scholarly journals ASAS KEADILAN DAN AHLI WARIS PENGGANTI DALAM PRAKTIK KEWARISAN MASYARAKAT BERDASARKAN HUKUM ISLAM DIKECAMATAN BANTAN KABUPATEN BENGKALIS

2018 ◽  
Vol 17 (1) ◽  
pp. 1
Author(s):  
Hasan Basri ◽  
Muhammad Azani

<p><em>This article analyzes the inheritance practices carried out by the community in Bantan District, Bengkalis Regency Based on Islamic Law. The research method used is a sociological legal research that discusses the application of positive law regarding the practice of community inheritance in Bantan District, Bengkalis Regency. The results showed: a. The community in Bantan Subdistrict turned out to be wrong in understanding the principle of balanced justice which was considered to be contrary to the sense of justice for the heirs. They understand the principle of balanced justice must be in the same sense. Whereas the meaning of the principle is that each heir, both male and female, has the same rights in obtaining inheritance rights. Men get more rights which do not mean unfair, but in Islamic law it stipulates that men are responsible for the burden of the family; b. The community in Bantan District in understanding radd in Islamic law does not fully refer to the KHI which is a reference in determining the law. They divide radd based only on habits that can be shared with the heirs who want it or the mosque; c. The community in Bantan Subdistrict considers that the heirs who passed away first from the heir, cannot be replaced by the heir's child. Whereas based on Article 185 paragraph (1) the KHI position of the heir can be replaced by the offspring of both male and female.</em></p>

2017 ◽  
pp. 1-14
Author(s):  
Hasan Basri ◽  
Muhammad Azani

This article analyzes the inheritance practices carried out by the community in Bantan District, Bengkalis Regency Based on Islamic Law. The research method used is a sociological legal research that discusses the application of positive law regarding the practice of community inheritance in Bantan District, Bengkalis Regency. The results showed: a. The community in Bantan Subdistrict turned out to be wrong in understanding the principle of balanced justice which was considered to be contrary to the sense of justice for the heirs. They understand the principle of balanced justice must be in the same sense. Whereas the meaning of the principle is that each heir, both male and female, has the same rights in obtaining inheritance rights. Men get more rights which do not mean unfair, but in Islamic law it stipulates that men are responsible for the burden of the family; b. The community in Bantan District in understanding radd in Islamic law does not fully refer to the KHI which is a reference in determining the law. They divide radd based only on habits that can be shared with the heirs who want it or the mosque; c. The community in Bantan Subdistrict considers that the heirs who passed away first from the heir, cannot be replaced by the heir's child. Whereas based on Article 185 paragraph (1) the KHI position of the heir can be replaced by the offspring of both male and female.


2018 ◽  
Vol 1 (1) ◽  
pp. 488
Author(s):  
Tetty Hariyati ◽  
Wahyuni Retnowulandari

The division of community property is a very essential issue in domestic life. Regarding the positive law taking in force in Indonesia, the division of community property for Islam is regulated in the Compilation of Islamic Law (KHI) where the Compilation of Islamic Law regulates the division of community property for both widowed (widowed and not remarried) and divorced (divorced and not remarried). The widowed is regulated in article 96 of the Compilation of Islamic Law and the divorced is regulated in article 97 of the Compilation of Islamic Law. If examined from these two articles, both equally regulates  if the marriage relationship broke up, the community property is divided for husband and wife, each will get a 50:50 part. However, this is different based upon  Decision Number 197K / AG / 2015 The division is greater for the wife of 60% and 40% for husband. In this case the problem raised here is how the regulation makes an arrangement for division of community property in dead condition without father and children (mati kalalah) under the law of inheritance in Indonesia and how the judge's consideration related to the division of community property in dead condition without father and children (case study: Decision number 197K / AG / 2015)? The author here used normative legal research method that is descriptive and primary and secondary data and also supported by interviews in this study.


