scholarly journals EKSEKUSI OBJEK JAMINAN FIDUSIA PASCA PUTUSAN MAHKAMAH KONSTITUSI NOMOR 18/PUU-XVII/2019

2021 ◽  
Vol 6 (2) ◽  
pp. 39
Author(s):  
Wiwin Dwi Ratna Febriyanti
Keyword(s):  
Court Decision ◽  
Executive Power ◽  
Constitutional Court ◽  
Court Decisions ◽  
Legal Certainty ◽  
Conceptual Approach ◽  
Contract Breach ◽  
Breach Of Contract ◽  
Colonial Era ◽  
Legal Consequence

Fiduciary guarantees have existed in society since the Dutch colonial era because the fl exibility of objects that can be imposed by fi duciary increases the need for legal certainty for the guarantee of this model. UUJF requires the registration of fi duciary security to be imposed. Registration is carried out at the Ministry of Law and Human Rights to obtain a fi duciary certifi cate. The fi duciary certifi cate contains irah-irah which the power of execution so that the execution can be carried out immediately without going through a court and is final as explained in article 15 paragraph (2). In practice, this article often becomes a polemic in the community, causing actions against the law and even criminal acts when the fi duciary recipient wants to execute fi duciary collateral. After the decision of the Constitutional Court Number 18/PUU-XVII/2019, in its decision to redefi ne article 15 paragraph (2) and paragraph (3) UUJF, Based on this, this research discusses the executive power of the fi duciary security certifi cate after The Constitutional Court decision Number 18/PUU-XVII/2019. With statutory approach, and a conceptual approach, the conclusion is that the power of execution title in the fi duciary guarantee certifi cate is not changed, it’s just a legal consequence arising from the Constitutional Court decision number 18/PUU-XVII/2019, namely the implementation mechanism for the execution of the fi duciary guarantee certifi cate is carried out the same as the execution of court decisions that have permanent legal force (inkrah), when the grantor of fi duciary does not voluntarily surrender the object of fi duciary security under his control. Apart from that, it must be agreed by the parties regarding breach of contract. breach of contract should be detailed in the main agreement and the imposition of fi duciary security.

scholarly journals Constitutional Court of the Republic of Indonesia: Does the Ultra Petita Principle Reflect the Truth of Law?

FIAT JUSTISIA ◽  
2020 ◽  
Vol 14 (3) ◽  
pp. 261
Author(s):  
Bagus Hermanto ◽  
I Gede Yusa ◽  
Nyoman Mas Aryani
Keyword(s):  
Case Studies ◽  
Judicial Review ◽  
Court Decision ◽  
Constitutional Court ◽  
Court Decisions ◽  
Court Ruling ◽  
Conceptual Approach ◽  
Procedural Law ◽  
Legal Method ◽  
The Republic

Constitutional Court is one of the conductors in Indonesia’s judicial power as regulated by Article 24 (2) and Article 24C (1) through (6) of the 1945 Constitution of the Republic of Indonesia, that adjudicates at the first and last levels whose decision is final including in the context of judicial review in the Constitutional Court. The provisions of H.I.R. and R.Bg. firmly reflect one of the principles in the civil procedural law, namely ultra petita, that represent judges prohibition from making decisions beyond what is requested. However, the practice in the Constitutional Court found several Constitutional Court Decisions classified as ultra petita decisions so that there is an academic step to justify the existence of Constitutional Court ruling that determine as ultra petita decisions. This study aims to find the justification of the Constitutional Court in deciding ultra petita through a philosophical, theoretical and legal dogmatic perspective. This study used a normative legal method with the conceptual approach, case studies approach, and legislation or statutory approach. This study shows that based on characteristics of cases under the authority of the Constitutional Court, it cannot be said that the prohibition of ultra petita can be applied to justice in the Constitutional Court, both from a philosophical, theoretical, and legal dogmatic based on several Constitutional Court Decision.

scholarly journals The Existence of Islamic Norms in the Indonesia Constitutional Court Decisions No.22/PUU-XV/2017

Rechtsidee ◽  
2020 ◽  
Vol 7 ◽  
Author(s):  
Lindi Rohma Octavia ◽  
Rifqi Ridlo Phahlevy
Keyword(s):  
Legal Issues ◽  
Court Decision ◽  
Constitutional Court ◽  
Court Decisions ◽  
Legal Consequence

