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1 ASIAN Conference on Comparative Laws ABS-1291

THE DISRUPTIVE INNOVATION IN COMPETITION LAW: THE STUDY OF ONLINE TRANSPORTATION BUSINESS
(1)Mukti Fajar ND(2)Reni Budi Setianingrum

Faculty of Law Universitas Muhammadiyah Yogyakarta


Abstract

The rapid development of digital technology encourages businesses to innovate their products and services. But these business innovations often create an unexpected leap leading to Disruptive Innovation, for example, the growth of online transportation business. As a result, the existing regulation cannot reach this leap. This study aims to study: (1) the legal position of Disruptive Innovation in competition law; and (2) analyzing the status of application-based transportation in competition law. The method of this research is normative legal research, which examines various legal principles, legal theories, and legislation. Findings from this study are, first: Disruptive Innovation indeed creates chaos in business competition, but as long as it does not violate regulation about (1) activities that are prohibited; (2) agreements that are prohibited; and (3) abuse of dominant position and run fairly, obey the law and doesn’t inhibit the entry of competitors, it does not violate the competition law. Second, application-based transportation business raises new problems concerning with the regulation that must be applied. Though the business platform is completely different from conventional transport companies, this new business platform does not violate business competition law.

Keywords: Disruptive Innovation; Competition Law; Online transportation

PermaLink | Plain Format | Corresponding Author (Reni Budi Setianingrum)


2 ASIAN Conference on Comparative Laws ABS-279

The Threats of Cyber Crime form in National Defense Perspective
Gerald Theodorus L. Toruan, S.H.,M.H

Research and Development Agency
Ministry of Defense Republic on Indonesia
theodorus_recht[at]yahoo.com


Abstract

Cyber crime threats is now considered to be a concern by all parties. This cyber crime arises due to the rapid development of technology and information today. There are certain parties who take advantage of this situation for bad purposes. The development of technology is like a double edged sword, one side has a positive goal and the other side a negative goal. Cyber crime has a variety of types, for example, hacking, defacing, spamming, online fraud, and can even hate speech and hoax. Cyber crime will threaten various line of life, one of which is in national defense.
This study a qualitative research method with a descriptive approach, collecting data by library research. The purpose of this study is to provide policy recommendation to the chief, especially recommendation related to cyber crime. The expected result is a recommendation to be used to overcome cyber crime.

Keywords: Cyber Crime Threats, National Defense Perspective

PermaLink | Plain Format | Corresponding Author (Gerald Theodorus L. Toruan)


3 ASIAN Conference on Comparative Laws ABS-807

IMPLEMENTATION OF LAW ENFORCEMENTS ON ENVIRONMENTAL POLLUTION IN WASTE MANAGEMENT IN THE SPECIAL REGION OF YOGYAKARTA
Yeni Widowaty and Laras Astuti

Universitas Muhammadiyah Yogyakarta


Abstract

  The waste generated from households always increases every day, appearing to uncontrolled volume of waste. According to Law Number 18 of 2008 concerning waste management "Every person is prohibited from garbage disposing not at the designated place". However, researcher found that many people are still littering without take an action. This research aims to know the implementation of law enforcement on pollution and/or enviromental damage in waste management and the suitable concept on law enforcement againts pollution in waste management in the future. This research is a socio-legal research based on primary and secondary data. The data were analized using flow model of analysis. The results of research show that the Special Region of Yogyakarta local government has regulated waste management, which has been implemented at the district and city level. Thus, the lack of socialization causes people littering. The ideal sanction will be based on restorative justice concept. The perpetrators and victims face each other and a third party as a facilitator; it is expected for decreasing the littering.

Keywords: Law enforcement, waste management, pollution and / environmental damage

PermaLink | Plain Format | Corresponding Author (Yeni Widowaty)


4 ASIAN Conference on Comparative Laws ABS-808

THE APPLICATION OF SHARIA PRINCIPLES IN SHARIA HOTEL BUSINESS AT NAMIRA SYARIAH HOTEL IN PEKALONGAN
Fadia Fitriyanti and Angela Diana Fiantilan

Faculty of Law Universitas Muhammadiyah Yogyakarta


Abstract

This study aims to analyze the procedure to obtain halal tourism business for the Shariah Hotel Certification and how the application of the sharia principle at Namira Syariah Hotel in Pekalongan whether it is in line with the sharia principle. The Sharia principle in the sharia hotel business is regulated by the National Sharia Council Fatwa No.108/DSN-MUI/2016 about Guidelines for Implementing Tourism Based on Sharia Principles. The type of research is empirical research, and the method used in research is interview and documentation. The data analysis used collecting data. The result of this research is the guidelines for conducting Sharia Hotel business, previously enacted in the regulation of the Minister of Tourism and Creative Economy Number 2 of 2014. However, this regulation is revoked by regulation of the Minister of Tourism number 11 of 2016, and then, it is repealed back by Minister of Tourism Number 12 of 2016. Now, the regulation governs about the guidelines of sharia hotel management namely National Sharia Council Fatwa No.108/DSN-MUI/2016. Namira Syariah Hotel is a hotel that has implemented Sharia elements in aspects of product, service, and management by Sharia Principle. Even though all the elements have been fulfilled which refers to National Sharia Council Fatwa No.108/DSN-MUI/2016, the hotel has not yet obtained the permit to establish a Sharia Hotel because the hotel still has to obtain a certificate through procedures that are determined by legislation.

