There are often cases where irresponsible individuals create social media accounts using other people's personal identities as if the account is the original account of the person whose identity is being used, hereinafter referred to as fake social media accounts. Such actions can be threatened with Article 35 jo. Article 51 paragraph (1) of Law Number 11 of 2008 concerning Information and Electronic Transactions (ITE Law). The type of research used by the author in this study is prescriptive normative law (...) research with a statute approach and a case approach. In Verdict Number 1739/Pid.Sus/2020/PN Jkt.Brt, the defendant was declared guilty of committing a crime under Article 28 paragraph (1) jo. Article 45A paragraph (1) ITE Law. Not only fulfilling the elements in Article 28 paragraph (1) of the ITE Law, but the defendant also fulfilled the elements in Article 35 of the ITE Law. However, the defendant was not found guilty of a criminal offense under Article 35 of the ITE Law, even though Article 35 of the ITE Law was one of the prosecutor's indictments. Based on this research, the defendant was not found guilty of a criminal offense under Article 35 of the ITE Law because the form of the indictment in Verdict Number 1739/Pid.Sus/2020/PN Jkt.Brt is less precise. The form of indictment used by the public prosecutor is an Alternative Indictment where ideally the public prosecutor ought to use Cumulative Indictment on a concursus realis crime that the defendant committed. (shrink)

In recent years, violence against women has continued. Culture, beliefs, and the role of community and religious leaders are the reasons for the practice of female circumcision in East Java Province. To the perpetrators, this activity is reasonable. This article is a policy study with a gender perspective approach and uses qualitative methods and quantitative data. The results of this study reveal the insights of circumcision practitioners in women who are less aware of the effects of female circumcision, low education (...) levels, and trust and pressure from the family (internal) and the environment (external). Moreover, the main rules are legalised as the 1945 Constitution explicitly outlines government interference in community control, including social and cultural. The gender mainstreaming strategy (PUG) has been implemented to eliminate activities that violate women's rights to health and other constitutional rights. (shrink)

Legal protection of consumer rights in essence is the role of the government to protect the interests of consumers in the framework of trade. Violation of consumer protection norms can only be enforced if business actors are willing to voluntarily fulfill consumer demands for the fulfillment of consumer rights that have been violated by business actors. However, if the business actor is not willing to carry it out voluntarily, while the consumer assumes that the business actor concerned has violated the (...) consumer protection norms stipulated by the UUPK and is detrimental to the consumer, then the enforcement of the consumer protection norms can only be prosecuted through a dispute specified resolution process in the UUPK. The purpose of establishing the Consumer Dispute Settlement Agency (BPSK) is to protect consumers and business actors by creating a consumer protection system that contains elements of legal certainty and information disclosure. This study is to analyze the implementation of consumer rights enforcement through the Consumer Dispute Resolution Board in order to increase the consumer satisfaction index, as well as to analyze the obstacles and barriers to consumer rights enforcement through the Consumer Dispute Resolution Board. (shrink)

Currently, internet development grows rapidly which facilitates and eases various economic activities, especially e-commerce transactions, on a global scale. In 1996, the UNCITRAL regulated the e-commerce transactions, including e-contracts. The e-contract is one of the most relevant matters in e-commerce transactions, especially it is of importance for the consumers to avoid any unwanted situations. However, several problems arise for consumers in conducting e-commerce transactions, such as the asymmetrical bargaining power of the parties involved. In this sense, there is an urgency (...) for the legal protections for consumers. The objective of this article is to understand the connection between consumers’ legal protection and e-contracts validity in e-commerce transactions. The research method used is the legal descriptive analysis through statutory and conceptual approach. This study analyzes the legal relationship between the legislations related to the e-contracts within e-commerce transaction in Indonesia, which are the Indonesian Civil Code, Law Number 8 of 1999 concerning Consumer Protection, and Law Number 19 of 2008 on Information and Electronic Transactions. Through a systematic appraisal, it argues that the current legal framework does not fully guarantee legal certainty for consumers in e-commerce transactions, such as on the obligations of producers and distributors to customers in the e-commerce transactions. (shrink)

Our overriding thesis is that nuclear security measures are required in Indonesia as a matter of urgency given Indonesia’s current plans for the construction of nuclear power plants (NPP) and all the physical infrastructure and supply chains wherein nuclear materials is exposed to the general public and a target for terrorist attack. This work is divided into two parts: (1) an analysis and close reading of the existing nuclear regulatory regime of Indonesia, with the view of determining whether the existing (...) regulations are sufficient to provide nuclear security measures that protect the general public, and (2) based on our analysis what kind of policies and legislative provisions should we have in order to better protect the public. The headline of our assessment is that there is a complete lack of legal basis for security measures and that it is recommended. From an international perspective the nuclear operating organization is within the penumbra of nuclear security standards established by the International Atomic Energy Agency (IAEA). However, while within the penumbra of the international standard for nuclear security, our assessment finds the Indonesian security measure is inadequate and potentially dangerously in effective and thus, in its current state behooves the Indonesian government to undertake a deep reformation of the legal framework of nuclear security in Indonesia. (shrink)

Presidential government system has its own disadvantages, one of them is the possibility a minority president presence in this system, namely a president who is not supported by a parliamentary majority, even though the President has a strong mandate from public, but with a minority position, the government’s agenda which carried out by the president could be hampered by parliament or the legislature, therefore it is needed a coalition government. The combination of a presidential system with a multi-party system is (...) difficult to implement because whoever the president is elected will be encountered with a certain condition that it is impossible to support him in parliament without forming a coalition. In order to respond the problem in strengthening the presidential system in Indonesia, the author offers a majority general election system or district system (first Past the Post) as an effort to create an effective and responsible government. This is a legal study which used two approaches, namely statutory approach and conceptual approach. Based on the results of study, it can be concluded that the majority system was more appropriate for creating an effective and responsible government because it could encourage the simplification of political parties and the responsibilities of people’s representatives to the voters in each district. (shrink)

Eco-anxiety' as a concept is relatively new and has received media attention recently, even though the feeling has probably existed for some time. People who are depressed and lose control when thinking about the impact of human activity on the planet, such as climate change. Climate change is an actual dimension into their mental-health problems, which is not medically recognised or defined. This is normative legal research. The data were consolidated and examined using the legal norm method, which uses qualitative (...) legal analysis, logic, and argumentation. This paper reviewed the literature on eco-anxiety and its legal implications. Environmental and health law continues to be separate bodies of international law, even though the right to health is intertwined with the right to a healthy environment. A right to a clean and healthy environment should explicitly include the right to health-physically and mentally. Priority should be given to greening public health infrastructure, such as mental health facilities, as part of eco-anxiety recovery plans to support the emergence of the environmental impact on mental health and the country's mental health promotion and prevention efforts to serve their needs better. (shrink)

To provide legal protection for workers who have experienced termination of employment, the government of Indonesia has issued a new policy in the form of Article 46 of Law No. 11 of 2020 concerning the Job Creation Law. This increases the type of protection for social security programs, namely the job loss guarantee program. This paper uses a juridical-normative research method. The results indicate that the legal protection policy for workers affected by termination of employment was not appropriate. Therefore, an (...) amendment was made to Law Number 40 of 2004 concerning the National Social Security System. Specifically, Article 46A of the Job Creation Law states: "Workers or employees who have their activities terminated are entitled to collateral due to loss of profession." Article 46C(2) also states that the Central Authority should pay the professional burnout insurance contributions. In this case, non-professional collateral benefits are not focused on money but on cash, access to actionable market data, and job training. It is not explained in detail what percentage of the total compensation will be obtained by workers affected by termination of employment through this job loss guarantee scheme. This is only stated in Article 46D paragraph (2), "Job loss guarantee will be provided for 6 (six) months of wages.". (shrink)

While the Indonesian government has passed the Law on Child Protection to ensure the fulfillment of children's rights, there remain a substantial number of children who are victims of sexual violence. In fact, the cases reached 14,517 in 2021. For that reason, this paper aims to discuss the imposition of criminal sanction against sexual abusers and law protection for child victims of sexual abuse. This paper is a normative legal research that puts emphasis on the legal approach, especially the Child (...) Protection Law. Regulations on procedures for imposition of sanction against sexual offenders are already included in the Child Protection Law, despite the fact that sanctions are not explicitly defined since there are minimum and maximum criminal sanctions. Therefore, it is perceived that judges can impose minimal criminal sanctions, including chemical castration, which is one of the additional sanctions as regulated in Law Number 17 of 2016. For those categorized as child victims, psychological advocacy is important to recover their mental condition and to move on from past trauma. This has been regulated as special protection that takes the forms of reproductive health education, inculcation of religious values and decency; social rehabilitation; psychosocial advocacy toward healing; and protection and advocacy at every stage of trial, from investigation, prosecution, up to examination in court. Imposition of criminal sanctions against the offender and advocacy for child victims of sexual abuse must be optimally implemented to ensure their optimal growth and development to become this country’s future generation that succeed in making their dream come true. (shrink)

Law No 11/2020 concerning Job Creation (Omnibus Law’) mandates the use of domestic raw materials for all industries in Indonesia. Following the passage of the Omnibus Law, Indonesia issued Government Regulation No 28/2021 concerning Industrial Management and Presidential Regulation No 12/2021 concerning the amendment of Presidential Regulation No 16/2018 concerning Government Procurement of Goods and Services. Both regulations oblige all industries in Indonesia to use domestic raw materials pursuant to the Omnibus Law. In investment law, this kind of policy could (...) lead to indirect expropriation because when an investor makes an investment in a host country, the raw material and machines for production might come from their home state or other states. Furthermore, a public-private partnership contract with investors funding infrastructure projects for at least 50 years using materials agreed upon in advance will lead to indirect expropriation. The method used in this research was legal research theory with statute and conceptual approaches. From this research, the policy of the Indonesian government can be described as indirect expropriation because the regulation is effective and enforced. (shrink)

The European Union enacted the Renewable Energy Directive 2018/2001 (RED II) policy under the pursuit of environmental protection. The authors will analyze how RED II is discriminative toward Indonesian trade of CPO, primarily within the concept of indirect land use change (ILUC), which restricts trade toward crude palm oil (CPO) whereas other domestic like products are exempted from such reduction. After the promulgation of this policy, Indonesia requested WTO to examine whether RED II follows the international obligations set forward in (...) WTO. The author will analyze non-discrimination under WTO Law, specifically based on the provisions of Article 2.1, 2.2, and 5.1 Technical Barriers to Trade (TBT) Agreement as well as Article III:4, XX(b), and XX(g) of General Agreement on Tariffs and Trade (GATT) 1994, alongside with relevant jurisprudence of WTO case laws. This research is conducted through juridical-normative method, which utilizes library materials and secondary data. The outcome of this study shows that RED II does violate obligations of non-discrimination based on GATT and TBT due to differential treatment of like products that inflicts less favorable treatment and unequal opportunities of competition for CPO. (shrink)

The rapid spread of the SARS-CoV-2 virus which is responsible for the COVID-19 pandemic across the globe has spawned an intense debate on the necessity of a waiver of some provisions of the World Trade Organisation’s Agreement on Trade Related Aspects of Intellectual Property Rights (TRIPS) to increase access to medicines and other medical technologies essential for combating the disease. This article explores the potential of the TRIPS waiver as a mechanism for reconciling the conflicting norms of public health with (...) intellectual property rights protection. It argues that while the TRIPS waiver can be an effective legal instrument which accommodates public health concerns of increasing access to medicines and medical technologies, it has, in its current form and text, many flaws which militate against its effectiveness. These flaws are evident in the way the TRIPS waiver is couched, notwithstanding that the waiver presents multiple benefits including furthering re-humaninisation, distributive justice and decolonisation goals. The article offers recommendations on how the TRIPS waiver adopted during the WTO’s recently concluded 12th Ministerial Conference could be strengthened to eliminate some of its defects in pursuit of expanding access to COVID-19 vaccines and other therapeutic. The research methodology used in this article is the qualitative desktop doctrinal research methodological approach. (shrink)

The use of language in international agreements is very important to establish international cooperation. It is also noteworthy that according to the Indonesian law, the international agreements related to several matters adopted by the government shall be translated to Bahasa Indonesia. However, the terms contained in Indonesian national law, in Bahasa Indonesia, often tend to be different from the meanings contained in international law, such as the 1969 Vienna Convention on the Law of Treaties. Thus, they often have multiple interpretations. (...) As such, the use of language, especially relating to international agreements, can be a trigger for legal disputes. In this regard, using a legal research method by analyzing the international legal instruments and Indonesian national law, this paper digs into the use of language related to the adoption of an international agreement to an Indonesian Law, especially regarding the terms of “ratification,” “accession,” and others. It is argued that there is a difference of perspective within the “adoption of an international agreement” regarding the terms of “ratification” and “accession” under the 1969 Vienna Convention. (shrink)

The absence of gig workers’ right to collective bargaining affects the human rights condition of the app drivers. Previous studies roughly fall into two categories: either employing the drivers as a solution or opting for law-making intervention. This paper fills the gap using a new concept based on the United Nations Guiding Principle of Business and Human Rights by exploring the businesses’ social responsibility realm. This qualitative socio-legal research finds that: (1) the clauses of the standardized partnership agreements contain unequal (...) risks allocations, putting the independent contractors in a lose-lose situation; (2) the inability to determine the substantial domain of the contract marginalizes the partners from exercising the related social and economic rights; and (3) the pre-existed structural problems take part as a coercive forces to the partners’ free will to consent, resulting in a doubtful partnership contract validity. As a solution, the insertion of meaningful partnership consultation, a concept adopted from collective bargaining concept in labor relations, enables better mutual consent arrangement and serves as a preemptive remedy to the human rights impact. (shrink)