This study discusses the existence of Islamic norms in the Constitutional Court decisions. This study uses a case approach by examining the Constitutional Court decision no. 22 / PUU-XV / 2017. Data obtained from primary, secondary and tertiary data relating to legal issues in this paper. The main problem in this research is the consideration and decision of the Constitutional Court on the case decision No. 22 / PUU-XV / 2017 concerning marriage which is quite highlighted by the Indonesian people. What was tested in the a quo decision was article 7 paragraph (1) of Law No. 1 of 1974 concerning Marriage with article 27 paragraph (1) of the 1945 Constitution as a touchstone. In the a quo decision the petitioners argued that article 7 paragraph (1) was an article that was discriminatory for women. On the a quo decision, the panel of judges granted part of the petition's petition. the legal consequence of the Constitutional Court decision No. 22 / PUU-XV / 2017 is the emergence of Law No. 16 of 2019, amendments to Law No. 1 of 1974 concerning marriage

scholarly journals The Existence of Decision Norms of the Constitutional Court as a Source of Legislative and Executive Laws

Lentera Hukum ◽  
2019 ◽  
Vol 6 (2) ◽  
pp. 305
Author(s):  
Adhitya Widya Kartika
Keyword(s):  
Court Decision ◽  
Legal Norm ◽  
Constitutional Court ◽  
Court Decisions ◽  
Legal Certainty ◽  
Legal Norms ◽  
Government Institutions ◽  
Legal Response ◽  
The Government ◽  
Laws And Regulations

Norms are behavioral guidelines in the Indonesian legal state. Norms continue to exist in the legislation and juridical consequences of constitutional court decisions, and in particular, that of the Constitutional Court. Legal norms have principles that are applied to a wider hierarchy of legal norms and the production of legislation. In essence, the Constitutional Court's rulings have consequences on the actions of the government and therefore the action of governance. Including decision norms in the Constitutional Court's ruling has juridical consequences for the hierarchy of regulations and state legal actions in carrying out the function of government. This article aims to find out how to apply decision norms if there an identical or related decision exists within a different judicial institution. In government institutions bound by the Constitutional Court's decisions, application of decision norms resulted in chaos for the application and enforcement of the law. The implementing agency is faced with the same legal product, namely a verdict in another judicial institution. This causes no legal certainty. Rather than a solution or outcome, implementing agencies are faced with an identical legal response yet no legal certainty. The absence of legal certainty has consequences for government institutions that are bound by the Constitutional Court's decision. By utilizing a hierarchy of legal norms, the issue of rigidity and uncertainty caused by decision norms can be resolved. Likewise, in the legislature, the Constitutional Court's decision is the source of making legal norms. As the Constitutional Court’s decision is the source of legal norm production in the legislature, espousing a hierarchy of legal norms will enable laws and regulations that are formed to reflect justice, certainty and benefit. Keywords: Court Decision, Legal Norms, Government.

Implication Juridical Decision of The Constitutional Court No. 18/PUU-XVII/2019 Concerning Wanprestasi In the Fiducia Agreement

2021 ◽  
Vol 3 (1) ◽  
pp. 12-21
Author(s):  
Soleh Hasan Wahid ◽  
Harum Mudrikah Mahsun
Keyword(s):  
Legal Protection ◽  
Court Decision ◽  
Constitutional Court ◽  
Literature Study ◽  
Breach Of Contract ◽  
Library Research ◽  
Security Holder ◽  
Approach Method ◽  
Data Collection Technique ◽  
Research Type