Keywords: application, sharia principle, sharia hotel

PermaLink | Plain Format | Corresponding Author (Fadia Fitriyanti)


5 ASIAN Conference on Comparative Laws ABS-809

THE PROTECTION OF MARINE ECOSYSTEM FROM THE TOXIC AND HAZARDOUS WASTE UNDER INDONESIAN LAW: THE CASE OF CIGARETTE BUTTS POLLUTION IN THE OCEAN
Nasrullah & Adis Putri Nelaniken

UMY


Abstract

Indonesia is recognized as a country with high potential in maritime resources. However, Indonesia is also known as the second largest contributor of plastic waste into the ocean. It is estimated that Indonesia contributes around 200.000 tons of plastic disposals. The highest pollutant of the plastic product was found to be cigarette butts. The trillions of cigarette butts generate chemical contamination on the water. The various chemicals used as additives in cigarettes and the additional ones created when a cigarette is combusted. Chemicals that leach from the cigarette butts can be extremely toxic to the organisms in the ocean. Cigarette is not only dangerous for human health, but it is also environmentally hazardous. The marine pollution caused by the cigarette butts was never realized by humans, even though the huge number of cigarette butts were found in the sea. A grave concern should be put on the impacts of cigarette toward the ocean. The objective of this paper is to elaborate the Indonesian regulation dealing with the issue of cigarette butt pollution in the ocean. This paper is the result of normative research with the statute, analytical and case approaches on the protection of the marine ecosystem from the cigarette filter disposal. This research attempts to analyze the existing regulations in Indonesia on the protection of the marine ecosystem from toxic and hazardous waste, especially from cigarette butt waste disposal. The results of this study show that to date there is no specific regulation regulates about tobacco waste product disposals. Accordingly, the government is suggested to enact a specific and effective regulation about tobacco waste product, so that the law enforcement of marine pollution caused by cigarette butts can be prevented.

Keywords: Cigarette butt, legal protection, marine pollution, toxic and hazardous waste

PermaLink | Plain Format | Corresponding Author (Nasrullah Nasrullah)


6 ASIAN Conference on Comparative Laws ABS-810

The Challenges of Islamic Peer to Peer Lending as The Alternative Solution To Financial Technology based on The Peer to Peer Lending Service in Indonesia
Dewi Nurul Musjtari (1), (2) Fiska Silvia Raden Roro, (3) Rofah Setyowati

(1) Faculty of Law, Universitas Muhammadiyah Yogyakarta, dewinurulmusjtari[at]umy.ac.id (2)Faculty of Law, Airlangga University, Surabaya, fiska[at]fh.unair.ac.id (3)Faculty of Law, Diponegoro University, rofahundip[at]gmail.com


Abstract

The main attention of the authors to this research are the challenges of Sharia Financial Technology (fintech), especially the online loan service industry (Peer-to-Peer lending fintech service) to the financial regulations and the alternative solutions to solve the problem. The type of research method is normative research. This research used the statutory approach and conceptual approach which are obtained from library research. Moreover, this research also uses an empirical juridical method which is based on interview results. The challenges, in conventional Peer-to-Peer lending system, there is economic immorality in their applications such as maisyir, gharar, riba, and dhalim acts. It is completely different from Sharia Fintech which has sharia compliance as the main principles, which is outlined in several rules in facing the challenges of Islamic peer-to-peer lending. As the alternative solution to financial technology based on the peer-to-peer lending service in Indonesia, the challenges of Islamic P2P lending are illegal fintech, intimidating debt collection the high level of the interest rate, and illegal personal data usage. Therefore the elements of Sharia Compliance Principle and the Obedience Principle are the alternative solutions in order to reinforce Sharia Fintech which will provide protection to the consumers. Furthermore, these principles are recommendations for the government in order to immediately complete satisfactory financial regulation and to develop competent and capable human resources in sharia or in Islamic Economics Law.

Keywords: Challenges, Sharia Fintech, Peer to Peer Lending, Alternative Solutions.

PermaLink | Plain Format | Corresponding Author (Dewi Nurul Musjtari)


7 ASIAN Conference on Comparative Laws ABS-811

Redesign Of Indonesias Decentralization Policy Towards Special Autonomy Model
King Faisal Sulaiman

Muhammadiyah University of Yogyakarta


Abstract

This research is about redesigning Indonesias decentralization policy towards special autonomy which aims to identify and analyze (1) the polemic on the implementation of Indonesias current decentralization policies and (2) offer a special Autonomy model as the ideal concept for the future implementation of Indonesias decentralization policies. This research is a normative legal research based on the literature study, divided into primary legal materials, secondary legal materials, and tertiary legal materials. The approach used in the research area : (1) statute approach; (2) analytical approach (analytical approach); (3) comparative approach; (4) case approach (case approach) and (5) conceptual approach (conceptual approach). The library data that has been collected will be analyzed descriptively. This research concludes that the implementation of the decentralization policy nowdays still creates problems between the symmetrical decentralization model (regional autonomy) and the special autonomy models (asymmetric decentralization) but only specifically to Aceh, Papua, Yogyakarta and Jakarta. There is no Lex Specialis that provides an equitable legal umbrella for all regions to demand "special autonomy" as constitutional rights such as those granted to Aceh or Papua. Even though it is still considered a "trial an error", the choice of asymmetrical decentralized models (Special Autonomy) is the best rational choice for a very broad and heterogeneous country of Indonesia". Ideally, asymmetric decentralization policies in the future are no longer based on sporadic demands, but it must be designed that are comprehensively and systematically prepared by considering all aspects, especially human resources, natural resources, local wisdom, and the prevailing customary government system.

Keywords: Decentralization Policy, Regional Autonomy, Special Autonomy

PermaLink | Plain Format | Corresponding Author (King Faisal Sulaiman)


8 ASIAN Conference on Comparative Laws ABS-812

OPEN LEGAL POLICY IN THE CONSTITUTIONAL COURT DECISION AND NATIONAL LEGISLATION MAKING
Iwan Satriawan & Tanto Lailam

Faculty of Law, Universitas Muhammadiyah Yogyakarta


Abstract

The Constitutional Courts Decision No. 46/PUU/XIV/2016 which rejected the petition of petitioners to broaden the meaning of zina (fornication) in the Criminal Code of Indonesia has been becoming an interesting issue to be discussed. Some argue that the Constitutional Court must use its authority to conduct a break-through in responding the crucial legal issue. On the other hand, the Court asserted that widening the meaning of zina in the Criminal Code of Indonesia is not its authority. The research aims at discussing further the ratio decidendi of the Decision of the Constitutional Court which contains the element of open legal policy and its implication to national legislation system. The research is a normative legal research which uses statute approach and case law approach. The result of research shows that firstly, the concept of open legal policy in the Constitutional Courts decisions does not have a clear limitation which implies uncertainty of its implementation in the Courts decisions and the national legislation system. Secondly, the Decision of the Constitutional Court with open legal policy also shows that on one hand, there is a trend of using judicial activism among the constitutional judges and on the other hand, some constitutional judges also use judicial restraint approach as their reasons which results uncertainty of law in Courts decision. The research recommends that there should be a further study on design model of open legal policy in the Constitutional Court decisions and its implication to national legislation system.

