scholarly journals PERTIMBANGAN HAKIM MEMUTUSKAN PERKARA PERDATA MELEBIHI PERMINTAAN DALAM GUGATAN

Author(s):  
Dela Anggrainy ◽  
Yulia Y ◽  
Teuku Yudi Afrizal

Article 5 paragraph (1) of Law Number 48 of 2009 concerning Judicial Power, judges are obliged to explore, follow, understand legal values and a sense of justice that live in society. Then Artticle 50 Rv, explain that the decision must not be granted beyond the demands put forward in the lawsuit. The purpose of this study is how the judge’s consideration in a lawsuit. The method in this study uses a normative juridical approach. The sesults of the study show that judging by granting more than what is being accused can be equated with illegal actions even though it is done in good faith.

2021 ◽  
Vol 17 (4) ◽  
pp. 879
Author(s):  
Ananthia Ayu Devitasari

AbstrakIndependensi peradilan adalah fondasi utama terwujudnya keadilan dan kepastian hukum. Terkait diskursus independensi kekuasaan kehakiman tersebut, Mahkamah Konstitusi memutus Perkara Nomor 10/PUU-XVIII/2020 yang menguji pasal Pasal 5 ayat (2) dan Pasal 8 ayat (2) Undang-Undang Nomor 14 Tahun 2002 tentang Pengadilan Pajak. Para Pemohon menguji kewenangan pembinaan organisasi, administrasi, dan keuangan bagi Pengadilan Pajak dilakukan oleh Departemen Keuangan, kewenangan Menteri Keuangan untuk mengusulkan ketua dan wakil Ketua Pengadilan Pajak, serta ketiadaan batasan periodesasi jabatan ketua dan wakil ketua. Lebih lanjut, Mahkamah dalam amar putusan a quo menyatakan bahwa ““Ketua dan Wakil Ketua diangkat oleh Presiden yang dipilih dari dan oleh para Hakim yang selanjutnya diusulkan melalui Menteri dengan persetujuan Ketua Mahkamah Agung untuk 1 (satu) kali masa jabatan selama 5 (lima) tahun”. Berangkat dari latar belakang tersebut, kajian ini berusaha menganalisa independensi hakim pengadilan pajak pasca Putusan MK Nomor 10/PUU-XVIII/2020 dengan pendekatan teori independensi peradilan. Kajian ini menunjukkan Putusan Mahkamah tidak hanya mendukung independensi hakim badan peradilan pajak tetapi juga menarik garis demarkasi antara kekuasaan kehakiman dengan kekuasaan eksekutif.AbstractJudicial independence is the main foundation for the of justice and legal certainty. Regarding the discourse on the independence of judicial power, the Constitutional Court decided on Case Number 10 / PUU-XVIII / 2020 which examined Article 5 paragraph (2) and Article 8 paragraph (2) of Law Number 14 of 2002 concerning the Tax Court. The Petitioners challenged the authority of Ministry of Finance to develop the organization, administration and finance for the Tax Court, the authority of the Minister of Finance to propose the chairperson and deputy chairman of the Tax Court. Furthermore, the Court in its ruling states that "the Chairperson and Deputy Chairperson are appointed by the President who is elected from and by the Judges who are subsequently proposed through the Minister with the approval of the Chief Justice of the Supreme Court for 1 (one) term of office for 5 (five) years". This study examined the independence of the tax court judges after the Constitutional Court Decision Number 10 / PUU-XVIII / 2020 with independent judicial theory approach. This study showed that the Court's decision not only supports the independence of the tax court judges but also draws a demarcation line between judicial power and executive power. 


2013 ◽  
Vol 2 (2) ◽  
pp. 189
Author(s):  
Abdul Manan

The court essentially banned refused to examine, decide a case filed with no legal argument or less clear, but obliged to examine and judge ". Provisions of this chapter gives the sense that as major organs Court judge and as executor of judicial power is obligatory for the Judge to find the law in a case despite legal provisions do not exist or are less clear. Law No. 48 of 2009 Article 5 (1) explains that "Judges shall multiply, follow and understand the values of law and justice that lives within the community. the judges in the religious court in making decisions on matters that should be examined and judged using the technique of taking decisions which include Analytical Techniques, Technical equatable, and techniques syllogism. Keywords: Rechtsvinding, Justice, Law Events, Religious Courts.


2012 ◽  
Vol 1 (1) ◽  
pp. 35
Author(s):  
Ismail Rumadan

The existence of the tax court in Indonesia as a judicial institution that is specialy expected to play a role in resolving settlement of tax disputes for those seeking justice. However, its existence has not been in line with the justice system one roof in Indonesia as mandated by the 1945 Constitution. Tax court over a regime of taxation law, not a regime of law on Judicial Power. There is not an appeal or cassation resulting tax court decision does not reflect the lack of legal certainty and a sense of justice for the people seeking justice. These conditions lead to the control of the implementation of the Tax Court is very weak. Keywords: Tax Court, Justice System, Rule of Law, Justice.


