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Bismar Nasution
Program Studi Magister Ilmu Hukum Fakultas Hukum Universitas Sumatera Utara
Law, Crime, Criminology & Criminal Justice

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TANGGUNG JAWAB KORPORASI DALAM TINDAK PIDANA DI BIDANG PERPAJAKAN (ANALISIS TERHADAP PUTUSAN MAHKAMAH AGUNG NO. 2239 K/PID.SUS/2012) Herbert Rumanang; Bismar Nasution; Mahmul Siregar; Mahmud Mulyadi
USU LAW JOURNAL Vol 4, No 4 (2016)
Publisher : Universitas Sumatera Utara

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ABSTRACTIn general, the legal subject which is commonly known in penal law is person. However, as of the development of law, another legal subject starts to take place, which is corporation. That means corporation is treated as if it is an ordinary person that has criminal liability. The acknowledgement of corporation as a penal law subject is recognized in various particular legislations in Indonesia, including taxation law. This concept is known in term as corporate crime and corporate criminal liability. One example of how this concept is applied in Indonesian law can be seen in the Supreme Court verdict no. 2239 K/Pid.Sus/2012 which convicted Asian Agri as a corporation for committing tax crime. While the Indonesian penal law system acknowledges the existence of corporation as a legal subject, such condition causes legal implication which is not simple. This is due to the nature and characteristic of corporation which are basically different from the nature and characteristic that we can find in a person. The consequence is that the theories of criminalization which are the theoretical basis to convict should be distinguished between corporation and person because they are also based on different paradigms. In the Supreme Court verdict no.2239 K/Pid.Sus/2012 Asian Agri is sentenced to pay a fine of 2.52 trillion rupiahs as a form of corporate criminal liability. Despite so, the verdict itself is not without weaknesses in its application of law. Those weaknesses are as follow: Asian Agri is not a party in that case, Suwir Laut as the accused is not a director of Asian Agri, the fine sentence as a trial condition, and the establishment of the fine amount by the Supreme Court.Key words: corporate crime, corporate criminal liability
ANALISIS YURIDIS KONTRAK OLEIN PADA PERDAGANGAN BURSA BERJANGKA JAKARTA Armansyah Siregar; Bismar Nasution; Alvi Syahrin; Sanwani Nasution
USU LAW JOURNAL Vol 4, No 4 (2016)
Publisher : Universitas Sumatera Utara

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ABSTRACTThe development of the world economy into the modern era, in which various forms of financial business is growing rapidly, futures exchange can be used as a modern institution of agricultural commodity trading, commodity futures or commodity exchange is present in hopes of helping to run the risk of price fluctuations that occur. Indonesia as a country that has a variety of commodities requiring a transaction mechanism that is organized, orderly, fair, effective, and efficient, the Jakarta Futures Exchange (BBJ) was formed to facilitate the means of transaction between buyers and sellers meet in a futures contract with a brokerage firm stock exchange members. The setting of the type-olein contract to be traded and regulated in the Code Jakarta Futures Exchange. Based on the results of research to understand the procedures for futures transactions, the transaction can only be traded on an exchange, and traded by parties who have a license / business from BAPPEBTI, and conducted in accordance with the rules and regulations applicable stock exchange, as well as setting the futures contracts to be traded Regulation and Discipline of the Jakarta Futures Exchange, futures contracts have a standard form contracts based on the specifications that have been established such as the quality, type and clear pricing. Futures contract has a clearinghouse that guarantees fully to completion transksi on futures contracts. The terms of the payment made in the form of futures trading margin. Futures contract has a trading and closing hours every day (daily settlement) and any futures position can be closed at any time.Keywords: contract, olein, trading, Jakarta Futures Exchange.
ANALISIS HUKUM ATAS PENERAPAN RAHASIA BANK DI INDONESIA TERKAIT DENGAN PERLINDUNGAN DATA NASABAH BERDASARKAN PRINSIP KEPERCAYAAN KEPADA BANK (STUDI PADA PT. BANK CIMB NIAGA Tbk CABANG MEDAN) John Bert Christian; Bismar Nasution; Suhaidi Suhaidi; Mahmul Siregar
USU LAW JOURNAL Vol 4, No 4 (2016)
Publisher : Universitas Sumatera Utara

