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Brawijaya Law Journal : Journal of Legal Studies
Published by Universitas Brawijaya
ISSN : 25030841     EISSN : 23564512     DOI : -
Core Subject : Social,
Law, Crime, Criminology & Criminal Justice
BRAWIJAYA LAW JOURNAL, Journal of Legal Studies Brawijaya Law Journal (BLJ) is a newly established journal in the field of legal studies. The Journal is published annually by Law Faculty Brawijaya University, Indonesia. BLJ is an open access, peer-reviewed e-journal which aims to offer an international scientific platform for national as well as cross-border legal research. The materials published include major academic papers dealing critically with various aspects and field of laws as well as shorter papers such as recently published book review and notes on topical issues of law. Printed version of the series can be printed on demand (POD). The website of the journal can be accessed through lawjournal.ub.ac.id
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Articles 9 Documents
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Search results for , issue "Vol. 6 No. 2 (2019): State Regulations and Law Enforcement" : 9 Documents clear
Criminal Law Enforcement of Indonesian Commerce Act Number 7 the Year 2014 for Corporation Perpetrators: Why It Will Be Difficult Alfons Zakaria
Brawijaya Law Journal : Journal of Legal Studies Vol. 6 No. 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.01

Abstract

Indonesian laws have recognized the legal person as a subject of criminal law. It can be seen in all regulations enacted recently acknowledging that “any person” is a natural person (natuurlijk persoon) and legal person (rechtspersoon) who are liable for criminal punishments. Related to legal person or corporation, Indonesia, on the other hand, regulates corporate criminal responsibility differently in every single law. Some laws contain complete provisions, but others may fail to set the regulation properly. The Indonesian Commerce Act Number 7 the year 2014, for example, the legislators might miss drawing the provisions regulating corporate criminal responsibility. The Act recognizes corporations as a legal subject, but there is the absence of provisions related to when corporations shall be categorized committing a crime, which party shall be responsible when corporations shall be responsible, and what punishments shall be proper for corporations. Furthermore, it is commonly used, that if there is an absence of criminal law provisions in an act, the Criminal Code and Criminal Procedure Code will be the referral sources. In terms of corporate criminal responsibility regulation, however, both the Criminal Code and Criminal Procedure Code do not recognize the corporation as the subject of criminal law. Thus, the codes may not suitable as the referral sources for corporate crime law. Unfortunately, corporations violating the Act, then, will be difficult to be enforced in the judicial process. As a legal research paper, it will argue that the absence of the provision related to corporate criminal responsibility leads to the failure of law enforcement of corporation wrongdoings by presenting prospective consequences of the absence of such provisions.
Access to Justice through Legal Aid in Nigeria: An Exposition on Some Salient Features of the Legal Aid Act Akintunde Abidemi Adebayo; Anthonia Omosefe Ugowe
Brawijaya Law Journal : Journal of Legal Studies Vol. 6 No. 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.02

Abstract

According to Black's Law Dictionary, justice is the fair and proper administration of law. Similarly, access to justice is the ability to make use of the courts and other relevant institutions to efficiently protect and enforce rights. Access to justice is imperative in every society. People will access justice only if the proper situation creates. In a bid, to remove this major barrier in accessing justice, the Legal Aid Council of Nigeria was established in 1976. The concept of legal aid means the provision of free legal services to the indigent and underprivileged members of the society. Its importance and cannot be overemphasized particularly considering the level of illiteracy and poverty which are considered on the high side in Nigeria. Hence, in 2011, the Legal Aid Act 2011 was enacted. The birth of the Act repealed the old Act. This article analyses 3ethe provisions of both Acts with emphasis on the innovations of the new Act to promote access to justice and concludes with recommendations. Concerning the Council, it finds that there is a need for better funding and engagement of more salaried lawyers in order to enable it to carry out its functions as the Council is grappling with the challenge of underfunding and recruitment of more hands to work towards the achievement of its set objectives, among others.
Restorative Justice: an Alternative Process for Solving Juvenile Crimes in Indonesia Mahfud Jufri; Norbani Mohamed Nazeri; Saroja Dhanapal
Brawijaya Law Journal : Journal of Legal Studies Vol. 6 No. 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.03