The purpose of this paper is to criticize the Constitutional Court Decision Number 18 / PUU-XVII / 2019, which determines that the phrases "executorial power" and "are the same as court decisions having permanent legal force" in Article 15 paragraph (2) of Law Number 42 of 1999 concerning The Fiduciary Guarantee contradicts the 1945 Constitution. From the norms contained in this article, there is a power of execution that the fiduciary security holder can carry out (creditors), which then causes many problems, both related to the constitutionality of norms and implementation. Thus, the authors question two things, first how is the juridical analysis of the Constitutional Court decision No. 18 / PUU-XVII / 2019 regarding breach of contract in the fiduciary agreement? Second, what is the juridical implication of MK Decision No. fiduciary? The writer's research type is library research, a literature study (library research) with a descriptive qualitative research type. The data collection technique used was documentation techniques, and the approach method used in this study was juridical normative. The results of this study conclude that 1) The Constitutional Court's decision has not provided a sense of justice as in Article 27 paragraph (1) and Article 28D paragraph (1) of the 1945 Constitution, because in this Constitutional Court decision gives more exclusive rights to the debtor because in this case, the creditor does not get legal protection rights in the event of undesirable things (2) This decision has implications for various parties, namely the Court, which now often receives requests for execution and the process will be lengthy, for notaries must add and clarify default clauses in detail. For business people whose creditors (fiduciary recipients) cannot carry out unilateral execution of the object of fiduciary security but must submit a request for performance to the Court. There is a concern that lousy faith will occur from the community's debtor when the creditor is submitting a request for execution to the Court.

scholarly journals IMPLIKASI PUTUSAN MAHKAMAH KONSTITUSI NOMOR 11-017/PUU-I/2003 TERHADAP PERLINDUNGAN HUKUM HAK DIPILIH

2015 ◽  
Vol 4 (4) ◽  
Author(s):  
I Ketut Ngastawa
Keyword(s):  
Descriptive Analysis ◽  
Legal Protection ◽  
The State ◽  
The Body ◽  
State System ◽  
Court Decision ◽  
Constitutional Court ◽  
Political Rights ◽  
Conceptual Approach ◽  
The Right

Paper that had the title: "Juridical implications of the Constitutional Court Decision Number 011-017/PUU-I/2003 on the Legal Protection for the Rights to be Eelected." This explores two issues: 1) how the legal protection of the settings selected in the state system of Indonesia ; 2) what are juridical implications of the Constitutional Court Decision Number 011-017/PUU-I/2003 on the legal protection for the rights to be elected. To solve both problems, this paper uses normative legal research methods. Approach being used is the statute approach, case approach, and a conceptual approach. Further legal materials collected were identified and analyzed using descriptive analysis techniques. Legal protection for the right to be elected in the state system of Indonesia can be traced from the 1945 opening, the articles in the body of the 1945 Constitution, Article 27 paragraph (1), Article 28D (1) and paragraph (3) and Article 28 paragraph (3) 1945 Second Amendment, MPR Decree Number XVII/MPR/1998, Article 43 of Law Number 39 of 1999, Article 21 of the Universal Declaration of Human Rights, and Article 25 of the International Covenant  on Civil and Political Rights. Discussion of the juridical implications of the Constitutional Court Decision Number 011-017/PUU-I/2003 on the legal protection for the rights to be elected have been included: a) only on the juridical implications of representative institutions no longer marked with specified requirements as stipulated in Article 60 letter g of Law Number 12 Year 2003 in Law Number 10 Year 2008; b) juridical implications of the political field for the right to be elected is the absence of any discriminatory treatment in legislative product formed by the House of Representatives and the President as well as products of other legislation forward.

scholarly journals KONSEKUENSI YURIDIS PUTUSAN MAKAMAH KONSTITUSI NO. 46/PUU-VIII/2010 TERHADAP KEDUDUKAN ANAK ASTRA DALAM HUKUM ADAT BALI

2014 ◽  
Vol 3 (3) ◽  
Author(s):  
I Gede Pasek Pramana
Keyword(s):  
Research Method ◽  
Science And Technology ◽  
Customary Law ◽  
Court Decision ◽  
Systematic Evaluation ◽  
Constitutional Court ◽  
Biological Father ◽  
Normative Study ◽  
Conceptual Approach ◽  
The Law

This research aims to analyze about the significance of the Constitutional Court Decision No.46/PUU-VIII/2010 the position of anak astra in Bali customary law. The research method used is a normative study by selecting the type of statue approach and the conceptual approach. Sources of legal materials that were examined in this study consisted of primary legal materials and secondary legal materials and techniques were analyzed with the description, systematic, evaluation and argumentation. Based on the perspective ( review ) Constitutional Court Decision No. 46/PUU-VIII/2010, anak astra have a civil relationship with her biological father and his family along can be proved by science and technology and / or other evidence according to the law. The juridical consequences of the Constitutional Court Decision No. 46/PUU-VIII/2010 to the norms of Bali customary law about anak astra Bali is must conform to the directions of law in the Decision of the Constitutional Court.