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Abstract Bank secrecy is the concrete form of consumers’ data and deposits protection in which the bank secrecy is the application of the fiduciary principle by the bank. It is seen that the customers give their data and fund to be saved in the bank based on their trust that the bank will provide protection for their data and fund, and without this trust, the customers will not use the banking service. Therefore, banking secrecy keeps existing as long as the bank applies the fiduciary principle, and the fiduciary principle must be equally applied between the interest of  individual  protected based on the fiduciary principle and the public interest for law enforcement. This is reflected through the application of the relative bank secrecy which allows the access to open the bank secrecy. Even though the access to open the bank secrecy is allowed, but as to show how important the fiduciary principle stated in a legal certainty in the protection of customers’ data is, any violation of the bank secrecy will be sentenced either in the forms of imprisonment, fine and/or administrative penalty. The bank secrecy in Indonesia needs a more specific and detailed regulation which is strictly related to whether or not the permission from the Governor of Bank Indonesia is needed. The regulations of Bank Indonesia as the implementing regulations can eliminate the doubt and ambiguity in the application of bank secrecy and the banking is expected to be able to accommodate the provision related to bank secrecy and customers’ data protection through the SOP of respective bank. Keywords: Bank Secrecy, Fiduciary principle, Customers’ Data Protection
PENERAPAN ASAS ITIKAD BAIK DALAM PERJANJIAN SEWA-MENYEWA (STUDI TERHADAP PERJANJIAN SEWA MENYEWA OULET DI HERMES BUILDING MEDAN ) Gary Hadi; Bismar Nasution; Hasim Purba Purba; Utari Maharany Barus
USU LAW JOURNAL Vol 5, No 2 (2017)
Publisher : Universitas Sumatera Utara

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ABSTRACT Tenancy agreement in accordance with Article 1548 of the Civil Code has the meaning of an agreement when one party binds itself to provide enjoyment of goods to the other party a certain time , with the payment of a price promised by the latter party . This thesis used a normative study with a descriptive analysis. Application of the principle of good faith in the tenancy agreement Hermes outlet in Medan Building seen from before and after the deal happen. Even the application of the principle of good faith prior to the agreement, PT. Hermes Realty Indonesia has implemented the principle of good faith objective. Criteria breach the principle of good faith in the tenancy agreement Hermes Building outlet in Medan is when wanprestasinya CV. Khansa Independent Asri. The criteria is to have violated an inappropriate thing to do as not carry out its obligations intentionally do not pay rent, service charges and utility costs.   Keywords: Agreements, Rent-hire, principle of good faith
MISREPRESENTATION DALAM KONTRAK : ANALISIS TERJADINYA PERBEDAAN INFORMASI PADA FASE PRA KONTRAKTUAL DENGAN KONTRAK Indra Sakti; Bismar Nasution; Sunarmi Sunarmi; Suhaidi Suhaidi
USU LAW JOURNAL Vol 5, No 2 (2017)
Publisher : Universitas Sumatera Utara