Keywords: open legal policy, the Constitutional Court decisions, national legislation making

PermaLink | Plain Format | Corresponding Author (Iwan Satriawan)


9 ASIAN Conference on Comparative Laws ABS-813

Relationship between Political Apointee and Bureaucracy in Civil Service System
Bagus Sarnawa dan Martinus Sardi

Universitas Muhammadiyah Yogyakarta


Abstract

In Indonesia, governmental bureaucracy is commonly occupied by the political apointee and bureaucratic careers. The existence of the political apointee in the bureaucracy is one of the consequences of the democratic system in Indonesia. This research aims to analyze the relationship between political apointee and bureaucratic careers in the civil service system in Indonesia. The political apointee generally tends to support the political party to which he associates with. While of that, bureaucratic careers should work for the government goals and the developments. The relationship between political apointee and bureaucracy careers are about "who dominates whom" and "who controlls whom". Political apointee strictly influenced the bureaucracy in most cases the bureaucracy is merely subordinates of the political apointee such phenomenon is found. During the Old Order, the New Order, and the Reformation Era. in the Old Order. The political apointee in bureaucracy commonly will ask all new comers to join the political orientation of them. Similarly, governmental bureaucracy in the New Order period, was controlled and became subordinate of Golongan Karya (Golkar). At the time, Golkar was not a political party but it has a role as one of a political party to join the general election. As a ruling party, Golkar ask all the civil service to be a member of them. In the Reformation Era, the bureaucracy still becoming subordinates of political apointee. Since the authority to promote, redeployment, and discharge the staffs or the civil service are the right of political officers, hence the officers will be easily to influence the staffs for joining their political orientations.

Keywords: The Political Apointee, Bureaucracy, Civil Service System

PermaLink | Plain Format | Corresponding Author (Bagus Sarnawa)


10 ASIAN Conference on Comparative Laws ABS-814

THE CONSTITUTIONAL COURT INTERPRETATION OF "INDIGENOUS BELIEF": AN ISLAMIC AND 1945 CONSTITUTION PERSPECTIVES
Muchammad Ichsan, Nanik Prasetyoningsih

Universitas Muhammadiyah Yogyakarta


Abstract

This study aims to examine the Constitutional Court Decision Number 97/PUUXIV/2016. The Decision states that the provisions of Law No. 23 of 2006 Article 61 paragraph (1) and paragraph (2) and Article 64 paragraph (1) and paragraph (5) that are related to emptying the religious column in the Family Card (KK) and Electronic Identity Card (eKTP) is against the Constitution. For this purpose, this study was designed to be qualitative and uses normative legal research methods. This study found that the Constitutional Court Decision was not in line with the Islamic Sharia and 1945 Constitution because it had an impact on the recognition of aliran kepercayaan (indigenous faith) and penghayat kepercayaan (followers of indigenous faith) so that they had the same position as religion and followers of religions in Indonesia. This condition harms the society. According to the principle of sadd adzdzarai, something which is allowed must be closed or stopped if it is led to something that is prohibited. Therefore, writing a column: agama (religion) / aliran kepercayaan (indigenous faith) in the Family Card, and Electronic Identity Card is something that is permissible or may be abandoned because there is no order or prohibition on this matter according to religious views. However, if the writing leads or encourages people to develop aliran kepercayaan, because it has been recognized as the same as religion, then it must be prevented, prohibited and stopped. In addition, in terms of the 1945 Constitution, in the matter concerning restrictions on human rights relating to religion and aliran kepercayaan, more appropriate constitutional norms to refer to are the provisions of Article 28E paragraph (1) and paragraph (2) of the 1945 Constitution, where religion and aliran kepercayaan are arranged as two separate and distinct things.

Keywords: Religion, Aliran Kepercayaan, Decision of the Constitutional Court, Islamic Sharia, 1945 Constitution.

PermaLink | Plain Format | Corresponding Author (Muchammad Ichsan)


11 ASIAN Conference on Comparative Laws ABS-82

A COMPARISON BETWEEN INDONESIAN AND THE UNITED KINGDOM LAW IN THE CONTEXT OF ERRADICATING THE CORRUPTION BY THE STATE COMPANY
Diastama Anggita Ramadhan, S.H., L.LM. (a*) ; Zil Aidi, S.H., M.H. (b)

a) Faculty of Law, Universitas Diponegoro, Semarang
Jalan Prof. Soedharto No. 1, Tembalang, Semarang, Jawa Tengah, 50275 Indonesia
*RamadhanD[at]live.undip.ac.id

b)Faculty of Law, Univeristas Diponegoro, Semarang
Jalan Prof. Soedharto No.1, Tembalang, Semarang, Jawa Tengah, 50275 Indonesia


Abstract

The government of Indonesia has finally decided that the state company could become the suspect of the corruption case. The Corruption Erradication Commission state that the law did not made a specific difference between the corruption conducted by a person or corruption which conducted by the state company. The Supreme Court of Indonesia has also confirmed the commission statement by creating the Supreme Court Official Regulation (PERMA) Number 13/2016. This article will use the normative legal research. It will also do a comparison with the United Kingdom who already implemented the law. Despite the differences of the legal system between two countries, both countries have similar law, hence both county could shared their experience.