Author(s):  
Yasir Nasution ◽  
Alyasa’ Abubakar ◽  
Kafrawi

The development of waqf assets in the form of adding the function of waqf is a new phenomenon in the problems of Islamic law jurisprudence even in positive law in Indonesia. In national law (positive), Indonesia has regulated this issue with the existence of laws and government regulations regarding waqf both movable and immovable waqf assets, even in its development every property in waqf must have an Deed and / or certificate. Whereas in Islamic jurisprudence, the development of waqf assets in the form of additional functions is one of the problems that can be said to be new, it needs legal conclusions and even has to be seen from various theoretical concepts such as maqashidu sharia. Therefore this research will examine the issue of developing waqf assets based on the Waqf Law and maqashid syari'ah. This research is an empirical legal research using a sociological legal approach, with data collection through documentation and interviews. The results of the research show that the development of waqf assets is permitted according to the law, but with the stipulated conditions, besides that the development of waqf assets is also permissible in Islamic jurisprudence as long as it is solely for reasons in accordance with the concept of maqasidu syari'ah and the point is to seek maslahat.  


AL-HUKAMA ◽  
2019 ◽  
Vol 9 (2) ◽  
pp. 496-517
Author(s):  
Abdullah Taufik ◽  
Ilham Tohari

The practice of polygamy in Indonesia until now has drawn criticism from some feminists who did not agree. But on the one hand, both Islamic law and positive law permit various conditions. In this case, the Religious Court (PA) becomes the last fence which becomes the determining point for a man to be able to polygamy. For this reason, researchers conducted a study of PA decisions on polygamy, namely Jombang PA Decision No. No. 0899 / Pdt.G / 2018 / PA.Jbg . The focus of the problem is (1) the value of gender justice in the decision and (2) reasoning rechtvinding(legal discovery) judge. The method used in this study is a normative-qualitative legal research method with content analysis techniques from Charles Purse. The results showed that the practice of polygamy licensing in the Religious Courts had actually gone through processes that reflected gender justice. This is reflected in the obligation of the Religious Court to summon the longest wife of the applicant for polygamy to be asked for willingness and information. The results of subsequent studies show that PA Jombang judges used hermeneutic techniques in making legal discovery efforts. Because, they not only focus on aspects of legality, but also consider the contextualization.


2020 ◽  
Vol 20 (2) ◽  
pp. 138
Author(s):  
Fakhrurrazi M.Yunus ◽  
Zahratul Aini