2020 ◽  
Vol 20 (1) ◽  
pp. 25-35
Author(s):  
Romano Deluque Júnior ◽  
Cristiane Maluf Rodrigues Correia

À luz de uma reflexão jusfilosófica, a pessoa humana ascende enquanto sujeito de maior relevância para a ciência do Direito, nesse mesmo sentido, se faz relevante citar que o Direito possuiria, em todas as suas instâncias, a seguinte preocupação: de caminhar paralelamente a um verdadeiro senso de justiça, que se volte à solidariedade e ao bem comum. O presente artigo possui como objetivo fazer emergir uma reflexão ética acerca da função social dos contratos, por sua vez aqui percebida tal como um instituto norteador das relações jurídicas contratuais relacionando-a  com a questão da dignidade da pessoa humana enquanto basilar princípio constitucional. A discussão proposta decorrer-se-á de modo a defender a premissa de que a manutenção e a defesa dessa dignidade ocorreriam  dentro de uma perspectiva contratualista, a partir da observância e do respeito pelos limites impostos pela própria função social dos contratos, na figura da probidade contratual, da boa-fé objetiva, e da defesa dos interesses difusos e institucionais. Propõe-se, ainda, discutir a respeito de uma ética contratual contemporânea, que a partir dos conceitos aqui em análise, possuiria o intento de superar o ciclo histórico de individualismo exacerbado, e substituí-lo pelo ideal da coexistencialidade. Nessa nova perspectiva ter-se-á em pauta o instituto da boa-fé objetiva, através da qual a relação negocial passaria a ser vislumbrada a partir de uma ética do comum proveito, que caminharia, não obstante, à harmonia jurídico-contratual em prol da coletividade e dos interesses difusos. Palavras-chave: Função Social do Contrato. Contratos. Direito Civil. AbstractOn the  light of a jus-philosophical reflection, the human being ascends as a subject of greater relevance to the science of Law, in the same sense, it is relevant to mention that Law would have, in all its instances, the following concern: to walk in parallel to a true sense of justice, to return, to solidarity and to the common good. The purpose of this article is to make an ethical reflection about the social function of contracts, in turn perceived here as an institute guiding contractual legal relationships  regarding the issue of the dignity of the human person as a basis for constitutional principle. The proposed discussion will be carried out in such a way as to defend the premise that the maintenance and defense of this dignity would take place, from a contractual perspective, from the observance and respect for the limits imposed by the social function of the contracts themselves, figure of contractual probity, objective good faith, and defense of diffuse and institutional interests. It is also proposed to discuss a contemporary contractual ethic that, based on the concepts analyzed here, would attempt to overcome the historical cycle of exacerbated individualism and replace it with the ideal of coexistentiality. In this new perspective, the institute of objective good faith, through which the negotiating relationship would be perceived from an ethic of common advantage, would nevertheless follow the legal-contractual harmony in collective and diffuse interests. Keywords: Social Function of Contract. Contracts. Civil Law.


2011 ◽  
Vol 11 (3) ◽  
Author(s):  
Inge Dwisvimiar

The author in this paper tries to investigate and describe the perspective of Justice in Legal Studies. Fairness in Legal Studies Philosophy attention to all aspects of terminology relating to justice and legal philosophy of science. Justice is the ideals and purposes of the law that reach from the philosophy of science perspective of the law by providing that justice is realized through law. By reviewing the opinion of Plato and Aristotle as the foundations of justice, Thomas Aquinas, who called for justice as well as John Rawls proportional equality with justice fairness the the basic values  of justice are included in the study of philosophy of science philosophy of law will be answered by the legal science it self.The justice is not just there and read the text of legislation but also the legal justice in society. Both Article 16 paragraph (1) Law 4/2004 and Article 5 paragraph (1) Law 48/2009 states that justice shall be upheld in spite of no normative provisions and how thejudge alone buat also to explore and understand the values and sense of justice that exists in the community.Key words: justice, legal studies, philosophy of science of law


2020 ◽  
Vol 15 (2) ◽  
pp. 290-304
Author(s):  
Orien Effendi

AbstractMany people consider that the existence of Article 51 paragraph (1) and (2) in the Criminal Code is a basis for absolute immunity or immunity for officials. No exception for ordinary people who ultimately know the contents of the article who then assume that the law we profess is very damaging to a sense of justice. The existence of this article has also attracted the attention of academics, as evidenced by the number of studies published in publications that we can find in online media. It is this community's assumption that will lead to a setback of the law itself because of the loss of public trust in the existing legal system. Position orders without authority, do not cause criminal abolition, except if the governed, in good faith thinks that the order is given with authority and its implementation is included in the work environment, that is about the sound of paragraph (2) of article 51 of the Criminal Code. The problem that often occurs is that many articles in legislation do not explain in detail the true meaning. If we may examine paragraph (2) in that article, it means that an official's actions can be justified even though there is no prior order, either from the law or an order of an authorized position with only the basis of good faith from the act. The intent of good faith can invite diverse interpretations, then questions arise; what are the criteria of good faith, whichever boundary of good faith is intended, and so on.Keywords: Article 51, Criminal Code, Academics, Justice.