Abstract

Restorative justice concept may refer to an alternative process for solving disputes including criminal law violation has been well known in Indonesia. The Act Number 11, 2012 on Juvenile Justice System has acknowledged restorative justice approach as a part of criminal justice system in dealing with a child in conflict with the law. It has become an essential provision in the Act as it provides option for law enforcers to avoid punishing juvenile offenders through traditional criminal approach. This research aims to examine restorative justice for juvenile offenders in Indonesia based on the Juvenile Justice System Act Number 11, 2012 as a form of alternative dispute resolution for juvenile crimes and other related laws and to provide a brief of the implementation of restorative justice in Indonesia that is integrally enforced in Indonesian criminal justice system dealing with a child in conflict with the law. It divides the discussion into two parts restorative justice in the juvenile justice system act 2012 and the implementation of restorative juvenile justice in Indonesia. In order to response to these research aims, this paper employs doctrinal legal research.
Characteristic and Legality of Non-Litigation Regulatory Dispute Resolution Based on Constitutional Interpretation Muhammad Reza Winata; Zaka Firma Aditya
Brawijaya Law Journal : Journal of Legal Studies Vol. 6 No. 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.04

Abstract

Hyper-regulation and disharmonization of regulations is a serious challenge in Indonesia. Ministry of Law and Human Right make a breakthrough stipulates regulation on Regulatory Dispute Resolution through Non-litigation. This mechanism is unique because commonly alternative dispute resolution (ADR) used in civil law however, this instrument exercised in constitutional law. There are two research questions: First, what are the typical characteristics of non-litigation regulatory dispute resolution on Indonesia norm harmonization system; Second, how is the legality of non-litigation regulatory dispute resolution, mainly based on constitutional perspective. Author use statute, conceptual, and historical approach as research methods. The research result found the typical characteristics of non-litigation regulatory dispute resolution that most distinguish from litigation resolution: the resolution institution is Ministry under the executive branch, the final results limited only give a recommendation, and the nature of recommendation not final and binding. Next, the legality of the authority found even though only regulated at the level of Ministerial of Law and Human Rights Regulation. However, in the analysis of constitutional interpretation methods shows clearly this authority is legally based (1) Textual interpretation; (2) Structural interpretation; (3) Prudential interpretation; and (4) Consensus interpretation. Although, by nature, this process limited to resolve the conflict between norms and overregulation because it is voluntary and the result only recommendation, but the important thing is it can open alternative resolution to stimulate the harmonization and streamlining of regulations.
Role and Position of the Defendant in the Plea Agreement Vaxhid Sadriu; Azem Hajdari
Brawijaya Law Journal : Journal of Legal Studies Vol. 6 No. 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.05

Abstract

The object of this study is the plea agreement in the criminal procedure of Kosovo. The study focuses on defining the understanding of the plea agreement, specifying the role and position of defendant in the plea agreement, specifying the rights and obligations of the defendant in the plea agreement, and on the elaboration of the importance and effects of the plea agreement for the defendant and withdrawal of such agreement for the reasons that may be related to it. The results of this paper prove that the guilty plea agreement in the Kosovo courts practice has had a direct effect on mitigation the level of sentence or in some cases acquits punishment. Looking into this aspect, the biggest benefits resulted on favor of defendants with the status of cooperative witness. The contribution of this paper is theoretical and practical, since it deals with an issue almost untreated in Kosovo. These issues focus on legal solutions, theoretical approach, as well as operational aspects concretized in the practical activity of criminal procedure subjects. The legal, comparative, tracing and theoretical analysis methods have been helped in the preparation of this study.
A Realistic Theory of Law (Book Review) Syahrul Fauzul Kabir
Brawijaya Law Journal : Journal of Legal Studies Vol. 6 No. 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.09