Dispute resolution through court is more favorable because the binding decisions of judges can resolve cases. This study discusses ratio legis of niet ontvankelijke verklaard in the law of civil procedure and in the formulation of the delimitation of the judge in giving niet ontvankelijke verklaard in the fast, simple, low cost, and complete settlement of civil disputes. This study used legal research methods with legislation and conceptual approaches. The result of the study showed that The limitation of the judge (...) in examining the lawsuit that does not meet the formal requirements and decides the lawsuit is inadmissible (niet onvankelijk verklaard), in the absence of fast, simple, low-cost, and complete civil disputes, as stated in the Draft Bill of the Law of Civil Procedure, which is essentially related to the types of exceptions that can become the basis for the judge in determining the lawsuit to be inadmissible (niet onvankelijk verklaard). Indonesia's current civil procedure laws, HIR and RBg, do not specifically outline the standards that a judge must employ to declare that a matter is inappropriate for filing (niet onvankelijk verklaard). Before making a ruling that is not admissible (niet onvankelijk verklaard) in the settlement, the judge must be aware of his or her restrictions in this situation. As stated in the Draft Bill of the Law of Civil Procedure, the judge is limited in examining lawsuits that do not meet the formal requirements and deciding that the lawsuit is inadmissible (niet onvankelijk verklaard), in the absence of quick, easy, inexpensive, and comprehensive civil disputes. This limitation is essentially related to the types of exceptions that can become the basis for the judge in determining that the lawsuit is inadmissible (niet onvankelijk verklaard). (shrink)

Enigma emerged when the Constitutional Court declared that Law Number 11 of 2020 concerning Job Creation (UU CK) unconstitutional. The purpose of this legal research is to review the legal dynamics of the UU CK after the Constitutional Court Decision No. 91/PUU-XVIII/2020 based on the point of view of the formal review and procedural justice, as well as reviewing the relevance of the Decision as a monumental decision; while at the same time analyzing the phenomenon of 'conditionally unconstitutional' in the (...) perspective of legal certainty and expediency. This legal research uses a conceptual approach and a statutory approach. The legal materials of this legal research consist of primary legal materials, secondary legal materials, and non-legal materials. The study results stated that the Constitutional Court Decision No. 91/PUU-XVIII/2020 is not a monumental decision, considering an omission of "freeze" norms from the UU CK. Meanwhile, if it is studied based on procedural justice and the conception of a formal review, then the UU CK should be null and void by law. Then, 'Constitutional Conditional' in the Decision of the Constitutional Court No. 91/PUU-XVIII/2020 provides legal chaos. There is a contradiction that the UU CK is declared not legally binding as a consequence of 'formal defects' from the process of forming the UU CK. Thus, the suggestion from the researcher is that the government can ratify a standard rule in the law regarding the formation of legislation regarding the construction of an omnibus law scheme. (shrink)

Legal research is carried out to resolve legal problems. Since jurisprudence is a prescriptive science, legal research is conducted to produce prescription. The prescription may be the basis of resolving the legal problem. It is different from research for behavioral science or social research which is to verify a hypothesis. Data are needed to verify the hypothesis. On the other hand, legal research does not need data since it is not conducted to verify a hypothesis. Social research is to find (...) coherence truth while, legal research is to discover coherence truth. Despite usage of induction in establishing argument, legal research does not use data to find the truth because the truth found is coherence truth. Legal research may be for practical purpose or for academic activity but is still like any other research and begins with problem, which is a legal problem. Legal problems in legal research should be clearly defined; otherwise, there will be misapplication of law to the problem. Consequently, the problem will not be solved. Legal problems may be causal relationship, functional relationship, or two propositions where the latter proposition gives clear meaning to the first proposition. The type of legal problem should be identified. It is necessary to collect legal research materials, which may be primary legal materials, secondary legal materials, and non-legal materials. The non-legal materials are supporting and complementary materials. Legal research may be carried out by using approaches as necessary. There are five types of approaches, statute approach, case approach, historical approach, comparative approach, and conceptual approach. The respective approach should be used appropriately. (shrink)

The COVID-19 pandemic is described as circumstances often interchangeably in social and medical contexts as non-boundary spread and directly affected a wide range of human life and a non-traditional security threat. The pandemic has had adverse consequences on the economy, and health and psychology have suffered. In 2020, ASEAN held an extraordinary summit on COVID-19 to accelerate resilience to the pandemic as a regional response; however, a solid commitment and comprehensive foundation are critical focal points for dealing with infectious diseases. (...) Therefore, ASEAN member states should create a permanent mechanism to deal with current and future pandemics by providing a strategic long-term plan, an annual work plan, effective monitoring systems, and quality assurance by strengthening the ASEAN Socio-Cultural Community’s role as an open and dynamic entity within the ASEAN Community. Doctrinal research based on normative legal and conceptual approaches was conducted as methods for this study. (shrink)

Most palm oil workers in Indonesia are employed as temporary daily workers. Their situations are prone to human rights violations ranging from the right to fair working conditions to the freedom of association. Under international law, palm oil workers should have the right to remedies for these human rights violations. The third pillar of the United Nations Guiding Principles on Business and Human Rights (UNGPs) provides that remedies for victims of business-related human rights violations can be accessed through judicial or (...) non-judicial means. Under Indonesian Law, palm oil workers working under poor conditions can access their remedy through judicial mechanisms, such as the Industrial Relations Court, Civil Court or Criminal Court. However, current Indonesian Law does not provide adequate access to remedies for palm oil workers in Indonesia because the law does not provide the obligation to provide remedies under the UNGPs. Therefore, these palm oil workers do not have adequate access to a judicial remedy. Palm oil workers in remote areas face legal, procedural, and practical barriers in obtaining remedies. This article aims to find the judicial avenues these workers could use to access remedies and overcome their challenges. (shrink)

Many criminal acts of corruption originate from the procurement of goods/services which turns out to not make the application of the article on corruption crimes to matters relating to state losses or the application of corruption crimes to KPA and PA actions important to get attention, because many parties are certainly familiar with the character of law enforcement for criminal acts of corruption, which are always linked with administrative errors. Based on this background, this research raises the title: "Criminal legal (...) responsibility for budget users and budget users authority in the procurement of government goods/services for the occurrence of state losses.” The purpose of this study is to analyze and find the ratio of the legal liability of PA and KPA in the procurement of government goods/services for the occurrence of state losses and legal consequences for the implementation of PA and KPA duties that cause state losses in the procurement of government goods/services. The research method used is legal research (doctrinal research) and the approach used is the statutory approach, case study, conceptual approach, and comparative approach. The results of this study, namely the Legis Ratio of accountability for PA and KPA for the occurrence of state losses, is because PA and KPA are state officials who have special authority which in fact is not owned by everyone, even public officials, so that, according to the legal principle of deen bevoegdheid zonder verantwoordenlijkheid (there is no authority without accountability), it is logical that, when exercising this authority, when the PA and KPA make a mistake, there are juridical consequences, but the mistakes made by the PA and KPA cannot be generalized immediately. The mistakes made by the PA and KPA must be analyzed, to find out the qualifications for the responsibilities of the PA and KPA, whether administrative, criminal, and/or civil liability. This, when associated with the ten-to-one rule principle, should not allow the PA and KPA to be held accountable for more than the mistakes made. (shrink)

Civil society greatly contributes to encouraging the adoption of the United Nations Guiding Principles on Business and Human Rights (UNGPs) into practice and legislation in Indonesia. This contribution can be seen from the various policies and actions taken by the Indonesian government in referring to the UNGPs when forming policies related to human rights or the operation of companies in Indonesia. This research aims to serve as a database and as consideration for civil society in Indonesia to advocate for business (...) and human rights issues, especially the issues related to actions taken by civil society to influence Indonesian governmental policies and the challenges faced by civil society. As such, civil society will be able to measure the urgency of intervention in policymaking related to business and human rights. This research was conducted using qualitative and comparative approaches. The qualitative approach was carried out through studies of literature, both primary and secondary. The comparative approach aimed to analyse and compare two or more objects based on a theoretical framework. The comparison results can be in the form of similarities or differences in the aspects studied. This research process pays attention to certain sensitive contexts that require a context-sensitive approach. (shrink)

The pressure for employment opportunities has led to many dishonest practices by employees and job seekers. The evil of employees misrepresenting their academic qualifications has become endemic, and the South African government has been compelled to act. Misrepresentation of academic qualifications mainly manifests itself through employees claiming to have non-existent higher education qualifications to secure a new job offer or be promoted to a higher post. This misrepresentation has consequences for the employer, who may pay the employee a salary they (...) do not deserve. The employee must refund the employer and face prospects of imprisonment if found guilty in a criminal court. In South Africa, high-profile individuals working in the public service or occupying prominent political positions have falsely claimed to have qualifications that they did not have. They have been allowed to resign on their own accord or were dismissed after lengthy disciplinary hearings. This paper outlines some examples of this misrepresentation and unravels the legal implications from a South African perspective. We recommend that employers promptly discipline employees found guilty rather than allow them to resign, as was done correctly in the Mthikhulu case discussed here. Further, we urge employers in South Africa to foreground the skills of employees rather than paper qualifications and assess technical ability ahead of academic qualifications. (shrink)

The Coronavirus pandemic affected several sectors including the policies of national governments and the international community. Besides cleanliness and health policies (e.g., washing hands and wearing masks), the primary policy adopted in numerous countries was the human mobility restriction. Border posts, airports, and ports are closed to limit people’s mobility, eliminating the opportunity for individuals to leave their nation because of war or unstable situations to seek a better life. Refugees are the ones who are most affected by the spread (...) of this Coronavirus, as each nation prioritises its own national interests and its own inhabitants. The Global Compact on Refugees can be properly implemented to help refugees overcome the difficulties they face in the middle of the Covid-19 pandemic. The core objective of the Global Compact on Refugees is to ease the pressures on host countries and its equitable responsibility-sharing provisions should be optimised for implementation. This study is based on normative legal research; therefore, this article will examine the role of the Global Compact on Refugees during the height of COVID-19. Even though the Global Compact on Refugees is merely a non-legally binding instrument, the pandemic could be used as momentum for states to share the burden and responsibility of caring for the refugees in their states. (shrink)

Juvenile offenders do not all end in diversion. According to Article 7 of the Juvenile Criminal Justice System Law, there are two categories that cannot get diversion, namely children who commit repeat crimes or are recidivist, and children who commit criminal acts and are threatened with coaching 7 years and over. Diversion is given when it has obtained approval from various parties, and a diversion agreement is reached by the victims and their families, the perpetrators and their families. Diversion deliberation (...) does not always end well; if no agreement is reached, then the diversion is considered a failure or unsuccessful. Besides that, diversion can also fail if the perpetrators reject it. This research is a legal research. using a case approach, a conceptual approach and a statutory approach. The focus of the research is the target to be observed or measured, namely the provision of diversion for juvenile offenders, as well as obstacles in efforts to provide diversion to juvenile offenders. Giving diversion to children in an effort to foster a sense of responsibility shows good results, seeing the enthusiasm of children who show remorse for their actions so that there is good faith to listen and learn to be better people in the future. The obstacles faced in efforts to provide diversion to children who are in conflict with the law are that the proposed diversion consultations are not all agreed upon by the conflicting parties because of the siri' culture among Bugis-Makassar and the community's paradigm of retaliation,which is still entrenched. (shrink)

The enactment of Israeli policy on the occupied Palestinian territory has shown the development of the annexation of Israel—from the “de facto” annexation, which seized and occupied the Palestinian territory, to “de jure” annexation by enacting legislations. The dispute between these two entities arises the question of the role of international law, including the position of international law in protecting the right to self-determination and sovereignty of the annexed Palestinian territory. Hence, it is crucial to understand the Israeli practice in (...) the matter of territorial annexation to picture the legal framework provided under international law regarding such issue, within the historical and legal context of the Palestinian case. This research argues that the international law is ambivalent. While many United Nations resolutions and legal scholars, including the advisory opinion of the International Court of Justice, have concluded the wrongfulness of the annexation of the Palestinian territory, the recognitions of other states and the difficulty in requesting state responsibility disable the access of Palestinians to justice. As such, it is necessary to focus on the tools provided by the international criminal law to prosecute war criminals and perpetrators of crimes against humanity against the Palestinian people from the Israeli political and military elites. (shrink)

Foreign direct investment (FDI) is critical to Indonesia's economic development. Tourism is one of the most appealing investment industries. It has made a significant contribution to employment creation, tax revenue and domestic value addition. However, FDI in tourism has had negative environmental consequences. Moreover, Indonesian trade agreements and investment treaties do not reflect environmental concerns. The schedule under the General Agreement on Trade in Services (GATS) follows a similar trend, although other countries’ practices have shown that Indonesia can add this (...) concern. Domestic laws and policies are also silent because the goal of economic growth outweighs protecting the environment. The United Nations Guiding Principles on Business and Human Rights (Guiding Principles) govern states' obligations to defend human rights and companies' obligations to respect and give remedy. This article examines the feasibility of incorporating the Guiding Principles into FDI in tourism. The Guiding Principles, together with the Global Code Ethics for Tourism, would provide a starting point for more robust legal frameworks for foreign tourism companies and emphasise sustainable development. (shrink)