Keywords: Corruption, Erradication, State Company.

PermaLink | Plain Format | Corresponding Author (Diastama Anggita Ramadhan)


12 ASIAN Conference on Comparative Laws ABS-1117

Simultaneous Election in Indonesia: Problems and the Future Agenda
Septi Nur Wijayanti, Faishal Aji Prakosa

Universitas Muhammadiyah Yogyakarta


Abstract

In April 2019, Indonesia started a new model of election, that is simultaneous election. The silmutaneous election is expected to resolve the problem of ineffeciency of separate previous election. However, the implementation of the simultaneous election seems not easy. The research aims to evaluate the working of the simultaneous election 2019 and recommend future agenda of the simultaneous election in Indonesia, whether it is still needed or not. This is a normative legal research which uses constitutional, statute and case approach. The result of research shows that there are some problems of the simultaneous election. First, structuring the national elections simultaneously seems not easy. Second, there is no a stable political party’s coalition design which may produce a more qualified election. Third, in practice, due to lack of maturity, the simultaneous election has produced more social and political conflicts in the society. For the future agenda, the research recommends that first, there is a need to have a better management of election in the future. The weakness and the strenghts of the simultaneous election needs a further assessment. Second, It also need a better model of political partys design of coalition to produce a better qualtiy of elections. Third, there should be a massive political education to promote a better political climate of democracy in the future.

Keywords: simultaneous election, management of election, political party’s coalition design, political maturity

PermaLink | Plain Format | Corresponding Author (Septi Nur Wijayanti)


13 ASIAN Conference on Comparative Laws ABS-1373

EFFECTIVENESS OF DISPUTE SETTLEMENT FACILITATING OF SHARIA BANKING IN INDONESIAS FINANCIAL SERVICES AUTORITY
Khaerudin H, Dewi NM, Ani Yunita

Universitas Muhammadiyah Yogyakarta


Abstract

Dispute Settlement Facilitating in Indonesian Financial Service (OJK) is one of the effective instruments for resolving non-litigation disputes that have many benefits. However, there is still lack of the public understanding on the benefit of using facilitation because the dispute settlement model with a facilitation mechanism has just been implemented after the enactment of the Indonesian Financial Service Regulation No. 1 of 2014. Some people are familiar with mediation which in practice is carried out by Alternative Dispute Resolution Institutions (LAPS). Dispute settlement through facilitation that have not been resolved for the parties can be processed through LAPS. The purpose of this research is to find out the relationship between OJK and LAPS and how the mechanism and procedure of proceedings at LAPS in resolving sharia banking disputes. This study is normative and empirical research. The study use constructivism paradigm and conducted through library research and field research. Secondary data obtained through library research and legal documents. Primary data was obtained through research in the field conducted by interviews with OJK and LAPS Jakarta leaders. Data analysis using qualitative descriptive analysis that describes Effectiveness facilitation in the settlement of sharia banking disputes in OJK Jakarta. The results of study shows that the relationship between OJK and LAPS is a legal commitment based on Law No. 21 Year 2011 and joint decisions of four equal ministers/officer e.g. (1) Coordinating Minister for Economic Affairs (2) Governor of Indonesian Central Bank; (3) Minister of Finance and (4) State Minister for State-Owned Enterprises. The mechanism and procedure for proceedings at OJK and LAPS includes the following stages, as follows: Application, Verification, Election/Appointment, Confirmation, Mediation/Arbitration/Adjudication, Election/Agreement and ended at the Monitoring of the appoinment of the Agreement.

Keywords: Effectiveness, Facilitation, Dispute Resolution, Sharia Banking

PermaLink | Plain Format | Corresponding Author (Iwan Satriawan)


14 ASIAN Conference on Comparative Laws ABS-1136

LEGAL ENFORCEMENT ON CARTEL PRACTICE: COMPARATIVE STUDY OF THE IMPLEMENTATION OF LENIENCY PROGRAMS IN INDONESIA AND SINGAPORE
Reni Budi Setianingrum

(1)Lecturer of Faculty of Law Universitas Muhammadiyah Yogyakarta
(2)Student of Doctorate Program, Faculty of Law Universitas Gadjah Mada


Abstract

Nowadays we have entered an era where countries have no boundaries and almost borderless, this era often called globalization era. Globalization is characterized by a process where economy becomes more closely integrated which is manifested in the form of free trade. One of the negative effects of free trade is the rise of international cartels. Cartel is an infringement of competition law which very difficult to prove, this is because the cartel perpetrators carry out the agreement secretly. This study uses a normative juridical method and aims to examine the application of leniency programs in the enforcement of Competition Law in Singapore and how Indonesia can learn from Singapore. Results of research indicates that there is one method commonly used in several countries in the context of law enforcement against cartels is the leniency program, also known as the whistleblower program. One of the neighboring countries that implementing the leniency program is Singapore. Singapore has succeeded reveal many international cartel cases. This program gives benefits for providing evidence regarding the cases. Indonesia can learn from Singapores experience in implementing the leniency program.

