scholarly journals Legal Protection of Donation-based Crowdfunding Zakat on Financial Technology: Digitalization of Zakat under Perspective of Positive Law and Islamic Law

2019 ◽  
Author(s):  
Nurul Ula Ulya
Keyword(s):  
Financial Services ◽  
Islamic Law ◽  
Legal Protection ◽  
The Other ◽  
Legal Certainty ◽  
Digital Form ◽  
Legal Research ◽  
Positive Law ◽  
Specific Regulation ◽  
Financial Technology

The aim of this research is to see the legal protection of Donation-based Crowdfunding zakat on financial technology due to the huge spreading of startup with zakat fund in Indonesia. Meanwhile there is still no specific regulation protecting various risks that will arise especially the risk of unobvious identity, potential disputes, dissimilarity of the zakat purpose and the implementation of zakat distribution, and the other deviations. This type of research is library legal research with conceptual and state approach. The result of the research shows that in positive law there is no legal protection regulation in Zakat based on Donationbased Crowdfunding. The regulation only crowdfunding contains investment element andgenerate profit as described in Act Number 21 Year 2011 regarding Financial Services Authority. While Zakat-based Donation-based Crowdfunding is a nonprofit-oriented type of product. This makes the absence in the elements of justice and legal certainty. The regulation on zakat only described in Law number 23 year 2011 which is not contained that system. In the protection of Islamic law, the certainty of the implementation of the contract is stipulated in the zakat based on sharia agreement that must comply with the various principles and provisions of sharia, whether the arrangement starts from the intention, the process of agreement, transparency, and all aspects relating to Amil, Muzakki and Mustahiq zakat (Who is the mustahiq and what kind and how the implementation). finally, the researcher hopes that this research will bring inputs for government to make more comprehensive regulations on zakat in its digital form.

scholarly journals KEDUDUKAN HARTA BERSAMA PERKAWINAN POLIGAMI

Mahakim ◽  
2018 ◽  
Vol 2 (2) ◽  
Author(s):  
Arif Zunaidi
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
Legal Protection ◽  
Legal Certainty ◽  
Legal Research ◽  
The Status ◽  
Regulatory Approach ◽  
Legal Uncertainty

Islam allows the marriage of more than one partner, provided that the husband can be fair and get permission from the first wife. As a result of polygamous marriages, there is legal uncertainty about joint assets, both in the first, second, third and fourth wives. The purpose of this paper is to find out the legal certainty of shared assets in polygamous marriages. The method used is a normative legal research method, using a regulatory approach, both Islamic law, Law Number 1 of 1974 and KHI. As a result, there is legal uncertainty especially for the first wife based on the Compilation of Islamic Law, specifically legal protection for the property with the wife brought in by her husband’s second marriage. According to Law No. 1 of 1974, each wife gets a second share, whereas according to Islamic law the status of a woman’s property does not change with the marriage. Keywords: polygamy, shared assets

scholarly journals URGENCY OF REGULATION: AIRCRAFT AS OBJECT OF CREDIT GUARANTEE

2020 ◽  
Vol 5 (1) ◽  
pp. 19-33
Author(s):  
Annalisa Yahanan ◽  
Murzal Murzal ◽  
Mada Apriandi ◽  
Febrian Febrian
Keyword(s):  
Legal Protection ◽  
The Other ◽  
Aviation Industry ◽  
Legal Basis ◽  
Legal Certainty ◽  
Credit Guarantee ◽  
Other Hand ◽  
Legal Uncertainty ◽  
Specific Regulation

Until now in Indonesia, there is no specific regulation regarding aircraft as collateral object. As a result, in practice, the aviation industry players experienced obstacles related to aircraft financing by guarantee agreements with aircraft objects. Such conditions create legal uncertainty both for credit providers (creditors) and the aircraft guarantees (debtors), because there are no references or signs that can provide direction in the guarantee agreement. If there is a default by the debtor, the creditor has no legal basis for how to execute it. To fill the legal vacuum, in practice, a guarantee agreement was found with the fiduciary deed of the aircraft. Whereas the Fiduciary Law expressly states that it does not apply to (mortgages) aircraft. While on the other hand, Law No. 20 of 2014 concerning Notary Position gives authority to the notary to make an aircraft mortgage deed. Thus the regulations in Indonesia give signals to use aircraft as collateral object. Such a situation demands the urgency for regulations on aircraft guarantee that can provide legal certainty and legal protection for the parties.

scholarly journals The Role of Financial Services Authority and Legal Protection of Debtor in Financial Technology (Fintech) Based Lending Agreements

2021 ◽  
Vol 04 (07) ◽  
Author(s):  
Himawan Prasetyo ◽  
Keyword(s):  
Information Technology ◽  
Financial Services ◽  
Research Method ◽  
Legal Protection ◽  
Main Issue ◽  
Positive Law ◽  
Financial Technology

