Viva Justicia: Journal of Private Law

HUKUM PEMBUKTIAN PERDATA KETERANGAN AHLI: STUDI PERBANDINGAN HUKUM INDONESIA DAN AUSTRALIA

Alfi Afita Kholifah, Umar Mubdi — Sun, 25 Aug 2024 00:00:00 +0700

The aims of this research are to learn about the principles of expert evidence in Indonesian and Australian civil law, as well as the lessons that Indonesia may learn from Australian law regulating expert evidence in civil cases in order to optimize the enforcement of evidence law in Indonesia. This research is normative jurisprudence that applies comparative approaches, legislative-regulatory approaches, and case approaches. This research utilizes secondary data, covers primary and secondary legal materials collected through library studies, and is analyzed qualitatively and descriptively. The results of the research show that there are similarities and differences in the law of proofing scientific evidence in Indonesia and Australia that are exposed through civil environmental cases. The equation that is obtained lies in several aspects, one of which is the standard of balanced probability applied in Indonesia and Australia. The discrepancies found lie in several aspects, namely the validity conditions of expert written reports, expert ethics codes, and ways of settling differences of opinion that are not regulated in Indonesia and have been regulated by Australia. The emerging differences can be a lesson for Indonesia by considering the opportunities and challenges of implementation.

ANALISIS HUKUM PERLINDUNGAN DATA PRIBADI TERHADAP KEWAJIBAN NOTIFIKASI PELANGGARAN DATA PRIBADI OLEH PENGENDALI DATA PRIBADI: STUDI PERBANDINGAN ANTARA INDONESIA DAN INGGRIS

Arfista Rifqi Putra, Umar Mubdi — Sun, 25 Aug 2024 00:00:00 +0700

This research was made to review the obligation of controller to notify the data subjects in their legal relationship in terms of the concept of civil law as well as to compare arrangements regarding the obligation of notification in Indonesia and the UK and explore lessons that can be drawn from the results of this comparison. This research was made using the juridical-normative research method, namely by examining various legal materials based on the applicable laws and regulations. Based on this research, the Author concludes that the obligation of controller to notify the data subjects in their legal relationship with the data controllers can be studied in various civil law concepts and difference in the context could affect on the assession of their legal relationship. Then, the Author also finds that there are significant differences in the arrangement of these obligations in the two countries, even though both of them refer to the GDPR. From these differences, some of the best lessons can be found that can be used as media for reflection to improve personal data protection regulations and policies in Indonesia which cover several aspects, namely legal certainty; bargaining position of the Subject; convenience/facilities for the data controller in carrying out their obligations; as well as regarding the competent authority.

DISPARITAS PUTUSAN PERKARA PERDATA TERKAIT TINDAKAN MALAPRAKTIK OPERASI CAESAR (SECTIO CAESAREA)

Awanis Firah Meirika, Umar Mubdi — Sun, 25 Aug 2024 00:00:00 +0700

This study aims to analyze the basis of legal considerations of judges in the case of disparity in decisions related to medical malpractice caesarean section which result in patient death and is specifically studied through the South Jakarta District Court Decision Number 484/Pdt.G/2013/PN.Jkt.Sel., DKI Jakarta High Court Decision Number 66/Pdt/2016/PT.DKI, and Supreme Court Decision Number 1001 K/Pdt/2017. This type of research in legal writing is normative juridical which is carried out through literature studies on secondary data in the form of primary, secondary, and tertiary legal materials, as well as interviews with judges and academics who have an understanding of the problems in this research. The results of this study indicate that there are several parameters can be used as guidelines for civil court judges in deciding medical disputes. First, regarding unlawful acts in medical malpractice, namely (i) the process of medical malpractice lawsuits in court does not require an MKDKI decision beforehand; (ii) PTUN decisions that cancel MKDKI and KKI decisions do not eliminate substantial facts in MKDKI decisions; (iii) MKDKI and KKI decisions have binding evidentiary value; (iv) disciplinary violations can be categorized as legal violations if they have also been regulated in legal provisions; and (v) medical disputes must first be resolved through mediation. Second, regarding civil liability in medical malpractice, namely, the patient's loss in medical malpractice is not only the responsibility of the doctor who performed the medical action, but the hospital and the hospital owner can also be subject to Article 1367 of the Civil Code in conjunction with Article 58 paragraph (1) of Law Number 36 of 2009 concerning Health in conjunction with Article 46 of Law Number 44 concerning Hospitals.