scholarly journals Efektivitas Kekuatan Eksekutorial Pada Sertifikat Jaminan Fidusia Pasca Putusan Mahkamah Konstitusi Nomor 18/PUU-XVII/2019

2021 ◽  
Vol 3 (1) ◽  
Author(s):  
Dinda Laras Ayu Pratiwi ◽  
Andi Salman Maggalatung ◽  
Nurhasanah Nurhasanah
Keyword(s):  
Court Decision ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Principle Of Justice

This research contains an analysis of the considerations of the Constitutional Court in deciding the Constitutional Court Decision Number 18/PUU-XVII/2019 and the effectiveness of its implementation. This research uses the juridical-normative method and the legal material comes from the Constitutional Court Decision Number 18/PUU-XVII/ 2019 and other decisions. The results of this research revealed that the decision was based on the principle of justice and legal certainty. The implementation itself has not been going well because there are still several unfulfilled factors.

scholarly journals Tafsir Wewenang Seponering Jaksa Agung Pasca Putusan Mahkamah Konstitusi Nomor 29/PUU-XIV/2016

2021 ◽  
Vol 4 (2) ◽  
Author(s):  
Ilham Dwi Rafiqi
Keyword(s):  
Public Interest ◽  
Attorney General ◽  
State Power ◽  
Constitutional Court ◽  
Court Decisions ◽  
Legal Certainty ◽  
The Public ◽  
Legal Implications ◽  
The Republic ◽  
Definition Of

The affirmation of the attorney general's authority in the Elucidation of Article 35 letter C of the Indonesian Prosecutor's Law after the decision of the Constitutional Court Number 29/PUU-XIV/2016 still leaves problems and has the potential to cause new legal problems. This research will look at and analyze how the authority of the Attorney General after the decision is as well as how the concept of an ideal arrangement that ensures legal certainty. This research uses normative juridical research with a statutory approach and case studies which in this case are court decisions. The results showed that after Constitutional Court decision, there was a change in the meaning of the Elucidation of Article 35 letter c of the Republic of Indonesia Prosecutor's Law. Based on the results of these interpretations and decisions, the legal implications that followed were related to the conditions for setting aside cases in the public interest, namely in setting aside cases in the public interest, the Attorney General was required to 'require' first to pay attention to suggestions and opinions from state power agencies that have relationship with the problem. The concept of an ideal arrangement that can guarantee legal certainty as an indicator to measure and assess the implementation of the Attorney General's obligations can be done by clarifying the definition of "state power agencies" for which advice and opinions are requested and making criteria for the term "public interest".

scholarly journals Implikasi Putusan Mahkamah Konstitusi Nomor 85/PUU-XIV/2016 terhadap Praktek Persekongkolan Tender

2018 ◽  
Vol 15 (2) ◽  
pp. 369
Author(s):  
Titis Anindyajati
Keyword(s):  
Judicial Review ◽  
Research Methodology ◽  
Court Decision ◽  
Constitutional Court ◽  
Legal Analysis ◽  
Legal Certainty ◽  
The Law