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ABSTRACT In misrepresentation, the provisions that manages the boundaries between the presentation of misleading information and fraud with trickery are still very vague. Fraud according to the prevailing laws is deliberately giving false and incorrect information to persuade the opposing parties to approve. An exposure to a substance in the pre-contractual phase due to any misunderstandings in a contract is called a representation. Then, the legal consequences will be issued in the post-contractual phase. From the background, several problems can be formulated i.e. how misrepresentation occurs in a contract at a pre-contractual phase, how the settlement of disputes is made, how legal protections for the parties who have misrepresented a contract are. In order to analyze the problems above, the normative juridical research which refers to the legal norms related with the publication of an agreement at pre-contractual phase that contains misrepresentation is used. Based on the results of research, it was found out that the misrepresentation was caused by the inconsistency between what was presented by the offeror in the pre-contractual phase and what was done and supposed to be received by the offeree in the post-contractual phase, and it should also be notified that what distinguished misrepresentation from fraud was that whether or not there were the elements of persuasion and trickery in the pre-contractual phase and standard contractual. The ways to settle the misrepresentation was that  by making the  adjustments of the will and was agreed by the parties. Therefore, a pre-contractual document has had the power to be carried out and has the binding power that provides the rights and obligations to be obeyed by all parties.  It reflects the good intention to seek a solution to a misrepresentation. The forms of the legal protections for those who experienced misrepresentation as permanently stipulated in Article 1321 and Article 1365 of the Civil Code without ignoring any forms of the provisions stipulated by not ignoring the repressive and preventive legal protections. The parties of the contract are expected to be more careful to understand the traditions and prevailing legal provisions in the Common Law and Civil Law System. In making a contract, it is suggested that the parties engage with a legal advisor and legal drafter since the pre- contractual phase. Appropriately, the principles of caveat vendor and the principle of caveat emptor, be applied. Particularly, there are not any regulations and statutory provisions that regulate this subject yet. Keywords: Misrepresentation, Pre-contractual and Legal Protection
ASSET RECOVERY DALAM TINDAK PIDANA KORUPSI MELALUI INSTRUMEN UNDANG-UNDANG TINDAK PIDANA PENCUCIAN UANG Malto S. Datuan; Bismar Nasution; Mahmud Mulyadi; Mahmul Siregar
USU LAW JOURNAL Vol 5, No 2 (2017)
Publisher : Universitas Sumatera Utara

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ABSTRACT The development of the criminal offence of corruption in Indonesia keeps increasing and complex issue for law enforcement officers. As well as the number of countries that present financial losses, continue to increase from year to year. Eradication of corruption not only lies in prevention efforts as well as criminalization the corruptor, but also include actions asset recovery. The main issue raised in this research is how asset recovery in corruption through criminal recovery and civil recovery and how asset recovery through the instrument of money laundering legislation? This research is the juridical normative research, i.e. research which focused on reviewing the implementation of the norms or norms of positive law.The results showed that asset recovery through the criminal recovery or civil recovery in corruption has many drawbacks. The presence of the United Nations Convention Against Corruption (UNCAC) 2003 nor Act MLA (Mutual Legal Assistance) are not able to overcome barriers in asset recovery because it clashed with the political and legal systems in other countries. Civil forfeiture which has in rem have many advantages, but has not yet been adopted in Indonesia. Draft Legislations for Assets Recovery similar to the civil forfeiture of up to now has not been enacted. Whereas the provisions of asset recovery in Act of Money Laundering is more advanced than the Act of Corruption, due to more focus on follow the money rather than follow the suspect as well as discrete in personam i.e. part of criminal sanctions and also characterized the in rem i.e. in article 67 of Act No. 8 of 2010 on Prevention and Eradication of Money Laundering which allows it to seize the assets  are proceeds of crime without the results prove the fault of suspect, but a lawsuit intended to the assets (in rem) that will be deprived.   Keyword: Asset Recovery, corruption, money laundering
IMPLEMENTASI PASAL 74 UNDANG-UNDANG NO. 40 TAHUN 2007 TENTANG PERSEROAN TERBATAS MENGENAI TANGGUNG JAWAB SOSIAL PERUSAHAAN DI PTPN III Delfani Febryana Lubis; Bismar Nasution; Sunarmi Sunarmi; Mahmul Siregar
USU LAW JOURNAL Vol 5, No 2 (2017)
Publisher : Universitas Sumatera Utara