Keywords: cartel; competition law; leniency program

PermaLink | Plain Format | Corresponding Author (Reni Budi Setianingrum)


15 ASIAN Conference on Comparative Laws ABS-889

The Use Dualist and Monist Theories in the Application of International Law in Domestic Legal Systems: A Comparative Study between Indonesia and Malaysia
Yordan Gunawan(a*), Farid Sufian Shuaib(b), Hanna Nur Afifah Yogar(c)

(a). Faculty of law, Universitas Muhammadiyah Yogyakarta
(b). Department of Law, International Islamic University Malaysia
(c). Faculty of Law, Universitas Muhammadiyah Yogyakarta
*Correspondence Author: yordangunawan[at]umy.ac.id


Abstract

This research alludes to the practice of monism and dualism theory in terms of the application of international law within national jurisdiction and its regulations. It is referred to the countries which applying Civil and Common legal system, or in this case represent by Indonesia and Malaysia. This issue has been arising especially due to the absence of specific regulations for modulating the international law application in Indonesia. Comparing with Malaysia which commonly would be revisiting the legacy of the British legal system as they were colonized by the British if there are none of the regulations in settling the case. The tendency to have a specific reference for having special regulation upon the existence and use of international law in the municipal area is to restrict the power of law enforcer, with special reference to the Judges and giving clarity of which doctrine is supposed to be used in dealing with the issue. Conversely, this matter also brings the concern on state sovereignty in determining the role of international law as the instruments of resolving the national issue. The results show that Indonesia is still having the inconsistency for functioning the international law in the local legal practice. It triggered by the lack of prevailed regulations even more in the Indonesian Constitution concerning the International law application. This is supposed to be crystal clear to consider, either the international law can be applied by transformation or corporation theoretically.

Keywords: International Law; Municipal Law; Indonesian Legal System; Malaysian Legal System; Monism and Dualism Theory

PermaLink | Plain Format | Corresponding Author (Yordan Gunawan)


16 ASIAN Conference on Comparative Laws ABS-1406

Fair Railroad Business Entity in Indonesia
Reni Anggriani

Faculty of Law Universitas Muhammadiyah Yogyakarta


Abstract

Railway, one of the modes in the national transportation system, is a mass transportation with its characteristics and advantages. Air the research is the potential of this transportation needs to be developed and enhanced as a regional liaison both nationally and internationally also to support and improve national development for social welfare in order to access justice for using mass transportation especially land transportation namely railways.
One spirit of the Law Number 23 of 2007 concerning Railways is the end of the monopoly implementation of railways in Indonesia.
The problem is what kind of Railroad Business Entity can carry out the fair railway implementation for the community using these services in Indonesia?
The research method is normative and will be carried out with literature.
The conclusion in this research is Law Number 23 of 2007 concerning Railways in the provisions of article 1 point 10 concerning private sector needs some explanation for regulations that many private sectors are involved in railroad transportation modes in Indonesia, so that not only Indonesian Railways Company (PT KAI) becomes a sole state-owned railway corporation.
The recommendation in this research is need explanation inside Law Number 23 of 2007, so that Indonesian people can access justice for transportation services specifically railways.

Keywords: Railroad, Private Sector, Justice

PermaLink | Plain Format | Corresponding Author (Reni Anggriani)


17 ASIAN Conference on Comparative Laws ABS-896

THE PERFORMANCE-ENHANCING MEDICINES IN SPORTS : The Legal Meaning and Results.
Ahmad Saad Ahmad AL-Dafrawi (a*), Mohamad Asmadi Bin Abdullah (b), Majdah Binti Zawawi (c), Zainudin Bin Ismail (d).

AHMAD IBRAHIM KULLIYYAH OF LAWS, Department of Islamic Law, International Islamic University Malaysia, (IIUM).


Abstract

Abstract
Morally, employing Performance-Enhancing Medicines (PEMs) in sports simply is repudiated. Yet, taking these medicines in sports competitions is associated with legal consequences. Hitherto, because of rapid advances in the genetic modification technologies, it is feared that these therapeutic technologies and many others have been applied to athletes (e.g., to prevent Myostatin from incapacitating muscles groups). The taking and giving performance-enhancing medicine, not just against ethics, but actually, these acts break the laws because of the dangerous side effects of the drugs that they comprise of. The main problems of this study are the absence of the Penal Code which can legally address the actions of doping and Gene doping in many countries. Another problem is the lack of laboratory screening methods that can ratify the occurrence of gene modifications. The main objective of this study is to examine the legal theory of the development of panel disciplinary or penal liability for doping and Gene doping.

Keywords:

PermaLink | Plain Format | Corresponding Author (Ahmad Saad AL-Dafrawi)


18 ASIAN Conference on Comparative Laws ABS-130

VILLAGE SOVEREIGNTY IN DISPUTE RESOLUTION AFTER ACT NO 6 OF 2014 CONCERNING VILLAGE
Ilham Yuli Isdiyanto

Faculty of Law Ahmad Dahlan University


Abstract

This research is one of the efforts to rediscover conceptual village sovereignty, which had faded and tended to disappear after the Republic of Indonesia era. The most significant indicator to see the existence of village sovereignty was village authority in dispute resolution, or enforcement of existing norms and developing naturally in those area.
This research was conducted using a descriptive-qualitative approach, one of a kind of normative research which using juridical analysis as the basis for forming prescriptive aspects. This study reviews the historical aspects related to village sovereignty and dialectics to this day based on a multidisciplinary perspective and legal studies as the main base to determine its prescriptive aspects.
As the results, history proves that since the royalty era until the colonial era the village was authorized to solve the problems of its people independently. Yet, entering the Republic of Indonesia era this authority was gradually amputated. The government finally began to realize the importance of being a village as an autonomous and self-sufficient area as before through Act No. 6 of 2014 concerning Villages. Through these regulations the village head has the authority and obligation to resolve community problems. The village head position becomes an Authoritative Mediator. Through this basis, the village head can actually form an alternative dispute resolution institution that has the authority to call, examine, mediate and resolve problems from the parties. Here later the alternative dispute resolution can be done by a mediation model and the position of the village head can be as an authoritative mediator. Henceforth, as a suggestion, it needs support from the government to prepare implementing regulations and also provide mediation training to the village heads and village officials who get delegations from the village head.

