Yuridika https://e-journal.unair.ac.id/YDK <p style="text-align: center;"><img src="/public/site/images/yuridika/dpncover.jpg" alt="" /></p><p style="text-align: justify;"><strong>Yuridika</strong> P-ISSN (<a href="http://issn.pdii.lipi.go.id/issn.cgi?daftar&amp;1180435406&amp;1&amp;&amp;" target="_blank">0215-840X</a>) and E-ISSN (<a href="http://issn.pdii.lipi.go.id/issn.cgi?daftar&amp;1469157436&amp;1&amp;&amp;">2528-3103</a>) is an open-access-peer-reviewed law journal affiliated to Universitas Airlangga Faculty of Law and published by <a href="http://ppjpi.unair.ac.id/" target="_blank">Universitas Airlangga</a>, in printed version, firstly in 1976. The aims of the journal is the platform for legal scholars and legal researcher who wish to share and contribute their ideas in <strong>dogmatic legal studies</strong>, particulary in developing and emerging countries. These dogmatic legal studies may include but are not limited to : Criminal Law; Civil Law; Constitutional Law; Administrative Law; International Law; Islamic Law; Law and Society; Economic and Business Law; Environmental Law; Medical Law; and Labour Law. It is published three times a year in January, May, and September. The articles published in Yuridika are going through double blind peer review process, and will be decided by Editorial Boards based on the peer review recommendations. Some authors are prominent legal scholars from many well- known faculty of law i.e. Peter Machmud Marzuki, Philipus M. Hadjon, Bernard Arief Sidharta, Phillip Griffith, Ten Berge, Jan Michiel Otto, and many others. <span> Yuridika only receives articles in English. </span></p><p>Yuridika has been accredited SINTA 2 by Ministry of Research, Technology, and Higher Education of Indonesia since 9 December 2021 based on the Decree Number 158/E/KPT/2021. <a href="https://drive.google.com/file/d/1-SVC8R0nigfbBoHLts4KdO_X4S663OhQ/view?usp=sharing" target="_blank">&lt;Download&gt;</a> </p><p style="text-align: justify;">For submission, please kindly open <a href="/index.php/YDK/about/submissions#onlineSubmissions" target="_blank">HERE</a>.</p> en-US yuridika@fh.unair.ac.id (Dr. Faizal Kurniawan, S.H., M.H., LL.M.) yuridika@fh.unair.ac.id (Admin Yuridika) Tue, 01 Mar 2022 00:00:00 +0000 OJS 3.3.0.10 http://blogs.law.harvard.edu/tech/rss 60 Imposition of Criminal Sanction Against Sexual Offenders from the Perspective of Child Protection Laws https://e-journal.unair.ac.id/YDK/article/view/33513 <p>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.</p> Dian Ety Mayasari Copyright (c) 2022 Dian Ety Mayasari http://creativecommons.org/licenses/by/4.0 https://e-journal.unair.ac.id/YDK/article/view/33513 Tue, 01 Mar 2022 00:00:00 +0000 Diversion Toward Juvenile Crime In South Sulawesi https://e-journal.unair.ac.id/YDK/article/view/29149 <p>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.</p> <p>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</p> Ririn Nurfaathirany Heri Copyright (c) 2022 Yuridika http://creativecommons.org/licenses/by/4.0 https://e-journal.unair.ac.id/YDK/article/view/29149 Tue, 01 Mar 2022 00:00:00 +0000 Crime News Broadcasting in the Framework of Protection of the Rights of Suspects/Defendants https://e-journal.unair.ac.id/YDK/article/view/34704 <p>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.</p> Ig Punia Atmaja Nr Copyright (c) 2022 Ig Punia Atmaja Nr http://creativecommons.org/licenses/by/4.0 https://e-journal.unair.ac.id/YDK/article/view/34704 Tue, 01 Mar 2022 00:00:00 +0000 The Essence of Legal Research is to Resolve Legal Problems https://e-journal.unair.ac.id/YDK/article/view/34597 <p>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.</p> Peter Machmudz Marzuki Copyright (c) 2022 Peter Machmudz Marzuki http://creativecommons.org/licenses/by/4.0 https://e-journal.unair.ac.id/YDK/article/view/34597 Tue, 01 Mar 2022 00:00:00 +0000 The Meaning of the Integrity Zone in the Prosecutor's Office: A Study of Legal Hermeneutics https://e-journal.unair.ac.id/YDK/article/view/33031 <p class="Default">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.