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ABSTRACT The Implementation of Corporate Social Responsibility or Corporate Social Responsibility (CSR) by PTPN III conducted based on Article 88 of Law No. 19 of 2003 on State Enterprises (BUMN Law) and Article 74 of Law No. 40 Year 2007 regarding Limited Liability Company (Company Law) but the implementation of CSR can not be implemented by the Company Law and channeled properly because the Company Law does not expressly regulate the implementation of CSR, causing an unstable state in its implementation. Based on the background problems above it is found that First, the rule of law in the Corporate Social Responsibility before and after the enactment of Article 74 of Company Law, Second, The Implementation of Corporate Social Responsibility by PTPN III based on Article 74 of Company Law, Third, stakeholders participation in The implementation of The Obligations Social responsibility in PTPN III.Keywords : Corporate, BUMN, Implementation, Social Responsibility
ANALISIS YURIDIS FUNGSI OTORITAS JASA KEUANGAN (OJK) SEBAGAI PELINDUNG NASABAH PERUSAHAAN ASURANSI Dede Aquari Irawan Surbakti; Bismar Nasution; Sunarmi Sunarmi; Mahmul Siregar
USU LAW JOURNAL Vol 5, No 3 (2017)
Publisher : Universitas Sumatera Utara

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ABSTRACT Regulation on consumer protection in Indonesia has especially existed since Law No. 8/1999 on Consumer Protection was in effect. In its development, consumer protection in also done by independent institutions, based on Law No. 21/2011 which is called OJK which functions to organize an integrated regulation and supervision system toward all activities in financial service sector. One of the goals of establishment o OJK is to protect consumers and society. In order to achieve that goal, OJK issued POJK No. 01/POJK.07/2013 on Customer Protection in Financial Service Sector. One of the financial service sectors supervised by OJK is insurance system. Today, insurance is regulated in Law No.40/2014. The research problems are as follows: how about the role of OJK in protecting insurance company customers in the insurance legl system in Indonesia,how about the difference between consumer protection, stipulated in Law No 8/1999 on Customer Protection, and that which is regulated in Law No. 21/2011 on OJK in conjuction with POJK No. 01/POJK/07/2013 on Customer Protection in Financial Service Sector. The result of the research showed that,first,after  Law No.40/2014 on Insurance was in effect, the role of OJK was very strategic as an institution which regulates and supervises insurance companies since they request license for the establishment. It also has the right to impose severe administrative sanction by revoking insurance company which is potential to harm their consumers. Secondly, in providing legal protection for insurance customers, OJK, through POJK No. 01/POJK.07/2013 provides more maximal legal protection than Law No 8/1999 on Consumer Protection. Keywords:  -OJK (Financial Service Authority), Insurance Customers,Consumer protection
ANALISIS HUKUM KEDUDUKAN PENGGUNAAN CEK DAN BILYET GIRO SEBAGAI JAMINAN UTANG DALAM HUBUNGAN BISNIS Julisman Julisman; Bismar Nasution; Mahmul Siregar; Mahmud Mulyadi
USU LAW JOURNAL Vol 5, No 3 (2017)
Publisher : Universitas Sumatera Utara

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ABSTRACT   Cheque and Bilyet Giro is a payment instrument that is recognized in payment payment system in Indonesia. Initially "cheque" are first known and used by the public as a means of payment is legitimate because the cheque by its nature is cash and portable payments. With cheque as a cash payment tool to replace cash, the public is very fond of using it until it eventually leads to a lot of empty cheque in business transactions. To regulate the cheque for not being misused, the Government of Indonesia issued Law No. 17 of 1964 concerning Prohibition of Withdrawal of Blank Cheque, which essentially prohibits the use of blank cheque as they may disrupt, disrupt, and frustrate government efforts in implementing stability improvements in monetary and economic sectors. According to Article 1, Article 2, and Article 3 of the provisions, the use of blank cheque may be subject to severe punishment, in the form of death penalty, life imprisonment and at least 20 (twenty) years imprisonment. Such provision causes the public no longer free to use the cheque and cause the Indonesian economy to deteriorate until finally the provision is revoked based on Government Regulation in Lieu of Law No. 1 Year 1971.   KeyWords : Use of cheque and bilyet giro; Means of payment; and Debt guarantees in business relationship.
PERTANGGUNGJAWABAN PIDANA KORPORASI ATAS PRAKTIK TRANSFER PRICING BIDANG PERPAJAKAN DI INDONESIA Antonius Leonard Tarigan; Bismar Nasution; Mahmul Siregar; Mahmud Mulyadi
USU LAW JOURNAL Vol 5, No 4 (2017)
Publisher : Universitas Sumatera Utara