Integrity Zone is proposed to improve the quality of public services, and as an effort to realize clean and good government, even it is still hard to fully realize in specific law enforcement agencies, such as the Prosecutor's Office of the Republic of Indonesia. For that purpose, the implementation of the related law should be accompanied by an understanding that humans are the prominent entities in realizing the norms contained in the integrity zone. The potential for abuse of duties and (...) authority by individual prosecutors that can at least be categorized as illegal acts should be appropriately addressed. A qualitative approach with the hermeneutic method was employed in this study to explore and examine the legal meanings behind the phenomena in the integrity zone through correct interpretation. It is concluded that there is a limitation in regulating the integrity zone within the attorney's office and not referring to the correct interpretation of the correlated law. The legal hermeneutic perspective in building an integrity zone at the Prosecutor's Office must be built based on a culture of zero tolerance for any illegal act, which refers to planting and strengthening the roots of human conscience within the Prosecutor's Office. (shrink)

One law enforcement agency that has the authority to carry out full supervision and investigation of corruption cases is the Corruption Eradication Commission. Article 50, paragraph (1) is problematic where the arrangement is incomplete and seems unclear. There is also a problem in the implementation of article 50, paragraph (3) concerning the phrase ‘The police or the prosecutor's office is no longer authorised to conduct a full investigation’. Article 50, paragraph (1) of Law No 30/2002 on the Commission for the (...) Eradication of Corruption Crime (‘KPK Law’) provides that ‘in the event that a corruption crime occurs and the Corruption Eradication Commission has not conducted a full investigation, while the case has been fully investigated by the police or the prosecutor's office’. Article 10, paragraph (2) of Law No 19/2019 on the Second Amendment to Law No 30/2002 on the Commission for the Eradication of Corruption Crime (‘Law No 19/2019 on the Second Amendment to the KPK Law’) causes a problem because the provisions on the implementation of supervision duties should be regulated in the form of government regulations by referring to an adherence to the principle. (shrink)

This paper is intended to criticize the societal practices that occur, especially in Indonesia, where many heirs during their lifetime give wills to heirs who have been given a particular part in the Qur'an, which results in other (experts) heirs not getting a share or obtaining. Less than that specified in the Qur'an. One of the contributing factors is because, according to the heir, the provision of the will is to provide justice for all his heirs; however, fairness according to (...) the heir is different from justice in the distribution of inheritance according to the Al-Qur'an and Hadith. Legal research uses this case approach as the primary analysis juxtaposed with the statutory approach and the conceptual approach as the 'knife' of analysis. The thesis or argument obtained is related to aspects of Islamic law; it is not appropriate for the heir to give a will to someone who is an heir whose part has been assigned in the Al-Quran and Hadith. (shrink)

This paper reflects on the fundamental duty, extracted from art 225, caput, of the Brazilian Constitution, to protect and defend the environment. It refers to the duty arising from the fundamental right to an ecologically balanced environment. As it is a fundamental right, it defends the existence of a corresponding duty, in this case, a fundamental duty. Such a fundamental duty involves the relationship between present and future generations. The present generation must maintain and protect existing natural resources so the (...) future generation may also enjoy the same natural resources. To reach the proposed objective, this paper adopts a deductive approach, has a qualitative character and uses the bibliographical-documentary procedure for its development. It concludes that the duty provided for in art 225, caput, is not enforceable by itself because it lacks efficacy; however, the right and duty to and with the environment are associated constitutional categories that become effective in return. (shrink)

This study analyses several aspects of incest as a sexual crime, as well as its law enforcement, by comparing criminal law and Bugis customary law. This normative study was conducted by examining primary and secondary legal materials, which were then analysed qualitatively and descriptively. The findings indicate that incest can occur in the form of sexual violence caused by internal and external factors, such as psychological and family condition. Incest also has a very serious impact on victims, especially children. In (...) terms of criminal law, the regulation of incest is spread across several laws such as obscenity in Criminal Code (KUHP); sexual intercourse with children in the Child Protection Law; and sexual violence against a family member in the PKDRT Law. However, in the Bugis customary law, incest is a sexual deviation against dignity and honour (siri’). On that basis, incest is determined as the most severe customary offense (malaweng) and is punishable by the death penalty. In principle, the criminal law and Bugis customary law both consider incest a prohibited sexual deviation. Although there are differences regarding the severity of sanctions against perpetrators, both legal routes have proven to be complementary and can be applied in court. (shrink)

Officials involving in the prevention and mitigation of corona virus want to be given the right of immunity or legal immunity in implementing discretion authority as a guarantee and legal certainty that any decided policy will not be tested or used as the basis for bringing criminal action. The formation of Government Regulation in Lieu of Law (Perpu) No.1 Year 2020, which is aimed to handle the corona virus pandemic (COVID-19) actually comes with noble purpose. But the authorization of immunity (...) right or legal immunity to the officials might cause state financial loss and tend to generate abuse of power. This study aims to study the concept of state financial loss, its accountability and legal immunity on criminal responsibility over the state financial loss as the impact of decision-making by officials in handling Covid-19. This was a legal research type that applies statute approach, conceptual approach, comparative approach, and case approach. Legal immunity is a form of legal protection for parties carrying out tasks and responsibilities under a good faith. (shrink)

Crime news broadcasts on television are a part of press freedom to disseminate information to the public through printed or electronic media. Information delivery through electronic media such as television, particularly crime news, presents overviews of criminal events as if the audiences witness it straight from the crime scene. It shows the fact that. one on hand, crime news is broadcast widely on private television stations, while on the other hand there are rules for broadcasting crime news as regulated in (...) Law Number 40 of 1999 on Press and Law Number 32 of 2002 on Broadcasting. Laws on press and broadcasting also regulate the establishment of Press Council that determines ‘journalist code of ethics’ and the Indonesian Broadcasting Commission (KPI) which sets the ‘broadcast program standards and broadcasting behavior guidelines’. These institutions supervise news or broadcasting as well as individuals or broadcasters that violate broadcasting rules or code of ethics. Crime news broadcasting that displays the face and identity of suspects or defendants is a violation to the principle of ‘Presumption of innocence’, that an individual should be assumed or considered innocent until the court proves that he/she is guilty. Crime news broadcasts impose effects on the suspects or defendants in receiving ‘due process of law’, and on the public prosecutor and judge investigating the case. Therefore, crime news broadcasting should be sought to not violate the code of ethics or rules as well as the rights of suspects or defendants. (shrink)

This paper elaborates the role of the Indonesian Financial Services Authority in providing a legal framework, for public and financial services companies in particular, for achieving sustainability. It also provides a comparative analysis of sustainability regulations and functions undertaken by financial services authorities in other jurisdictions. This research takes a normative approach, combining an assessment of Indonesian laws and regulations related to business sustainability and a comparative approach; the latter provides insight into the comparable legal framework in the European Union (...) and the United Kingdom. The Indonesian Financial Services Authority issued regulations on sustainable financing in 2017, and its sustainability roadmap was updated in 2021. Comparable provisions are found in the United Kingdom’s Financial Conduct Authority’s guiding principles on design, delivery, and disclosure of environmental, social and governance and sustainable investment funds, which acts as a supplement to the EU’s Sustainable Finance Disclosure Regulation. This paper hopes to contribute to the literature on business and human rights by providing an overview of the current role of the Indonesian Financial Services Authority in ensuring the sustainability of businesses under its auspices in comparison with similar agencies in the United Kingdom and European Union. Research on business and sustainability in Indonesia from a legal perspective is still rare, despite the rising urgency of the matter in developing business and human rights as well as climate change mitigation strategies. (shrink)

An agreement can be born not enough just by the will; the will is not stated according to the theory of statements (verklaring theory). Furthermore, according to the theory of trust (vertrouwens theory), it is argued that the stated will becomes an agreement that can produce an agreement. We attempted to identify the existence of an agreement factoring and transfer of receivables in the practice of factoring transactions that have provided legal protection to the parties in the perspective of consumer (...) protection and the principle of freedom of contract. Here, we conducted a legal analysis on certain legal phenomena in Indonesia related to factoring transaction. The scope of this study was limited to factoring activities of a financing nature, particularly related to the purchase and transfer of receivables in factoring transactions in Indonesia (domestic factoring). Philosophical issues related to factoring transactions, where factoring is an institution adopted from the British legal system and the American legal system (common law), influenced by the understanding and principles of materialism, individualism and liberalism, while the Indonesian legal system is based on Pancasila, based on the principles of God, kinship, togetherness and mutual cooperation, balance, and responsible freedom. In our analysis, we found that the process of making the agreement is prepared and determined unilaterally by the factor by providing a very minimal portion for the client to negotiate. Thus, the factoring agreement does not fulfill the principle of balance and the principle of freedom of contract. (shrink)

One of the results of the constitutional change, particularly during the 3rd amendment in 2001 is related to the arrangement of judicial powers exercised by two state institutions; the Supreme Court (MA) and the Constitutional Court (MK). Both as executors of judicial power are given different duties regarding the object of testing a statutory regulation. The Supreme Court is based on Article 24A Paragraph (1) of The Constitution of 1945 relating to the authority to test the legality of statutory regulations (...) under the law against laws, while the Constitutional Court is given the authority to examine constitutionality of laws against the Constitution of 1945 based on Article 24C Paragraph (1) of the Constitution of 1945. Based on the research, it was found that the two state institutions, namely MA and MK, are both given authority in examining the legislation causing problems such as the following : (1). Potentially raises the insynchronity between the Supreme Court's ruling and the Constitutional Court's ruling. (2). The Supreme Court's decision is considered by the Constitutional Court in making the decision. (3). There is a temporary suspension of testing in the Supreme Court (MA). This can affect the institutional relationship between judicial institutions, the image and the authority of the court's rulings, can also cause legal uncertainty so that it will harm the interests of the justice-seeking community. (shrink)

This study aims to examine the bambu gila dance as a potential intellectual property for traditional cultural expressions in Maluku which should receive legal protection as part of efforts to defend cultural heritage from claims of ownership by other parties or other countries. Bambu Gila Dance is one of the famous traditional arts from Maluku. The traditional cultural expression in the form of the Bambu Gila dance is expressly protected by the Indonesian intellectual property rights system. However, protection for Bambu (...) Gila Dance as a traditional cultural expression cannot be realized so that it can only be used by other parties illegally. This research is a normative juridical research supported by primary legal materials and secondary legal materials with a conceptual approach and statutory approach. Legal protection for the traditional Bambu Gila dance from Maluku Province has not been effectively implemented, both based on Article 38 of Law Number 28 of 2014 Concerning Copyright, as well as in terms of the actions of government officials who have not been able to inventory traditional dance performance artworks as an expression traditional culture in Maluku including the Bambu Gila Dance. The role of the Provincial and Regency Governments in Maluku is crucial in realizing legal protection for traditional dances, including the Bambu Gila Dance, as intangible cultural heritage through the establishment of regional regulations. These regulations serve as legal basic to provide legal certainty as part of efforts for preventive legal protection for the Bambu Gila Dance. (shrink)

According to Article 33 of the 1945 Structure, oil and gas have the potential to greatly influence state and revenue generation sources, thereby realizing societal welfare and economic prosperity. For this reason, oil and gas have a crucial and strategic position among natural resources. As a result, a specialized work group for exploration and production (E&P) was established through the enactment of Oil and Gas Law Number 22, 2001. This organization is in charge of supervising all exploration and production-related operations. (...) In accordance with Presidential Regulation No. 12, 2021, Procedural Instruction 007, 2017, exploration and production builders carry out the rig procurement procedure to rig providers builders with their proposal Owner Estimate's worth. There are conflicting interpretations and discrepancies in the Owner Estimate instruction problem for upstream exploration and production (E&P). Concerns pertaining to areas of law positivism that Owner Estimate provides may or may not be secret in the process. It allows for collusion during the purchasing procedure. Normative juridical analysis is used in the research to make Owner Estimates of Value and to cover regulation. Therefore, in order to achieve conformity with the agreement principle and legal certainty, it is required to alter the President's Regulation and the Summary of Procedural Instruction. In order for the specialized work group for exploration and production (E&P), the E&P builders, and the rig providers to execute upstream business flawlessly and optimally to support communal welfare, the regulation's evaluation will support legal clarity, ability, and persuasiveness. (shrink)

The Indonesian zeitgeist to provide more checks toward the power of its executive organ to formulate and enter into international treaties and agreements during the infancy phase of the Reformasi era, which was spurred on by the international debt ballooning that they suffered under the leadership of President Soeharto, was somewhat undermined by the passing of the Law No. 24 of 2000, which effectively limits the involvement of the House in the formulation process of international treaties to which Indonesia would (...) be a party to. This apparently voluntary weakening of the legislative’s oversight function is caused by the understanding that the realities of contemporary international intercourse has resulted in the increasing need for the formulation and entrance into international treaties and agreements as expeditiously as possible. The WTO, as the manifestation of globalization and its byproduct, neoliberalism, plays a role in creating such a necessity, which in turn incentivizes the imparity between the legislative and executive branches of the Indonesian government. The focus of this article is its dispute settlement system, and how its strengths and its weaknesses, has created the incentive for negotiations and expeditious decision making outside of the system itself, which requires a considerable degree of latitude to be afforded to the party involved in such negotiations, the executive. The discussion in this paper delves upon works dealing with the theoretical implications of several aspects of the WTO dispute settlement system and a case study of the US-Clove Cigarettes Case, which perfectly demonstrates said implications toward Indonesia. (shrink)

Legal protection for children has not been effective and there are still children who are victims of bullying. Bullying is an action that hurts the victim both physically and psychologically. The occurrence of bullying is a form of violation of children's rights which is regulated in the Child Protection Law, so perpetrators must be dealt with firmly by imposing criminal sanctions which are also regulated in the Child Protection Law. The purpose of this writing is to find out legal protection (...) for children who are victims of bullying, especially repressive legal protection. It uses a normative juridical method that prioritizes primary legal material of the Child Protection Law. The final result is that the regulation of criminal sanctions in the Child Protection Law is cumulative and there are regulations for minimum and maximum criminal threats, so that judges in giving decisions on criminal sanctions can be minimal. This lack of firmness in setting sanctions does not provide a deterrent effect for perpetrators and other people who continue to carry out bullying actions against children. (shrink)