Keywords: village sovereignty; dispute resolution; mediation; village law

PermaLink | Plain Format | Corresponding Author (Ilham Yuli Isdiyanto)


19 ASIAN Conference on Comparative Laws ABS-1414

THE IMPLEMENTATION OF THE PATIENT’S PRIVACY REGULATIONS IN THE PEOPLES REPUBLIC OF CHINA
Falah Al Ghozali and Try Hardyanthi

Asia University, Taiwan


Abstract

Officials from the Chinese Ministry of Health have called for more attention to the protection of the rights to privacy of HIV/AIDS patients, following a court ruling that a hospital damaged a patients reputation by releasing false HIV-related information about the patient. The Xinzhou Intermediate Peoples Court of Shanxi Province rejected the appeal of the Xinzhou Prefectural Peoples Hospital against the original ruling by a district court, in the country’s first such case. The rights to privacy seems to be an issue in China, and it is actually a big deal which needs to discuss, especially in the medical matters since basically, the state has set the law regarding its citizens privacy. Illegal access to personal information, illegal providing personal information to others and personal decision interference, all belong to the infringement of Personal Privacy Act. The rules and regulations on the privacy rights regulated in their Constitution since the 1980s, however it was not implemented maximally due to the power of government and general reluctance in the past to litigate. By using a descriptive-qualitative method, the study will describe the implementation of the patients privacy regulations in the Peoples Republic of China. Moreover, the study shows that the right to privacy for the patients in China needs to get more attention for both government and ruling groups.

Keywords: Medical Act, Patient’s Privacy Regulations, Patients Rights, Peoples Republic of China

PermaLink | Plain Format | Corresponding Author (Amanda Amanda)


20 ASIAN Conference on Comparative Laws ABS-1415

The Urgency of Personal Data Protection Regulation in Indonesia: Comparative Study China, South Korea and Singapore
Diana Setiawati, Hary Abdul Hakim, Fahmi Adam Hasbi Yoga

Asia University, Taiwan


Abstract

Globally, Asia is one of the fastest growing regions for digital innovation. Digital innovation is really needed to support the development of a country, one form of digital innovation is the existence of artificial intelligence (AI). Moreover, in some countries in Asia have been promoting artificial intelligent use, and also enacted personal data protection regulation. Because data is the basic element of creating AI, so it is very important to have regulations regarding the protection of personal data. Indonesia as a developing country and currently facing for the industrial revolution 4.0 wherein the future it will also face increasingly rapid digital innovations. So, to implement Artificial Intelligent in Indonesia, personal data protection is needed. The research aims to know (1) the urgency of enactment personal data protection regulation in Indonesia. (2) Comparative study with some Asian countries such as, China, South Korea and Singapore on the enactment of personal data protection regulation. The research method used is a normative legal research, this research based on the secondary data which divided into primary legal material, secondary legal material and tertiary legal material. Furthermore, the methods of collecting data in this research will be done through library research by literature learning, this method will collect the data from reading, analyzing and try to make conclusion with relevant document. The data will be analyzed systematically through juridical qualitative.

Keywords: Artificial Intelligence, Big Data, Data Protection Regulation, Digital Innovation

PermaLink | Plain Format | Corresponding Author (Amanda Amanda)


21 ASIAN Conference on Comparative Laws ABS-1416

The Prevention Upon the Congenital Anomalies Effect Through the Child Protection Act: A Comparative Study with the United Kingdom
Andi Agus Salim, M. Arizka Wahyu, Wahyudi Umar

Asia University, Taiwan


Abstract

Birth defects or congenital anomalies affect an estimated 1 in 33 infants, resulting in 3.2 million children with disabilities related to birth defects every year and 2.68 million infant mortality, 11.3% cause by birth defects. South-East Asia Region has the second highest prevalence of birth defects in the world, 9% of under-five deaths and 12% of newborn deaths in South-East Asia Region were due to congenital anomalies in 2015. Related to this phenomenon, since 1976 the United Kingdom was established the law which is strictly protect the children from the congenital anomalies. This law was established by considering the congenital anomalies in consequence of some persons fault since genetic is not the only causative factor of the congenital anomalies but could also be happened due to the someones act. By considering the condition of South-East Asia Region as the second highest occurrence of Birth defects, Indonesia have to take an action in order to prevent or reduce the number of Birth defects. The existence of the Child Protection Act in Indonesia currently does not cover the issue of the congenital anomalies. There should be a revision upon the law in order to handle the phenomena of congenital anomalies. Through this research, authors aim to show the urgency of the prevention upon the congenital anomalies effect through the law in order to provide the protection and clear responsibility upon the children with congenital anomalies.

Keywords: Congenital Anomalies, Birth defects, Child Protection

PermaLink | Plain Format | Corresponding Author (Amanda Amanda)


22 ASIAN Conference on Comparative Laws ABS-1417

Comparative Study between Indonesia and Taiwan in Protecting the Rights of Mental Health Patients: The Case of Human Shackling in Indonesia
Andi Agus Salim, Muhammad Arizka Wahyu, Wahyudi Umar

Asia University


Abstract

Indonesia is suffering with a lot of mental health patients who have been in shackled or locked up in narrowed spaces. Approximately, there are 57,000 people with real or perceived mental health disorder and latest Human Rights Watch data shows that more than 18,800 people now live in shackled in Indonesia. Even though the government banned shackling in 1977, it is undeniable that many institutions, traditional therapists and families are still performing human shackling. Shackling people with mental health conditions is illegal in Indonesia and yet it remains a widespread and brutal practice. Regarding to this phenomenon, Indonesia has enacted the Mental Health Law 2014 which cover mental health issues and it aims to uphold for the rights of people with mental health disorders. Furthermore, the researchers would like to know how Indonesian government deals with the mental health patients in term of respecting, protecting and fulfilling their rights. Aside of that, the researchers also try to make comparative study with Taiwan as the country which has excellent health care system in the world. Through this research, the authors aim to show the number of the human shackling in Indonesia still persist which caused by inadequate regulations, lack of mental health hospitals, low level educations and shortage of psychiatrists and other mental health providers. By considering the condition above, the research suggests that Indonesian government has to take important steps to end the practice of shackling people with mental health conditions in order to respect, protect and fulfill the human rights of mental health patients. Moreover, the Indonesian government should immediately order inspections and regular monitoring of all government and private institutions and take action against facilities that practice shackling or abuse people with mental disorder.