TINJAUAN YURIDIS PERAN NOTARIS DALAM PEMBUATAN WASIAT (TESTAMENT) BERKAITAN DENGAN BAGIAN MUTLAK (LEGITIME PORTIE) BERDASARKAN PEWARISAN KUHPERDATA

Cindy Cladonia, Muhammad Jibril — Sun, 25 Aug 2024 00:00:00 +0700

Making a testament must not violate the legality of the portie in accordance with Article 913 of the Civil Code. However, in practice, general testament deeds are still found to violate the legality of the portie. This research aims to analyze the role of the Notary in making testaments related to the legitime of the portie, as well as the Notary's responsibilities regarding the general testament deeds which were annulled by the court due to violating the legitimacy of the portie. Through normative legal research methods supported by data from sources, the following results were obtained: First, the role of the Notary in making testaments relating to the legitimacy of the portie is only found in general testaments, namely through legal counseling and re-reading the deed before signing, because the testator conveys his will before a Notary. This is different from a legal testament and a secret testament, where the Notary's only role is to store and report the testament to the Central Register of Wills. Second, in a general testament that is canceled by the court due to violating the Legitime portie, the Notary cannot be held responsible because the legitimacy of the portie was part of the contents of the testament, which was a statement of the testator's unilateral will. The legitime portie can only be calculated and determined when the inheritance is open or the heir dies, and the fulfillment of the legitime portie can only be done based on a claim from the legitimary. In general testaments and in deeds made before a Notary (partij acte), the Notary can only be held responsible for the procedures for making the deed.

TINJAUAN MENGENAI KEADILAN DALAM NORMA DAN PRAKTIK PERPANJANGAN PERJANJIAN KERJA WAKTU TERTENTU PASCA BERLAKUNYA UNDANG-UNDANG NOMOR 6 TAHUN 2023 (STUDI KASUS PT X)

Helmy Rizky, Ari Hernawan — Sun, 25 Aug 2024 00:00:00 +0700

This research aims to examine and analyze the fulfillment of justice for employees concerning changes in the provisions regarding the time limit for implementing a fixed-term employment contract in Law Number 6 of 2023. Another objective is to examine and analyze the legal consequences of employment contracts and the status of employees if a fixed-term employment contract exceeds the prescribed time tolerance limit. This research is a normative legal study, conducted by examining primary, secondary, and tertiary legal sources to collect secondary data. This research was supported by various experts, including government officials, judges, and academics, through an interview process following a systematically prepared guideline. The research data was analyzed qualitatively and presented descriptively. This research concludes, firstly, that while Law Number 6 of 2023 jo. Government Regulation Number 35 of 2021 has substantially provided legal certainty for the sake of justice, but its implementation still falls short of fully realizing justice, especially for contract employees. Secondly, the extension of fixed-term employment contract between PT X and Y is contrary to positive law, thus, by law, the contract should transition to an indefinite employment contract. This change in the contract also affected Y's status as an employee.

PELINDUNGAN TERHADAP PENERIMA JAMINAN FIDUSIA KONTEN YOUTUBE VIDEO GAMES

Zafirah Neysa A. S., Annisa Syaufika Yustisia Ridwan — Sun, 25 Aug 2024 00:00:00 +0700

Intellectual property can be used as an object of Fiduciary security. This is emphasized in PP No.24 of 2022. The problem is that no one has practiced YouTube content as an object of the Fiduciary guarantee. This study aims to analyze the authority of the YouTube video games channel owner to establish Fiduciary guarantees over the video games content and to examine the protection of creditors holding Fiduciary guarantees to the event YouTube content cannot be accessed. Through normative research methods supported by source data, the following results are obtained; First, YouTube channel owners as Creators and/or Copyright Holders are authorized to establish their content as objects of Fiduciary guarantees, if the channel owners are more than 1 (one) then the channel owners need to agree to appear together in carrying out a legal action. Second, for YouTube video games content that cannot be accessed when it is used as an object of Fiduciary guarantee, there are 2 (two) possibilities, namely recoverable or irrecoverable. When YouTube content is inaccessible and can be recovered, the law still provides full protection of rights but is still questionable regarding its execution. If the YouTube content is inaccessible and cannot be recovered, the Fiduciary agreement is erased and the protection is limited to Article 1131 and Article 1132 of the Civil Code where the Creditor becomes a Concurrent Creditor.

TINJAUAN YURIDIS PELAKSANAAN PELAYANAN KESEHATAN TRADISIONAL EMPIRIS (TERAPI CHIROPRACTIC DI KABUPATEN SLEMAN)

Alldila Arzetiani Devi Fortuna Weolyrra, R. A. Antari Inaka Turingsih — Sun, 25 Aug 2024 00:00:00 +0700

This legal research aims to determine and examine the implementation of empirical traditional health services for legal chiropractors and illegal chiropractors, as well as to analyze the civil liability of chiropractors if there are indications of civil malpractice towards clients. This research is presented descriptively with juridical-empirical method, and is conducted through field research and library research. The primary data was obtained through interviews from field research to obtain primary data in the form of information from respondents and source person. The secondary data was acquired through library research from reviewing and combining legal materials and literary sources. There are two conclusions that can be drawn from this research. First, Registered Letter for Traditional Healers (STPT) is a legal requirement for traditional healers, which is aimed to prioritize the legal protection for the safety of traditional health care. Apart from STPT, implementing written informed consent is also a form of protecting the client's right to health, namely the right to refuse traditional health care. Second, traditional healers are obliged to be responsible by providing material and immaterial compensation if they are proven to have committed civil malpractice against clients. Civil malpractice based on unlawful acts occurs if a traditional healers makes a mistake in traditional health care which harms the client, while civil malpractice based on a breach of contract occurs if a traditional healers does not fulfill the clauses in a therapeutic agreements.

