DISPARITAS PENERAPAN TA’ZIR DAN TA’WID} AKIBAT WANPRESTASI DALAM PERKARA EKONOMI SYARIAH (STUDI PUTUSAN-PUTUSAN PENGADILAN AGAMA DI LINGKUNGAN PENGADILAN TINGGI AGAMA YOGYAKARTA)

Thalis Noor Cahyadi, NIM.: 19303012008 (2024) DISPARITAS PENERAPAN TA’ZIR DAN TA’WID} AKIBAT WANPRESTASI DALAM PERKARA EKONOMI SYARIAH (STUDI PUTUSAN-PUTUSAN PENGADILAN AGAMA DI LINGKUNGAN PENGADILAN TINGGI AGAMA YOGYAKARTA). Doctoral thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

Preview	Text (DISPARITAS PENERAPAN TA’ZIR DAN TA’WID} AKIBAT WANPRESTASI DALAM PERKARA EKONOMI SYARIAH (STUDI PUTUSAN-PUTUSAN PENGADILAN AGAMA DI LINGKUNGAN PENGADILAN TINGGI AGAMA YOGYAKARTA)) 19303012008_BAB-I_IV-atau-V_DAFTAR-PUSTAKA.pdf - Published Version Download (5MB) | Preview
	Text (DISPARITAS PENERAPAN TA’ZIR DAN TA’WID} AKIBAT WANPRESTASI DALAM PERKARA EKONOMI SYARIAH (STUDI PUTUSAN-PUTUSAN PENGADILAN AGAMA DI LINGKUNGAN PENGADILAN TINGGI AGAMA YOGYAKARTA)) 19303012008_BAB-II_sampai_SEBELUM-BAB-TERAKHIR.pdf Restricted to Registered users only Download (9MB) | Request a copy

Abstract

The number of sharia economic cases in the Religious Courts (PA) continues to increase. Based on Supreme Court data, three PAs in the jurisdiction of the Yogyakarta High Court of Religion (PTA) are among the PAs with the highest number in Indonesia: PA Bantul, PA Yogyakarta, and PA Sleman. The majority of the cases decided are default cases, which contain ta'zir and ta'wid charges against the debtor. Interestingly, even though the type of case is the same and examined in the same religious court, in making legal considerations, judges do not have a uniform understanding of ta'zir and ta'wid. This is what is referred to as a horizontal disparity, where in the same religious court with the same type of case there are differences in deciding cases, both in terms of formal and material. Conversely, if the disparity occurs between the court at the first level and the court at the upper level, it is referred to as a vertical disparity. The occurrence of disparities in judges' decisions is important to study, considering that the occurrence of disparities can be considered an obstacle to legal certainty and legal justice aspects. Departing from this, it is necessary to study more deeply the understanding of the concepts of ta'zir and ta'wid due to default in the fiqh and positive law perspectives; why disparities occur and the factors that influence the disparity of judges' decisions; how disparities relate to the independence of judges; and how disparities can widen the gap in the realization of legal ideals: legal justice, expediency, and legal certainty. To answer these questions, the author uses balanced realism legal and legal ideals theories, including maqasid shariah, with three approaches: statute, case and legal sociological approaches. The results of this study indicate that there is disparity in decisions both horizontally and vertically. Horizontal disparities occurred in cases in PA Bantul and PA Yogyakarta. Meanwhile, vertical disparity occurred in cases in PA Sleman vis-à-vis PTA Yogyakarta. The verdict disparity was influenced by three factors: First, the factor of judges' unequal understanding of the formal legal aspects of civil procedural law, which can be seen from the model of formulation of verdict rulings that are not in accordance with the provisions of civil procedural law. Second, the factor of judges' unequal understanding of the material legal aspects of sharia economics can be read in the legal reasoning of judges, which apparently is not updated with the latest developments. Third, the evidentiary factor of the litigants, where the characteristics of the judge's consideration are strongly influenced by how the parties, especially the plaintiff, have factual and legal arguments accompanied by adequate formal proof. The disparity in the verdict can cause disruption of legal certainty, which results in legal justice being difficult to achieve and the maslahat as maqasid sharia being further realized. Maslahat as a moderation of legal ideals needs to continue to be emphasized in the law enforcement process, not only formalistically prioritizing the positivistic aspects of law but also realistically based on existing facts.

Share this knowledge with your friends :

Actions (login required)

View Item