Keywords: Mental Health Law, Human Shackling, Human Rights, Comparative Law

PermaLink | Plain Format | Corresponding Author (Amanda Amanda)


23 ASIAN Conference on Comparative Laws ABS-1418

THE SUPREMACY ON THE GREEN TAX POLICY FOR SURMOUNTING THE ENVIRONMENTAL DETRIMENTS IN INDONESIA
Sunarno, Purti Anggia

Universitas Muhammadiyah Yogyakarta


Abstract

Disruptive era triggers a complex proposes on the limited spatial zone of countries. Incorporating a harmonious nexus among economic missions and ecological requirements is a must. Policy holders are encouraged to invent the tools or due mechanisms of budgeting and tax system to harness a environmental degradation become supreme. This research is intended to design the theoretical and practical nexuses among the role of tax legal system, environmental legal system in tackling environmental damages. The type of research is a doctrinal based study to find out accurate principles and supported also by the approach of sociological legal study to make sure the invented principles have been examined. Thus, mix method approach is driven to accomplish the comprehensive proposes of study. The result of research found that strategic and interdependency nexuses among the tax legal system and environmental legal system in incorporating the workable principles and taxation governance to tackling the environmental degradation are necessary needed. The principles have roles for the cores to realise the functions: the budgeting functions in term of achieving the people prosperity and the regulating functions in term for performing the sustainable development. The existing taxation governance is still placed in the wide range of gap among the hopes and the practices. The hopes illustrate that the both tax functions are targeted to formulate many efforts to overcome the environmental damages and incorporate comprehensively in the taxation legal system. In fact, this principle has been considered as economic and politic burdens or it could be internalized for only the complement components. It is urgent to design an environmental principle based systemic legal taxation that supported by the visionary policy, responsive laws, well organized and coordinated institutions, effective functions of law enforcement, and high empowered civil societies

Keywords: Supremacy, Green Tax, Surmount, Environmental Detriment

PermaLink | Plain Format | Corresponding Author (Amanda Amanda)


24 ASIAN Conference on Comparative Laws ABS-1420

The Criminal Liability of Artificial Intelligence: Is It Plausible to Hitherto Indonesian Criminal System?
Rofi Aulia Rahman, Rizki Habibullah

Asia University, Taiwan


Abstract

The pace of technology evolution is very fast. The technology has brought us to the limitless world and becoming our ally in every daily life. The technology has created a visionary autonomous agent that could surpass human capability with little or without human intervention, called by Artificial Intelligence (AI). In the implementation of AI in every area that could be in industrial, health, agriculture, artist, etc. Consequently, AI can damage individual or congregation life that are protected by criminal law. In the current Indonesian criminal system, it just acknowledge person and legal person (recht persoon) as the subject of law that can be imposed by criminal sanction. Hitherto and near forseeable future AI has notable role in every aspect, which affect also criminal aspect due to the damage resulted. AI has no sufficient legal status to be explained in Indonesian criminal system. In this paper, the author will assess whether the current criminal system of Indonesia can sue the criminal liability of artificial intelligence, and also will make it clear to whom the possibility of criminal liability of artificial intelligence shall be charged.

Keywords: Artificial Intelligence, Criminal Liability, Indonesian Criminal System

PermaLink | Plain Format | Corresponding Author (Amanda Amanda)


25 ASIAN Conference on Comparative Laws ABS-1172

LEGAL PROBLEMS OF CASH WAQF PRACTICE IN CENTRAL JAVA AT INDONESIA
Islamiyati

FH UNDIP


Abstract

The implementation of waqf cash that is not in accordance with the laws and regulations, raises legal problems in the community. The study will analyze the problem of chash waqf law and its juridical solution’s. This research in Central Java, by taking research samples from Boyolali, Salatiga, Regency and City of Semarang. The aim is to analyze the implementation of cash waqf in Central Java and its benefits can be used as material for government policies in implementing cash waqf law. The research type is field research using the empirical juridical approach method. The research data is in the form of primary and secondary data, which includes primary, secondary and tertiary legal materials. Analysis of analytical descriptive data. The research results of the problem of cash waqf law in Central Java is; low public interest in representing cash waqf, lack of coordination between cash waqf institutions (BWI and LKS-PWU), lack of human resources in understanding cash waqf, and misunderstandings about the meaning of cash waqf. Juridical solutions include; increasing BWI management resources, optimizing BWIs performance, socialization of waqf legal rules, forming a positive image of LKS-PWU, and increasing the professionalism of integrated management in managing waqf assets.

Keywords: Legal Problems, Cash Waqf Practice, Central Java.

PermaLink | Plain Format | Corresponding Author (Islamiyati islamiyati)


26 ASIAN Conference on Comparative Laws ABS-1201

COMPARISON BETWEEN JUSTICE INSTITUTIONS IN INDONESIA AND JUSTICE IN THE STATE OF KHILAFAH HIZBUT TAHRIR VERSION
Nugraha Pranadita

Nusantara Islamic University


Abstract

According to the Central Bureau of Statistics, between 2015 and 2017 the number of crimes in Indonesia has declined relatively, but the number of villages that have the potential to become a venue for conflict has increased relatively. Thus seen from the region, the potential for conflict that can lead to crime becomes increased. In 2015 there were 352,936 crime cases, in 2016 there were 357,197 crime cases, while in 2017 there were 336,652 crime cases. Recently, the importance of the existence of a khilafah state has become an interesting discourse in Indonesia. In general, the discussion is more on political or power issues, but rarely addresses the issue of the judiciary in a khilafah state. Related to this, in this paper we will discuss the comparison between the judicial institutions in Indonesia and the judicial institutions that may exist in a khilafah state along with the potential problems. The model of the khilafah state to be discussed here is a model of the khilafah state according to Hizbut Tahrir. Thus this research is normative legal research.

Keywords: Crime, institution, court, state and khilafah.