Medical practice through digital health platforms is one of the innovations in the health sector that changes the practice of medicine in a modern direction with technological intermediaries. Digital health platforms accommodate doctors in providing medical services to patients virtually. Certain parties may experience the disadvantages of using technology as a result of limitations that surround medical practice through digital health platforms. The laws have not yet provided specific arrangements related to the medical practice through digital health platforms. This research (...) aims to provide legal certainty by identifying and analyzing the limits of liability of the parties involved in medical practices through digital health platforms. This legal research uses a statutory approach and conceptual approach. The results showed that the imposition of liability for losses suffered by a particular party is based on the element of error inherent in the party that caused the loss. Platform operators are responsible for the leakage of a patient's personal data and medical records. Doctors are responsible for misdiagnosis and prescribing of drugs after the patient provides correct health information. The courier delivery is responsible for ensuring the medicine reaches the patient from the pharmacy according to the prescription given by the doctor. The electronic payment company must solve the transfer of funds problem and the insurances responsible for taking care on insurances needs if the patient connects the treatment with their insurance. (shrink)

Ensuring human rights and freedoms is the primary task of national development in Ukraine and the main social values and freedoms that determine the need to ensure the transparent, efficient, and population-oriented functioning of all state institutions that ensure the protection of people's and citizens' rights. The purpose of this research is to identify the state of human rights protection and enforcement in law enforcement activities in EU countries and Ukraine and to outline trends for further improvement in human rights (...) law enforcement activities. The methodological basis of the investigation is the dialectics of worldview and general and specific scientific methods for understanding national phenomena and legal realities. The research finds the promotion and protection of human rights and freedoms are foundational to effective law enforcement activities, requiring alignment with constitutional, legal, and international standards. The modernization of policing principles involves expanding the role of national institutions, fostering accountability, diversity and partnerships, while humanizing police activities to establish trust-based relations with citizens. The research further emphasizes the critical role of implementing these insights into the actual activities of Ukrainian law enforcement agencies for a more meaningful and impactful transformation in ensuring human rights and freedoms. The study is of great scientific and theoretical importance, since scientific achievements in this field define the general direction of its understanding of the state, making it possible to understand and identify new trends in the development of ensuring compliance with human rights and freedoms in the world. (shrink)

Global developments attempt to rectify serious human rights breaches within the context of legal regulations, as well as to build human rights systems and institutions on a national and global scale. However, in Indonesia, the paradigm shift from authoritarianism to democracy leads human rights as one of most important issues faced by the Indonesia government. In the last two decades, the red record in resolving major human rights abuses has not been attained, necessitating a study to evaluate effective legal choices (...) in settlement of the past human rights violations settlement. This paper employed a statutory method, legal concepts, legal cases, and citations. The comparison validates the direction of this paper's research on the dynamics of national legal concerns in the policy of resolving gross human rights abuses and the selection of law that may be employed in effectively resolving major human rights violations in favor of transitional justice. The obtained results and findings show that problems have emerged in policy orientation at the macro, mezzo, and micro policy strata, as well as the need for future direction in the substance of legislation and the enforcement system, both through judicial and extrajudicial channels, against serious human rights violations. (shrink)

Law and morals are related as an ideal value in the formation of law, because morals are considered universal values ​​that should ideally characterize every legal formation, with the hope that morality in the law can produce good behavior for legal subjects and objects. These morals and laws are in our administrative law, in this case the executive. The problem that is difficult to solve is the problem of corruption, where the act is legally and morally not good or wrong. (...) Anti-corruption regulations are in place and the establishment of the Corruption Eradication Commission reveals that the problem of corruption in our country is not resolved and is even more systematic. Ideally, with the advancement of civilization and the strengthening of moral values ​​as the basis for rules, corruption will decrease to its lowest point from year to year as a government develops. Then, if this law represents a moral value, then the court decision, which is the law, can also contain moral values. As an example also regarding court decisions by state administration officials that are not implemented voluntarily, this can be equated with blatant disobedience to the law making state administration officials arrogant. Normative juridical analysis used in research includes legal and regulatory theory. Therefore, in order to achieve conformity regarding the morals and behavior of state officials in carrying out their duties, there is a close connection between the bad morals of state officials and behavior that violates the law. The good morals of state officials will make the behavior of state officials high and far from breaking the law. (shrink)

The inequality of employment opportunities between women and men in Indonesia is quite worrying: the low employment of women, the low income of women, the minimum number of women who reach the top of their careers, and the majority of women are positioned as housekeepers. Inequality attracts the issue of income tax of breadwinner wives. The income tax regulations already accommodate equality between men and women, but various groups including the Indonesia Minister of Finance consider this regulation to be insufficient. (...) This article analyzes imposition of income tax on women in relation to the discrepancies of breadwinner roles between women and men. This article applies a law and economics approach, focusing on the importance of efficiency in order to maintain gender-neutral equality. The result, is that the approach in the context of income tax is applicable in Indonesia by introducing the concept of imputed income based on provincial minimum wage, and by applying lower tax income rate for breadwinner wives. The introduction of imputed income based on provincial minimum wage requires regulatory support from the national social security system in order to include non-wage workers. This article concludes that the key to solving inequality problem in income tax regulation is the parity in price or value between husbands and wives, either in the role of homemaker or breadwinner. As suggestion, imputed income must be complemented with the imposition of lower rates on the income of working wives, as the roles of husbands as breadwinner and wives as breadwinner are in close substitution. Consequently, the bargaining power of wives for the role of breadwinners is stronger. (shrink)

Actio Pauliana in bankruptcy, as stipulated under Law Number 37 of 2004, empowers the Curator to seek the annulment of transactions undertaken by the bankrupt debtor, causing harm to the bankrupt estate. Actio Pauliana requires proof that a third party, the debtor's transaction partner is proven to not have acted in good faith, as outlined in the law. However, the legislation lacks clarity on the criteria safeguarding third parties in good faith against Actio Pauliana claims. This research employs a doctrinal (...) research method involving a statute, conceptual, case, and comparative approach. The novelty of this research expounds upon and elucidates the need for amendments to Law Number 37 of 2004, particularly concerning the criteria protecting third parties in good faith. These criteria could be differentiated based on the third parties' position in bankruptcy and the nature of the objects constituting the bankrupt estate, including tangible and intangible movable objects, unregistered objects, immovable objects, and/or registered objects. Furthermore, proposed improvements to the law include refining provisions related to creditors' right to file Actio Pauliana lawsuits, affirming a one-year period rather than a deadline, and addressing timelines within Actio Pauliana lawsuits. Actio Pauliana claims should only be submitted after the debtor's bankruptcy declaration, excluding the Suspension of Debt Payment Obligations (PKPU) process. In conclusion, the research proposes possible solutions, such as the issuance of a Regulation (Perma) or a Circular Letter (SEMA) by the Supreme Court, containing the essential improvements to Law Number 37 of 2004. (shrink)

The Karnataka state government banned the hijab in schools on February 5, 2022, and several women petitioned the Karnataka High Court to overturn it. A panel of three judges concluded on March 15, 2022, that the hijab is not an important Islamic practice. By punishing females for their wardrobe choices, the court stressed conformity above girls' access to education. The hijab prohibition is part of a pattern of discrimination against Muslim women that violates their human rights. With the rise of (...) authoritarianism, a new form of feminism is emerging in which Muslim girls in India are challenging the authorities and resisting asserting their identity and preferences. Previous research has described human rights violations experienced by Indian female students regarding court decisions. Therefore, the purpose of the research is to investigate the human rights violations that have been disclosed as a result of India's hijab ban which employs normative juridical research methodologies. The method refers to a legal research approach that involves the examination of written law from multiple perspectives. The High Court's verdict worsens Muslim girls and women's education-related harassment, trauma, and prejudice. Muslim students removing their hijabs and burqas before entering schools is a difficult topic that requires neutrality. The verdict would affect the Indian Constitution and the Muslim population, especially hijab-wearing women. United Nations (UN) Women has backed all initiatives of India's Ministry of Women and Child Development that seek to advocate for those affected by the hijab ban to promote gender equality and prevent discrimination against women. (shrink)

This paper not only discusses the issue of the approach used, the issue of ex-post and ex-ante merger control regulation usage, issues of conflict of norms, overlapping legal rules, and the existence of legal vacuum which complicates the enforcement of rules regarding merger control in Indonesia. The legal issues examined in this paper concern the characteristics of merger control based on the ratio decidendi of KPPU decisions during the 20 years of enforcing business competition law in Indonesia and the ius (...) constituendum of the ex-ante and ex-post approach. This research is based on normative legal research using a statute approach, conceptual approach, case approach, and comparative approach method. These methods lead to the conclusion of the research, which is, that in the past 20 years, Indonesia has experienced a change in the ex-post merger control approach, resulting in partiality in the articles applied that are not entirely used in KPPU decisions. Furthermore, the idealized rules (ius constituendum) on the control of mergers in Indonesia, outlined in Law No. 5 of 1999, will be examined based on the principles and objectives of competition law enforcement in the country. (shrink)

Democracy is strongly threatened, but, even so, it still resists. Although comparative literature is divided between pessimists and optimists (Freidenberg and Saavedra Herrera, 2020), or between those who see its setbacks (Bermeo, 2016; Diamond, 2020; Haggard and Kaufman, 2021) and those who highlight its resilience (Freidenberg 2024; Merkel and Lührmann 2021; Boese et al. 2021; Lieberman et al., 2022; Freidenberg 2023; or Levitsky and Way 2023), this research critically assesses the health of democracy, especially in two dimensions: electoral and liberal (...) for 18 Latin American countries since 1978. The main argument contends that there is no single trend indicating global backsliding or, on the contrary, a generalized advancement of democracy, but rather, in any case, there are changes in different directions within the two main dimensions. While the liberal dimension is receding, the electoral dimension is being resilient. Backsliding is identifiable in relation to loss of basic commitments and the elites' disloyalty to democracy; difficulties in maintaining the currency of the Rule of Law, pluralism, respectful coexistence, and the independence of institutions; strategic manipulation of the formal rules and difficulties of access to resources and welfare; while advancements are visible in stability and cleanliness of elections, autonomy and professionalism of electoral arbitrators; alternation of power and the fact that those who govern lose elections; active participation of pro-democracy citizens; efforts for the inclusion of underrepresented groups and the building of parity democracies, among others. (shrink)

A Pluralist Theory of Constitutional Justice. Assessing Liberal Democracy in Times of Rising Populism and Illiberalism advances a theoretically rich and extremely engaging case for the suitability of liberal constitutionalism to achieve justice in contemporary globalised and pluralistic societies. While acknowledging that actual liberal constitutional models have oftentimes failed to effectively address some of the most significant challenges of our time, the book offers a valuable contribution to the debate by shedding light on the potential of liberal constitutionalism, when taken (...) in its ‘ideal’ form, as well as its conceptual superiority over competitors such as illiberalism, populism, and authoritarianism. In doing so, the author Michel Rosenfeld relies on the notion of comprehensive pluralism as a conception of the good in its own right that ought to be incorporated within liberal constitutionalism in order to secure and improve the ability of the latter to meet the demands of justice. While the author's case for comprehensive pluralism is extremely compelling, the connection that the book seeks to establish between the requirements of justice under comprehensive pluralism and the liberal constitutional model requires further discussion. (shrink)

Constitutional democracies are increasingly perceived as limited devices. Against invitations to reducing their influence and size, these pages highlight one aspect or function that the State and constitutionalism share and which turn them into valuable instruments: avoidance of arbitrariness. I here argue that a central feature of both institutions is a commitment to making sure that citizens must lead lives that can be planned with some degree of certainty and reasonableness.

