Kepastian Hukum Eksekusi dan Pembatalan Putusan Arbitrase Syariah Pasca Putusan Mahkamah Konstitusi Nomor 93/PUU-X/2012

Perkembangan pertumbuhan sistem ekonomi syariah, menuntut terhadap adanya penyesuaian-penyesuaian aturan hukum yang diberlakukan, khususnya terkait dengan penyelesaian sengketa yang terjadi. Baik secara litigasi maupun secara non litigasi. Termasuk bagian upaya penyelesaian ekonomi syariah, adalah melalui badan arbitrase syariah. Namun dalam perspektif yuridis, aturan mengenai kewenangan memberikan putusan eksekusi dan pembatalan terhadap putusan arbitrase syariah masih terjadi dualisme antara Peradilan Umum dan Peradilan Agama. Hal ini mencerminkan adanya ketidakpastian hukum dalam masalah tersebut. Melalui penelitian hukum normatif atau penelitian hukum doktrinal ini, penelitian ini bertujuan untuk menemukan jawaban-jawaban yang benar dengan melakukan pembuktian kebenaran yang dicari dari preskripsi-preskipsi hukum yang tertulis dalam kitab Undang-Undang serta sumber hukum lainnya. Penelitian ini menggunakan pendekatan perundang-undangan (statute approach) dan pendekatan historis (historical approach). Penelitian ini difokuskan untuk mengkaji penerapan kaidah-kaidah atau norma norma dalam hukum positif tentang kepastian hukum pelaksanaan eksekusi dan pembatalan putusan arbitrase syariah, khususnya pasca Putusan Mahkamah Konstitusi Nomor 93/PUU-X/2012. Pertentangan norma hukum tentang kewenangan pelaksanaan eksekusi dan pembatalan putusan arbitrase tersebut, meskipun secara yuridis terdapat pertentangan, namun Mahkamah Agung telah melakukan langkah politik hukum untuk menyelesaikan dualisme kewenangan tersebut yang dapat menyelesaikan dalam jangka waktu pendek. Namun untuk penyelesaian jangka panjang, perlu adanya pembenahan terhadap peraturan perundang-undangan yang ada, guna menjamin kepastian hukum bagi para pencari keadilan.The development of the growth Islamic economic system requires the adjustments to the rule of law applied, particularly related to the settlements of disputes that occur, both litigation and non-litigation. One of the parts of efforts to solve sharia economics is through Islamic arbitration bodies. But in a juridical perspective, the rules regarding the authority to give execution decisions and cancellation of sharia arbitration decisions still occur between the General Justice and the Religious Courts. This reflects the legal uncertainty for the case. Through normative legal research or doctrinal legal research, this study aims to find the correct answers by carrying out the verification of the truth sought from the legal prescriptions written in the law and other legal sources. By using statute approach and historical approach, this research is focused on examining the application of norms in positive law regarding legal certainty in the execution and cancellation of sharia arbitration decisions, especially after the Decision of the Constitutional Court Number 93/PUU-X/2012. Contradicting legal norms regarding the authority to carry out the execution and cancellation of the arbitration decision, even though there is a juridical conflict, the Supreme Court has taken legal political steps to resolve the dualism of authority which can be resolved in the short term. Yet for long-term solutions, it is necessary to reform existing laws and regulations to ensure legal certainty for justice seekers.

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KEWENANGAN MENGUJI KONSTITUSIONALITAS PERATURAN DAERAH TERHADAP UUD 1945

Jurnal Magister Hukum Udayana (Udayana Master Law Journal) ◽

10.24843/jmhu.2015.v04.i04.p10 ◽

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.