The main issue discussed in this study are regarding the implementation of financial technology (Fintech) -based lending agreements which regulated in Indonesian positive law and also barrier on legal protection in implementing technology(Fintech) based lending agreements. This study applied a normative research method which collected primary legal sources of legislation and secondary legal sources of books, journals, and other articles related to this study. The implementation of financial technology (Fintech) based lending agreements is regulated in positive Indonesian law which is Financial Services Authority Regulation Number 77 / POJK.01/2016 concerning Information Technology-Based Lending Services. Meanwhile, legal protection in the implementation of technology(Fintech) based lending agreements occurs when the debtor defaults and the creditor commits an unlawful act, both of which occur due to a lack of legal protection arrangements in the Financial Services Authority Regulation.

scholarly journals Upaya Perubahan Undang-Undang Nomor 42 Tahun 1999 Tentang Jaminan Fidusia

2015 ◽  
pp. 166-183
Author(s):  
Yelia Natasya Winstar ◽  
Devie Rachmat Ali Hasan R
Keyword(s):  
Legal Protection ◽  
The Other ◽  
Legal Certainty ◽  
Legal Research ◽  
Conceptual Approach ◽  
Other Hand ◽  
The People ◽  
Maximum Protection ◽  
The Law

The Fiduciary Act should provide legal protection of the parties and legal certainty, but on the other hand there are still some weaknesses of the Fiduciary Act. This paper analyzes the weaknesses of Act Number 42 Year 1999 on Fiduciary and the need for revising the Act. The type of research is a normative legal research or library which includes a study of the principles of law and the systematics of law. The research uses the statute approach and the conceptual approach. Based on the analysis it can be concludde that it requires to revise the Fiduciary Act. Legislators should produce the law not only ensuring the legal certainty but they also can provide the law presenting justice and prosperity for the people. Revision of the Fiduciary Act is expected to provide maximum protection to the people who use the fiduciary as a guarantee agency; so that the justice will be obtained by the people to create a conducive atmosphere in the economy to increase the prosperity for them.

scholarly journals REKONSTRUKSI HUKUM WARISAN DI INDONESIA PERSPEKTIF PLURALISME AGAMA

Al-Qadha ◽  
2020 ◽  
Vol 7 (1) ◽  
pp. 60-72
Author(s):  
Abdul Mufid
Keyword(s):  
Research Method ◽  
Islamic Law ◽  
The Other ◽  
Legal Certainty ◽  
Legal Research ◽  
Other Hand ◽  
The Will ◽  
Sense Of Justice ◽  
Religious Differences

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.

scholarly journals IMPLEMENTASI SURAT EDARAN MAHKAMAH AGUNG NOMOR 3 TAHUN 2015 PADA PENGADILAN AGAMA SAWAHLUNTO

2020 ◽  
Vol 19 (2) ◽  
pp. 245
Author(s):  
Muhammad Farhan ◽  
Eficandra Eficandra ◽  
Roni Efendi
Keyword(s):  
Islamic Law ◽  
Family Court ◽  
Legal Philosophy ◽  
Legal Certainty ◽  
Legal Research ◽  
Limited Ability ◽  
Positive Law ◽  
The Family ◽  
Economic Needs

The urgency of this research is to examine the implementation of the Supreme of the Court Circular Number 3 2015 on the addition of livelihoods for children from 10% to 20% per year. Since the determination Supreme of the Court Circular in the Family Court of Sawahlunto, in 2018 were 7 decisions have been made, 3 to applicated and 4 doesn’t. The inequality when considering the jury leads to three fundamental questions: What is the position of Supreme of the Court Circular in the concept of the positivist legal philosophy? What are the Judges considerations to implementing and not implementing Supreme of the Court Circular? Howabout the Islamic Law perspective to Supreme of the Court Circular in terms of adding child livelihood? To answer the object of research, the implementation Supreme of the Court Circular Family Court Sawahlunto is extensively examined as sociological/ empirical legal research. The results of this research philosophically Supreme of the Court Circular is a harmonization between Islamic law and positive law, on the condition that Supreme of the Court Circular offers the jury a guarantee of legal certainty when deciding on the addition of a child. Consideration of the jury in the implementation of Supreme of the Court Circular to ensure that children's livelihoods are met in terms of economic needs that further improve and maintain descendant relationships for those who do not implement Supreme of the Court Circular due to the limited ability of their fathers. Supreme of the Court Circular’s perspective on Islamic law regarding the addition of a child at 10% to 20% per year is relevant to the problem of the Maslahah Mursalah, which is to maintain hereditary relationships.