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ABSTRACT The research shows that the corporate crime liability in Indonesia can be liable to the  member of board of directors in a corporate if they commit in deliberate and negligent way. A corporate is also a crime subject other than human being. Therefore, a corporate can be convicted crime based on functional liability (functioneel daderschap). In transfer pricing case, if it was committed deliberately to avoid or minimized tax payment to the country which impact to loss for the country. The corporate crime libility of transfer pricing practice in Indonesia’s taxation is a deliberate action by a corporate as the effort of tax avoidance which reduce the tax contribution to the country. The deliberate action includes motivation and intention to avoid tax which impact to losses for the country. Transfer pricing is basically an intentional effort in a corporation to avoid tax payment. In other words, a corporation may be crimely liable if there is an intentional effort to avoid tax which impact to losses for the country, violating its obligation as the tax payer.  The model of corporate crime liability of transfer pricing in taxation based on tax regulation for corporate is being charged with tax evasion, while for directors of officers may be crimely convicted of deliberate act to avoid paying tax by manipulating transfer price.   Keyword: crime liability, corporation, taxation, transfer pricing
Co-Authors Adi Saputra Agnest Elga Margareth Aloysius Supriyadi Alvi Syahrin Amanda Serena Amrizal Fahmy Fahmy Andreas Iriando Napitupulu Antonius Leonard Tarigan Arief Rezana Dislan Armansyah Siregar Armia Pahmi Astri Heiza Mellisa Aulia Annisa Binsar Parulian Sitanggang Budiman Ginting Chairiyah Ella Sari Siregar Chandra Purnama Charles Silalahi Cherdina Efenti Dede Aquari Irawan Surbakti Dedi Harianto Delfani Febryana Lubis Diah Ayu Oktriningsih Ebenezer Simanullang Edi Yunara Efendi Tambunan Eri Lukmanul Hakim Pulungan Eric Tanaka Faisal Akbar Nasution Frans Affandhi Frima A Sitanggang Gary Hadi Hasballah Thaib Hasim Purba Purba Herbert Rumanang Herman Brahmana Ilham Rohjadina Immanuel Simanjuntak Indra Sakti Irwan Charles Sitompul John Bert Christian Julia Agnetha Br. Barus Julisman Julisman Juna Karo-Karo Jusak Tarigan Kamaluddin Pane Keizerina Devi Lamtiur Imelda P Nababan Leonard Pandapotan Sinaga Madiasa Ablisar Mahmud Mulyadi MAHMUL SIREGAR Malto S. Datuan Manambus Pasaribu Maranatha Purba Marlina Marlina Meisy Kartika Putri Sianturi Mirza Erwinsyah Muhammad Ekaputra Muhammad Firdaus Muhammad Hamdan Muhammad Haris Muhammad Hendra Razak Muhammad Junaidi Muhammad Yamin O.K Saidin Oki Yudhatama PURNAMA HIDAYAT Putri Nesia Dahlius Risna Oktaviyanti Utami Runtung Runtung Sahbana Pilihanta Surbakti Sanwani Nasution Sari Rezeki Indra Saryo Saryo Selatieli Zendrato Sheila Miranda Hasibuan Simon Simon Sugeng Riyadi Suhaidi Suhaidi Sunarmi, Sunarmi Suranta Ramses Tarigan Syafruddin Kalo Syafruddin Sulung Hasibuan Taufik Hidayat Lubis Teuku Fathir Mustafa Utari Maharany Barus Utary Maharani Barus Widodo Ramadhana Wina Wina Yessi Serena Rangkuti Yona Lamerossa Ketaren