  
Vol 10 (1) ◽  
pp. 171-194
Author(s):  
Bambang Sugeng ◽  
Zahry Vandawati Ch.
Keyword(s):  
Supreme Court ◽  
Low Cost ◽  
Simple System ◽  
State Court ◽  
Legal Research ◽  
Conceptual Approach ◽  
The Supreme Court ◽  
Civil Cases ◽  
Court Proceedings ◽  
Court Process

This research has purpose to analyze the implementation of a simple lawsuit settlement to reduce the accumulation of civil cases in the Supreme Court. Also to analyze the constraints and obstacles in the application of simple claim resolution to reduce the buildup of civil cases and investigate the constraints and obstacles in the application of simple claim resolution to reduce the buildup of civil cases. This research is normative legal research that used the approach of statute approach and conceptual approach. The result of this research indicated that the implementation of simple lawsuit mechanismin court process could be quite helpful for citizen to settle the civil cases on state court with a quick process, simple system and low cost. In the context of implementing a simple lawsuit mechanism in court proceedings, there are several obstacles and have not maximally utilized in society, such as the minimum limit for the value of material claims is at most Rp. 200,000,000.00 (two hundred million rupiahs).

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