Abstrak: Dalam Undang-Undang Nomor 23 Tahun 2006 tentang Administrasi Kependudukan adanya Pasal yang mengatur tentang perkawinan beda agama, dalam Pasal 35 huruf (a) yang menyatakan bahwa perkawinan yang ditetapkan oleh pengadilan. Namun dalam Undang-Undang tersebut tidak diatur secara jelas, sehingga memberi peluang timbulnya dampak negatif. Namun yang diakui di Indonesia jika pasangan suami istri yang berbeda agama harus memeluk agama yang sama di salah satu pasangan dengan maksud mereka harus pindah agama baik memeluk agama istri maupun suami. Dengan adanya berbagai kemudharatan yang timbul, maka hal itu tidak sesuai dengan hukum Islam. Oleh karena itu, penulis ingin mengetahui dampak perkawinan beda agama yang diatur dalam Undang-Undang Nomor 23 Tahun 2006 tentang administrasi  kependudukan dan tinjuan hukum Islam terhadap perkawinan beda agama dalam Undang-Undang Nomor 23 tahun 2006. Dalam penelitian ini, metode penelitian yang digunakan adalah Kualitatif. Berdasarkan dari hasil penelitian, dampak dari perkawinan beda agama yaitu dampak terhadap rumah tangga yang tidak harmonis menimbulkan kegelisahan, dan sulitnya berkomunikasi. Dampak terhadap anak yang membuat hubungan antara keluarga yaitu anak dan orang tua menjadi kacau dan tidak utuh karena mengetahui kedua orang tuanya berbeda keyakinan. Dampak terhadap harta warisan yang mengakibatkan anak yang lahir dari perkawinan beda agama tidak mempunyai hak untuk mendapatkan harta warisan apabila tidak seagama dengan pewaris yang dalam hal ini pewaris beragama Islam. Adapun tinjauan hukum Islam menyatakan bahwa perkawinan beda agama itu tidak sah, karena menurut fatwa MUI Nomor:4/MUNASVII/MUI/8/2005 menetapkan bahwa nikah beda agama hukumnya haram yang diperkuat dengan firmannya dalam surat al-mumtahanah ayat 10 dan al-baqarah ayat 221.Abstract: in Law No. 23 of 2006 on the administration of the population of the article governing the marriage of different religions, in article 35 letter (a) stating that the marriage is established by the court. But the law is not regulated, so it allows causing negative impacts. But it is recognized in Indonesia if different couples of religion must embrace the same religion in one partner with the intention they have to move religion both embrace the religion of the wife and husband. With the various blessings that arise, it is not under Islamic law. Therefore, the author wants to know the impact of the marriage of different religions organized in law Number 23 the year 2006 about the administration of population and the Islamic law to the marriage of different religions in the law Number 23 the year 2006. In this study, the research method used was qualitative. Based on the results of the study, the impact of the marriage of different religions is the impact on the unharmonious households raises anxiety, and difficulty communicating. The impact on the child who makes the relationship between the family is the child and the parent becomes chaotic and not intact because knowing both parents are different beliefs. The impact on the inheritance that resulted in children born from the marriage of different religions does not have the right to obtain inheritance if not as religious as the heir, in this case, Muslim heirs. The review of Islamic law states that the marriage of different religions is not valid, because according to fatwa MUI number: 4/MUNASVII/MUI/8/2005 stipulates that the marriage of different religious religion is haram strengthened by his word in Sura al-Mumtahanah verse 10 and al-Baqarah verses 221.


2020 ◽  
Vol 16 ◽  
pp. 1-12
Author(s):  
Anne Rusiana ◽  
Jamal Wiwoho ◽  
Adi Sulistiyono

This research studies the legal status of a material guarantee for the bankruptcy process of Indonesia. The purpose of this research is to find out the legal status of whether the material guarantee that has been declared bankrupt by the appraisal because of not fulfill of repayment of the debtor to the creditor can be transferred on non-bankruptcy status? Moreover, what is the creditor's execution rights to the debtor's material guarantee? This research uses a normative legal research method, namely: legal research that is done with the purpose of discovering the principles and philosophical base (dogma or doctrine) of positive law, and the research of legal discovery efforts in concreto that is suitable to be implemented to solve a particular legal case. The result of this research is that material guarantees that have been determined as Bankruptcy cannot be transferred to their status when they are sold with a non-bankrupt status before a written decision by the judge justified the status. This shows obedience to the principles of legality and legal certainty, that selling the bankrupt assets with the status of (non-bankrupt assets) cannot be justified according to the law. If the curator still continues to sell the bankrupt assets, that process is illegal, including the execution of the selling according to the law. When it was being declared of bankrupt the total value of the material guarantee is assessed by the appraisal to be sufficient for paying all debts to the creditor, then it became the guarantee of repayment of the debtor, but if the value of the material guarantee valued by the appraisal is smaller than the debt, then there must be a reassessment in order to make justice for debtors and creditors. Mortgage-holding creditors, fiduciary guarantees, mortgage rights, mortgages, or other collateral rights, can execute their rights as if Bankruptcy did not occur, but there are several receivables that must be matched before executing their separatist rights.


2016 ◽  
Vol 4 (2) ◽  
pp. 64
Author(s):  
Oom Mukarromah ◽  
Asep Ubaidillah

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.


