PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)最新文献

{"title":"Legal Formulation to Overcome Base-Erosion and Profit-Shifting Practices of Digital-Economy Multinational Enterprise in Indonesia","authors":"Russel Butarbutar","doi":"10.22304/pjih.v9n3.a2","DOIUrl":"https://doi.org/10.22304/pjih.v9n3.a2","url":null,"abstract":"This study discusses Indonesian legal strategies and formulations to handle tax avoidance originating from Base Erosion Profit Shifting (BEPS) carried out by the digital-economy multinational enterprise. It is a normative (doctrinal) study supported by non-doctrinal methods to reveal the truth based on the logic of legal scholarship. It also compared the practices to the tax provisions, legislation, and cases in India, the United Kingdom, Australia, and Malaysia. At least two theories underlie the study. The first is the legal theory of justice, certainty, and expediency from Gustav Radbruch. The second is the theory of international cooperation. The study found several points. First, multinational enterprise strategies avoid tax by means of Permanent Establishment techniques in low-tax jurisdictions, transfer pricing, and tax treaty shopping. Second, to tackle the multinational enterprise that conducts BEPS in the field of the digital economy, (1) all countries have developed and amended laws and regulations related to e-commerce taxation and the digital economy; and (2) all countries carry out international cooperation, both bilaterally and multilaterally through tax treaties, MLI, and CbC reporting.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132777318","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Dichotomy of Jus Ad Bellum and Jus Ad Bello in the 21st Century: Its Relevance and Reconstruction","authors":"S. Sefriani","doi":"10.22304/pjih.v9n2.a4","DOIUrl":"https://doi.org/10.22304/pjih.v9n2.a4","url":null,"abstract":"Classical international law recognizes a rigid, autonomous, and independent dichotomy between jus ad bellum and jus in bello, which can result in the possibility of a just war being carried out illegally or vice versa. The dichotomy is considered a paradox. This study aims to analyze the relevance of the jus ad bellum and jus in bello dichotomy in the 21st century and to offer a more precise reconstruction of the relationship between the two. The results show that the rigid dichotomy between jus ad bellum and jus in bello is no longer relevant since the boundaries between war and peace are increasingly blurred. Nowadays, the world has experienced more widespread asymmetric warfare, as well as the use of modern super weapons. The dichotomy is also considered very eurocentrism and creates a paradox in international law. On the other hand, both have disproportionate use of force against the law and are not justified by military necessity. The reconstruction of the relationship between jus ad bellum and jus in bello must be dynamic, holistic, and harmonious. There should not be a rigid dichotomy, nor a rigid integration, which always places jus ad bellum above jus in bello or vice versa. Reconstruction of the relationship between the two must be based on the principle that a just war must be carried out in a just manner.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"172 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131595497","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Legal Implications on Cancellation of Agreements Made Prior to Custody for Good Faith Land Buyers","authors":"Ghansham Anand, Dinda Silviana Putri, Xavier Nugraha, Julienna Hartono, Melati Ayu Pusparani","doi":"10.22304/pjih.v9n2.a6","DOIUrl":"https://doi.org/10.22304/pjih.v9n2.a6","url":null,"abstract":"This study aims to analyze the construction of the cancellation of the land purchase agreement and legal protection for the seller in land purchases before the custody. The study used statute, case, and conceptual approaches. It focuses on the concept of custody and good faith. After analyzing the relevant legal sources, it is known that, on the one hand, Article 447 of the Indonesian Civil Code allows for the retroactive application of the custody in some conditions: (1) the custody is due to unwise, mental disorder, and irrational; and (2) the reasons underlying the custody had existed at the time the legal action is taken. The implementation of Article 447 can cancel land purchases made before the custody. On the other hand, the state must protect the buyer’s principle of good faith even though the seller is an unauthorized person. Article 447 must be applied because (1) the Indonesian Civil Code is a positive law that must be enforced; (2) people who are placed under custody are more at risk of experiencing losses in land purchases, and (3) construction of good faith land buyers cannot be applied because there are fewer parties.