Selanjutnya, koreksi UUPK terhadap asas personalitas/kepribadian kontrak (the privity ofcontract) sebagaimana diatur dalam Pasal 1315 jo. Pasal 1340 ayat (2) KUHPerdata. Berdasarkan asas ini, maka pelaku usaha hanya dapat dimintakan pertanggungjawaban hukumnya sepanjang ada hubungan kontraktual antara dirinya dengan konsumen. Pelaku usaha ber- kewajiban melindungi konsumen semata- mata jika di antara mereka telah terjalin suatu hubungan kontraktual. Asas ini oleh UUPK tidak dipertahankan secara mutlak dalam mengatur hubungan antara pelaku usaha dan konsumen. Kontrak bukan lagi merupakan syarat mutlak lahirnya suatu hubungan hukum. Pandangan ini tercermin berdasarkan ketentuan Pasal 24 UUPK yang menyatakan bahwa pengusaha yang menjual jasa atau barang melalui
Like Khawarij, the Murji’ah sect was born out of political reason, specifically the divisive issue of khila > fah and related religious stances taken by the Khawarij. Mu’tazilah adopted this line of reasoning in the beginning, problematising the issue of serious sinner (murtakib al- kaba > ’ir). After being involved with philosophy, the Mu’tazilah debated on the issues of divinehood, qadar, good and bad, God’s nature, and human action which were all discussed through reason philosophically. Among the leading figure is Washil ibn Atha’. In their school of thought the Mu’tazilah held on to five basic teachings (al-us } u > l al- khamsah). Al-Ash’ariyah is a theological school of thought founded by Abu Hasan al-‘Ash’ari, one ofthethe divisons of Sunni Islam (Ahl al- Sunnah wa al-Jama > ’ah). The teaching Al-‘Ash‘ariyah refuted a lot of Mu’tazilah’s opinions. He based his statement on the Qur’an and Hadith. In his theological thought, he attempted to purify God from attributes unfit for God. God’s power is absolute and unlimited. Among the Ash‘ariyah intellectuals was al-Ghazali who in the end used tas } awwuf or sufistic approach. Maturidiyah was founded by al-Maturidi. As a thinker in opposition to Mu’tazilah and a defender of Ahl al- Sunnah, al-Maturidi used a lot of atha > r (sound traditions). Some of his thoughts are compatible with al-‘Ash’ariyah and some are compatible with Mu’tazilah.
. For instance, article 1 rules that “A marriage is only allowed when the groom is 19 years and the bride 16.” (Indonesia, 1975). For Ahmad Azhar Basyir, this article is sufficiently Islamic in character. It is true that a marriage of minors is valid when conducted by their guardians because Islamic law does not specifically mention an age. With regard to maturity, it only stipulates that the partners be bal ī g (adult), an open-ended term. The fact is that the age of maturity varies from person to person, depending on their particular psychological and physiological development. Some objectives ofthe marriage, according to the Quran (30:21), include looking for the calm and quiet of life, so that the feeling of loving each other and affection can emerge. Given the marriage of minors is hardly able to materialize this objective, the government is justified in regulating “age limits” for the sake of both grooms and brides. The stipulation of age as in this article is based on unrestricted public good (maṣlaḥah mursalah) (Basyir, 1983).
26 Erman Rajagukguk in his lecture in semester B in Post Graduate Program, USU, in the subject Legal Culture, has ever told a story, of an artist of batik, then his batik was being duplicated by another person, he felt satisfied if his work is copied by another. As a Creator, he felt lucky to create something useful and he also thought that he might count it as good deed. It is the same with legal culture adhered by most people of Indonesia. Eastern legal culture is indeed different with Western legal culture. Individualistic values always put aside when facing the wider public purpose. Andreski S, Max Weber, Kapitalisme, Birokrasi dan Agama, PT Tiara Wacana, Yogyakarta, 1989, p. 52. Baswir R, Dilema Kapitalisme Perkoncoan, IDEA in cooperation with Pustaka Pelajar, Yogyakarta, 1999, p. 29. Weber M, Etika Protestan dan Semangat Kapitalisme, Pustaka Promethea, Surabaya, 2000, p. 54. Also compare with Francis Fukuyama, The End of History and The Last Man Kemenangan Kapitalisme dan Demokrsi Loberal, Qalam, Jakarta, 2003, p. 200. Hernando De Soto, The Mystery of Capital Rahasia Kejayaan Kapitalisme Barat (Translation by Pandu Aditya K et.al), Qalam, Jakarta, 2000, p. 62. Compare with William J Baumol, Robert E Litan, Carld J Schramm, Good Capitalism Kapitalisme Baik, Kapitalisme Buruk dan Ekonomi Pertumbuhan dan Kemakmuran (Translation by Rahmi Yossinilayanti), Gramedia, Jakarta, 2010, p. 60. Compare with Johan Norberg, Membela Kapitalisme Global,
Ideological and political argument are characterized by religious arguments combined with political sentiment when it come for supporting or rejecting sharia banking. This can be seen from the rejection of a number of Bali residents to sharia banking. According to I Gusti Ngurah Arya Wedakarna Mahendradatta Wedasteraputra Suyasa, Rector of Mahendradatta University of Bali, Bali’s people have implemented Pancasila economy and customs. He argued that Sharia economy will become problematic when there is a hidden agenda to ruin Balineses’ economy. Furtheromore, he also asserts that Bali’s people followed economy of Pancasila not economy of only one religion. He also sugeests that Bali has its own way and say that “We have had our economic system and we do not need to adopt it from outside. The sharia economic movement could be implemented in Malaysia, Middle East, and several other Islamic countries, but it cannot be implemented in Bali.” Interestingly, he also argues that ‘sharia economy only strengthens and gives advantages for one religious group. The shariah economy was good for them, but it was not good for us. We deeply regret the fact that the sharia economy as it seems more popular than Pancasila economy. 18