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PENYELESAIAN SENGKETA EKONOMI ISLAM BERBASISKAN NILAI KEPASTIAN HUKUM

Jurnal Ius Constituendum ◽

10.26623/jic.v2i2.661 ◽

2017 ◽

Vol 2 (2) ◽

pp. 205

Author(s):

Misbahul Huda

Keyword(s):

Dispute Resolution ◽

National Economy ◽

Dispute Settlement ◽

District Court ◽

Legal Certainty ◽

Economic Instruments ◽

Business Law ◽

The Supreme Court ◽

Islamic Economic ◽

Religious Courts

PENYELESAIAN SENGKETA EKONOMI ISLAM BERBASISKAN NILAI KEPASTIAN HUKUM Misbahul HudaDosen Institute of Business Law and Legal ManagementABSRAKEkonomi islam sebagai salah satu instrumen ekonomi indonesia telah menwarkan sebuah sistem yang tepat bagi keberlangsungan ekonomi nasional. Namun dalam praktiknya, sistem ekonomi islam mestinya masih perlu dilakukan perbaikan yang salah satunya dalam sistem penyelesaian sengket. Selama ini dalam praktinya sesuai dengan perundang-undangan penyelesaian sengketa dilakukan oleh pengadilan agama, akan tetap masih terbukanya peluang dalam penyelesaian segketa melalui pengadilan negeri telah membuka peluang besar bagi terciptanya ketidakpastian hukum. Disinilah perlunya mahkamah agung memberikan penegasan yang berkaitan hal-hal masalah sengketa ekonomi islam diselesaikan melalui pengadilan agam dan secara khusus kewenangan tersebut bersifat mutlak sehingga nilai penyelesaian sengketa ekonomi islam nantinya dapat berbasiskan nilai kepastian hukum. Keyword : sengketa, ekonomi islam dan kepastian hukum. ISLAMIC ECONOMIC DISPUTE SETTLEMENT BASED ON THE VALUE OF LEGAL DEFINITION Misbahul HudaLecture Institute of Business Law and Legal ManagementAbstractIslamic economics as one of the economic instruments in Indonesia has offered a system that is right for the sustainability of national economy. But in practice, the Islamic economic system should still need to be repaired, one of them is in the system of settlement of clutch. So far, in practice in accordance with the dispute resolution legislation carried out by religious courts, there is open opportunities in the dispute settlement through the district court. It has opened up great opportunities for the creation of legal uncertainty. This is where the necessity of the Supreme Court to provide affirmations related to issues of economic disputes of Islam. It is resolved through religious courts and specifically the authority is absolute, so that the value of Islamic economic dispute resolution will be based on the value of legal certainty.Keyword: dispute, Islamic economy and legal certainty.

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The Paradigm of the General Principles of Good Governance as Examination Method of Indonesian Presidential Impeachment based on the Perspective of Ethical Control

PADJADJARAN Jurnal Ilmu Hukum (Journal of Law) ◽

10.22304/pjih.v7n2.a1 ◽

2020 ◽

Vol 07 (02) ◽

pp. 141-157

Author(s):

Nadir Nadir

Keyword(s):

House Of Representatives ◽

Good Governance ◽

Constitutional Court ◽

Legal Certainty ◽

New Paradigm ◽

Legal Research ◽

Positive Law ◽

Examination Method ◽

Legal Case ◽

Legal Discovery

This study aims to reveal the paradigm of General Principles of Good Governance as a method of examination for Indonesian presidential impeachment based on the perspective of ethical control. This study employed the method of legal research. It was carried out to reveal principles and basis of (dogmatic or doctrinal) philosophy of positive law. In addition, the study is legal discovery in-concreto that is feasible to be applied to resolve a certain legal case. This study exposes that one of the legal reasons for the termination of the President of Indonesia is despicable deeds. It is determined as an act of President that degrade human characters. Hermeneutically, the meaning of “despicable deeds” may cover criminal acts and ethical actions. Therefore, the meaning of “despicable deeds” in this study is limited into acts of ethics infringement related to the General Principles of The Good Governance. The President can be terminated from the office when there is a violation to the General Principles of the Good Governance since the principles are the ethical principles of government. The principles contain honesty, accuracy, purity, balance, and legal certainty. These principles are the items that bring solution and reference for the House of Representatives (DPR) and the People’s Consultative Assembly (MPR) and the Constitutional Court. Theoretically, there is no norm, either of the 1945 Constitution or of other regulations, which limit the interpretation of “despicable acts” as a reflection of the acts of the President to be classified into ethical conducts. Therefore, the application of the General Principles of Good Governance as method of examination for the presidential impeachment is a new paradigm from the perspective of ethical control in Indonesia.