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"269 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122863428","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Victimless Crime in Indonesia: Should We Punished Them?","authors":"Erika Magdalena Chandra","doi":"10.22304/pjih.v6n2.a1","DOIUrl":"https://doi.org/10.22304/pjih.v6n2.a1","url":null,"abstract":"Criminal act deserves punishment because it causes harmful to its victim. However, some criminal acts may be considered as victimless crime since the perpetrator is also the victim. They are, for example, drug abuse, gambling, and abortion. In many states, such as Netherlands, victimless crime like drug abuse are no longer considered to be punishable crime since they use harm reduction approach for drug abuse problem. Drug abuse is seen as a health issue, not a criminal law issue. On the contrary, Indonesia still considers victimless crime to be punishable. The Indonesian Penal Code and Narcotics Law, for example, regulate that drug abuse is punishable. Indonesian criminal policy uses zero tolerance approach. Hence, the criminal policy is to eradicate all narcotics offences, including drug abuse. Nevertheless, it is not a solution for the problem drug abuse. Furthermore, the number of Indonesian drug user is increased. The policy has also caused overcrowd in Indonesian correctional institutions. Considering its unique characteristic and contemplating the purpose of punishment itself, punishment for victimless crime should be reconsidered. This article aims to bring perspectives on this matter by using juridical normative method with regulation, comparative, and case study approaches.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"3 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127971424","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Supervision of Village Fund Management to Prevent Corruption","authors":"D. Sugiharti, Z. Muttaqin, Rully Ramadhani","doi":"10.22304/pjih.v8n3.a3","DOIUrl":"https://doi.org/10.22304/pjih.v8n3.a3","url":null,"abstract":"Indonesian village government is required to carry out its duties properly. The village government has an obligation to understand legal instruments in many laws and regulations. The legal instruments serve as a guideline to carry out the accountability of the village officials to execute programs that use village funds. Unfortunately, the requirements have not been materialized due to the increasing corruption involving village heads who abused village funds. The study aims to find out the form of accountability of the village head as the power holder of village fund users when there are allegations of village fund corruption and the supervisory function that can be carried out by the Village Consultative Body (BPD – Badan Perwakilan Desa) in preventing of village funds to be corrupted by the village head. The study shows that the legal instruments and implementation of the use of village funds are basically in accordance with the principles and principles of managing state finances, even though the arrangements are separate from the provisions on regional government, where these arrangements and management must be under the objectives of state life as regulated in the 1945 Constitution. Moreover, the form of accountability of the village head regarding the use of village funds refers to the guidelines stipulated in the legal instrument. Still, when the alleged corruption of village funds committed by the village head is proven, the case is resolved according to the criminal law provisions. The supervisory function by the BPD in the management of village funds by the village apparatus is carried out as a form of increasing prosperous village communities. However, the supervision is still weak due to political interests between the village apparatus and the BPD institution in the institutional position of the village government. We can conclude that legal instruments are essential as a guide in managing village funds, including accountability for the use of village funds. In addition, the supervisory function in village management has an important role, especially in preventing the misuse of village funds, leading to corruption allegations.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"2 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"127772696","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"WTO Trade War Resolution for Japan's Chemical Export Restrictions to South Korea","authors":"Yordan Gunawan, M. F. Akbar, Eva Ferrer Corral","doi":"10.22304/pjih.v9n3.a6","DOIUrl":"https://doi.org/10.22304/pjih.v9n3.a6","url":null,"abstract":"","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131007539","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Existence of Indonesian National Research and Innovation Agency: The Academic Freedom’s Perspective","authors":"Muhamad Dzadit Taqwa, M. I. Dwi Putra, Muhamad Ali Muharam","doi":"10.22304/pjih.v9n1.a6","DOIUrl":"https://doi.org/10.22304/pjih.v9n1.a6","url":null,"abstract":"Recently, Indonesia has taken a policy to merge all the research institutions, which were classified as non-ministerial institutions, into the National Research and Innovation Agency (BRIN –Badan Riset dan Inovasi Nasional). The BRIN is expected to (1) reduce the research costs for the research institutions; and (2) integrate and harmonize these institutions. On the other hand, the policy has drawn constitutional law scholars' attention. Many of them who concern that BRIN intervenes academic freedom in Indonesia. The main factor that causes the concern is the subordinate relationship between the President and the BRIN that restrain researchers from their academic activities. This study aims to reveal the potential problem in the light of academic freedom. This study is of position to argue that the existence of the BRIN will not become an issue if it does not disrupt the essential aspects of academic freedom. However, the necessity and the urgency of its existence still draws questions.