This article focuses on “trafficking in persons” (TIP) in fisheries in Indonesia and Thailand which refers to key international instruments on TIP and continues by discussing recent cases of TIP in fisheries in Indonesia that were reported in the first half of year 2015. It also explores respective Indonesian and Thai domestic legislation in relation to measures to combat trafficking in the region. Bilateral and multilateral treaties such as the Treaty between the Government ofthe Kingdom of Thailand and the Government ofthe Republic of Indonesia Relating to Extradition and the ASEAN Treaty on Mutual Legal Assistance in Criminal Matters are also addressed as cooperation tools which should be used by Indonesia and Thailand in prosecuting traffickers. To attain success in prosecuting law breakers and to be fair to all concerned, the author discourages those who are preoccupied with TIP from prejudging all unlawful acts as incidents of TIP since many of them might not fall under the criteria of TIP. Additionally, the article addresses the U.S. Victims of Trafficking and Violence Protection Act of 2000, which classifies countries under one ofthe tiers stipulated therein . The author indirectly suggests that, via the Act, the U.S. puts pressure
Main results of thesis are the child according to Indonesianlaw is every child has not been 18 years old and also the child who is still in the womb. while according to Islamic jurisprudence the child is every child has not been baligh, baligh can be known by natural and age signs. Principles and law sources of child protection in Indonesianlaw is only the result of human mind and not based on revelation, while principles and law sources of child protection in Islamic jurisprudence based on revelation in the holly Quran and Sunnah or ijtihad which is based on revelation in the Ijma and Ijtihad. The implementation of child protection in Indonesion law pays more attention to physical and intellec needs, while in Islamic jurisprudence pays more attention to physical and spiritual that invalues primary, secondary and tertiary needs. The rights ofthe child who has not been born those acknowledged by Indonesianlaw i. e life and obtaining the health insurance rights, while in Islamic jurisprudence i.e life and obtaining the health insurance, descendant and ownership rights. Indonesianlaw and Islamic jurisprudence acknowledge the majorities ofthe children rights after being born but Islamic jurisprudence has more value then Indonesion law from the side of attention to the new birth by giving primary care and acknowledging the suckle, orphan, and finding child rights. Indonesianlaw oblige Indonesion children some compulsories but Islamic jurisprudence do not, because they are not baligh yet. Islamic figh has more specials things then Indonesion law from the side of varions of punishment by keeping paying attention not only to the benefit of offenders, victims and community but also to the size ofthe crime.
Some materials of this article are written based on the results of Fundamental Grant in 2014 which studied the difference of general concept development of good governance between Indonesian Administrative Law and Dutch Administrative Law. The research was initiated by studying the documents, including the laws relating to general principles concept of good governance in Central Library of Legal Documentation of Indonesia National Law Development Agency (BPHN) Jakarta and it was continued by investigating websites, especially the BPHN’s website. Meanwhile, for investigating the documents of Dutch Laws, it was conducted through the website namely overheid.nl. This website provides information regarding all laws and regulations in Netherland either the laws and regulations at international, regional, national or local regulations such as provincial regulations or district existing in Netherland. The research was conducted in May to October 2014. In the middle of October 2014, as the research activity was being implemented, theIndonesian government issued a law regulating and admitting the general principles of good governance formally in Law Number 30 Year 2014 concerning Public Administration.
Every unpaid credit from Government Bank is given to Committee of State Affair (PUPN) based on Law Number 49 Prp of 1960 about PUPN. PUPN has authority to do state credit affairs by publishing legal decisions, one of that is Mutual Agreement. Mutual Agreement is as an agreement or accord between debitor or debt warrantor with the head of PUPN which is poured in the letter form that contain debt creed or debt warrantor and/or debt guaranty to pay full all of his that to the government. Based on the above back ground, it is necessary to study about how the Mutual Agreement is viewed from ContractLaw and about the obstacles that stated in the mutual agreement.