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Penyelesaian Sengketa Ekonomi Syariah di Pengadilan Agama pada Masa Pandemi Covid-19

Al-Kharaj : Jurnal Ekonomi, Keuangan & Bisnis Syariah ◽

10.47467/alkharaj.v4i2.697 ◽

2021 ◽

Vol 4 (2) ◽

pp. 542-556

Author(s):

Muhamad Hasan Mafruh ◽

Muhammad Iqbal Fasa ◽

Ahmad Kumedi Ja'far

Keyword(s):

Dispute Resolution ◽

Descriptive Study ◽

Court Decision ◽

Islamic Banking ◽

Constitutional Court ◽

The Supreme Court ◽

Qualitative Descriptive ◽

The Government ◽

Islamic Economic ◽

Religious Courts

The authority to adjudicate sharia economic disputes has absolutely become the authority of the Religious Courts since the issuance of Law No. 3/2006 concerning Amendments to Law No. 7/1989 concerning Religious Courts and strengthened by Law No. 21/2008 concerning Sharia Banking and the Constitutional Court Decision No. 93/PUU-X/2012. Every year, Islamic economic transactions always increase, even though during the pandemic, Islamic banking in Indonesia grows positively. However, the higher and increasing sharia economic transactions in Indonesia, the more disputes that occur. During the current covid-19 pandemic, the government has issued regulations regarding restrictions ranging from PSBB to PPKM. The purpose of this research is to encourage the emergence of sharia economic dispute resolution innovations, especially in the Judiciary during the Covid-19 pandemic without having to violate the Health protocol. This study uses a qualitative descriptive study, which uses literature studies quoted from books and regulations, both laws and other regulations, as well as direct research into the field to see the realities on the ground related to the settlement of sharia economic disputes during the pandemic. The results in this study indicate that the Supreme Court responds quickly to the rules and policies issued by the government by launching an e-court application and investigation (electronic trial). There are many benefits and conveniences that are felt by people seeking justice, especially parties in sharia economic disputes. However, there are still some obstacles experienced by the Religious Courts and justice seekers in electronic proceedings.

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Execution of Security Rights in Islamic Banking at The Religious Court of Purbalingga

International Conference of Moslem Society ◽

10.24090/icms.2016.2413 ◽

2016 ◽

Vol 1 ◽

pp. 287-297

Author(s):

Nita Triana

Keyword(s):

Field Research ◽

Economic Security ◽

Islamic Banking ◽

Actual Situation ◽

Legal Research ◽

Security Interest ◽

Final Verdict ◽

Islamic Economic ◽

Religious Courts

This article examines the execution of a security interest in Islamic banking in the Islamic economic disputes in the Purbalingga Religious Court. The case of non-performing loans in the world of Islamic banking is often the case, this was due to the debtor defaults. Mortgages used as collateral can be executed based on the decision of the Religious Court. The method used in this research is a kind of field research with the approach of Socio Legal Research, including in the realm of non-doctrinal study. The results show the execution of a security interest in dispute sharia economy in Purbalingga Religious Court has been run in accordance with the mandate of the Act: On the substance of the Implementation of the decision of execution is the end of a case that is the result of what is required by the plaintiff are determined in a court of Religion with using the guidelines do not separate from the disciplinary proceedings contained in HIR or Rbg. On the Structure of Purbalingga Religious Court carry out executions by institutions that are available from the start to the filing of the petition to the Chairman of the Religious Courts, judges who will examine the final verdict, Executor who will call and will execute and when the auction Clerk role of the mentor State Property Office and Auction (KPKNL). Culturally law. Purbalingga Religious Court carry out the execution-based approaches to religion and culture. This approach proved to facilitate execution. Obstacles that faced in general, form, creditors often receive a guaranteed land and buildings where the land certificate is no longer appropriate to the actual situation, the Debtor is not willing to leave the place right dependents, barriers to the sale of objects auction execution which does not go unsold objects auction / auction. Constraints that normally occurs in the execution of this economic security rights dispute, can be resolved by various reinforcement structures / institutions and culture through the law chosen by the Purbalingga Religious Courts.

