Varia Justicia

The The Nature of Mutual Insurance and Legal Protection for Policyholders: A Lesson from Indonesia

Noor Fatimah Mediawati, Lidya Shery Muis; Moh Faizin Faizin — Wed, 15 Nov 2023 00:00:00 +0000

Mutual insurance will only have a law that specifically regulates it in 2023. The regulation in question is through omnibuslaw Law Number 4 of 2023 concerning Development and Strengthening of the Financial Sector. In fact, the only mutual insurance company in Indonesia (AJB Bumiputera 1912) is more than 100 years old. So it is natural that the issue of defaults that harm legal protection for policyholders cannot be resolved optimally. Although realised, the concept of mutualism in the insurance company really illustrates high idealism. Both in terms of mutuality, solidarity, help, economic democracy, and cooperation for the welfare of its members. The members in this case are the policyholders, who are also the owners of the company. This research employs a normative research method, which is a legal research that focuses on the prevailing legal norms. Through statute approach, conceptual approach, and comparative approach, this article affirms that the nature of mutual legal entity, no matter how good it is, if it is unable to provide legal protection for policyholders then it can only be read as a mere "theory", not realised in reality. A paradox that provides valuable lessons, especially in the governance of insurance companies in Indonesia. There are two types of legal protection for policyholders, namely preventive and repressive legal protection, which are realized through laws and regulations, contracts, and court rulings through bankruptcy petitions filed by creditors or the Financial Services Authority (OJK).

The Involvement of the Indonesian Copyright Foundation (Yayasan Karya Cipta Indonesia or YKCI) Regarding Public Performance Rights in Cafes Utilizing Music Streaming Apps

Heniyatun Heniyatun, Gifary Tidar Pratama, Puji Sulistyaningsih — Mon, 28 Aug 2023 00:00:00 +0000

This study discusses the role of the Indonesian Copyright Foundation (Yayasan Karya Cipta Indonesia or YKCI) in overseeing Public Performing Rights in cafes that play music using music streaming applications. Such actions constitute as violations of the economic rights of the Creator or Copyright Holder regulated in Article 9 of Law No. 28 of 2014 concerning Copyright. The method employed in this research is normative with a qualitative approach that refers to Law No. 28 of 2014 concerning Copyright. The results of this study indicate that YKCI plays a crucial role in managing the economic rights of creators or copyright holders, especially in Public Performing Rights. This ensures that the royalties for their creations are fulfilled. However, YKCI faces several challenges in carrying out its role, including the fact that its extensive jurisdiction is not proportionate to the number of human resources it possesses. Additionally, limited operational funds result in YKCI's role not being optimized. YKCI, in carrying out its duties, plays a limited role in providing education, knowledge, and guidance to enhance the creativity of creators. This results in creators being satisfied merely with their songs being played in public places without realizing that they are entitled to royalties for their creations.

Local Law-Based Advocacy: The Counter-Hegemony of Samin Ethnic Sub-Group

Mon, 28 Aug 2023 00:00:00 +0000

This research aims to understand the claim of the Samin community in Rembang Regency against Governor's Decree No. 660.1/17/2012 which permits the development and exploitation of natural resources in the Kendeng mountains. This dispute does not only show a lawsuit but more broadly is the counter hegemonic movement between local law and national law which is marked by the victory of the Samin people at the Judicial Review level at the Supreme Court. The research was carried out by observing, interviewing, and reviewing the literature which was intended to explain local and national legal disputes which were analyzed qualitatively using legislation, unwritten law and Gramsci's Counter Hegemony approach. The results of this study show that first, local law disputes against national law in Rembang Regency occurred due to the domination of national law over local law which only recognizes indigenous peoples only when mentioned by law. Second, the Samin Indigenous people still adhere to traditions, myths and ecological principles called Saminism which only allow them to do farming and as a cultural identity, because of that they are unlikely to be able to survive if they have other professions; and Third, Amar the judge's decision in the form of a caliph on earth is influenced by the spirit of the mother earth community of the Samin community and forms a new norm so that it becomes a new hegemony against national law.

Progressivity of Judges in Using The Principle of Strict Liability as A Legal Reasoning in Forest Fire Cases

Nita Triana, Ade Tuti Turistiati, Lincoln Monk — Mon, 28 Aug 2023 00:00:00 +0000

Pollution disturbs the ecosystem's balance and endangers living things' survival. Therefore, the perpetrators of pollution must be responsible. In environmental cases, the principle of liability based on fault is burdensome for the plaintiff. Progressive judges are needed in a responsive system that favours the environment. The method used in this study is a doctrinal legal research method with a statutory and conceptual approach. The research results show that in the decision of case number 801/Pdt.G/LH/2019/PN Jkt.Sel, in a judge-fact manner, the defendant had carried out slash and burn during land clearing, and there was a widespread fire in the peatland area managed by the defendant. The fire caused pollution and environmental damage. The Environmental Protection and Management Act No. 32 of 2009 prohibits the slash-and-burn system. This slash-and-burn action by the company shows that the company did not take precautions in preventing forest fires; based on this, the judge decided that the defendant was guilty and liable under strict liability. In the abnormally dangerous activity category, the plaintiff does not need to prove if the defendant commits an activity that is detrimental but can directly demand accountability. This principle shows that judges have been progressive using the pro-environmental In Dubio Pro Natura paradigm. The use of this pro-environmental paradigm encourages judges to use the principle of strict liability, which is regulated in UUPPLH No. 32 of 2009, jurisprudence and the Decree of the Chief Justice of the Supreme Court of the Republic Indonesia Concerning the Enforcement of Guidelines for Handling Environmental Cases.

Reflection and Implementation of Prismatic Concept In The National Legal System

Ilham Yuli Isdiyanto, Anom Wahyu Asmorojati — Mon, 28 Aug 2023 00:00:00 +0000

Indonesia is yet to have a coherent legal theory or framework since its independence. In response to this, and influenced by Fred W. Riggs’s ideas in social transformation, the concept of prismatic law evolved in the Indonesian legal system. This idea needs to be tested regarding the conceptual roots and relation to the Indonesian legal system based on Pancasila. The method used is normative-conceptual, where the construction as a legal characteristic is connected with the built-in concept. Therefore, secondary data was mostly used with qualitative-prescriptive analysis techniques. Since the social legal process was adopted, the law should be viewed from social reflection instead of an ‘import’ theory that is difficult to implement. The pluralistic character of law is in line with the prismatic legal paradigm, where the spirit of pluralism appears in this idea. As a suggestion, legal education should be directed at encouraging moralists for law enforcement to realize a sense of justice based on the principle of legal pluralism.