https://journal.unibos.ac.id/clavia/issue/feed CLAVIA 2022-05-05T23:22:15+08:00 Open Journal Systems <p>Clavia adalah jurnal ilmiah hukum dua bulanan yang diterbitkan pertama kali pada bulan April Tahun 2000 oleh Fakultas Hukum Universitas 45 Makassar yang kini telah berubah menjadi Universitas Bosowa (Unibos). Jurnal Clavia ini dimaksudkan sebagai media komunikasi kalangan akademisi hukum, praktisi hukum, dan masyarakat luas pada umumnya. Media ini merupakan forum pengkajian berbagai masalah hukum dalam masyarakat sekaligus pengembangan pemikiran di bidang ilmu hukum. jurnal Ilmiah Hukum Clavia pernah terakreditasi berdasarkan Surat Keputusan Kepala Direktorat Jenderal Pendidikan Tinggi Departemen Pendidikan Nasional No.22/Dikti/Kep/2002 tanggal 8 Mei 2002.</p> https://journal.unibos.ac.id/clavia/article/view/1418 TINJAUAN YURIDIS TINDAK PIDANA MENIKAH TANPA IZIN DARI ISTRI YANG SAH DI KOTA MAKASSAR 2022-04-29T20:53:49+08:00 Andi Mursyidatul Jannah Hamzah law@universitasbosowa.ac.id Hamzah Taba law@universitasbosowa.ac.id Siti Zubaidah law@universitasbosowa.ac.id <p><em>This research aims to find out: 1) The elements of Article 279 of the Criminal Code can be proven in court decisions number 190/Pid. B/2017/ PN. Mks 2) the application of sanctions in Article 279 of the Criminal Code in cases of marriage without the wife's permission in Makassar City.</em></p> <p><em>This research method is a type of qualitative research. The types of data used are primary data and secondary data, data from primary legal materials in the form of court decisions and laws and secondary legal materials referring to books, journals and other readings obtained from interviews with the Panel of Judges, Public Prosecutors, Police Investigators , Head of KUA, and Imam of Kelurahan to complete the required information.</em></p> <p><em>The results of this research indicate that: 1) Specifically the defendant in the court decision number 190/Pid. B/2017/ PN. Mks is considered to have fulfilled the elements of Article 279 Paragraph (2) of the Criminal Code after the Public Prosecutor was able to prove it with evidence in the form of witness statements, letters and statements from the defendant which were mutually compatible. 2) The application of sanctions in Article 279 of the Criminal Code in cases of marriage without the wife's permission in this study the criminal penalty applied is imprisonment. Based on the theory of sentencing theory, the judge's verdict on the criminal act of marrying without the wife's permission is more likely to be in accordance with the relative theory or purpose (Doel Theorien). In addition, differences in the application of criminal sanctions (disparity) were also found. This happened apart from the judge's consideration factor, the disparity was also inseparable from the Public Prosecutor's demand factor.</em></p> 2022-04-29T00:00:00+08:00 Copyright (c) 2022 CLAVIA : Journal of Law https://journal.unibos.ac.id/clavia/article/view/1421 TINJAUAN HUKUM TERHADAP PEMBEBASAN BERSYARAT NARAPIDANA DI LEMBAGA PEMASYARAKATAN KELAS II A BULUKUMBA 2022-05-04T10:11:00+08:00 Asriani Hasan law@universitasbosowa.ac.id Baso Madiong law@universitasbosowa.ac.id Basri Oner law@universitasbosowa.ac.id <p><em>This study aims to determine 1) The implementation of parole for psioners in correctional institution class II A Bulukumba, 2) Factoes that prevent psioners from getting parole outside the penitentiary. </em></p> <p><em>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The research uses the type of empirical normative research, the type of data used is primary and secondary data, data from primary materials, namery data obtained directly through information using interview techniques with the correctional institutions clas II A bulukumba, anddata from secondary materials refer to laws, book, journals and data from correctional institutions class II A Bulukumba relating to the problems studies as awll as sources and information obtained from the result of questionnaires with prisoners in correctional institutions clas IIA Bulukumba.</em></p> <p><em>&nbsp;&nbsp;&nbsp;&nbsp;&nbsp; The results of thisstudy indicate that 1) Implementationof parole in correction institutional class II A Bulukumba the 2021 period its been optimized its running well although in itsimplementation there are still obstacles,2)The inhibiting factors are external and internal factors, including the guarantor from thefamily of the inmate whose where abouts are unknown and the existence of psioners who violate disxipline in the correctional institution whih causes the inmate to fail to get parole.