PERLINDUNGAN HUKUM MITRA MUSYARAKAH MELALUI PUTUSAN HAKIM (STUDI SENGKETA JAMINAN PEMBIAYAAN MUSYARAKAH DI LINGKUNGAN PERADILAN AGAMA TAHUN 2016 - 2025)

Abdul Halim Muhamad Sholeh, NIM.: 20303011001 (2026) PERLINDUNGAN HUKUM MITRA MUSYARAKAH MELALUI PUTUSAN HAKIM (STUDI SENGKETA JAMINAN PEMBIAYAAN MUSYARAKAH DI LINGKUNGAN PERADILAN AGAMA TAHUN 2016 - 2025). Doctoral thesis, UIN SUNAN KALIJAGA YOGYAKARTA.

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	Text (PERLINDUNGAN HUKUM MITRA MUSYARAKAH MELALUI PUTUSAN HAKIM (STUDI SENGKETA JAMINAN PEMBIAYAAN MUSYARAKAH DI LINGKUNGAN PERADILAN AGAMA TAHUN 2016 - 2025)) 20303011001_BAB-II_sampai_SEBELUM-BAB-TERAKHIR.pdf - Published Version Restricted to Registered users only Download (41MB) | Request a copy

Abstract

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'addī (misconduct) or taqṣīr (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 ṣāḥib al-māl (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 Maqāṣid al-Sharī'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'addī or taqṣīr, 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 Maqāṣid al-Sharī'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 Maqāṣid al-Sharī'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 Maqāṣid al-Sharī'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.

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