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KEWENANGAN BADAN PENGAWAS PEMILU DALAM PENANGANAN PELANGGARAN ADMINISTRASI DITINJAU DARI PERSPEKTIF SISTEM PERADILAN INDONESIA

Audito Comparative Law Journal (ACLJ) ◽

10.22219/aclj.v2i2.16207 ◽

2021 ◽

Vol 2 (2) ◽

pp. 74-85

Author(s):

Alasman Mpesau

Keyword(s):

Supreme Court ◽

Descriptive Analysis ◽

Supervisory Board ◽

Electoral System ◽

General Election ◽

Judicial Power ◽

Constitutional Court ◽

State Institutions ◽

The Supreme Court ◽

Religious Courts

In the General Election and Regional Head Election Law, the Election Supervisory Board (Bawaslu) has the authority supervisory to each Election stages, it is the center for law enforcement activities of the Election (Sentra Gakkumdu) to criminal acts and carrying out the judicial functions for investigating, examining, and decided on administrative disputes of General Election and Regional Head Election. With the Bawaslu’s authority then placed as a super-body institution in the ranks of the Election Management Body, due to its essential role in building a clean and credible electoral system, it also has potential for abuse of power within it. In Law no. 48 of 2009 concerning Judicial Power has defined state institutions that have the authority to administrate judicial functions. These are the Supreme Court and Judicial Bodies that under its lines of general court, Religious Courts, Military Courts, Administrative Court (PTUN) and the Constitutional Court. The research method is normative juridical, that focuses on the analysis of the laws and regulations on General Election, Regional Head Elections and the Law on Judicial Power. The analytical tool is descriptive analysis, by describing the main issues, an analysis is carried out that was supported by case-approach related to the research. The study concludes that Bawaslu in carrying out judicial functions in its position as a semi-judicial institution has not a hierarchical relationship to the Supreme Court (MA) and the Constitutional Court (MK); however, what does exist is functional relationship.

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Konstruksi Nalar Rechtvinding Hakim dalam Pemberian Izin Poligami yang Berkeadilan Gender dalam Putusan Pengadilan Agama Jombang No. 0899/Pdt.G/2016/PA.Jbg

AL-HUKAMA ◽

10.15642/alhukama.2019.9.2.496-517 ◽

2019 ◽

Vol 9 (2) ◽

pp. 496-517

Author(s):

Abdullah Taufik ◽

Ilham Tohari

Keyword(s):

Content Analysis ◽

Research Method ◽

Islamic Law ◽

Gender Justice ◽

Legal Research ◽

Analysis Techniques ◽

Positive Law ◽

The One ◽

Legal Discovery ◽

Religious Courts

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.

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The Legal Status of Appraisal of Materials Guarantee for Bancruptcy Process of Indonesia

JOURNAL OF SOCIAL SCIENCE RESEARCH ◽

10.24297/jssr.v16i.8787 ◽

2020 ◽

Vol 16 ◽

pp. 1-12

Author(s):

Anne Rusiana ◽

Jamal Wiwoho ◽

Adi Sulistiyono

Keyword(s):

Research Method ◽

Legal Status ◽

Legal Certainty ◽

Legal Research ◽

Positive Law ◽

Legal Case ◽

The Status ◽

The Law ◽

Legal Discovery ◽

As If

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.

