Kajian Ilmiah Hukum dan Kenegaraan

Kajian Ilmiah Hukum dan Kenegaraan (KIHAN) is a peer-reviewed journal that publishes quality papers in the fields of law and state. KIHAN aims to become a credible source related to law studies and mediates academicians, researchers, and practioners in dissemination their findings and ideas to solve various law and state issues.

Current Issue

Kajian Ilmiah Hukum dan Kenegaraan (KIHAN) is a peer-reviewed journal that publishes quality papers in the fields of law and state. KIHAN aims to become a credible source related to law studies and mediates academicians, researchers, and practioners in dissemination their findings and ideas to solve various law and state issues.

Published
2025-07-03

Articles

Komitmen dan Realitas: Menjawab Defisit Perlindungan terhadap Anak Pengungsi Tanpa Pendamping di Indonesia

Purpose: To examine the protection challenges faced by unaccompanied refugee children in Indonesia and evaluate the gaps in the country’s legal and policy framework, particularly in light of its obligations under the Convention on the Rights of the Child (CRC). Methodology: This study uses a normative and prescriptive legal analysis to assess Indonesia’s national laws and policies, including Presidential Regulation No. 125 of 2016, against international human rights standards. Result: The analysis reveals significant gaps in policy implementation, particularly regarding early identification, risk assessment, and access to basic services such as education, healthcare, and legal aid for unaccompanied refugee children. Conclusions: Substantive legal reform, institutional capacity building, and stronger collaboration with international organizations and civil society are essential to ensure effective and humane protection based on the best interests of the child. Limitations: The study is limited to a normative legal analysis and does not include empirical fieldwork or direct perspectives from refugee children or service providers. Contribution: This article contributes to the discourse on child protection in refugee contexts by offering concrete policy recommendations aligned with international legal standards and rooted in the principles of the CRC, filling a critical gap in the Indonesian legal framework.

Tujuan Pemidanaan dalam Penjatuhan Pidana Tambahan Pembayaran Uang Pengganti Tindak Pidana Korupsi

Purpose: This study examines the rationale behind judges’ decisions to impose additional criminal penalties in the form of restitution payments in corruption cases, focusing on the extent to which such penalties align with the objectives of sentencing and restorative justice. Research methodology: This study employs a normative juridical approach supported by case, statute, and conceptual analyses. Data were collected from relevant court rulings and analyzed descriptively and qualitatively using legal interpretations. Results: The findings show that while judges tend to apply retributive justice by imposing prison sentences, the enforcement of restitution payments remains inconsistent. Some defendants return all or part of the state losses, while others do not comply. Conclusions: The imposition of restitution penalties formally supports the objective of recovering state loss. However, the actual implementation reveals gaps that hinder the full realization of restorative justice. Limitations: The study is limited by incomplete data accessibility and the geographical scope of the case studies, which may not comprehensively represent national practice. Contribution: This study highlights the need to reformulate corruption sentencing laws to prioritize restitution and offers a restorative justice model to balance punishment with asset recovery.

Pertimbangan Hakim dalam Memberikan Putusan pada Kasus Pembunuhan Begal untuk Melindungi Diri

Purpose: This research aims to analyze the judge's legal reasoning in a murder case involving self-defense by a minor, specifically evaluating the application of Article 49 of the Indonesian Criminal Code (KUHP) on necessary defense (noodweer), and assessing whether the verdict adhered to the principles of justice, benefit, and legal certainty. Research methodology: The study employs normative legal research with conceptual and case approaches. Legal materials include primary sources (statutory provisions and court rulings), secondary sources (books and journal articles), and tertiary sources (legal encyclopedias and dictionaries). Data collection was conducted through literature and document analysis, and the data were examined using statutory interpretation, legal theory, and jurisprudential review. Results: The findings indicate that the judge's decision to convict the minor under Article 351(3) KUHP for causing death through violence did not adequately consider the relevance of Article 49 KUHP regarding self-defense. The court focused on the delay between the threat and the act of defense, neglecting the child's psychological condition and the urgency of the situation. Although based on prosecutorial evidence, the verdict failed to incorporate contextual factors such as fear, coercion, and instinctive reaction, which were critical in triggering the defendant’s response. Conclusions: The judicial reasoning lacked depth in examining the mental and emotional state of the minor, reflecting a rigid interpretation of the law that may compromise restorative justice and child-sensitive adjudication. Limitations: The study is limited to a single judicial decision and does not incorporate empirical data or psychological expert assessments, limiting the analysis of mental condition and its legal implications. Contribution: This research highlights the importance of contextual and psychological analysis in judicial discretion for cases involving minors and contributes to the discourse on fair application of self-defense provisions in Indonesian criminal law.

Penerapan Hukum Responsif terhadap Tindak Pidana Korupsi Studi Kasus Putusan Nomor: 56/PID.SUS-TPK/2017/PN.KPG

Purpose: This study aims to examine law enforcement against corruption in Indonesia from a responsive legal perspective, in response to the ongoing concern over corruption’s widespread impact on national integrity.  Thus, this study seeks to evaluate whether existing judicial practices reflect the participatory and contextual principles inherent in responsive law, using a specific case decision as a focal point. Research Methodology: This study employs a normative juridical approach, focusing on legal norms and principles. This is supported by a document study that specifically analyzes Decision Number: 56/Pid. Sus-TPK/2017/PN.Kpg, to assess how judicial reasoning aligns with the responsive legal framework. Results: The analysis reveals that the court’s decision in this case does not fully embody the core values of the responsive law. In particular, it lacks sufficient public participation and does not address the restoration of social justice for communities affected by corruption. Judgments tend to focus on procedural legality rather than the broader societal impact and justice. Conclusion: The study concludes that current corruption law enforcement in Indonesia, as exemplified by the case analyzed, remains largely formalistic. To improve outcomes and public trust, a shift toward a responsive legal approach is necessary, one that emphasizes substantive justice, societal values, and community involvement. Limitations: This study is limited to the analysis of one court decision and does not encompass empirical field data or a broader range of judicial cases. Contribution: This study contributes to the discourse on judicial reform by highlighting the gap between legal decisions and responsive law principles.

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