This article engages with the particular fragility of liberal democracy in current times. The particularity at stake here concerns the two major challenges that liberal democracy faces today, notably the rising allure of fascism (mostly AF hereafter) and the rise of climate politics (mostly CP hereafter). The article is not concerned with the external threats that fascism and climate politics pose for liberal democratic law. It engages with the way that any endeavour to deal with these threats threatens liberal democracy (...) with the internal self-destruction of its essential ideals and principles. (shrink)

In this article, I shall focus on the legal consequences of one of the most obvious features of populisms: identity politics. In particular, I shall explore how populists in power use constitutional law to identify and fight the alleged enemy, thus confirming their Schmittian flavour. In Schmitt, public law becomes part of a constitutional narrative that represents the people as forged by a static identity that goes back to the mythological origin of the legal system. This reconstruction is based on (...) an organicistic reading of the concept of the people. This identitarian public law makes instrumental use of the moral argument, the historical argument and the religious argument. Populists in government tend to militarise constitutional law in many ways and in this article I will focus on two strategies: one that looks backwards, consisting of the instrumentalisation of the argument of constituent power; and one that looks forward and leverages the use of constitutional amendment. (shrink)

The purpose of the publication is the criminal legal analysis and characterize of an official as a subject of misuse of budget funds, budget expenditures or the provision of loans from the budget without established budget assignments or in excess thereof. Methodology. The article used a complex of scientific methods, namely: terminological, system-structural, formal-logical, comparative legal. Scientific novelty. A list of persons who may be subjects of misuse of budget funds, budget expenditures or the provision of loans from the budget (...) without established budget allocations or in excess thereof is considered; separately defined are the officials of business entities – public sector legal entities receiving subsidies, subsidies or subventions as budget funds; officials of legal entities of the public sector who, in accordance with applicable law, have been delegated the right to dispose of budgetary funds. The list of persons who may be accomplices to the misuse of budget funds is presented - both among employees of a budgetary institution, as well as regulatory and financial bodies – the State Audit Service, the State Treasury Service, and the State Treasury of Ukraine. The peculiarity of committing misuse of budget funds, budget expenditures or providing loans from the budget without established budget allocations or in excess thereof, consisting in the related commission of offenses against property and official crimes, is revealed. Conclusions. Officials are classified who commit misuse of budget funds, make budget expenditures or provide loans from the budget without established budget assignments or in excess of them: the main managers of budget funds; lower level managers recipients of budget funds; other officials (not heads) of government bodies, budgetary institutions, as well as institutions, enterprises, organizations receiving targeted budgetary funds. (shrink)

Any sphere of legal regulation, in particular, the execution of criminal penalties, is necessarily based on fundamental constitutional principles, which are the basis for the development of relationships between the rule of law and the individual. These include such principles as: inseparability, inviolability and inviolability of the rights and freedoms of the individual; the rule of law; mutual responsibility of the state and the individual; limited and subordinate state power; strict obedience to the law in the activities of all state (...) bodies and officials. Nowadays, the problems of observance of the rights and legitimate interests of citizens who find themselves in places of imprisonment are very acute. The purpose of the article there is a definition of the features of the correction and resocialization of prisoners sentenced to imprisonment in the system of means of fulfilling the tasks of criminal executive legislation. Methodology. In preparing the article, certain general scientific and special-scientific methods of cognition were used, in particular: historical, philosophical and legal, comparative, systemic, functional, generalization. Scientific novelty. As a result of an empirical study of the correction and resocialization of prisoners sentenced to imprisonment in the system of means of fulfilling the tasks of criminal executive legislation, the author’s interpretation of the concept of «resocialization of prisoners to imprisonment» is given, according to which this is a process of positive changes in the personality of a convict as a result of the application of legal, organizational, pedagogical, psychological, educational and other measures of influence in order to eliminate the negative value orientations of convicts, the consequences of their isolation, consolidation of the results of correction, rendering assistance to them after serving their sentence and promoting their adaptation in the social environment. It has been proven that when determining the type of institutions for the execution of punishments, the criterion of openness / closeness of these institutions is advisable to apply only in institutions of execution of punishment in the form of imprisonment. The above conclusions deepen knowledge about the object of research, contribute to the study of the process of execution and serving of sentences by convicts. Conclusions. The criminal executive legislation of Ukraine regulates the procedure and conditions for the execution and serving of criminal sentences in order to protect the interests of the individual, society and the state by directing efforts to correct and re-socialize convicts, prevent the commission of new criminal offenses by both convicted persons and other persons, as well as prevent torture and inhuman or degrading treatment of convicts. The state respects and protects the rights, freedoms and legal interests of convicts, provides the necessary conditions for their correction and resocialization, social and legal protection and their personal security. The main tasks of the resocialization of convicts can be considered the restoration and expansion of their socially useful ties and relations with society, the development of an integral personality capable of an objective attitude both to the world around them and to oneself; change in the orientation of the personality; creation of a system of moral, ideological, legal convictions in accordance with the norms and values accepted in society; the formation of persons serving a sentence, the ability to stable, independent, law-abiding behavior after serving a sentence. (shrink)

The purpose of the study is to highlight the possibilities of using forensic science in criminal proceedings for unauthorized interference in the work of computers, automated systems, computer networks or telecommunications networks. Methodology. The article uses empirical and theoretical research methods. Among the empirical methods used surveys of employees of operational units of cyberpolice and forensic experts of the Ministry of Internal Affairs, analysis of data from the open part of the Unified State Register of Judgments. Theoretical methods were analysis (...) and synthesis, analogy, comparison, generalization. Scientific novelty. The methodology of research of a trace picture of a crime provided by Art. 361 of the Criminal Code of Ukraine using the possibilities of forensic research of various kinds to record and study the physical traces of the crime, as well as the appointment of a comprehensive forensic examination of computers, software, telecommunications systems and their tools. The necessity of improvement of normative acts taking into account the methods of research of computer equipment and software products is substantiated. Conclusions. 1. The results of forensic research are a key element of the evidence base of the prosecution in criminal proceedings for unauthorized interference with computers, automated systems, computer networks or telecommunications networks. 2. The use of specialized knowledge in the pre-trial investigation of cybercrime is an integral part of achieving the objectives of criminal proceedings. 3. Regulatory and legal support of forensic activities to meet the needs of pre-trial investigation needs to be improved taking into account modern leading methods of expert research. (shrink)

The purpose of the article is to analyse the peculiarities of legal regulation of serving the notice of suspicion to a person whose location has been established, who resides and/or stays in temporary occupied Donetsk and Luhansk regions, as well as establishment of current theoretical and practical problems in serving a written notice of suspicion to a person located in temporary occupied Donetsk and Luhansk regions. Methodology. In view of the said aim, specificity of the object and subject of the (...) research, the methodological tool has been chosen. During the research, a system of methods of scientific cognition has been applied: the formal logic (abstraction, analogy, deduction, induction, synthesis) – to study the content of the matter under consideration; the systematic analysis – to outline directions of improvement of criminal procedure legislation of Ukraine; the theoretical approach – in the process of study of scientific, educational and methodological literature. The scientific novelty consists in the systematic analysis of the criminal procedure legislation of Ukraine, taking into account the requirements of international treaties, the consent to binding force of which has been granted by the Verkhovna Rada of Ukraine, as well as determination of theoretical and practical problems, which, if not solved, may lead to non-compliance of the procedural activity of the prosecution when serving a written notice of suspicion to a person who resides and/or stays in temporary occupied Donetsk and Luhansk regions, with the objectives of criminal proceeding and the warrantees set out by the international treaties. The ways of solving the given practical problem have been suggested. Based on the results of the conducted research, the following conclusions have been drawn: 1) since the obligation to serve a written notice of suspicion, as an integral part of notifying a person of suspicion, is entrusted with the prosecution, after establishment by whom of the data on the person's location, residing and/or staying in temporary occupied Donetsk and Luhansk regions, it is the obligation of the state of Ukraine to take all available measures to promote and protect the rights of its citizens being temporary beyond its control, by applying the provisions of Section IX of the Criminal Procedure Code of Ukraine by an investigator, prosecutor; 2) when the prosecution establishes data on the person’s location, who resides and/or stays in temporary occupied Donetsk and Luhansk regions, an investigator, prosecutor undertakes to apply to the Russian Federation for international legal assistance, for carrying out the relevant procedural actions, namely, serving a person with a notice of suspicion, as at present the Russian Federation exercises «effective control» over the temporarily occupied territory of Ukraine, in connection with which it is obliged to guarantee the implementation of Article 1 of the Convention; 3) the procedure for serving a notice of suspicion to a person located in temporary occupied Donetsk and Luhansk regions requires legal improvement by means of making the relevant amendments to the Criminal Procedure Code of Ukraine or specials laws. Herewith, the case law of the European Court of Human Rights and requirements of international treaties, the consent to obligatory force of which shall be granted by the Verkhovna Rada of Ukraine, must be taken into account. (shrink)

The purpose of the article. Based on the analysis of current legislation, professional literature and taking into account world experience to characterize the general and problematic issues of legalization (laundering) of proceeds from crime in Ukraine and suggest ways to solve them to minimize the latency of legalization of criminal proceeds. Methodology. The methodological basis of the study is composed of general scientific and special methods of scientific knowledge of socio-legal phenomena and processes. In particular, these are such methods as: (...) historical-legal, dialectical, formal-logical, system-structural, statistical, etc. The scientific novelty. The scientific novelty of the publication is that for the first time the status and results of Ukraine’s participation in intergovernmental bodies aimed at developing standards and promoting the effective application of legislative, regulatory and operational measures in the fight against money laundering, as well as official statistics for recent years legalization by law enforcement and general state financial control bodies. In addition, the interpretation of the concept of «legalization (laundering) of proceeds from crime» has been further developed. Conclusions. Money laundering is a complex economic and legal phenomenon that has no borders. The use of international experience of state mechanisms to prevent25362 and combat legalization (laundering) of proceeds from crime will allow to formulate a set of effective national levers of state regulatory influence to combat this type of crime. It is also necessary to develop a procedure for interaction and coordination of subjects of counteraction to legalization (laundering) of proceeds from crime, to increase the ability of the financial system of Ukraine, in particular, and public administration in general to resist money laundering. (shrink)

The purpose of the article is to identify current problems and issues related to the formation and development of local self-governance in Ukraine, as well as to analyze the concept of local self-government and its features. The article uses a set of scientific methods, namely: terminological, system-structural, formal-logical, comparative-legal. The theoretical basis of the study are the works of Ukrainian and foreign scientists, the Constitution of Ukraine and the European Charter of Local Self-Government. The scientific novelty of the article is (...) that it highlights a comprehensive study on the development of local government in the light of its modernization and integration, taking into account the latest international trends in municipal governance and domestic social transformations. The paper also proposes some solutions for building efficient and effective local self-government in Ukraine. According to the results of the study, the following conclusions were drawn: 1) based on the experience of other West European countries, the issue of implementing economic, social and political reforms in Ukraine should be considered in the light of European integration; 2) effective implementation of this course requires the following coordinated measures from the authorities at all levels: implementation of major institutional changes; reforming the principles and methods of work, including training, retraining and the professional development of personnel; providing financial and economic opportunities for stimulating the development of local self-government; 3) the defectiveness of legal instruments and lack of a clear financial mechanism for implementing local self-government reform (the latter is formal, imitative nature), corruption in state authorities and local self-government bodies, no strategic vision of the country’s development – all of these delay the modernization of local self-government in Ukraine. (shrink)

The purpose of the study is to make proposals for improving the legislative regulation of operational and investigative and other activities of operational units of law enforcement agencies of Ukraine. Methodology. The methodological basis of the study is a dialectical-materialist method of scientific knowledge of socio-legal phenomena, as well as general and special methods of legal science, in particular: system-structural – to determine the content of the studied categories and legal phenomena, including the formation of conceptual and categorical apparatus. the (...) direction of research in general, a comprehensive analysis of the provisions of regulations and the formation of a system of proposals for reforming legislation, the formation of a system of proposals for the use of foreign experience in Ukraine; comparative law and comparative – for a comprehensive analysis of domestic legislation and bylaws, international law, which constitute the legal basis of the ORD; logical and legal (dogmatic) – in the development of the conceptual apparatus, the formulation of proposals for changes and additions to legislation; statistical – for the analysis of the studied materials of ORS, criminal proceedings, results of questionnaires; sociological (questionnaires, interviews, surveys) – to study the opinions of practitioners, to determine the effectiveness of certain legal institutions. Scientific novelty. It is substantiated that the main problem of legal regulation of the activities of operational units of law enforcement agencies of Ukraine is the lack of system. Providing such a system is quite possible by making changes and additions to the legislation. The concept of reforming the legislative regulation of operational units of law enforcement agencies of Ukraine should consist of interrelated elements that provide changes and additions to the legislation in three areas of regulation of public relations: criminal procedure (detailed regulation of operational units in the CPC with significant expansion of their powers including in terms of ensuring the safety of persons who confidentially cooperate with the pre-trial investigation bodies); operational-investigative (legislative regulation of clear grounds for initiative activities of operational units to detect the preparation and commission of crimes, as well as an independent, with a clear comprehensive legal definition, ARI system with their differentiation depending on the subject of authorization, taking into account those that the operative may without any permits and approvals); in the field of protection of state secrets (comprehensive regulation in the Law of Ukraine "On State Secrets" of legal relations related to the conspiracy of operational units and other internal structures of those state bodies that need it). Conclusions. In order to provide a systematic mechanism of legal regulation of operational and investigative activities of operational units of law enforcement agencies of Ukraine, changes and additions to the legislation are needed. Determining the nature of these changes can be done within different approaches, differentiated by their level. At the highest, strategic level, deep transformation is subject to legislative regulation of the whole complex of public relations related to the fight against crime by law enforcement agencies, including ORD, criminal proceedings, protection of state secrets. The tactical level corresponds to the introduction of scientifically sound proposals to resolve issues of operational and investigative activities. The best option for improving the legislative regulation of the operational units of law enforcement agencies of Ukraine is to introduce a tactical level of reform with a gradual transition to strategic. (shrink)

The purpose of this article is to clarify main problems that arise in proceedings for violations of quarantine of people rules, based on analysis of relevant court decisions, and provide suggestions for their elimination. The article uses a set of scientific methods, namely: comparative law, system-structural, formal-logical, document analysis. The theoretical basis of the study consists of works of Ukrainian and foreign scholars, the provisions of the Code of Ukraine on Administrative Offenses, as well as the practice of their application. (...) The scientific novelty of the results obtained lies in formulation of scientifically sound recommendations for improving efficiency of proceedings on violations of quarantine of people rules (based on practice of law application and foreign experience) as well as maximum achievement of principles of fairness and objectivity in this process. Conclusions. 1. Practice of applying Art. 44-3 of the Code of Ukraine on Administrative Offenses indicates existence of significant shortcomings that frustrate administrative prosecution for violating rules of quarantine of people. 2. Such shortcomings are partly related to defects in the construction of Art. 44-3 of the Code of Administrative Offenses, namely: a) the presence of a blanket disposition of the article, which necessitates the indication of the legal act stipulated the offense committed by a person (detailing the relevant articles, their parts, paragraphs in the protocol); b) excessively severe non-alternative sanctions which are likely to compel the court to close the proceedings due to insignificance. 3. The other part of the problem is related to shortcomings in the work of the National Police of Ukraine units during the preparation of the protocol on administrative offense and collection of necessary evidence (failure to provide necessary evidence of the administrative offense, errors in drawing up the protocol itself, misinterpretation of Art. 44-3 the Code of Ukraine on Administrative Offenses). 4. These and other shortcomings deprive court of opportunity to make necessary decision in the case and make an unambiguous lawful and reasonable conclusion about presence or absence of guilt of a particular person in certain violation or compel the court to close the proceedings. 5. These problems can be overcome comprehensively – on the one hand, by improving legal norm stipulated by Art. 44-3 of the Code of Ukraine on Administrative Offenses, and on the other hand, by improving of police officers qualification. (shrink)