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"60 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114632464","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Apostille Convention and Its Ramification Following the Accession of the Indonesian Legal Practices","authors":"David Tan","doi":"10.22304/pjih.v8n3.a1","DOIUrl":"https://doi.org/10.22304/pjih.v8n3.a1","url":null,"abstract":"Indonesia has acceded to the 1961 Hague Apostille Convention in early 2021. The government decided the move based on the current endeavors to enhance the quality of civil services, investment rate, government transparency, and recovery efforts after the worldwide pandemic. At the same time, Indonesia’s initiative to accede to the convention is surprisingly unimpressive, considering the benefits for Indonesia due to its urgency. The study reinforces the present perspective of apostille to contribute to the handful of scholarly papers dealing with the apostille in the realm of private international law. This study employed a normative juridical research method with secondary data. The data were analyzed with qualitative analysis methods. This paper examined the issues of the 1961 Hague Apostille Convention from Indonesian perspective and its obstacles in the 21st century. Furthermore, analysis also covered various scientific articles concerning the apostille to increase insight and comprehension of Indonesia’s attempt to accede to the Hague Apostille Convention and the subsequent actions that Indonesia should consider. Finally, this study also highlights the further development for the apostille to avoid deficiencies and vulnerabilities.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"9 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123960215","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Indonesian Legal Protection for Song Commercialization and Music Copyrights in Digital Platforms","authors":"Diana Silfiani","doi":"10.22304/pjih.v9n2.a1","DOIUrl":"https://doi.org/10.22304/pjih.v9n2.a1","url":null,"abstract":"The Covid-19 pandemic has accelerated the digital influence on the Indonesian music industry. Music concerts, which are usually held offline with crowds of people, are no longer possible because crowds can make new clusters of Covid-19. The Indonesian music industry needs alternatives to survive the pandemic, and the advance in technology has the solution. Virtual concerts that are broadcasted via digital platforms have started to thrive. They use copyrighted songs and/or music so that royalty payments are made in accordance with the type of use and needs. Unfortunately, the Law Number 28 of 2014 on Copyright and the Government Regulation Number 56 of 2021 on the Management of Song and/or Music Copyright Royalties do not regulate the use in detail and specific manners. Therefore, the industry actors have not found the right payment formula for the economic rights royalties. The absence of regulations certainly does not reduce the user’s primary obligation to obtain a songwriter's permission and pay royalties for song and/or music copyrights. The fulfillment of the obligation to pay royalties must still be accomplished with due regard to applicable provisions. This study examined the problems with a normative juridical method. It considered the practices and customs that apply in Indonesia. It also generated some perspectives from relevant stakeholders.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"10 4 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122404218","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"TREATIES AS A SOURCE OF NATIONAL LAW IN THE PERSPECTIVE OF CONSTITUTIONAL LAW","authors":"Efik Yusdiansyah, Wicaksana Dramanda","doi":"10.22304/pjih.v10n2.a5","DOIUrl":"https://doi.org/10.22304/pjih.v10n2.a5","url":null,"abstract":"The 1945 Constitution of the Republic of Indonesia does not regulate the relations and interactions between treaties and national law. The absence of constitutional norms regarding this matter raises the question of how treaties become a source of national law. This study puts forward the perspective of constitutional law to answer how national law perceives treaties in the dimensions of national law. It argues that the constitutional law paradigm views treaties as a product of the legislative and executive interaction within the framework of the theory of separation of powers. Based on this view, the formation of law is the original power of the legislature, which impacts the obligation to provide legislative consent before treaties can be applied to domestic jurisdictions, as well as placing treaties under the 1945 Constitution. Thus, Indonesia can remain selective in enforcing treaties at the domestic level. The 1945 Constitution paradigm indeed influenced Indonesia's closeness to the teachings of dualism. However, this paper also describes that in using treaties, the Constitutional Court often uses treaties that have yet to be ratified as a basis for strengthening arguments in decisions. This practice shows a shift in the paradigm of dualism to a pragmatic monism paradigm.","PeriodicalId":404335,"journal":{"name":"PADJADJARAN Jurnal Ilmu Hukum (Journal of Law)","volume":"34 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121957683","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}