</em></p> 2022-04-30T00:00:00+08:00 Copyright (c) 2022 CLAVIA : Journal of Law https://journal.unibos.ac.id/clavia/article/view/1422 PERLINDUNGAN HAK TERSANGKA DALAM PROSES PENYIDIKAN DITINJAU DARI ASPEK PSIKOLOGI HUKUM 2022-05-04T10:34:21+08:00 Fadil Rahmat Zakariah law@universitasbosowa.ac.id Marwan Mas law@universitasbosowa.ac.id Basri Oner law@universitasbosowa.ac.id <p><em>This study aims to determine the protection of the suspect's rights in the investigation process in terms of the psychological aspects of the applicable law, so that this problem can be answered clearly both in theory and practice orbdirect observationeinnthenfield.</em></p> <p><em>Thiseresearchtwaseconductedeat the Resort Police Office (POLRES) Maros, thefresearch .methodwusediisqa normative researchtmethodothat uses data collectionctechniques, interviews and literature9studies to analyze data using descriptive analysis methods.</em></p> <p><em>The resultskof.the study sindicate that in the psychological.aspectkof the investigation, both the investigator and the suspect in providing clear and free information are implemented in Article 50 of the Criminal Procedure Code concerning the Protection of the Rights of Suspects during the Investigation Process. In connection with the objectives of the KUHAP above, in an effort to find material truth in the investigation process by investigators, a suspect or defendant has rights that must be protected by law, namely, the right to receive an immediate examination, the right to make a defense, the right to give information freely and without pressure, the right to legal aid, the right to choose one's own legal counsel, the right to present witnesses, the right not to be burdened with the obligation of proof, the right to visit family and relatives during detention, the right to be tried in a trialsopen too the public, the right to receive compensation and rehabilitation. In relation to the criminal psychology aspect of the suspect, it was during the detention period and the interrogation process felt by the suspect who was interviewed. The suspect personally felt anxious about other suspects and clearly had a psychological impact on him while in detention due to being the only female detainee available.</em></p> 2022-04-30T00:00:00+08:00 Copyright (c) 2022 CLAVIA : Journal of Law https://journal.unibos.ac.id/clavia/article/view/1423 ANALISIS YURIDIS TERHADAP TINDAK PIDANA KEPEMILIKAN SENJATA TAJAM TANPA HAK OLEH ANAK 2022-05-04T10:45:10+08:00 Hardiyanti Hardiyanti law@universitasbosowa.ac.id <p><em>This research aims to determine the application of Article 2 paragraph (1) of the Emergency Law No. 12 Year 1951 against the criminal act of possession without the right of a sharp weapon by the child and to find out the criminal sanctions imposed in the criminal case decision No. 6/Pid.Sus-Anak/2020/PN.Mks. is in accordance with the aspects of child criminalization.</em></p> <p><em>The results showed that “the Application of Article 2 paragraph (1) Emergency Law No. 12 Year 1951 on the Crime of Control without the Right to Sharp Weapons by Children is appropriate, because Akbar Bin Rudi (a child who is in conflict with the law) has fulfilled all of these elements, namely (1) the element of Whoever; element (2) without the right to enter into Indonesia, makes, receives, tries to obtain it, delivers or tries to surrender, control, carry, have inventory in it or have in his possession, keep, transport, hide, use or leave Indonesia; and (3) elements of a weapon, a stabbing weapon, or a stabbing weapon (slag steek of stootwapen). Seeing that all these elements are fulfilled, there is no attempt for Akbar Bin Rudi to escape from the criminal responsibility he was accused of. Likewise, from the side of the public prosecutor, it is not possible to carry out SKP2 (the Decree on the Termination of Prosecution). However, the public prosecutor should be obliged to seek diversion by considering the age of Akbar Bin Rudi's child. Criminal Sanctions Imposed in the Decision on Criminal Case No. 6/Pid.Sus-Anak/2020/ PN.Mks. is imprisonment for 5 (five) months in LPKA Maros for Akbar Bin Rudi (a child who is in conflict with the law), although the sentence is quite light when compared to the penalty stipulated in the relevant legislation, but in a criminal case carrying a sharp weapon without permission done by Akbar Bin Rudi, here the author does not agree with what was decided by Rusdiyanto Loleh, SH, MH (Child Judge) at the Makassar District Court in Decision Number: 6/ Pid.Sus-Anak/2020/PN.Mks. The judge should have been obliged to seek diversion first. This refers to Article 81 paragraph (2) of Law of the Republic of Indonesia Number 11 Year 2012 concerning the Criminal Justice System for Children and Regulation of the Supreme Court of the Republic of Indonesia Number 4 Year 2014 concerning Guidelines for the Implementation of Diversion in the Juvenile Criminal Justice System”.