TY  - THES
N1  - Prof. Dr. H. Kamsi, M.A. dan Dr. Afdawaiza, S.Ag., M.Ag.
ID  - digilib77927
UR  - https://digilib.uin-suka.ac.id/id/eprint/77927/
A1  - Abdul Halim Muhamad Sholeh, NIM.: 20303011001
Y1  - 2026/08/05/
N2  - Musharakah financing is a partnership (shirkah) contract based
on the principle of profit and loss sharing, whereby profits are
distributed according to the agreed profit-sharing ratio, while losses
are borne in proportion to each partner's capital contribution, provided
that they are not caused by ta'add? (misconduct) or taq??r (negligence).
In the practice of the Religious Courts in Indonesia, disputes
concerning the execution of collateral in musharakah financing have
resulted in inconsistent judicial decisions. Some judges regard default
as the primary legal basis for enforcing collateral, whereas others
consider the nature of the musharakah contract and the principle of
risk sharing before determining whether collateral may be executed.
This inconsistency has led to an imbalance in the legal protection
afforded to customers as collateral owners and Islamic banks as ???ib
al-m?l (capital providers).
This study aims to analyze: (1) the legal considerations and
judicial reasoning applied by judges in disputes concerning the
execution of collateral in musharakah financing; (2) the
implementation of legal protection for the rights of customers and
Islamic banks in judicial decisions; (3) the factors contributing to
judicial disparity; and (4) the reconstruction of a judicial reasoning
model capable of providing fair and balanced legal protection. This is
a legal research employing a qualitative approach that combines
normative legal research with an analysis of nineteen decisions of the
Religious Courts and the Supreme Court issued between 2016 and
2025. The data were analyzed descriptively, comparatively, and
prescriptively using Jamaluddin Atiyyah's Maq??id al-Shar?'ah
Theory as the grand theory, Gustav Radbruch's Theory of the Purpose
of Law, the Theory of Legal Reasoning, and the Theory of Legal
Protection as the middle theories, and the Theory of Risk Distribution
as the applied theory.
The findings reveal two distinct models of judicial reasoning:
the Default-Based Judicial Reasoning Model and the Risk-Sharing
Judicial Reasoning Model. The former treats contractual default as the
principal justification for collateral execution, whereas the latter bases judicial decisions on the identification of the contractual nature of
musharakah, analysis of the causes of business loss, verification of
ta'add? or taq??r, and assessment of business risk before determining
the legal consequences of collateral execution. This study concludes
that the second model is more consistent with the legal characteristics
of musharakah, provides more balanced legal protection for both
parties, and better reflects the objectives of law and the principles of
Maq??id al-Shar?'ah. Furthermore, the study finds that judicial
disparity stems primarily from differences in judges' reasoning models
rather than from differences in applicable legal norms.
Based on these findings, this study reconstructs a Judicial
Reasoning Model Based on Maq??id al-Shar?'ah and Risk
Distribution, consisting of the stages of contract identification,
verification of contractual characteristics, fact identification, analysis
of the causes of loss, risk distribution analysis, protection of the
parties' rights, assessment of the objectives of law, confirmation
through Maq??id al-Shar?'ah, and judicial decision-making. The
original contributions of this research include the identification of two
judicial reasoning models in musharakah collateral disputes, the
formulation of a judicial reasoning model as a methodological
guideline for resolving musharakah financing disputes, the
development of the concept of Balanced Legal Protection, and the
formulation of the concept of Contractual Justice, which posits that the
standard of justice in civil disputes should be determined according to
the legal nature of the contract establishing the parties' legal
relationship. Accordingly, justice in musharakah contracts cannot be
equated with justice in loan agreements because each contract
embodies a distinct allocation of risk.
PB  - UIN SUNAN KALIJAGA YOGYAKARTA
KW  - Musyarakah
KW  -  Eksekusi Jaminan
KW  -  Penalaran Hukum
Hakim
KW  -  Distribusi Risiko
KW  -  Maq??id Al-Syari'ah
KW  -  Perlindungan Hukum
KW  -  Keadilan Kontraktual
M1  - doctoral
TI  - PERLINDUNGAN HUKUM MITRA MUSYARAKAH MELALUI PUTUSAN HAKIM (STUDI SENGKETA JAMINAN PEMBIAYAAN MUSYARAKAH DI LINGKUNGAN PERADILAN AGAMA TAHUN 2016 - 2025)
AV  - restricted
EP  - 360
ER  -