Pada pokoknya, persekongkolan tender merupakan salah satu bentuk persekongkolan yang dilarang UU Nomor 5/1999 tentang Larangan Praktek Monopoli dan Persaingan Usaha Tidak Sehat dan juga menjadi perkara yang paling sering diproses KPPU. Namun baik secara teoritis maupun praktik menimbulkan permasalahan yaitu karena adanya pemaknaan yang bias akan frasa “pihak lain” dalam Pasal 22 UU Nomor 5/1999. Hal inilah yang melatarbelakangi adanya pengujian Pasal 22 ke MK. Dalam penulisan ini yang dibahas yaitu bagaimana pengaturan persekongkolan tender menurut peraturan perundang-undangan, bagaimanakah implikasi yuridis Putusan Mahkamah Konstitusi Nomor 85/PUU-XIV/2016 tentang pengujian Pasal 22 UU Nomor 5/1999 serta bagaimana analisis hukum terhadap pertimbangan hukum Putusan MK tersebut. Penelitian ini menggunakan penelitian yuridis normatif dimana obyek penelitian ini adalah peraturan perundang-undangan dan Putusan MK. Dalam hal ini Penulis menyimpulkan, yaitu, Pertama, persekongkolan tender yang merupakan suatu bentuk kerja sama antara dua pihak atau lebih untuk menguasai pasar yang bersangkutan dan/atau memenangkan peserta tender yang mengakibatkan terjadinya persaingan usaha tidak sehat diatur secara eksplisit dalam Pasal 1 angka 8 dan Pasal 22 UU Nomor 5/1999 serta Peraturan KPPU Nomor 2/2010, Kedua, Implikasi yuridis Putusan MK Nomor 85/PUU-XIV/2016 bermanfaat untuk menjamin kepastian hukum dan keadilan bagi para pihak seperti pengusaha utamanya masyarakat. Untuk itu, perlu adanya harmonisasi antara satu peraturan dengan peraturan lainnya, pengujian UU terhadap UUD terkait pengaturan persekongkolan tender dalam persaingan usaha tidak sehat ataupun revisi terhadap UU Nomor 5/1999.Principally, tender conspiracy is one form of conspiracy that subjected by the Law No. 5/1999 on The Prohibition of Monopolistic Practices and Unfair Business Competition, and also as a type of case that frequently occurred and processed by the KPPU. However, in theory, and in practice, there are some issues that plague the regulation, because of the occurrence of bias and unclear interpretation of the phrases “other parties” contained in Article 22 of Law 5/1999. This interpretation issue then became the background in the petition for review of Article 22 to the Constitutional Court. This paper mainly discussed the regulation of tender conspiracy according to the existing Law, and also to study the juridical implications of Constitutional Court Decision Number 85/PUU-XIV/2016 concerning the review of Article 22 Law 5/1999. This paper also delves into the legal analysis of the court considered in the aforementioned Decision. This paper utilized the means of normative juridical research methodology, with the existing regulations and Constitutional Court Decision as the object of research. In the paper, the writer concludes that, first, tender conspiracy is a form of cooperation between one party or more to control particular market and/or to determine the awardees of tenders which may cause unfair business competition explicitly regulated in Article 1 number 8 and Article 22 Law 5/1999 and also the KPPU Regulation Number 2/2010, second, the juridical implications of Constitutional Court Decision Number 85/PUU-XIV/2016 was necessary in order to guarantee the equitable legal certainty and fairness toward all parties especially business practising citizens. Thus, there is a necessity to achieve harmony among these regulations, which can be obtained through the judicial review of laws against the Constitution concerning the regulations of tender conspiracy and by means of legislative revision toward Law 5/1999.

scholarly journals Realization of res judicata principle in civil proceedings: the experience of foreign countries

2020 ◽  
pp. 220-225
Author(s):  
Tetiana Tsuvina
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Court Decision ◽  
Court Decisions ◽  
Legal Certainty ◽  
Res Judicata ◽  
Foreign Countries ◽  
Negative Effect ◽  
The Subject

  The article is devoted to the analysis of res judicata as an essential element of the legal certainty. Res judicata is considered to be one of the main guaranties of the legal certainty principle in civil procedure which allows a stability of the court decisions in democratic society and increase the public confidence to judiciary.  The author analyzes national characteristics of the realization of the principle of res judicata in civil procedure of foreign countries. The author explores the preclusion effect of court decisions, highlighting two effects of the res judicata principle: positive and negative one. The negative effect of res judicata is aimed at preventing the re-consideration of identical disputes between the parties if the dispute has already been resolved by the court, in turn, the positive effect of res judicata allows the parties to refer to circumstances that have already been established by a court decision in the dispute between them, in new proceedings, where they are involved. It is concluded that there are significant differences in the understanding of this principle in common law and civil law legal systems. The common law countries have a broad understanding of the res judicata principle, which includes positive and negative effects, and is implemented through such institutions as the claim preclusion and the issue preclusion. Civil law countries follow a narrow approach to understanding of res judicata principle, which is limited only by the negative effect and is reflected in the claim preclusion, which blocks filing an identical claim if there is a final court decision on the dispute between the parties. In common law jurisdiction there is a wider conception of the “claim”, according to which it is understood in the context of entire dispute and comprise all claims based on the legal relationship between the parties, whether or not they were the subject of court proceedings. At the same time in civil law countries identity of the claims can be notified with the help of the triple identity test, which contains the identity of the subject of the claim, the identity of the cause of action and the identity of the parties of the claim.

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