</em></p> 2022-04-30T00:00:00+08:00 Copyright (c) 2022 CLAVIA : Journal of Law https://journal.unibos.ac.id/clavia/article/view/1424 ANALISIS PERBUATAN MELAWAN HUKUM PEMBANTU PERUSAHAAN DI KOTA MAKASSAR 2022-05-04T11:12:01+08:00 Imam S. Mansyur law@universitasbosowa.ac.id Almusawir law@universitasbosowa.ac.id Andi Tira law@universitasbosowa.ac.id <p><em>This study aims to: (1) determine the elements of unlawful acts on the sale of company goods to third parties in Makassar. (2) knowing the legal remedies taken by the company against the helper selling the company's goods without permission to a third party.</em></p> <p><em>&nbsp;</em><em>The type of research used is normative-empirical, normative research is used to answer the first problem, and empirical research is used to answer the second problem.</em></p> <p><em>&nbsp;</em><em>The results of this study indicate that: (1) the sale of company goods by assistants to third parties without the company's permission is an act against the law as regulated in Article 1365 of the Civil Code. (2) Legal efforts made by the company against the company's assistants filed a lawsuit to the Makassar District Court.</em></p> 2022-04-30T00:00:00+08:00 Copyright (c) 2022 CLAVIA : Journal of Law https://journal.unibos.ac.id/clavia/article/view/1426 TINJAUAN HUKUM KEDUDUKAN AKTA HIBAH WASIAT YANG MELAMPAUI BAGIAN MUTLAK AHLI WARIS LEGITIMARIS 2022-05-05T15:01:12+08:00 Imam Imam law@universitasbosowa.ac.id Kamsilaniah law@universitasbosowa.ac.id Andi Tira law@universitasbosowa.ac.id <p><em>This study aims to determine and analyze the position of the will of the heirs to the absolute part of the heirs.</em></p> <p><em>&nbsp;The research method used is qualitative legal research. The types and sources of data consist of primary data in the form of laws and regulations, and Court Decisions as well as secondary legal materials consisting of books, articles and journals related to this research. The entire legal material is collected in a structured systematic manner using qualitative measures and presented in a descriptive analysis.</em></p> <p><em>The results of the study indicate that a will or testamental grant that violates the "legitieme portie" is considered "null and void" by itself andais considered to have noibinding force fromithe start. However, inipractice, a testament deed / will grant isivalid even if it containsia violation of the heir's legitimacy portie, ias long as it has not been canceled by the injured heir, so that its nature is no longer "null and void" but becomes "cancellable" and There are 2 (two) types of legal consequences related to a grant or testamentary grant that violate the absolute or legitime portie depending on the legitimate action. If the legiti- mate does not object, then the act of grant or testamentary grant that violates the absolute or legitime part of the portie is considered valid and enforceable if the legiti- mate demands his rights, then the provision in the grant or testamentary grant that violates the absolute part or legitime portie cannot be carried out and refers to Article 920 of the Civil Code, thus the deed remains valid as long as it is not contested by the heirs.</em></p> 2022-04-30T00:00:00+08:00 Copyright (c) 2022 CLAVIA : Journal of Law https://journal.unibos.ac.id/clavia/article/view/1427 ANALISIS HUKUM TERHADAP UTANG DEBITOR DALAM PENUNDAAN KEWAJIBAN PEMBAYARAN UTANG 2022-05-05T15:16:48+08:00 Irfan Irfan law@universitasbosowa.ac.id Andi Tira law@universitasbosowa.ac.id Juliati M. Jafar law@universitasbosowa.ac.id <p><em>This study aims to determine the application of formal and material requirements in the application for Postponement of Debt Payment Obligations in Decision Number 1/Pdt.Sus-PKPU/2020/PN Niaga Mks and the implementation of protection of creditor interests in the application for Postponement of Debt Payment Obligations in