Author(s):  
Budi Suhariyanto

<p>Secara normatif hakim Indonesia disebut sebagai Penegak hukum dan keadilan tidak sebatas corong undang-undang. Hakim wajib untuk menemukan, menggali dan membentuk hukum yang sesuai dengan nilai dan rasa keadilan masyarakat. Secara teoritis pembentukan hukum oleh Hakim pun diakui sebagai salah satu sumber hukum formil dalam sistem hukum Indonesia dan dapat diakomodasi oleh DPR (Positif Legislator) dalam pembaruan undang-undang. Tulisan ini bermaksud untuk meneliti masalah eksistensi pembentukan hukum oleh hakim dalam dinamika politik legislasi (baik yang bersifat positif legislasi sebagaimana diwenangi oleh DPR bersama Presiden maupun negatif legislator yang diperankan oleh putusan Mahkamah Konstitusi). Dengan menggunakan metode penelitian hukum normatif, diperoleh kesimpulan bahkan dalam konteks tertentu Hakim didorong untuk melakukan pembentukan hukum baru yang berfungsi sebagai a tool of social engineering . Jika pembentukan hukum oleh Hakim diikuti secara konstan oleh Hakim lain maka dapat dijadikan sebagai sumber hukum formil dalam sistem hukum nasional (yurisprudensi).</p><p>Normatively in Indonesia, a judge is also known as the law and justice enforcement agency, not just decided cases based on written law. Judges are obliged to discover, explore and establish a legal system that suitable with local values and sense of justice. Theoretically Judge Decisions (known also as Jurisprudence) are also recognized as one of the source of formal lawsin the Indonesian legal system and can be accommodated by the Parliament (Positive Legislators) in the renewal of the law. This paper intends to examine the existence of the Judge made laws in dynamic-political process of legislation (whether positive legislation that is ruled by the House of Representatives and the President or negative legislator who are ruled by the Constitutional Court). Using a normative-legal research method, the conclusion even in the context of a particular judges are encouraged to establish anew legal construction that intended as a tool of social engineering. If the judge-made law is followed constantly by other judges, it can be used as a source of formal law in the national legal system (jurisprudence).</p>


Lentera Hukum ◽  
2017 ◽  
Vol 4 (1) ◽  
pp. 19
Author(s):  
Diana Aristanti ◽  
Dyah Ochtorina Susanti ◽  
Pratiwi Pusphitho Andini

Marriage can be over when one of the parties becomes apostate in which apostate may cause problems of housewifery. In this research, it argues that the judge adopts a verdict according to the Law Number 1/ 1974 and Compilation of Islamic Law. The article uses legal research which accords to the norms in the positive law including the judge decision. It concludes that apostate can affects the marriage and the children right to inheritance. Additionally, divorce may not be renewed except both conducts a new marriage. In pertaining to the children right to heritance, children could not inherit their apostate parent(s) because Islamic law determines that apostate can be the reason of losing the right to inheritance. Keywords: Divorce, Apostate, Adjudication, Children Right to Inheritance.


Al-Qadha ◽  
2020 ◽  
Vol 7 (1) ◽  
pp. 60-72
Author(s):  
Abdul Mufid

Juridical, theological, and philosophical differences in religion are one of the challenges for someone to become an heir. On the other hand, empirically historical-sociological is not the case, because there are reasons (illat) or other related to different religions to get the inheritance of Muslims who inherit using welfare factors. This research uses the normative legal research method. The author uses Gustav Radburch's theory of legal objectives governing justice, expediency, and legal certainty. Based on the results of the research found in the compilation of Islamic law is not available to the heirs who have been given apostasy. Religious differences as a barrier to inherit are specifically intended for heirs. So it can be concluded that Muslim heirs can inherit the assets of non-Muslim heirs, but not vice versa. In this study, non-Muslim heirs cannot inherit wealth from Muslim heirs, in order to fulfill a sense of justice and respect, these non-Muslim experts still obtain inheritance through mandatory wills which are processed through court determination. The will is obliged to be determined as a way out of giving the inheritance to non-Muslim heirs because the heir has died, and there is no other way to be able to transfer the heir's assets to the non-Muslim heirs.


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