2021 ◽  
Vol 3 (3) ◽  
Author(s):  
Ahmad Yulianto ◽  
Athari Farhani

The ratification of Law No.7 of 1989 concerning the Religious Courts brought enormous changes to the position of the religious judiciary, not only in its position as a judicial institution as part of executing the same judicial power as other judicial institutions. However, the ratification of the granting of full authority which is the main task of the religious court to resolve cases of Muslims in Indonesia relating to family law. With the birth of the religious court law, the religious judiciary has become independent in Indonesia in enforcing laws based on Islamic law for those seeking justice who are Muslim in relation to civil matters in the fields of marriage, inheritance, wills, grants and endowments. Therefore, Muslims in Indonesia are required to submit their cases to the religious court which is the authority of the religious court. Jurisprudence is a fundamental need to complement various laws and regulations in the application of law because in the national legal system it plays a role as a source of law. Without jurisprudence, the function and authority of the judiciary as the executor of judicial power will cause sterility and stagnation. Jurisprudence aims to keep laws up to date and apply effectively, and can even increase the authority of the judiciary because they are able to maintain legal certainty, social justice and protection. Legal certainty will be realized if in the application of law there is a common perception. The existence of legal certainty will prevent or avoid disparities and inconsistencies in decisions because judges have applied the same legal standards to cases or cases that are the same or similar to cases that have been terminated or tried by a previous judge, so that the verdict on his case can be predicted by justice seekers. With this consistent decision, a sense of justice and legal certainty can be realized.  


2019 ◽  
Vol 6 (1) ◽  
pp. 77-96
Author(s):  
Sofian Syaiful Rizal

This study aims to analyze court decisions, in divorce lawsuits that use simple, fast and low-cost judicial principles at the Pamekasan Religious Court. The problems that arise from this study are, First, what is the legal foundation of judge in resolving divorce claims in religious courts using simple, fast and low-cost judicial principles? Second, what are the legal considerations of religious courts in examining, hearing, and deciding divorce cases in religious courts? The research method uses a normative juridical approach. The results of the study show that: First, the principle of justice is simple, fast, and low cost refers to Law No. 4 of 2004 concerning Judicial Power article 4 paragraph (2), and article 5 paragraph (2). Also contained in Law No. 7 of 1989 in article 57 paragraph (3), as well as in article 58 paragraph (2). Second: The legal considerations of the extreme religious court in rejecting a divorce lawsuit in a religious court are in accordance with the legal basis of state legislation and syar'i law. Considering, based on the testimonies of the witnesses, that the dispute between the plaintiff and the defendant only happened once, so that it did not meet the criteria of article 19 letter C, namely continuous disputes and arguments so that there was no hope of living in harmony again. Keywords: Judicial Principles, Divorce Lawsuit, Judge's Decision


2012 ◽  
Vol 12 (2) ◽  
Author(s):  
ASukris Sarmadi

According to the law of UU No. 48 Year 2009 about Judicial Power Section 5 sentence (1) which is on its say; core express that judge is obliged to dig of law, following, and comprehending values law and sense of justice which live in society. Hence law shall comprehend to place forward sense of justice which live in society. Law have the target of its social, advocating and protecting society citizen. If text in law at variance with target of social hence text in law that have to be transferred in essence norm that at target of its social in the form of society sense of justice, defence and protection to society citizen. This matter to free positive law of inequitable of law so that law remain to in progressive target. Key words: Justice, norm, positive law, progressive law, legislation.


2018 ◽  
Vol 5 (2) ◽  
Author(s):  
Rina Yulianti ◽  
Mufarrijul Ikhwan

Article 5 (1) of Law Number 48 Year 2009 concerning Judicial Power becomes ineffective if acentralistic ideology still working  in view of the judge. The type of study used in this researchwas a non-doctrinal legal studies (sociolegal research). Research conducted in the DistrictCourt and Religious Court in Madura based on the judges perception by meaning of article 5paragraph (1) law 48/2009 and justices consideration to verdict making process. The resultsshowing the judges majority interpret the Article 5, paragraph 1 Law 28/2009 to legaldiscovery (rechtsvinding) as an efforts if a legal vacuum, otherwise the judges did notinterpret used living law when there are legal gaps. Thus showing domination of the state lawover the law that lives in society. DOI: 10.15408/jch.v5i2.4190


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