Decision Number 1/Pdt. Sus-PKPU/2020/PN Niaga Mks. The type of research used is empirical juridical, with data collection techniques through library research methods and field research methods using interview research instruments. and documentation. The data of this study were analyzed descriptively qualitative. Based on the researcher's analysis that the application of the formal and material requirements in the decision Number 1/Pdt.Sus-PKPU/2020/PN Niaga Mks has fulfilled the provisions stipulated by Law Number 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations, the application for postponement of obligations debt payments can be granted. Since the stipulation of the postponement of debt payment obligations by the Panel of Judges. Creditors who as applicants for PKPU have fulfilled the protection of their interests, creditors get their rights and interests during the process of requesting a postponement of debt payment obligations, but creditors cannot directly collect debts from debtors because of the provisions and the judge has appointed a curator or implementation supervisory body in the process. request for postponement of debt payment obligations (PKPU). Based on the researcher's analysis that in the decision Number 1.Pdt.Sus-PKPU/2020/PN Niaga Mks the implementation of the creditor's interest in the ongoing application for the postponement of the obligation to pay debts has fulfilled the provisions, protection and interests of the creditor have been fulfilled</em></p> 2022-04-30T00:00:00+08:00 Copyright (c) 2022 CLAVIA : Journal of Law https://journal.unibos.ac.id/clavia/article/view/1428 ANALISIS HUKUM HAK – HAK ATAS ANAK AKIBAT DISPENSASI NIKAH DI PENGADILAN SUNGGUMINASA 2022-05-05T15:36:02+08:00 M. Akbar law@universitasbosowa.ac.id Andi Tira law@universitasbosowa.ac.id Juliati M. Jafar law@universitasbosowa.ac.id <p><em>This study aims to determine: 1). How is the implementation of legal protection against the granting of a marriage dispensation application at the Sungguminasa Religious Court 2). How are the rights of children as a result of the marriage dispensation at the Sungguminasa Religious Court.</em></p> <p><em>The research method used is field research with data collection techniques, namely interviews and documentation and analyzed qualitatively. The results showed 1). The implementation of legal protection for the granting of a marriage dispensation application at the Sungguminasa religious court. Regarding the Marriage Dispensation at the Sungguminasa Religious Court, the judge basically understood well, in which case the judge in deciding the decision on a marriage dispensation case referred to the Compilation of Islamic Law (KHI) and Law Number 35 of 2014 concerning Child Protection. In determining the application for a marriage dispensation, the judge has used various considerations and legal grounds related to the granting of a marriage dispensation. Although the age limit for marriage requirements has been regulated, at the practical level the application is flexible. This means, if it is a case of an emergency in order to avoid mafsadah (damage) then dispensation must be given and immediately married. 2). As a result of the stipulation of marriage dispensation at the Sungguminasa Religious Court, it causes the rights of the child to be unfulfilled. In this case, the child loses the opportunity to continue his education, loses the opportunity to develop and express, be creative, and take advantage of free time. If viewed from the application of Law Number 35 of 2014 concerning Child Protection against marriage dispensation cases at the Sunggumiansa Religious Court, it has not been effective because in this case the form of protection provided by the Religious Courts to applicants for marriage dispensation is limited to protecting children from discriminatory treatment regardless of the rights of the child being protected. other.