Abstract

Despite the law has been developing through the span of the history of human civilization, law has been formulated by legal thinkers, theologians, philosophers; constructed with various pretexts and objectives: for legal certainty, utility, justice and order; used to regulate social life in various forms and dimensions: customary law, religious law, state law, international law, the formulation of legal theory, to date, is still an academic debate. It is Brian Z. Tamanaha, a professor of law from America, who also entered the theoretical debate's arena through his academic works. In the contemporary legal discourse, Tamanaha is quite popular among academics and legal activists. Tamanaha is known globally due to his famous works, such as "A General Jurisprudence of Law and Society (2001)", which received Herbert Jacob Bookrize awards, and "On the Rule of Law: History, Politics and Theory (2004)", which have been translated into 6 languages. His position as an important legal thinker in the 21st century gained his legitimacy in 2013. Through a poll, which involved 300 deans and professors from various universities in America, Tamanaha was regarded as the most influential legal educator. Tamanaha is often cited by many legal thinkers in Indonesia, among others, by Satjipto Rahardjo, especially regarding Tamanaha's concept known as the mirror thesis. Through this notion, Tamanaha argues that law is only a reflection of certain ideas, values, cultures and traditions of society. Because law is always particular, referring to certain societies in particular temporal circumstances, then, legal transplantation from and/or to other communities is not realistic if not impossible. His thinking, inevitably influenced by the Anglo Saxon legal tradition that grows and practiced in his homeland America, which tends to be more dynamic and reliant on jurisprudence. On April 24, 2017, Cambridge University Press published Tamanaha's latest book entitled "A Realistic Theory of Law". Examining the composition of the book's contents: contained a debate regarding law's definition, the schools of law, genealogy of law, while questioning the truth and the universality of law, presumably implying that Tamanaha was constructing his own legal theory as reflected in the book's title ("Theory of Law"). Based on this description, the author is interested in exploring Tamanaha's legal thinking; outlining his opinions on the essence of law, through his newest book which numbered 202 pages. The first part of the book discusses three most prominent theories or legal philosophies (Jurisprudence) in various legal discourses: The School of analytical law (legal positivism), philosophical/ethical (natural law) and historical (historical schools). Throughout history, from medieval times to renaissance, the conflict between these schools of jurisprudence was reviewed through its exponents thinkers. Then, Tamanaha entered the arena using the socio-legal framework's, in order to overcome the gap between these schools of law. In the second chapter, Tamanaha reviews the classical debate on law, namely questioning the legal definition in a sub-title "what is law?". The three branch of jurisprudence, as mentioned previously, are joined to disscuss the problematic definition of law. Then, Tamanaha not only criticizes the proposed law definitions, elucidating the shortcomings and failures of established legal definitions, but also tries to reconstruct it. Chapter three contains description with regard to the claim of law's universality. Here, Tamanaha critically discusses the basic assumptions of law and the implicit legal features from the mainstream law's perspective. Differentiation between laws as social construction, which varies in each society due to the variety of cultures, environments, etc. (a posteriori), is faced diametrically with the identification of idealized laws, which can be applied universally (a priori). The discussion raises a debate on the universality of the nature of law (universal truth); identification of legal characteristics, and the possibility of its implementation in a universal way. Tamanaha, in the fourth part, uses genealogical approach of law; tracing the relationship between law and non-law elements, such as: economic, social, political, environmental, technological, cultural, in a diverse historical contexts. On the one hand, Tamanaha is concerned with historical developments related to legal structures; how law is formed and what elements have influenced law, by citing historians, sociologists, anthropologists viewpoint, etc. On the other hand, Tamanaha scrutinize analytical law's arguments, especially the positivist school; suing the basic assumptions of state law which has been hegemonic as the standard, in determining entity referred to as law. The fifth part of the book is entitled "Law in the Age of Organizations". Tamanaha begins this chapter by claiming that legal theories have failed in calculating fundamental changes in law and society, which are marked by the rise of formal legal instruments. Tamanaha claims that his legal theory is more suited to modernity. Tamanaha distinguishes between law as the core regulation for social interaction and the use of law by the state. Furthermore Tamanaha explained how the interaction between the two categories affected the creation of legal structures in the community. Before arriving at conclusions, Tamanaha ends the discussion in this book through the last part entitled "What is International Law". Tamanaha claims that international legal theories have a problem due to the confusions of concepts and ideological views constructed in international legal discourse. Conceptual barriers trigerred by Jeremy Bentham's theoretical paradigm in which he created a gap between domestic law and international law as separate entities. While ideological barriers stem from normative tendencies or commitments among international law experts in establishing a universal legal system; thus creating a false vision related to the locus of international law and its relation with national law. By outlining these confusion, Tamanaha believes he can provide a more comprehensive understanding of international law.
Compensation as Sanctions for the Perpetrators of Corruption in the Dimensions of Indonesian Criminal Law Renewal Kukuh Dwi Kurniawan; Dwi Ratna Indri Hapsari; Yaris Adhial Fajrin; Ach. Faisol Triwijaya
Brawijaya Law Journal : Journal of Legal Studies Vol. 6 No. 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.06

