ISSN / EISSN : 0215-840X / 2528-3103
Current Publisher: Universitas Airlangga (10.20473)
Total articles ≅ 264
Latest articles in this journal
Yuridika, Volume 36, pp 367-382; doi:10.20473/ydk.v36i2.24591
A system that serves the liability and settlement of medical malpractice disputes or commonly referred to as medical malpractice system has been established in many countries to respond the rise of medical malpractice claims against doctors. Medical malpractice system in the United States of America (the USA) has been relatively well developed as compared to other countries. Beside adopting pretrial screening process in medical malpractice litigation, various methods of alternative to litigation have been developed in the USA. This paper aims to explore the development of the medical malpractice system in the USA and to see the possibility for Indonesia to learn. This normative legal research relies on the secondary data especially which were collected from online sources. It is found that there are some initiatives in the USA that can be adopted by Indonesia for improving its medical malpractice system, especially the establishment of pretrial screening panel. It is expected that pretrial screening process can eliminate meritless claims which later may reduce unnecessary legal actions against doctors.
Yuridika, Volume 36, pp 427-444; doi:10.20473/ydk.v36i2.25372
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.
Yuridika, Volume 36, pp 383-400; doi:10.20473/ydk.v36i2.26497
The task of court is to produce just decisions. A court decision may be just if it coheres moral. Principle is praxis of moral. This article is to articulate that principle has significant meanings in court’s decisions. This is because principle is a moral standard that serves to be a reference for Court to settle hard cases equitably. In this writing, case approach is employed. In addition, it also uses comparative approach, in which court decisions of different countries are presented. The purpose of using comparative approach is to find similarities in referring to principle despite different jurisdictions and even different legal systems. From this study, it is found that principle may serve four functions to the court to reach equitable decisions. First, it may be a legal basis for the court to settle a case equitably in the absence of legal rule. In fact, not all human conducts are prescribed by law. It is frequently presumed that what is not prohibited is permitted to do. In this study, it is found that what is not forbidden is not necessarily permissible. The corner stone of determining whether or not it is permissible is principle. In this case, principle served to be legal basis directly applied by the court to avoid producing unjust judgment. Second, the principle has the derogatory function to supersede a statutory provision. In this case, applying such a provision may result in decision contrary to moral. This, certainly, contradicts the idea of the establishment of court of justice. It is justified, therefore, referring to the principle, the court supersedes such a statutory provision to bring about a just decision. Third, the principle serves to be a basis for the court to interpret obscure statutory provision governing the case. It is not unusual that statutory provision is obscure or ambiguous. Such a provision is hard to understand. Settling the case governed by such a provision appropriately, the court should interpret the provision sensibly.
Yuridika, Volume 36, pp 295-312; doi:10.20473/ydk.v36i2.23225
This study aims to analyze the practice of illegal transshipment in compliance with Act Number 45 of 2009 criminal provisions law concerning Fisheries, using legal concept, law, and case approaches. Nowadays, there are various operational modes of fish theft, with poor regulations that maximally accommodate crimes related to fisheries by perpetrators. Therefore, due to its unsustainability and economic loss, the fisheries and marine sector in Indonesia has to improve its performance. The results show that illegal transshipment engages some elements contained in Article 94 and 94A of Act Number 45 of 2009 which was an amendment of Act Number 31 of 2004. According to article 94, when a fishing vessel is caught transferring shipment in the middle of a high sea without in possession of a license called SIKPI, its owner/s are sentenced to 5-years imprisonment with a IDR 1,500,000,000 fine. Meanwhile, according to Article 94A, when a fishing vessel is caught using fake licenses such as SIUP, SIPI, and SIKPI, its owners are sentenced to 7 years imprisonment with a fine of IDR 3,000,000,000.00).
Yuridika, Volume 36, pp 313-332; doi:10.20473/ydk.v36i2.24724
The role of the community is very important in realizing the fulfillment of the right to a good and healthy environment for everyone as part of human rights. The lack of awareness of the disclosure of information on environmental documents to the public in conducting surveillance of activities or businesses that have an important impact on the environment is one of the many violations of environmental law that results in environmental damage and pollution. This paper seeks to examine the importance of information disclosure on environmental documents in supporting the role of community oversight of activities that have an important impact on the environment. The research method used is a normative legal research method with the statutory approach and conceptual approach. The conclusion of this paper discovered that disclosure of information on environmental documents is important as an effort to optimize the role of public monitoring. Environmental documents are used as a guide for detailed information related to compliance with the implementation of activity on its terms and obligations. This disclosure information must be seen as the implementation of the right to access information in support of the implementation of community responsibility for guaranteeing and fulfilling the rights of everyone to a good and healthy environment as a human right so that environmental damage and pollution from activities that are illegal and/or violate their environmental permits can be controlled and prevented.
Yuridika, Volume 36, pp 493-508; doi:10.20473/ydk.v36i2.24927
The Constitutional Court of Indonesia has held the followers of the indigenous religion (the Penghayat) can have their own religious identity on their identity card (ID) in 2016. The 1945 Constitution of Indonesia mentions a non-discriminatory principle which has been applied by the Constitutional Court to this case. However, the implementation of the Constitutional Court decision will face challenges and opportunities on the field. The author has used of both normative and empirical methodology by providing related legal information and the result of the interview with the local leader of the indigenous religion as sources of analysing the issues. As the result of the research shows the following challenges for the implementation of the Constitutional Court decision ; a. unification of the laws, b. lack of affirmative action for the followers of the indigenous religions, c. Lack of the updated and integrated administrative data base of the citizens with the Constitutional Court decision, d. religiously and ethnically based politics effecting the decision of public officials to accommodate public services for the followers of the indigenous religions while the following opportunities of the implementation of the Constitution Court decision are the constitutional recognition and protection of the indigenous community, the existence of the National Ombudsman Commission, the rule law principle in the 1945 Constitution, final and legally binding status of the Constitutional Court decision.