The purpose of the article is to identify major problematic issues related to the construction of criminal law provisions in the area of corruption offenses, both in the Criminal Code of Ukraine and in the draft General Part of the Criminal Code of Ukraine of 2020, as well as to identify ways to solve them. The article employs a set of research methods, namely: terminological, system-structural, formal-logical, comparative-legal. The theoretical basis of the study is constituted by the works of Ukrainian (...) and foreign scientists, by provisions of the Criminal Code of Ukraine, as well as by the practice of their application. The scientific novelty of the article is based on the following: 1) the problems of determining a corruption offense and ways to solve them have been revealed; 2) shortcomings in the definition of corruption, provided for in the draft General Part of the Criminal Code of Ukraine 2020 and formulates proposals for their elimination have been identified; 3) main advantages and disadvantages of the list of corruption offenses contained in the note to Art. 45 of the Criminal Code of Ukraine have been identified; 4) classification of corruption criminal offenses according to the method and subject of their commission has been improved; 5) the content, positive and negative sides of the criminal-legal consequences of a corruption criminal offense have been revealed. According to the results of the study, the following conclusions have been drawn: 1) the lack of definition of the term «corruption criminal offense» in the Criminal Code of Ukraine does not allow to clearly understand the criminal nature of this group of violations, and, accordingly, to establish criminal offenses and crimes that belong to them; 2) when creating such definition, it should be taken into account that it must be consistent with the definition of a criminal offense, corruption offense and corruption; 3) the concept of a tripartite understanding of illicit gain (as the subject, purpose and means of crime commission) in the definition of corruption should be transformed into a construction, such as «acts consisting in the offer or promise of illicit gain, its provision, acceptance or promise of such benefit, its receipt, request or extortion to provide»; 4) as presented in the note to Art. 45 of the Criminal Code, the list of corruption offenses, on the one hand, does not cover all criminal offenses that should be attributed to corruption, and on the other – includes some criminal offenses, which should not be attributed to corruption; 5) it is proposed to divide corruption criminal offenses according to the method of commission into: a) illegal possession of certain property by abuse of official position by a public official; b) abuse of power, official position or authority; c) an offer, a promise to provide an illegal benefit, as well as the provision of such a benefit for committing or failing to commit certain acts (active bribery); d) acceptance of an offer or promise of such benefit, its receipt, request or demand to provide (passive bribery); e) other corrupt criminal and illegal acts (conditionally corruption, quasi-corruption and criminal offenses, which have been unreasonably included in the note of Article 45 of the Criminal Code of Ukraine); 6) analysis of the negative criminal law consequences of a corruption criminal offense demonstrates that the legislator in certain cases has equated these torts to serious and especially serious crimes; 7) in the context of reforming criminal legislation, it is necessary to improve the grounds for various types of confiscation, prohibition to engage in certain activities or hold certain positions, as well as to consider the feasibility of criminalizing concealment of corruption offenses. (shrink)

The article analyzes the main characteristics of basic research. Emphasis is placed on the peculiarities of their implementation in law-making practice. The activity of the Verkhovna Rada of Ukraine of the 9th convocation, quantitative and qualitative indicators of legislative work aroused special interest. The importance of the feminist movement for optimizing the rights and interests of women is emphasized. Forms of manifestation of feminism are studied. The purpose of the article is to study the methodology of improving the rights and (...) interests of women, as well as the implementation of the results of basic research on this issue in the practice of state-building processes. The tasks are: to determine the importance of women’s rights for modern society and the state; analysis of the essence of scientific research; clarification of the introduction of scientific research into the legislation of Ukraine. The research methodology is epistemological and ontological approaches to the subject of analysis. The scientific novelty is due to the subject of research and provides that: 1) the doctrine of women’s rights in modern society and the state has received further scientific development; 2) improved theoretical material on the essence of basic research and the procedure for its implementation; 3) attention is focused on the analysis of the effectiveness of the Verkhovna Rada of Ukraine for the last years of its work (based on the indicators of introduced bills and draft resolutions and the number of adopted ones); 4) the necessity and possibility of influencing the law-making activity of the public authorities by the feminist movement are emphasized. Conclusions. The long-term practice of interaction of academic staff with public authorities confirms that the development of new scientific ideas should be brought to the stage of introducing legal acts into state bodies. Undoubtedly, scientists are also involved in improving the current legislation. They are involved in the implementation of ideas only when the practical significance of research in a particular field has been identified. Connection on a permanent basis of universities and other scientific community is still at the level of theoretical justification and search. Women’s rights are a huge layer of the problem that can be solved partly by the feminist movement. (shrink)

Turbulent changes in legislation in recent years have laid fertile ground for scientists. Sometimes, for some time, laws governing criminal procedural relations are passed so quickly and strangely that they only harm the interests of the state and complicate the work of the prosecutor-procedural manager during the investigation of criminal proceedings. In this regard, the question of the role and place of the prosecutor in the mechanism of ensuring the rights and freedoms of citizens in the criminal proceedings, the implementation (...) of its functions and powers remains open. This is confirmed by the amendments to the Constitution of Ukraine adopted in July 2016, which are still not implemented in other laws of Ukraine four years later. The updated status of the prosecutor enshrined in the Basic Law of Ukraine creates a new basis for the procedural tactics of investigating criminal proceedings. In view of the above, it is necessary to investigate the new legislation, empirical results and the practical component of the prosecutor’s activities. The paper considers the functional algorithm of actions of the prosecutor-procedural manager on the investigation of criminal offenses. The purpose of the article is to characterize the features of the procedural status of the prosecutor as a subject of criminal proceedings in the investigation of crimes, the component of this activity as a supervisor or prosecutor in criminal proceedings, comparing such powers and determining the nature of such activities by their number in law. Methodology. To achieve this goal, the formal-logical method, system-structural, comparative-legal, and statistical methods are used. Scientific novelty. By analyzing the provisions of recent changes in legislation and judicial and prosecutorial practice, the main direction of the prosecutor’s work as a prosecutor in criminal proceedings has been established. Attention is paid to the specifics of the prosecutor’s procedural tactics at the stage of pre-trial investigation and in court, its focus on the reasonable involvement of a person who has committed a criminal offense in order to pass a court conviction. Conclusions. The role and functional content of the criminal procedural activity of the prosecutor in the Ukrainian judiciary are established. At present, he is primarily a prosecutor, with a small number of supervisory powers, which is why the prosecutor’s supervisory functions are defined as secondary. At the same time, the prosecutor is the determining and main participant in the criminal proceedings, as he acts at all its stages from the beginning of the criminal proceedings to its end. (shrink)

The purpose of the article is to identify problematic issues of qualification of violation of people’s quarantine rules, to establish the shortcomings of construction of Art. 44-3 of the Code of Ukraine on Administrative Offenses, and to determine ways to eliminate them. The article uses a set of scientific methods, namely: terminological, system-structural, formal-logical, comparative-legal. The theoretical ground of study consists of works of Ukrainian and foreign scholars, provisions of the Code of Ukraine on Administrative Offenses, as well as practice (...) of their application. The scientific novelty of the article is that it defines the object, the objective side, the subject, the subjective side of the administrative offense under Art. 44-3 of the Code of Ukraine on Administrative Offenses as the necessary condition for effective application of this norm as a measure of administrative enforcement. Some shortcomings in structure of this offense, primarily related to its objective side, have been identified and some ways to eliminate them have been suggested. Conclusions. 1. The direct object of the administrative offense under Art. 44-3 of the Code of Ukraine on Administrative Offenses should be recognized as public relations in field of public health protection against infectious diseases. 2. As to the objective side of the offense, it could be committed in the following forms: a) violation of rules on quarantine of people; b) violation of sanitary-hygienic, sanitary-anti-epidemic rules and norms provided by the Law of Ukraine «On protection of the population from infectious diseases», other acts of legislation; c) violation of decisions of local self-government bodies on issues of control of infectious diseases. 3. With regard to such various forms of the objective side the title of Art. 44-3 of the Code of Administrative Offenses should be defined more specifically, as it concerns only one act – violation of rules on quarantine of people, and therefore does not cover others. 4. The word «people» should be excluded from the title and disposition of Art. 44-3 of the Code of Ukraine on Administrative Offenses because in all regulatory acts defining rules of quarantine, the term «quarantine» is used, not «quarantine of people». 5. It is worth to replace definitions of «sanitary and hygienic rules and regulations» and «sanitary and anti-epidemic rules and regulations» in the disposition of Art. 44-3 of the Code of Ukraine on Administrative Offenses by «sanitary regulations», due to non-clear separation of sanitary and hygienic and sanitary and anti-epidemic rules and regulations and also because of the fact that they are types of social norms. 6. Administrative offense under Art. 44-3 of the Code of Ukraine on Administrative Offenses has formal composition so the damage from such violation is not a mandatory feature of its composition. 7. Subjects of administrative offenses stipulated by Art. 44-3 of the Code of Ukraine on Administrative Offenses may be both private persons and officials. 8. On the subjective side of the offense is characterized by guilt in form of intent or negligence. (shrink)

The issue of combating organised crime is gaining increased attention in the context of developing comprehensive strategies for combating and preventing organised crime after the establishment of the Department of Strategic Investigations in Ukraine and its powers to bring criminal authorities to justice. The study aims to conduct a comparative study of the criminal community, in particular, to highlight the content and essence of the phenomenon, and to identify the shortcomings of the current legislation which does not provide for this (...) form of complicity. The following methods were used in the study: systemic method – for characterising a criminal association as a type of organised crime; formal and dogmatic method – for analysing legal structures; comparative legal method – for comparing the features of a criminal association as a type of national organised crime in Ukraine and other states. The main reasons for the formation of criminal communities, their strategies, and tactics, as well as their impact on social and economic processes in society were investigated. The methods of counteracting this phenomenon at various levels, including legal, police and social, were analysed. The importance of developing an effective system of counteracting criminal communities to ensure public safety and maintain law and order was emphasised. The structure and composition of criminal communities were characterised. The strategy and tactics used by criminal communities to achieve their goals, including the organisational structure, communication channels and division of responsibilities, were studied. The interaction of criminal communities with other components of organised crime, such as transnational criminal networks, corruption, etc. was investigated. Strategies and measures to counteract and stop the activities of criminal communities were considered. The conclusions of the study can serve as a basis for developing strategies and policies in the field of combating organised crime and improving the level of security in society. (shrink)

Amidst the full-scale war in Ukraine, an increase in the number of crimes against property involving weapons, characterised by suddenness, brutality, and aggressiveness, has occurred. Such crimes violate not only the inviolability of housing and property rights but also harm the health and lives of victims. In this regard, the study aims to examine the possibilities of using automated information retrieval systems of the Ministry of Internal Affairs and the National Police of Ukraine in the investigation of robberies involving the (...) use of weapons. The following methods were used in the course of the study: comparative legal, analytical, systemic, and structural, generalisation, induction, deduction, and synthesis. These methods were used to analyse the world experience of databases of automated information retrieval systems to improve the investigation of robberies involving the use of weapons against citizensʼ homes. Based on this, the most progressive and effective methods of investigating this category of criminal offences are identified, proposals for improving national practice are formulated, and an indicative set of parameters for typical actions during such robberies is developed. The author proposes to improve information and analytical systems by filling in new databases of serious crimes committed with the use of weapons, which will facilitate ease of use and efficiency of their investigation. The development of such a database provides for the possibility of updating and collecting information based on specified requests. The content parameters are determined by the ability to collect information on criminals, the forensic traces that identify them, behavioural traces (use of a type or types of weapons, home invasion tools, nature of bodily harm, features of disguise, etc. The practical value of the study lies in the possibility of considering theoretical recommendations when creating databases that will ensure the completeness, efficiency and convenience of obtaining the necessary information for the effective investigation of robberies involving the use of weapons. (shrink)

Despite many years of attempts by scholars and practitioners to determine the reason for the extremely low level of public trust in the judiciary and law enforcement agencies in Ukraine and ways to strengthen it, this level is still critical, and therefore there is a need to identify new ways to overcome such a crisis. Seeing such public distrust in the legal right of procedural decision-makers to make decisions based on their internal conviction, the study aims to review and analyse (...) the scientific developments in the field of procedural decision-making by law enforcement agencies based on their internal conviction and to identify the factors which influence such conviction. Analysis, synthesis, and generalisation methods were used in the study of the outlined issues, which were used to process the bibliography of the issues, whereas deductive logical analysis, inductive generalisation and analogy were used to substantiate the results and formulate the conclusions of the study. Based on the study results, it is established that scholars have studied the concepts of worldview and internal conviction of procedural decision-makers separately. It is proved that any internal conviction is based primarily on a personʼs values and worldview orientations which are formed throughout life, primarily in childhood and adolescence. Regardless of the position held by a person, when faced with a problem in professional activity on which the law enforcement entity has already formed an opinion, the latter may make a procedural decision contrary to the actual circumstances of the case and the evidence available in it. The practical significance of this study is that the results obtained may become the basis for changes in the current legislation on the assessment of candidates for positions with discretionary powers, which involves focusing on their value beliefs and worldview. (shrink)