STRATEGI JAKSA PENGACARA NEGARA UNTUK MEMULIHKAN KERUGIAN NEGARA AKIBAT KORUPSI MELALUI INSTRUMEN HUKUM KEPERDATAAN

Musthafa Izzatur Rahman, Hasrul Halili — Sun, 25 Aug 2024 00:00:00 +0700

This research aims to determine and analyze the strategy of the State Attorney in recovering state losses due to corruption through civil law instruments in Indonesia and provide recommendations regarding efforts to develop this strategy. This research is a juridical-empirical research with a descriptive-analytical presentation. The data collection in this study was carried out by reviewing legal materials and conducting interviews with the State Attorney. In using civil law as a legal instruments to recover state losses due to corruption, the State Attorney is highly depend on the criminalization process. This things can be found in the regulations subtance as well as in legal practice. On the other hand, the generally applicable Civil Law Procedure could not be an optimal legal instrument in supporting those process. Thus as a strategy, the State Attorney seeks an alternative dispute resolution and a strict liability concept to the corruptors heirs. As an improvement of this strategy, the State Attorney can expand the interpretation of state losses and make NCB-asset forfeiture as a substitute for the criminal asset forfeiture.

TINJAUAN YURIDIS PENGALIHAN OBJEK JAMINAN FIDUSIA PADA PERJANJIAN PEMBIAYAAN KONSUMEN KENDARAAN BERMOTOR RODA EMPAT TANPA PERSETUJUAN PENERIMA FIDUSIA (STUDI KASUS DI PT BCA FINANCE CABANG PEKALONGAN)

Putri Fitriani, Taufiq El Rahman — Sun, 25 Aug 2024 00:00:00 +0700

This research aims to find out and analyze the reasons why fiduciary providers transfer fiduciary collateral objects in consumer financing agreements for four- wheeled motorized vehicles without the approval of the fiduciary recipient at PT BCA Finance Pekalongan Branch and to determine and analyze the legal consequences of transferring fiduciary collateral objects by the fiduciary provider without the recipient's consent. fiduciary at PT BCA Finance Pekalongan branch. This research was carried out using descriptive empirical juridical research. The legal research material in this research was obtained through two studies, namely library research and field research. Literature research was carried out using secondary data, while field research was carried out to obtain primary data. The data obtained was then processed using qualitative analysis methods and presented descriptively. Based on the research results and discussion, two conclusions can be drawn. First, the fiduciary provider as debtor transfers the fiduciary collateral object without the consent of the fiduciary recipient as creditor during the implementation of the PT BCA Finance Pekalongan branch Consumer Financing Agreement with the aim of transferring credit (over credit) as well as ownership rights in trust of the collateral object to a third party who receives the transfer. Second, the transfer of fiduciary collateral objects by the debtor without the written consent of the creditor at PT BCA Finance Pekalongan branch has legal consequences for both the debtor, creditor and third parties as recipients of the transfer of fiduciary collateral objects from the debtor.

TINJAUAN YURIDIS MENGENAI SEMA NOMOR 2 TAHUN 2023 TENTANG PETUNJUK BAGI HAKIM DALAM MENGADILI PERKARA PERMOHONAN PENCATATAN PERKAWINAN ANTAR-UMAT YANG BERBEDA AGAMA DAN KEPERCAYAAN

Shafa Denaya, Murti Pramuwardhani Dewi — Sun, 25 Aug 2024 00:00:00 +0700

This article focuses on the research of Supreme Court Circular Letter Number 2 of 2023 and interfaith marriages in Indonesia. This legal writing aims to find out and analyze the consequences of SEMA Number 2 of 2023 on the practice of registering interfaith marriages in Indonesia and to determine the validity of the SEMA. This article is the result of normative juridical research carried out using literature studies to obtain secondary data from existing legal materials, those are primary, secondary, and tertiary legal materials. The data obtained was then analyzed using qualitative methods. Based on the research result, it was concluded that: First, this SEMA has binding legal consequences for court judges in Indonesia, but is not binding for the general public. Apart from that, for decisions issued both before and after the SEMA appeared, whether it was granted or rejected will still be valid and binding even though they do not comply with the SEMA, although there will still be internal sanctions imposed on judges who violate them. Second, this SEMA is proven to be procedurally valid, but not substantially valid because it was indeed form by a competent authority institution, but substantially inconsistent with the higher norms