</p> Setia Untung Arimuladi, Yos Johan Utama, Teddy Asmara Copyright (c) 2022 Setia Untung Arimuladi, Yos Johan Utama, Teddy Asmara http://creativecommons.org/licenses/by/4.0 https://e-journal.unair.ac.id/YDK/article/view/33031 Tue, 01 Mar 2022 00:00:00 +0000 The Problematics Implementation of Law and Regulations Testing in Indonesia https://e-journal.unair.ac.id/YDK/article/view/28627 <p>One of the results of the constitutional change, particularly during the 3<sup>rd</sup> 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.</p> suparto suparto Copyright (c) 2022 Yuridika http://creativecommons.org/licenses/by/4.0 https://e-journal.unair.ac.id/YDK/article/view/28627 Tue, 01 Mar 2022 00:00:00 +0000 Partnership Consultation: An Alternative Solution to the Nonexistent Collective Bargaining Right in the Indonesian Ride Hailing Gig Economy Sector https://e-journal.unair.ac.id/YDK/article/view/34599 <p>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.</p> Auditya Firza Saputra Copyright (c) 2022 Auditya Firza Saputra http://creativecommons.org/licenses/by/4.0 https://e-journal.unair.ac.id/YDK/article/view/34599 Tue, 01 Mar 2022 00:00:00 +0000 The Immunity of the Administration of State Financial Policy and Financial Stability System in Emergency https://e-journal.unair.ac.id/YDK/article/view/34595 <p>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 <em>corona virus pandemic</em> (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<em> type that applies statute approach</em>, <em>conceptual approach</em>, <em>comparative approach</em>, and <em>case approach.</em> Legal immunity is a form of legal protection for parties carrying out tasks and responsibilities under a good faith.</p> I Made Suwarjana Copyright (c) 2022 I Made Suwarjana http://creativecommons.org/licenses/by/4.0 https://e-journal.unair.ac.id/YDK/article/view/34595 Tue, 01 Mar 2022 00:00:00 +0000 Legal Protection for Parties in Transferring Receivables from Factoring Transactions (Factoring) https://e-journal.unair.ac.id/YDK/article/view/32169 <p class="Default">An agreement can be born not enough just by the will; the will is not stated according to the theory of statements (<em>verklaring</em> theory). Furthermore, according to the theory of trust (<em>vertrouwens </em>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.</p> Shohib Muslim Copyright (c) 2022 Shohib Muslim http://creativecommons.org/licenses/by/4.0 https://e-journal.unair.ac.id/YDK/article/view/32169 Tue, 01 Mar 2022 00:00:00 +0000 Optimising the Role of the Financial Services Authority for a More Sustainable Business Ecosystem in Indonesia https://e-journal.unair.ac.id/YDK/article/view/34598 <p>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.</p> Ulya Yasmine Prisandani Copyright (c) 2022 Ulya Yasmine Prisandani http://creativecommons.org/licenses/by/4.0 https://e-journal.unair.ac.id/YDK/article/view/34598 Tue, 01 Mar 2022 00:00:00 +0000 Is the Measure to Phase Out Crude Palm Oil in RED II discriminatory based on the World Trade Organization Law? https://e-journal.unair.ac.id/YDK/article/view/34596 <p>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.</p> Laras Thyrza Amandari, Yetty Komalasari Dewi Copyright (c) 2022 Laras Thyrza Amandari, Yetty Komalasari Dewi http://creativecommons.org/licenses/by/4.0 https://e-journal.unair.ac.id/YDK/article/view/34596 Tue, 01 Mar 2022 00:00:00 +0000 Access to Judicial Remedies for Palm Oil Workers Under Poor Working Conditions in Indonesia https://e-journal.unair.ac.id/YDK/article/view/34604 <p>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.</p> Ratih Ananda Putri Goestoro Copyright (c) 2022 Ratih Ananda Putri Goestoro http://creativecommons.org/licenses/by/4.0 https://e-journal.unair.ac.id/YDK/article/view/34604 Tue, 01 Mar 2022 00:00:00 +0000