The research relevance is determined by the need to reform public authorities, in particular, the judiciary, in the context of martial law and European integration processes. The study aims to analyse the legal framework in the context of determining the constitutional and legal status of judges in Ukraine. The following methods were used: logical analysis, formal legal analysis, dogmatic analysis, legal hermeneutics, deduction, induction, and synthesis, which were used to identify the main principles of regulation of the constitutional and legal (...) status of judges in Ukraine. The study states that the current constitutional and legal status of judges is determined by the updated version of the Constitution, the Law of Ukraine “On the Judiciary and the Status of Judges” and other legislative acts. It is noted that one of the main problems of the judicial system of Ukraine is the understaffing of courts. Following the reforms which have been implemented since 2 June 2016 and have amended several provisions, the author makes a comparative legal analysis of the status of judges before and after the innovations. The study determined that judges used to have absolute immunity, and now they have functional immunity, which protects them from prosecution for their actions. These reforms were implemented to ensure the independence of judges and protect them from political pressure. The author examines the experience of such countries as Italy, Germany, Japan, and the USA in the context of ensuring the principle of judicial independence. It is argued that this principle can be implemented in various forms. The importance of rebranding of state institutions is also substantiated. (shrink)

The research on the use of forensic olfaction is relevant due to the need to highlight its content and rules of practical application in the analysis of odour traces of a criminal, which ensures improvement of crime solving and investigation. The study aims to analyse the olfaction information properties which individually identify a person about the odour traces left at the crime scene; to study the current possibilities of the methodology for conducting olfaction examinations; and to formulate proposals for improving (...) the process of expert analysis of olfaction information in criminal proceedings. The study uses comparative legal, terminological, systemic, and structural, formal and logical methods, as well as the method of expert experiment. The author confirms the data on the individuality of each personʼs smell, in particular, based on cases from investigative practice, the author shows the possibility of establishing the individuality of odour traces and their belonging to a particular person, even in the case of a crime committed by two monozygotic twins. The author substantiates the possibility of collecting odour traces from various objects with which several persons had contact, and of isolating those odour particles, allowing detector dogs to identify their specific carrier. The study defines the general conditions and procedure for conducting an olfaction analysis of odour traces of a person being tested in connection with a criminal offence investigation. It is generalised that the work of detector dogs for the most effective odour analysis should be carried out in a special room without extraneous odours at a temperature of +20°C and relative humidity of 60-80%. The study systematises the general prohibitions that should be observed during an olfaction examination, which relate to the non-use of control and auxiliary odour samples of persons familiar to detector dogs; the work of an olfaction expert and a dog handler in a special room is separated to prevent the specialist from obtaining information about the specific location of the storage jar with the odour information that is being installed. The practical significance of the study is determined by the expansion of the ability of law enforcement agencies to identify persons involved in a crime by their odour traces left at the scene and to conduct forensic examinations using the method of forensic olfaction. (shrink)

The research relevance is determined by the European integration and identification of gaps and shortcomings arising in the process of harmonisation of Ukrainian legislation with the legal standards of the European Union, providing improvement areas. The study aims to characterise the reform of Ukraineʼs judicial system in the context of European integration. The following research methods were used in the study: systemic and structural, comparative legal, formal legal, and systematisation methods, as well as methods of synthesis, analysis, and generalisation. The (...) study established that the judicial reform launched in 2016 is linked to Ukraineʼs plans to become a full-fledged member State of the European Union. It is determined that under the legal regime of martial law, some processes of reforming the judicial system to the standards of the European community may be slowed down. It is noted that the Copenhagen criteria, especially chapters 23 and 24, are among the key definitions for the implementation of justice and the judiciary in a country which is a member of the European Union. The analysis added that to accelerate the European integration processes in Ukraine, composition renewal of the Constitutional Court of Ukraine should be undertaken. The need to establish transparent qualification requirements for judges and modernise the selection process for the judiciary was outlined. The study concludes that it is necessary to fully launch the High Qualification Commission of Judges of Ukraine, which is one of the key bodies of judicial self-government. The effective operation of this body is essential for maintaining the judiciary at a high professional level and ensuring compliance with the standards of justice. Furthermore, the study stressed the importance of continuing to effectively combat any manifestations of corruption in the activities of the judiciary and the judicial system as a whole. The study materials can be used to improve the functioning of the judicial system in Ukraine. (shrink)

The research relevance is determined by the Ukrainian candidateship European Union membership, and therefore one of its priority tasks is to adapt all legal mechanisms for regulating public relations to European standards, including in the area of criminal proceedings. The study aims to define the concept and content of international and European standards of forensic support of criminal proceedings. Comparative legal, systemic structural, and dogmatic methods were used in the study. Based on the study results, it is established that international (...) and European standards of criminalistics support criminal proceedings covering both criminal procedural and forensic aspects. The author argues that in the criminal procedural aspect, such standards are manifested in the fact that all actions in criminal proceedings are carried out exclusively in the manner prescribed by criminal procedural legislation. A generalised statement on the fact that in the field of criminal proceedings, it is permissible to use the category of international standards for the implementation of this type of state activity in the course of its forensic support, but the procedural rules of both investigative and judicial activities cannot be brought by the international community to a single standard for all countries, since they are specific to each state depending on the system of government, legal system, historical, political and other features. The provisions of international and European standards of forensic support of criminal proceedings are also analysed, concluding that in the forensic aspect, criminal proceedings are implemented with the use of appropriate technical, tactical, and forensic support, and the allocation of such positions is of practical importance to ensure effective achievement of the objectives of criminal proceedings by the best international and European standards. The study findings can be used for further scientific research on the issues of criminal proceedings, as well as for improving the efficiency of the relevant part of Ukrainian criminal procedure legislation and law enforcement activities. (shrink)

The research relevance is determined by the diverse constitutional approaches adopted by countries worldwide to address the critical issue of succession in the event of concurrent vacancies in the positions of President and Vice President. The study aims to correctly determine the appropriate acting presidency during extraordinary situations to ensure the continual rule of government. A doctrinal research method alongside a comparative constitutional approach to explore the constitutions of various countries. The study determined that there are legitimized and bureaucratic actors (...) who compete with each other to become acting presidents when the positions of President and Vice President are vacant in various parts of the world. Countries that use legitimacy actors generally use the Speaker of the House of Representatives/Senate (legislative) as the acting president, while countries that use bureaucratic actors generally use ministers (executive) as the acting president. Legitimate actors are the officials to become acting presidents due to their capabilities to ensure stability based on democratic legitimacy stability, backed by votes. The practical value of this article is that it can be a source of knowledge for constitutional drafters when amending/changing the constitution because it has aggregated the arrangements for presidential duty executors from world constitutions and contributes knowledge from Indonesian experience that can be considered as material for discussion of constitutional amendments/changes. (shrink)

Highly conflictive divorces represent a serious problem that affects the health of the children involved. Thus, in addition to the consequences derived from a tense and difficult judicial procedure, children experience the negative effects of inappropriate parental behavior that can have an impact on their health and development. To date no work has formally addressed the identification of parental behaviors that may be considered victimizing to children. In the present study, we explore the specific indicators that could define that a (...) child is suffering victimization due to some undesirable behavior or attitude displayed by his or her parents in the specific context of high-conflict divorce. The sample consisted of an interprofessional group of experts (psychologists, judges, lawyers, prosecutors) at the national level (n = 15). The results showed a high consensus among professionals on the majority of inappropriate parental behaviors. This study is the first to provide a list of victimizing behaviors of children in the context of high-conflict divorce that may guide future interventions and prevention policies to mitigate the effects they experience during this process. (shrink)

No previous studies have explored how women’s autonomy (space for action) could mediate between psychological intimate partner violence (IPV) and mental health. This study explores this issue. Participants were 102 women recruited from specialized formal support services who answered self-reports about the target variables. Structural equation modeling was used to estimate the direct and indirect effects of IPV (verbal-emotional violence and domination-isolation) on current psychopathological symptomatology and satisfaction with life considering the mediator effect of space for action. Results indicate that (...) both types of IPV had a direct negative effect on women’s space for action during the relationship. Domination-isolation predicted current space for action directly and positively, which in turn had a negative direct effect on psychopathological symptomatology and positive on satisfaction with life. Finally, both types of IPV showed indirect effects on psychopathology and satisfaction with life through space for action during the relationship and currently. (shrink)

The aim of the present study was to assess the impact of past traumatic war experiences on preadolescents in the Gaza Strip, which could be useful for psychological intervention with current and future child victims. Participants were 521 preadolescents from United Nations Relief and Works Agency for Palestine Refugees in the Near East (UNRWA) schools, aged 11 and 13 years old. Sections I to IV from Iraqi Version-Arabic of Harvard Trauma Questionnaire was used to assess trauma experiences and Post-Traumatic Stress (...) Disorder (PTSD). The results show that the preadolescents in the Gaza Strip witnessed the destruction of their homes and the murder of family members and friends. A quarter of the individuals assessed either suffered torture or witnessed others undergoing it, including sexual assaults. Almost half of them experienced a lack of food and clean water. The traumatic and torture experiences seriously affected preadolescents’ mental health as 26.29% met criteria for the diagnosis of PTSD. The data analysis revealed two PTSD modalities, with the severity of impact depending on whether social implications were involved. Further research is required to check whether these two modalities fit to PTSD and complex PTSD. Understanding the effects of past wars on preadolescents in Gaza and distinguishing between different PTSD types could enhance comprehension of the impacts of current attacks on child victims. It can also aid in determining the type of intervention needed to minimize the impact on the mental health of Palestinian youth, enhancing their resilience through psychological and social support. (shrink)

This article discusses the enforceability of Article 9 of Law No. 42 of 1999 on Fiduciary Guarantee that allows the use of receivables as debt collateral in business practices in Indonesia. Receivables bound by fiduciary collateral is deemed as a special collateral— in the context of civil law, a special collateral will be prioritized in case the debtor does not voluntarily make when due. In business practices, long-term receivables will be established following an agreement between a debtor and a third (...) party, and the receivables that the debtor is entitled to receive from the third party will be provided as collateral to secure the debtor’s obligations under his loan agreement with the creditor. The issue discussed in this paper is the fact that although theoretically special collateral in the form of receivables should be able to increase the creditor’s assurance of getting repaid, in practice long-term receivables put higher risk on the creditor instead. As comparison, this paper uses the accounts receivables fiduciary in the United Kingdom. The Writing Method used in this paper is the normative juridical approach with a focus on conducting juridical studies regarding the creditors' risk in the use of receivables, specifically long-term debt collateral. This paper shows that receivables that are used as collateral in fiduciary agreements actually put the greatest risk on the creditor; especially if the agreement between the debtor and the third party stipulates that in case the debtor fails to fulfil his obligations, all receivables that he is supposed to receive from the third party will be aborted and become non-existent. (shrink)

International economic relations sure is very important for a country and the important thing that follows is the policy that regulates international economic relations it self. In this study, the authors will analyze hows Renewable Energy Directive II (RED II) policy as a derivative of the RED (Renewable Energy Directive) policy by the European Union will affect the Indonesian palm oil trade which this also would show the violations of previous policies that is General Agreement on Tarifs and Trades. Authors (...) also going to show General Agreement on Tariffs and Trade (GATT) as a policy that regulates how international trade relations should be carried out and the violations of this international agreement undoubtedly could affect Economic relations between the two countries, both on a micro scale and macro scale. In conducting the research authors will be using the normative juridical methods which means the legal research will be based off library materials and secondary materials therefore the main result from this study would be a reflection of how RED II can affect trade in indonesian palm oil products and also by effecting this regulation in 2021 the european union will be violating the non-discrimination principle in GATT 1947. (shrink)

Protection of intellectual property laws can be started from the action of preventing the entry or exit of goods from a country. The Directorate General of Customs and Excise, Ministry of Finance of the Republic of Indonesia, which is the implementing agency in the customs sector, can control the import or export of goods suspected of being or originating from the result of intellectual property infringement. It is a financial activity involving several institutions including the Directorate General of Customs and (...) Excise, the Ministry of Finance of the Republic of Indonesia as executor, the Directorate of Trademarks, the Ministry of Law and Human Rights as the institution that issues trademark rights and the Commercial District Court to exercise judicial authority. Its implementation, regulations have been made regarding the processes and conditions for controlling the export and import of goods, which accommodate the interests of the state as a regulator with the aim of regulating and harmonizing customs regulations and trademark law and the interests of rights holders or mark owners as the injured party if there is an infringement. However, there are arrangements that are "considered" to be detrimental to the right holder or registered mark owner, that is in relation to the domicile of the party applying for trademark protection in the customs area. This research uses a normative research type and a statue approach as well as a conceptual approach. So that with this research the brand owners or rights holders can determine the right steps to protect the registered marks in accordance with applicable regulations. (shrink)

The Covid-19 pandemic brings new challenges to people around the world, including Indonesia. In Indonesia, the Covid-19 pandemic is still an unresolved problem. As a result of the Covid-19 pandemic, besides threatening health and the economy, it is also exacerbated by government policies. Conflicting policies hinder obstacles in handling the Covid-19 pandemic. The need for a solution in the form of the formation of an umbrella act to overcome the conditions caused by the covid-19 pandemic, which covers the health and (...) economic sectors, can be a solution to the conflicts applied by the Government, and the Umbrella Act can answer the Government's confusion in overcoming this pandemic. This study uses a normative method that discusses legal aspects by critically analyzing library materials applicable to laws and regulations. Umbrella actions can go beyond conflicting with an integrated rule. The Umbrella act can be applied in Indonesia and can be a solution to overcome the number of cases of the Covid-19 pandemic, which is still relatively high. With the Umbrella Act, the Government's responsibility will be fulfilled to provide legal protection to the community. The Umbrella Act, which has been proven to overcome conflicting regulations, will solve the current emergency. With the Umbrella Act, the Government's responsibility will fulfill to provide legal protection to society. (shrink)