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ANALISIS PUTUSAN KEPAILITAN MAHKAMAH AGUNG NOMOR 769 K/PDT.SUS-PAILIT/2016 MENGENAI PEMBERESAN HARTA PAILIT (BOEDEL PAILIT)

Jurnal Hukum Adigama ◽

10.24912/adigama.v2i1.5271 ◽

2019 ◽

Vol 2 (1) ◽

pp. 1015

Author(s):

Selly Virginia ◽

F. X. Suyud Margono

Keyword(s):

Rapid Development ◽

Legal Research ◽

Medium Term ◽

Short Term ◽

Business World ◽

Business People ◽

Accounts Payable ◽

The Supreme Court

The progress of the economy in Indonesia is currently experiencing very rapid development, giving rise to very tight competition between business actors. In the business world the need for funds is a basic necessity that must be met by businesses to maintain and support the continuity of their business activities, so that to overcome the problem of capital needs, loan capital in the form of accounts payable is a solution that is often taken by businesses. Of course business people need funds or capital to strengthen their position in the economic sphere and intense competition in this era of globalization. Funds or capital needed by business people to run their businesses are obtained from debt facilities (loans or loans) obtained through individuals or financial institutions, which are used to increase their business capital both in the form of short-term, medium-term and long-term debt. This paper identifies one problem, namely whether someone / person is not declared bankrupt can be made bankrupt? (Case Study of Decision of the Supreme Court Number 769 K / Pdt.Sus-Pailit / 2016). The method used in this study is a type of analytical descriptive legal research and uses primary and secondary legal materials. The results of the study show that the property of a person or person referred to herein is the property of the Director (along with 2 partners) who at the beginning had made an agreement in order to make the asset in the name of The Hwie Gwan a guarantee by both parties.

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Axiological Aspects of Anthropological and Social Sources of Law Formation

University Scientific Notes ◽

10.37491/unz.79.12 ◽

2021 ◽

pp. 123-131

Author(s):

Olena ZHURAVSKA

Keyword(s):

Human Dignity ◽

Social Practice ◽

Public Perception ◽

Constitutional Court ◽

Legal Norms ◽

The Public ◽

Positive Law ◽

Proposed Model ◽

Social Idea ◽

Legal Restrictions

The article analyses some axiological aspects of anthropological and social sources of law formation through the analysis of the system, which includes social (legal) values and principles of law. It is emphasized that such division and delimitation are quite conditional, since principles provide for the requirement of guidance by values. Significant social idea that has become a legal value is reflected in the principle of law, and is governed by law. It has been proved that the legitimacy of positive law in a modern state-organized society, which is characterized by such phenomena as the rule of law and civil society, is directly related to the extent to which it reflects social values. The source of law becomes in demand if the proposed model of behaviour provides protection, provision, reproduction of socially recognized value that is important to society. The public significance of the behaviour model receives legal support, public perception and reproduction in the course of social practice. Over time, the most important legal values are transformed into the principles of law and are concretized in legal norms. Among the most expressive legal values that are clearly reflected in international and national law there is human dignity, freedom, justice and equality. Human dignity is the basic idea of humanism, which proclaims the protection of a person, his/her rights and freedoms; the satisfaction of his/her interests and needs. In the national legal system, this value is reflected in the Constitution, which recognizes a person, his/her life and health, honour and dignity as the highest social value. The Constitutional Court of Ukraine recognizes human dignity as a system-forming value and a source of human rights. Freedom includes the issue of potential and real ability of a person to be a subject of law, reflected in the form of such principles of law as general permission and special permission. Justice as a legal value is a special mechanism for maintaining the balance of legal values, a means of justifying and recognizing legal restrictions, a criterion for assessing legal phenomena and institutions. Equality in law is understood today as equality of opportunities and is reflected in the form of the following interrelated aspects: equality before the law; equality before the court; equality of rights, freedoms and responsibilities of a person and citizen.

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