“In consideration ofthe Bank giving and/or agreeing to give to the Customer the exclusive right to occupy, possess, use and enjoy the Property, the Customer must obtain and maintain takaful coverage of not less than the outstanding Buyout Amount or for such amount as may be acceptable to the Bank on the Property against all insurable risks including but not limited to, loss or damage by fire, explosion, lightning, tempest, flood, riot, civil commotion, strike and malicious acts and other risks as the Bank may require. The Customer must, if permitted, name the Bank as an additional party covered in the takaful policy and its renewals or if not permitted, to include the Bank as financier and/or loss payee.”
One ofthe purpose ofthe formulation and enactment of laws in Indonesian is to create of a peaceful, comfortable, orderly, and fair. Basically the purpose ofthelaw can be approached from the essence oflaw . The essence oflaw or rules is to protect the rights ofthe community, and provide opportunities “more “ to the public . Thus the people who obey thelaw, their rights as citizens are protected and realized, as well as having the opportunity to be compared with other community members. Example, if the other party is not known, then the corruption, cheating can be done. If there is no police, the traffic violation can be done. As one consequence legal purposes not materialized in public life. Justice is still a very high value, well-being has not been felt by the majority of society , feeling comfortable, peaceful, and orderly atmosphere that is missed by the people. That there are signs of not implemented of rule or law. The signs of not implemented law, can be expressed as a sign of “ legal death “, in the sense that thelaw does not function in accordance with the function, role, and purpose . The application ofthelaw in the reality of people’s lives , still formalistic, have not enactments expressly sanction yet, the judicial mafia. Those are phenomenal the “ death “ oflaw in the country of Indonesia.
According to article 12 ofLaw 156 (I)/2004, any contract can be concluded by the use of electronic means, with the exception of contracts which establish or confer rights upon immovable property, contracts which must follow specific formal requirements due to the existence of a law, contracts concerning family law or lawof succession, and contracts of guarantees and related securities by persons who pursue aims out ofthe ambit of their commercial or professional activities. Thus, it is accepted that all other contracts for the conclusion of which no formal requirements are needed, may be concluded by electronic means. There is no legal requirement that such contracts must also contain electronic signatures, although it is evident that the existence of such electronic signatures would prove to be an extra security mechanism to prove that thecontract has been accepted before a court.
• Adat scholars argued that religious law did not replace indigenous law. It only influenced the indigenous law in limited personal matters, such as: marriage, family and inheritance laws. The degree of its influence also differed from community to community
Abstract: This study aims at examining the legality of interreligious marriage according to Islamic law and Indonesian positive law. To reach the goal set by this research, a descriptive method is used in the writing while an analytical method is employed to scrutinize the relevant problems. This study finds that interreligious marriage has spread widely among Indonesians that it has now become a phenomenon. However, Islam does not recognize a Muslim woman’s marriage unless she is married by a man belonging to the same religion, i.e. a Muslim. A Muslim man is not permitted to marry a mushrik (polytheist) woman. It is lawful for him to marry a woman from the Ahlul Kitaab (Jews and Christians), but Indonesian ulemas prohibit such a marriage as well because ofthe negative outcomes. Meanwhile, the 1974 Indonesian Marriage Law fails to address the issue of interreligious marriage in a clear manner. This brings forth at least three interpretations: firstly, thelaw does not regulate interreligious marriage at all; secondly, thelaw allows it; and thirdly, thelaw denies it. Through an analysis, the last interpretation is found to have stronger reasons than the others.
After 1986, freedom was permitted and businesses were untied, private economic fea- tures were encouraged and supported, and contractlaw norms had a great opportunity to improve. Marking the new development of Vietnamese contract norms, the State enacted the Ordinance on Economic Contract in the year 1989 and Ordinance on Civil Contract in 1991. The appearance of those Ordinances showed extreme improvements of all Vietnamese legal systems. Freedom of business and freedom ofcontract was admitted and pro- tected by State. People were encouraged to attend contractual relationships and their lives became better. However, due to restrictions of new reformed economy, those Ordinances had some matters and needed to be replaced by other papers. A short time later, Vietnam enacted the first Civil Code in 1995 and the first Commercial Law (after the reunification) in 1997. In practice, the Civil Code 1995 covered effectively all contractual relationships and, contributed much to the civil society of Vietnam. On the contrary, Commercial Law 1997 still had administrative bureaucracy, used much orders to stipulate provisions ofthelaw. Therefore the effect of usage in practice was very limited. Followed with the economic development and requirement of integration into international economy, and to guarantee for the process of joining World Trade Organization (WTO), Vietnam found that it must change its system oflaw. The State enac- ted new Civil Code and Commercial Law in 2005. These two laws were vital to creating a suitable legal framework for contractlaw norms in Vietnam, and they still affect our civil society nowadays. It is considered that contractlaw is very important norm which has large justification and covers many features ofthe economy and society, so sources ofcontractlaw is so diversified.