SLAPP does not only occur in the environmental sector but in any situation which act aims to stop or eliminate public participation in aggression against certain policies. In the environmental sector, it is referred to as Eco-SLAPP which aims to provide fear, silence, and intimidation toward people who commit aggression against environmental policies and/or certain interests through reporting/complaints or lawsuits to court. Therefore, the Anti-Eco-SLAPP concept in Law Number 32 of 2009 was raised to provide protection against the act of (...) Eco-SLAPP since it harms people who fight for good and healthy environment. Unfortunately, weakness is found in Law Number 32 of 2009 regarding substance and process in fulfilling Anti Eco-SLAPP. In terms of substance, Article 2 letter a Law Number 32 of 2009 has not given the state responsibility to implement Anti Eco-SLAPP, Article 66 Law Number 32 of 2009 has not regulated good faith as the reason a person cannot be prosecuted criminally or sued civilly, protection from administrative action, and motion strike/dismissal process and SLAPP Back, to prevent early Eco-SLAPP actions. In addition, the implementation of Anti Eco-SLAPP is often misinterpreted since it is unable to distinguish pure criminal acts and actions to fight for the environment based on good faith. Based on this, it is necessary to construct an Anti Eco-SLAPP law based on the weaknesses of the existing Law Number 32 of 2009, so as to reinforce the implementation of Anti Eco-SLAPP in Indonesia. (shrink)

In order to support the improvement of the implementation of development in Indonesia, banking institutions experienced fluctuating growth along with the progress and political developments in Indonesia, the development of the international economy also in line with increased demand banking services needs of the community will be strong and feasible. This is then gives a very strategic role in the development of the banking institutions in Indonesia because of the bank as a means to harmonize and balance of each element (...) of the trilogy of development, economic growth and national stability, as defined in Article 4 of Law No. 10 of 1998 on Banking. Keywords: license, banking, abuse. (shrink)

The absence of provisions regulating the substitution of criminal fines in the KUP Law, raises legal uncertainty for law enforcement officials, especially prosecutors in executing court decisions. Considering the recovery of state financial losses that can be resolved by the consistency of court decisions, so the provisions in the KUP Law must meet the legal principles in criminal fines in criminal taxation acts. By not clearly stipulated the substitution of criminal fines in the KUP Law raises legal uncertainty. While substituting (...) criminal fines in the KUP Law is only in the form of imprisonment. In practice, there are several forms of court rulings, there are substituting criminal fines with imprisonment, substituting criminal fines with confiscation of assets then auctioned to pay underpayment taxes, substituting criminal fines with confiscation of assets then auctioned to pay underpayment taxes if the convicted person does not have property that is adequate then replaced with imprisonment. The formulation of the legal issues in this study are: (1) the philosophy of substituting criminal fines in criminal acts in the taxation field, (2) Characteristics of substitution of criminal fines in criminal acts in the taxation field. The results of this study are expected to have a conceptual and legal reforms related to substituting criminal fines in criminal acts in the taxation field, so as to ensure legal certainty, justice and benefit, then the replacement of criminal substitute fines in criminal acts in the taxation field must be included in court decisions and followed up with execution of court decision by the Prosecutor as the executor. (shrink)

In the dispute resolution mechanism both litigation and non-litigation such as arbitrary, proofing evidence process plays essential role to reconstruct the real occurrence in order to seek the truth. Proofing principles that is used in Indonesian arbitrary process is based on the Law number 30 year 1999 on arbitrary and alternative dispute resolution that is lex arbitri for Indonesia. Arbitrary is part of formal civil law, therefore its proofing principles is basically the same with the dispute resolution trough litigation. The (...) Law number 30 year 1999 shows that Even though Indonesia is a civil law jurisdiction, there are some common law principles that are accommodated in the arbitrary process. Using conceptual and statute approach, this article attempts to look at proofing principles may arise in arbitrary mechanism based on the law mentioned and based on the actual practice. Keywords : arbitrary, proofing principles, civil procedural law. (shrink)

The purpose of writing this journal is to find out that permits is a juridical instrument used by the government to influence the people to want to follow the recommended way to achieve a concrete goal. Permission serves as the spearhead of the legal instrument as advisors, engineers and designers. Permits can be used as a control instrument and an instrument to realize good governance, structuring and regulation of these permits are supposed to be done as the realization of governernment (...) function related to the inspection of state official by law enforcement official. The research methods utilized is a normative method which involved the method of regulatory analysis and conceptual analysis. This research confirms that presidential permit for the examination and summon of public official are indeed needed and necessary, which can be formulated through special law and regulations on the procedures of examination permit, which are to be synchronized with other related laws and regulations. President Permission, when viewed from the standpoint of administrative law has meaning as preventive instrument used for protect President that the governance and functioning of public service at the central and local government. This research recommends for a formation of special court which can take place through a forum privilegiatum, under the Supreme Court to allow for recognition of the state official´ positions, statuse,s and dignities. (shrink)

Acquisition as a form of corporate restructuring that is carry out to overcome the situation of financial difficulties or improve the performance of the company as a whole or part of the business unit. In Article 126 paragraph 1 of Laws of the Republic of Indonesia number 40 of 2007 concerning Limited Liability Company stated that the acquisition process should consider the interests of minority shareholders. However, sometimes acquisition decisions have already been decided in advance by the majority shareholder without (...) involving minority shareholders. Based on this, this paper intends to analyze the form of legal protection for minority shareholders who are not involved in the acquisition process. Through the approach of legislation and case approach, it is found that Laws of the Republic of Indonesia number 40 of 2007 concerning Limited Liability Company has not provided enough legal protection to minority shareholders. The decision-making process of acquisition in the General Meeting of Shareholders should be procedurally and substantively in accordance with Laws of the Republic of Indonesia number 40 of 2007 concerning Limited Liability Company. It is intended that minority shareholders have the opportunity to exercise their voting rights even though they do not have to be the party controlling the company. (shrink)

The 1945 Constitution of Indonesia as the constitutional authority of the President shall arrange everything as the highest authority of the executive. Such arrangements must be made clear boundaries so that later the president does not exceed its authority itself and cause a totalitarian power. Prerogative is one authority regulated implicitly by the constitution and gave full power to the President to implement this right, such as the appointment and dismissal of the Chief of Police.

Local authorities can be found in federal and unitary states. It is the spearhead of the states to enhance a more prosperous and democratic society which provides a range of services in the daily basis. This essay attempts to look at how the national government in unitary states designs local bill-drafting process by doing comparative analysis between Indonesia and Philippines using bill drafting process by Seidmans. By looking at the bill drafting process this essay is trying to figure out the (...) variation of coordination between elements in the local government. Philippines, in this comparative study applied a more radical distribution of power than Indonesia. In Indonesia, however, the relation between the local legislative and executive in the bill-drafting process shows a weak separation. This article conclude that by figuring out the variation of coordination between elements in the local government, at least in Indonesia and Philippines it is seen that coordinated activities in the local legislative process reflects the chosen methods of distributing power taken by the states. Keywords: local authorities, government, local legislative, legislative drafting. (shrink)

Partnership relation as one of work relation between the farmer as the representative of micro business and main company as macro business as the owner, science and technology based on a deal is known as plasma core partnership relation. In it's implementation, many problems happened and resisted which may trigger disadvantages especially for the farmer. Therefore it is very important to pay our attention about the validaty and basics contract principle in the implementation of plasma core partnership contract. The goverments (...) support actively or passively takes also a role in enforcing norms and regulations of the contract, so that the purpose of every side can be reached and the goals of every party could be secured as well. (shrink)

The MKRI is a new governmental body which was established under the Third Amendment of the UUD NRI 1945. This article examines its proper function which underlies its jurisdiction to review the constitutionality of legislation. According to the issue, this article argues that the MKRI should be treated as a human rights court whenever it undertakes its jurisdiction to review the constitutionality of legislation. The function of the MKRI as a human rights court justifies its existence and also prescribes principles (...) for its operation. It means that in reviewing the constitutionality of legislation the MKRI should enhance the protection of human rights through its judicial policy and constitutional interpretation. Keywords: MKRI, function, human rights court. (shrink)

Health is a part of human right and one of the elements of well-being that should be realized in accordance with the ideals of the nation of Indonesia as stipulated in Pancasila and the Constitution of the Republic of Indonesia Year 1945. As the implementing regulations contained in Law No. 36 of 2009 on Health, in Article 1 point 1 is determined “Health is a state of health, both physically, mentally, spiritually and socially to enable more people to live socially (...) and economically productive”. Thus, health is a part that should be pursued to achieve the welfare of the nation. One of the efforts to achieve should be manifested in the provision of health care facilities. Keywords: health, hospital, health services. (shrink)

An entity, either a legal or the non legal “entity’’ which all were discussed in the same outline of corporate crime responsibility. It was often, though, in several laws aside from the Penal Code of Indonesia (KUHP), both in Criminal Law and Administrative Law with criminal sanction,that corporate is defined as a collection of organized people and or wealth, either as a legal or the non legal entity. The definitions in those laws are really different from those of law experts, (...) especially those of criminal law who basically identify corporate as a legal entity, however the same is not true for those of the non legal entity. Such differences of the legal and non legal entities would bring their own legal consequences, therefore they could not and would not be treated the same referring to corporate criminal responsibility. Keywords: corporate criminal responsibility, legal entity, non legal entity. (shrink)

The objective of Pre-Trial is basically to provide justice rights protection from abuse of power and the arbitrary actions of law enforcement officers. Pre-Trial is as the guard for the realization of due process of law. Hence, its authority is not limited to Article 77 of the Criminal Law Procedural Code and the decision of Constitutional Court No.21/PUU-XII/2014. The dismissal of Pre-Trial appeal as provided for in article 82 paragraph (1) sub-paragraph d of the Criminal Law Procedural Code and the (...) decision of the Constitutional Court No.102/PUU-XII/2015 do not have a sufficient rational basis. Pre-Trial and principal case examination should not terminate each other. Conversely, the result of Pre-Trial will be used as a reference to analyze whether evidence used in the principal case examination is conducted properly or not. Thus, when a Pre-Trial examination is underway, the chief of a judge of the district court must adjourn the principal review of his case. (shrink)

Intellectual Property Consultants appointed by the Ministry of Law and Human Rights is an office that has a limited authority to carry out their duties; The appointment of IPR consultant are intended to assist Ministry of Law and Human Rights in resolving the matter on IPR registration. Due to the reason that IPR is the scope of Ministry of Law and Human Rights authority, the one which has the authority to appoint someone as IPR Consultant is also Ministry of Law (...) and Human Right. Appointment of IPR Consultant should be specially granted for Law School Graduate due to the reason that Consultant shall understand and able to execute the procedure of authority and regulation that limits its authority in running Consultant position. In carrying out its duties, IPR Consultant will be closely related to legal action and must strictly comply with the Law and assume responsibility given by the client. The duties and responsibilities attached to IPR Consultant have a legal consequence. In conducting its duties, IPR Consultant shall be able to read and implement the regulation enforced by the government. (shrink)

The main issues elaborated in this legal research are the legal principles of tender during a pre-contractual stage and the principles of contract law on Cooperation Contract known as Production Sharing Contract (PSC) based on Laws Number 22 Of 2001 Concerning Oil and Gas. The type of this research is normative study and the approach of this research are conceptual approach, statute approach, and case approach. There are two results in this research. Firstly, in the process of tender during a (...) pre-contractual stage of Cooperation Contract, the principles of responsive competition, transparency and the principle of accountability must be applied. The principle of responsive competition is the most important to be implemented since the tender process produces a competition to get a working area. In addition, the tender process of Cooperation Contract is also related to the principles of transparency and accountability that plays to protectthe interests ofthe state and to get a competent contractor.Secondly, in formation and performance of the Cooperation Contract, the principle of proportionality sharing should be emphasized, especially when formulating the proportion of production sharing. Cooperation Contract is also related to the principle of transparency that plays an important role on state revenues from the upstream oil and gas business activities, because a transparent process will result in optimal outcomes. Finally, in Cooperation Contract, the principles of responsive competition, transparency, accountability, and the principle of proportionality sharing should be clearly stated in the rules and legal norms. (shrink)

As an intermediary institution based on sharia principle, sharia banks are required to performing two compliance namely compliance syariah principle and law compliance, as for th application of two compliance is it not only in good corporate governance and the kind of product sharia bank, but also on financing deed made by a notary. Therefore financing deed in sharia banks must reflect sharia compliance principle besides the law compliance, special concern about sharia compliance, has become scope authority from the Sharia (...) Supervisory Board, in this term Sharia Supervisory Board not only ensure the application of sharia compliance but also every deeds which was built by by a notary sharia bankmust to be in accordance with the sharia principle. Failure on the fulfillment of the shariah principle on a sharia bank financing deed can led to such deed null and void, so that in this case application of sharia principle should be given to the aspect of protection sharia banks and consumer protection which took the form of the superintendence of the Sharia Supervisory Board to every sharia bank financing deed. (shrink)

The ocean and its marine resources play an important role in providing sources of livelihood to the Indonesian people. Indonesia is currently dealing with a major plastic waste problem, and this, in turn, also impacts the marine environment since the plastic waste ends up in the ocean. The issue of marine pollution is regulated under international conventions such as the MARPOL and UNCLOS, though none is specifically addressing marine plastic waste. Moreover, Indonesia has enacted several regulations to manage marine plastic (...) waste, including Presidential Regulation Number 83 of 2018 on Marine Waste Management, and Indonesian citizens have taken an active role in reducing plastic waste. However, stricter and more specific regulations are needed as guidelines for the long-term strategy in handling marine plastic pollution in Indonesia, and proper analysis on the impact of such regulation towards the stakeholders and affected parties would be needed. (shrink)