PermaLink | Plain Format | Corresponding Author (Nugraha Pranadita)


27 ASIAN Conference on Comparative Laws ABS-690

CRIMINAL LAW POLICY OF CORRUPTION CRIMINAL (CORPORATION)
Iskandar, Nyoman Serikat Putra Jaya

student Doctoral of Law of Diponegoro University


Abstract

The corruption acts are not only carried out by individuals but also by legal entities or corporations. This paper examines the criminal liability issues will put forward the question of the corporation as the subject or the perpetrator of a criminal corruption offense. Law number 20 the year 2001 regarding the amendment of law number 31 the year 1999 on The Eradication of Corruption in Article 1 verse (3) have been mentioned corporation as the subject of corruption. The handling of corruption has not optimally entangled the corporation as the perpetrator of a criminal act. The results showed that the regulation of corporate criminal responsibility has been regulated in the legislation of corruption have to an amendment about the arrangement of "work relations" and "other relationships" so explained to avoid misinterpretation

Keywords: Legal Policy, Prevention, Corporation, Corruption

PermaLink | Plain Format | Corresponding Author (Iskandar Iskandar)


28 ASIAN Conference on Comparative Laws ABS-1203

COMPARISON OF THE CONCEPT OF MASTERY OF THE SPACE ACCORDING TO THE THEORY OF THE SPACE LAW WITH THE MASTERY OF THE SPACE ACCORDING TO POSITIVE LAW OF INDONESIA
Pranadita, Nugraha; Wr, Imas Rosidawati; Rahmatullah, Tansah

Nusantara Islamic University


Abstract

Space is no longer a no-mans space, but has become an arena of competition for various interests from various countries and international organizations. This is because currently space has economic value and strategic value that may be unlimited. In order for the space potential to be utilized optimally, there is a need for understanding among the parties concerned. Thus the existence of the theory of space law is an important thing to bridge the gap between the needs and availability of space in space, because not all positions in space have the same economic value and strategic value. Legal development in Indonesia has not really paid attention to the importance of space law. Positive law in Indonesia is still very limited in providing arrangements for the use of space, so that it needs to be increased and prioritized in the development of Indonesian law. Based on this, this research is a doctrinal legal research using a legal approach which is described descriptively by using the deductive method.

Keywords: Concept, mastery, space, positive law, and Indonesia.

PermaLink | Plain Format | Corresponding Author (Nugraha Pranadita)


29 ASIAN Conference on Comparative Laws ABS-444

Realize The Legal Certainty Of Waqf Land With Mobile Based Mapping Application Model
Onny Medaline, Sri Wahyuni, Siti Nurhayati

Universitas Pembangunan Pancabudi


Abstract

Waqf studies are not only seen in the scope of Islamic law alone. Waqf is now part of a legal concept in the form of legal rules both in the scope of private law and public law as a form of binding legal certainty so that its implementation can walk according to its purpose. Along with the current development, especially in the field of technology, which has an impact on social, economic, and cultural conditions. The use of technology in the field of information systems is one of the media that can be used to manage, save, and display data of an object, so that later it will provide complete information. In general, almost 80% of waqf land in Medan City has problems. The Mobile Based Mapping Application model will later create a database which aims to identify various waqf issues that occur on waqf lands spread across the North Sumatra region. This study aims to identify the location of waqf land, governance of waqf land, economic potential of waqf land, especially waqf land certificates as the basis of rights in the management of the waqf land. The results obtained will be combined with an information technology system that will provide accurate data. The main problem in this research is how the waqf land database system, to identify the base documents for waqf land rights, management of waqf land, and utilization of waqf land to collect data on waqf lands as an effort to realize legal certainty, especially those in Medan City. The method used in this research is descriptive qualitative which aims to understand social phenomena from the side of the participants perspective

Keywords: Model, The Legal Certainty, Waqf Land

PermaLink | Plain Format | Corresponding Author (onny medaline)


30 ASIAN Conference on Comparative Laws ABS-1480

Wildlife Law Enforcement in Indonesia: Why Cant We Enforce Like United States?
Febrian, Lusi Apriyani, Vera Novianti

Sriwijaya University, Indonesia


Abstract

Pursuant to Article 40 Paragraph (2) of Law Number 5 of 1990 on Conservation of Natural Resources and its Ecosystem, an individual who conducted crimes against protected wildlife is sentenced to a maximum of 5 (five) years imprisonment and a maximum fine of Rp 100,000,000. In the United States, the Endangered Species Act (ESA) charges the perpetrator against wildlife with criminal and civil sanctions. In § 1540 (a) (1) determines that anyone who “take”, import, export, transport or sell endangered species can be fined not more than $ 25,000. If the species in threatened groups, the perpetrator can be subject to a penalty of not more than $ 12,000. The enforcement of criminal sanctions against perpetrators who violate ESA criminal provisions must fulfill the element of "knowing." An individual who knowingly "taking", entering or importing, issuing or exporting, transporting or selling endangered species prohibited by the ESA are subject to sanctions maximum fine not more than $ 50,000 and imprisonment for 1 year. If the action against the species under threatened group, the offender may be subject to criminal sanctions of a maximum of $ 25,000 and imprisonment for a maximum of 6 months. In addition, additional crimes were also applied in the form of revocation of federal permits, rental permits, and hunting permits, as well as confiscation of all equipment and transportation equipment related to these violations. This study analyzed the enforcement of criminal sanctions in criminal cases against protected animals in courts in Indonesia and the United States. The results of the study showed that criminal sanctions against criminals against protected animals in Indonesia have never reached maximum imprisonment or maximum fines so that they are not sufficient to provide a deterrent effect for the perpetrators and become a warning to other communities. While the imprisonment sanction for criminals against protected animals in the United States is still relatively weak. However, in terms of criminal fines and civil sanctions can be categorized as high sanctions

Keywords: protected wildlife, threatened wildlife, criminal sanctions, civil sanctions.

PermaLink | Plain Format | Corresponding Author (Amanda Amanda)


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