Yuridika, Volume 36, pp 401-426; doi:10.20473/ydk.v36i2.25897
The Government’s serious effort to build a National Education System in anticipating the development and progress of the globalization is manifested through making, stipulating and implementing policies related to the education sector, so that to prevent illegal policies, laws and regulations are needed as a juridical basis for these policies especially during the current Covid-19 Pandemic. The making of laws and regulations is called political law. What needs to be emphasized in legal politics is the guarantee of protection for public participation in the formation of laws and regulations. Community participation, if associated with responsive law, implies that the principle of public participation is the main thing in the formation of law for the realization of democratic legal products. Responsive legal politics still creates problems due to the lack of public participation in the making of laws and regulations. Therefore, the research problem is whether the legal politics of the National Education System in the era of globalization is responsive or not? The approach used is normative juridical. The results show that the responsive legal politics of the National Education System in the era of globalization consists of: Law Number 20 of 2003 on the National Education System, Law Number 14 of 2005 on Teachers and Lecturers, Law Number 12 of 2012 on Higher Education, and Circular of the Minister of Education and Culture Number 4 of 2020 on Implementation of Education Policies in the Emergency of Coronavirus Disease (Covid-19) Spreading.
Yuridika, Volume 36, pp 445-476; doi:10.20473/ydk.v36i2.26009
Fair dealing is one of the important elements in the Industrial Design Legislation. Because of that, it is significant to analyze the concept of fair dealing which can be understood by the society to achieve fairness in the protection of industrial design works. Under industrial design, the concept of fair dealing means that industrial design can be used by other parties for education and research purposes as long as it does not prejudice the interests of industrial design right holders. The purpose of this study is to analyze the value of fairness in the concept of fair dealing in industrial design law, so that it can be used as guidelines for the right holders and the public so they not violate the Industrial Design Law and this Law can also be used to advance the welfare of society. This study is normative legal research by using statute and conceptual approaches. While material used for this study are primary and secondary legal materials. This study found that fairness in the fair dealing in the protection of industrial design can be achieved in the form of fulfilment of balance rights between the designer’s right and society. Fairness for both is if between the right holder and society have the opportunities to use and enjoy available industrial design. Industrial design rights holders have limited monopoly rights and the public has the opportunity to use the results of industrial design in a limited manner for their welfare. This is in line with what Aristotle said that justice is given in accordance with values or propriety that is not the same.
Yuridika, Volume 36, pp 349-366; doi:10.20473/ydk.v36i2.16546
The utilization of coastal space for marine tourist destination has developed very rapidly; unfortunately, this marine tourism management potentially results in conflict. Marine tourism managed by villagers in Bangkalan Regency is the example of potential conflict in its implementation. In Labuhan Village, Sepulu Sub District, Bangkalan Regency mangrove tourism has resulted in conflict of management between the communities in a village. It is well established that public participation is one of variables that can affect supportability of coastal environment for marine tourism development, but non-participative management will affect the sustainability of tourism business itself. The objective of research was to formulate the model of marine tourism management policy through Village-Owned Enterprises (BUMDes). Such policy model is expected to minimize the conflict of spatial management. To achieve this objective of research, a Socio Legal Research type was used with factual and conceptual approaches. The result of research showed that the marine tourism management policy in Madura coastal area is managed more in group by mangrove farmer group, tourism consciousness group (pokdarwis) and community supervisor group (pokwasmas), and only very few have been managed by BUMDes. BUMDes is selected to be a legitimized institution in managing the marine tourism in coastal areas, because BUMDes can stimulate and activate the rural economic wheel managed fully by villagers. Juridical construction of marine tourism management through BUMDes can be legitimized based on Village Act. Village Regulation and legal entity-organization are legal figures underlying the marine tourism management through BUMDes as governed in Village Act and Minister of Village, Transmigration, and Disadvantaged Region’s Regulation about the establishment, the administration and management, and the dismissal of Village-Owned Enterprises.
Yuridika, Volume 36, pp 477-492; doi:10.20473/ydk.v36i2.27132
As the coronavirus (COVID-19) pandemic rapidly sweeps across the world, despite the measure taken to contain the spread of the disease through quarantine, it induces a considerable degree of fear, worry and concern in the population at large. Health care providers, older people and people with underlying health conditions are the most vulnerable to the pandemic. Nations, even countries with advanced medical sciences and resources, have underestimated the perils of the pandemic. Efforts are focused on understanding the epidemiology, clinical features, transmission patterns, and management of COVID-19 disease. One aspect overlooked is the mental health crisis underpinning the effects of self-isolation/ quarantine and the deaths of loved ones—the number of positive cases in Malaysia at an exponential growth rate each day. With strict preventive measures and restrictions by the Malaysian Government in the form of nationwide Movement Control Order (also known as MCO), the citizens are going through a range of psychological and emotional reactions and fear and uncertainty of being one of the infected. Many studies have been conducted to identify the state of mental health of people during this calamity. This raises ethical concerns and legal issues with regards to the rights of individuals enduring mental illness. This paper explores the ethical issues about the research on mental health during Covid-19 pandemics and the regulatory mechanisms which protect the rights of the persons who have the symptoms of mental illness.