فلسفة العقوبة في الشريعة الإسلامية والقانون الوضعي عرض وموازنة Exposition and Comparison of the Philosophy of Punishment in Islamic and Positive Laws

2012 ◽  
Vol 9 (1) ◽  
Author(s):  
عبد المجيد قاسم عبد المجيد (Qasim Abdulmajid) ◽  
محمد ليبا (Liba)
Keyword(s):  
Islamic Law ◽  
The Other ◽  
Penal System ◽  
Human Beings ◽  
New School ◽  
Positive Law ◽  
Other Hand ◽  
Philosophy Of Punishment ◽  
Emerging Issues

تناولت هذه الورقة فلسفة العقوبة في الشريعة الإسلامية، وفلسفتها في القانون الوضعي، وتمت الموازنة بين الفلسفتين، وخلص العرض والموازنة إلى نتائج ملخصها أن مسألة عصمة الشريعة وسموها تعد علامة فارقة بين الشريعة الإسلامية والقانون الوضعي، هذه العلامة نتج عنها فروق كثيرة أولها أن العقوبة في التشريع الوضعي تكون تابعةً للهدف، فالهدف يوضع أولاً ثم تصاغ على ضوئه العقوبة، ولذلك كلما ظهرت مدرسةٌ جديدةٌ تؤسس لفكرٍ جديدٍ ظهر اختلافٌ في التشريع العقابي. بينما النظام العقابي الإسلامي ثابتٌ ومعصوم، وقد وُجدت الحاجة إلى معرفة أهدافه وفلسفته ليتسنى السير على مقتضاها فيما يستجد من وقائع، وأن سمو فلسفة العقوبة في الشريعة الإسلامية ينبع من سمو مصدرها، فواضع هذه العقوبات هو خالق البشر. بينما العقوبة في القانون الوضعي تعتمد في فلسفتها على خبرة واضعيها، وهي خبرة محدودة وأحكامها نسبية، لذا كان تطبيق العقوبات الشرعية أجدر حتى وإن لم يُدرَك كنه هذه العقوبات وفلسفتها. الكلمات الرئيسية: فلسفة العقوبة، القانون الإسلامي، القانون الوضعي، التشريع العقابي.******************************In this paper light is shed on the philosophy of punishment in Islamic and positive laws and a comparison between them is accomplished. In brief, the conclusion of the exposition and comparison is that issue of infallibility of SharÊ‘ah and its nobleness are the distinguishing marks between Islamic and positive laws. This led to further differences. The first difference is that the punishment in positive laws is in accordance with the stipulated goal, that is, the goal is set first and then the punishment is formulated in that light. That is why whenever any new school of thought appears based on some ideology, differences emerge in punitive legislation. Islamic penal system is, however, immutable and infallible. There is a need to know its objectives and wisdom so as to in order to tackle new emerging issues. The nobility of the philosophy of punishment in Islamic law stems from the nobility of its source and that is no one but the Creator of human beings. The punishment in the positive law, on the other hand, relies on the philosophy that is based on the experiences of the authors of these laws. And these experiences are limited and their rulings are relativistic. Applying Islamic legal punishments are, therefore, more legitimate, even though their essence and philosophy are not fully grasped.Key words: Philosophy of Punishment, Islamic Law, Positive Law, Punitive Legislation.

scholarly journals Akses Karya Cipta Audiobook Bagi Disabilitas Netra : Perspektif HAM

Acta Comitas ◽  
2019 ◽  
Vol 4 (3) ◽  
pp. 433
Author(s):  
Bagus Gede Ari Rama Bagus Gede Ari Rama ◽  
Ni Ketut Supasti Dharmawan
Keyword(s):  
Research Method ◽  
Government Regulation ◽  
Legal Protection ◽  
People With Disabilities ◽  
Comparative Approach ◽  
Blind People ◽  
Legal Certainty ◽  
Legal Research

Audiobook access for people with disabilities is very important. Access is the convenience that people get from a service. This study aims to analyze the legal certainty and legal protection of audiobook copyright access for blind people with disabilities. This study uses a normative legal research method with a statutory approach and comparative approach. This research found that access to audiobooks' works has been regulated in the Marrakech Treaty, Copyright Act Number 28 of 2014 and Government Regulation Number 27 of 2019. Akses karya cipta audiobook bagi disabilitas sangat penting. Aksesibilitas merupakan kemudahan yang didapat oleh orang terhadap suatu layanan. Penelitian ini bertujuan untuk menganalisis kepastian hukum serta perlindungan hukum akses karya cipta audiobook bagi disabilitas tuna netra. Penelitian ini menggunakan metode penelitian hukum normatif dengan pendekatan perundang-undangan dan pendekatan komparatif. Dalam penelitian ini menemukan bahwa akses karya cipta audiobook telah diatur dalam Traktat Marrakesh, UUHC 2014 serta Peraturan Pemerintah Nomor 27 Tahun 2019.

scholarly journals Analysis of Wakaf and Maqashid Syari'ah Law on the Development of Wakaf Property in Lhokseumawe City

2021 ◽  
Vol 3 (1) ◽  
pp. 224-231
Author(s):  
Yasir Nasution ◽  
Alyasa’ Abubakar ◽  
Kafrawi
Keyword(s):  
Data Collection ◽  
Islamic Law ◽  
Legal Research ◽  
Government Regulations ◽  
Theoretical Concepts ◽  
Positive Law ◽  
Islamic Jurisprudence ◽  
The Law ◽  
Research Show

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.  

scholarly journals 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 ◽  
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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