</em></p> 2022-04-30T00:00:00+08:00 Copyright (c) 2022 CLAVIA : Journal of Law https://journal.unibos.ac.id/clavia/article/view/1429 ANALISIS PUTUSAN HAKIM TERHADAP TINDAK PIDANA PENADAHAN 2022-05-05T21:51:28+08:00 Muhammad Reskiawan Basri law@universitasbosowa.ac.id Abd. Haris Hamid law@universitasbosowa.ac.id Siti Zubaidah law@universitasbosowa.ac.id <p><em>This research aims to find out: Whether the criminal conviction in the verdict number 1812 / Pid.B / 2019/ PN.Mks has been in accordance with the value of public justice and how the judge's consideration in sentencing criminal convictions in verdict number 1812 / Pid.B / 2019 / PN.Mks. </em></p> <p><em>This research method is an qualitative normative research method. The types of data used are premier data and secondary data. Data collection techniques conduct interviews with The Judge of the State Court Class IA Makassar, and the Prosecutor of the Makassar State Prosecutor and conduct a literature of legal references related to the case. The results of this study show that the values of justice in the verdict No. 1812 / Pid.B / 2019 / Pn. have not reflected a sense of justice for victims. Ideally the Public Prosecutor and the Panel of Judges should also consider the provisions of the other articles, so that the verdict received by the accused is very likely to be more severe. Although the main provision is detention, but before committing the crime of detention, the accused is directly involved in the theft of goods from the same victim. The judge's legal consideration in imposing a criminal light weight on the perpetrator in the case of penal in the case of detention in the verdict Number: 1812 / Pid.B / 2019 / PN.Mks has considered juridically, sociologically, philosophically and also subjectively. However, in that case the judge has not considered the crime of theft committed by the defendant before committing the crime of detention, the defendant's actions have been detrimental to the victim and also the community who are restless about the behavior of theft and exposure. If this becomes a consideration that can be incriminating for the defendant, it does not rule out the possibility of imprisonment for the accused can be more than 8 (eight) months in prison.</em></p> 2022-04-30T00:00:00+08:00 Copyright (c) 2022 CLAVIA : Journal of Law https://journal.unibos.ac.id/clavia/article/view/1430 TINJAUAN HUKUM TERHADAP PENERAPAN BIOTA LAUT YANG DILINDUNGI (STUDI KASUS NOMOR 34/Pid.B/2020/PN.Mks) 2022-05-05T22:01:09+08:00 Nurwana Basri law@universitasbosowa.ac.id Yulia A. Hasan law@universitasbosowa.ac.id Siti Zubaidah law@universitasbosowa.ac.id <p><em>This study aims to determine. How is the application of material law in the decision Number: 34/Pid.B/2020/PN.Mks. And whether the sanctions given to the perpetrators in the decision Number: 34/Pid.B/2020/PN.Mks have been in accordance with the values of justice.</em></p> <p><em>This study uses a qualitative research type, the types of data used are primary data and secondary data, data from primary materials was obtained directly through information using interview techniques with the Makassar District Court and the Center for Conservation of Natural Resources and data from secondary materials refer to laws, books, journals, and information obtained from the results of questionnaires/questionnaires with fishermen and the community at Lelong Market Makassar.</em></p> <p><em>The results of this study indicate that the application of material law in the decision number: 34/Pid.B/2020/PN.Mks is in accordance with Law Number 5 of 1990 concerning Conservation of Biological Natural Resources and Their Ecosystems Article 40 Paragraph (2) jo Article 21 paragraph (2) letter d. the sanction given to the perpetrator in the decision Number: 34/Pid.B/2020/PN.Mks according to the judge was appropriate but according to the author it was not in accordance with the consequences of the defendant.</em></p> 2022-04-30T00:00:00+08:00 Copyright (c) 2022 CLAVIA : Journal of Law https://journal.unibos.ac.id/clavia/article/view/1431 ANALISIS JURIDIS TINDAK PIDANA PENYEROBOTAN TANAH DI KOTA MAKASSAR 2022-05-05T22:18:22+08:00 Rahma law@universitasbosowa.ac.id Zulkifli Makkawaru law@universitasbosowa.ac.id Siti Zubaidah law@universitasbosowa.ac.id <p><em>This study aims to determine the elements of the crime of land grabbing as evidenced in the decision Number 315/Pid.B/2020/Pn.Mks and to determine the judge's legal considerations in passing the decision Number 315/Pid.B/2020/Pn.Mks</em></p> <p><em>The research method used is qualitative legal research. The types and sources of data consist of primary data in the form of laws and regulations, Circular Letters of the Supreme Court and Court Decisions and secondary legal materials consisting of books, articles and journals related to this research. The entire legal material is collected in a structured systematic manner using qualitative measures and presented in a descriptive analysis.