Abstract

Corruption is one of the negative consequence of corporate crime. Corruption perpetrators from corporations are still relatively new in Indonesia, so legal reform is still needed, which is close to the purpose of criminal law. The existence of legal sanction in the form of compensation becomes a breakthrough for one type of sanction and can impose the perpetrator of corruption. Thus, in this study, we want to find a theoretical basis for corporate punishment that commits corruption and the existence of criminal sanctions for corporate compensation as perpetrators of corruption in efforts to renew criminal law. This study uses normative research by approaching the conceptual approach. From this research, finding a corporate foundation that commits corruption can be imposed by a criminal is in line with the purpose of punishment as well as by ius constituendum. For compensation that is an alternative to corporate punishment as a perpetrator of corruption, it can be brought down along with the principal penalty which has the purpose of accountability and reconciliation, guidance, reintegration, socialization or means of resolving conflicts to the community.
Urgency of the Contempt of Court Criminalization Policy to Overcome Harassment Against the Status and Dignity of Courts Hari Sutra Disemadi; Kholis Roisah
Brawijaya Law Journal : Journal of Legal Studies Vol. 6 No. 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.07

Abstract

In Indonesia, many cases that occur related to contempt of court and law enforcement have occurred. The issue of Contempt of Court in Indonesia is a problem that is both interesting and complicated in its conception and regulation. Until now, in Indonesia, no provisions specifically regulating the Contempt of Court institutions. This completed study uses a normative juridical research method that prioritizes secondary data. This research addressing the legislation governing the Contempt of Court specifically until now still does not yet exist. However, the general arrangement has happened in the Criminal Code. Contempt of Court can occur both in the courtroom and outside the trial both in criminal, civil and industrial relations cases. Increasingly expanding various actions, which can be categorizing as contempt of court in Indonesia, it is necessary to arrange Contempt of Court in the form of separate rules
State Regulation on Business Entities Owned by State Universities: Losses and Liability Shinta Hadiyantina; Nandaru Ramadhan
Brawijaya Law Journal : Journal of Legal Studies Vol. 6 No. 2 (2019): State Regulations and Law Enforcement
Publisher : Faculty of Law, Universitas Brawijaya

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.21776/ub.blj.2019.006.02.08

Abstract

The Act of Higher Education stated that Higher Education Management Autonomy is carried out by the basis and objectives and abilities of tertiary institutions. This causes not all State Universities to have the same status, one of which is Legal Entity State University. Legal Entity State University is a state university established by the government which is an autonomous public legal entity. Implementing regulations related to Legal Entity State University is Government Regulation Number 26 in 2015 on the Form and Mechanism of Legal Entity State University Funding. The Government Regulation indicates that Legal Entity State University can have a business entity. The problem is, if the Legal Entity State University carries out a business activity, there will be a possibility that the business will suffer losses. If there is a loss, how is the liability for the loss of the Legal Entity State University?Based on the business judgment rule doctrine, not every business loss is classified as a state loss. If the financial loss is not caused by intentional acts against the law or abuse of authority, then that matter is not classified as a state loss. If the losses included state losses, then the liability losses caused by the activities of those business entities owned by state universities are carried out in three ways, there are criminal liability, civil liability, and accountability in the state administrative law.

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