</em></p> <p><em>The results of the study indicate that the elements of the crime of land grabbing have been fulfilled in Article 167 Paragraph (1) but the act is not a criminal act and the judge's consideration in passing a acquittal is based on this case not including a crime but civil law, but every the judge's decision that renders the decision must be followed by sufficient considerations, both juridical considerations and sociological considerations.</em></p> 2022-04-30T00:00:00+08:00 Copyright (c) 2022 CLAVIA : Journal of Law https://journal.unibos.ac.id/clavia/article/view/1432 ANALISIS YURIDIS ATAS TINDAK PIDANA KEKERASAN SEKSUAL TERHADAP ANAK DI KABUPATEN MAMAS 2022-05-05T23:01:04+08:00 Muh, Tomy Syam law@universitasbosowa.ac.id <p><em>This study aims to (1) determine the application of criminal law against perpetrators of sexual violence, (2) to find out the judges' considerations in deciding cases of sexual violence against children, where the authors took data obtained from the results of direct interviews with the Public Prosecutor and Judges of the Polewali District Court, besides that research was also obtained through library research, namely by reviewing library materials relevant to research obtained from various literary sources, through books, print media, writings, papers and legislation.</em></p> <p><em>The results of the study show that (1) in the application of the law to perpetrators of criminal acts of sexual violence against children, it refers to Article 81 Paragraph (1) of Law Number 23 of 2002 concerning Child Protection as Lex Speciallis of Article 287 of the Criminal Code. (2) Judges in making decisions are based on considerations through the prosecutor's indictment letter, witness statements (both victim and defendant statements).</em></p> 2022-04-30T00:00:00+08:00 Copyright (c) 2022 CLAVIA : Journal of Law https://journal.unibos.ac.id/clavia/article/view/1433 IMPLEMENTASI TRAKTAT MARRAKESH TERHADAP PENYANDANG DISABILITAS NETRA DALAM MENGAKSES INFORMASI KARYA CETAK 2022-05-05T23:17:32+08:00 Muh. Luky Ondrey law@universitasbosowa.ac.id Yulia A. Hasan law@universitasbosowa.ac.id Basri Oner law@universitasbosowa.ac.id <p>This study aims to find out: 1) How is the implementation of the Marrakesh Treaty to persons<br>with blind disabilities for accessing information on printed works in Indonesia; 2) Factors that<br>hinder persons with blind disabilities for accessing information of printed works in Indonesia.<br>The research method used is empirical normative. Research location in Makassar City. Data<br>collected by literature study method and interview. The results showed: 1) Marrakesh Treaty<br>was implemented in Law Number 28 of 2014 which was further regulated in Government<br>Regulation Number 27 of 2019 which was perfected by ratifying the Marrakech Treaty in the<br>form of Presidential Regulation Number 1 of 2020, although the implementation in the<br>commuinty is constraind by the Covid-19 pandemic; 2) Factors that hinder persons with blind<br>disabilities for accessing information of printed works in Indonesia are limited availability of<br>accessible books or printed works, the existence of copyright barriers in converting basic books<br>into book formats that can be accessed by peoples with visual impairments, and the absence of<br>external institutional support to fight for the rights of persons with visual impairments in<br>Indonesia.</p> 2022-04-30T00:00:00+08:00 Copyright (c) 2022 CLAVIA : Journal of Law https://journal.unibos.ac.id/clavia/article/view/1434 SINERGISITAS KOMISI YUDISIAL DAN MAHKAMAH AGUNG DALAM SISTEM KETATANEGARAAN 2022-05-05T23:22:15+08:00 Muhammad Amil Shadiq law@universitasbosowa.ac.id <p><em>The judicial commission and the Supreme Court are constitutionally functionally related when viewed in Articles 24 A and 24 B of the 1945 Constitution of the Republic of Indonesia.</em></p> <p><em>To build an ideal relationship between the judicial commission and the Supreme Court in the future, a partnership relationship (partnership) with each institution is needed to maintain their rights and obligations, considering that the judicial commission and the court have been explicitly regulated in Articles 24 A and 24 B of the Law. - Laws of the Republic of Indonesia and the law as elaboration thereof.</em></p> <p><em>The importance of eliminating the 'ego' of each institution, this is related to the leadership (leadership) of the leaders of the two institutions.</em></p> 2022-04-30T00:00:00+08:00 Copyright (c) 2022 CLAVIA : Journal of Law