Al-Jinayah: Jurnal Hukum Pidana Islam http://jurnalfsh.uinsby.ac.id/index.php/HPI <p><strong>Al-Jinayah: Jurnal Hukum Pidana Islam</strong> diterbitkan oleh Prodi Hukum Pidana Islam Fakultas Syari'ah dan Hukum UIN Sunan Ampel Surabaya. Jurnal ini memuat tentang kajian yang berkaitan dengan undang-undang, pemikiran, dan pembaharuan Hukum Pidana Islam baik di Indonesia maupun mancanegara. Jurnal ini terbit dua kali setahun: bulan Juni dan Desember.</p> <p><strong>Al-Jinayah: Jurnal Hukum Pidana Islam</strong> terakreditasi peringkat 4 berdasarkan SK Direktur Jenderal Penguatan Riset dan Pengembangan Kementerian Riset, Teknologi dan Pendidikan Tinggi Republik Indonesia No: 21/E/KPT/2018, tanggal 9 Juli 2018 tentang Hasil Akreditasi Jurnal Ilmiah Periode I Tahun 2018. Akreditasi berlaku selama lima (5) tahun, yaitu: Volume 2 Nomor 1 Tahun 2016 sampai Volume 6 Nomor 2 Tahun 2020. Sertifikat bisa dilihat di <a href="https://drive.google.com/open?id=1iRrPZUDOjtOPurQEVX2GlJQJezttthp_">di sini</a>.</p> <p><strong>Al-Jinayah: Jurnal Hukum Pidana Islam </strong>terindeks di <a href="https://scholar.google.co.id/citations?user=rlvYu5EAAAAJ&amp;hl=en">google scholar</a> dan dapat diakses secara gratis di <a href="http://jurnalfsh.uinsby.ac.id/index.php/HPI/issue/archive">archive</a></p> <p>Alamat Redaksi: Jl. Jend. Ahmad Yani 117 Surabaya 60237. Telp (031) 8417198. E-mail: al.jinayah.jurnal@gmail.com.</p> en-US al.jinayah.jurnal@gmail.com (Al-Jinayah) nafi.mubarok@gmail.com (Nafi Mubarok) Thu, 14 Jan 2021 07:53:14 +0000 OJS 3.2.1.3 http://blogs.law.harvard.edu/tech/rss 60 Penjualan Tuak di Paciran Lamongan Perspektif Hukum Pidana Islam http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1056 <p>The article discusses the sale of tuak drinks in Paciran Lamongan from Islamic criminal law's perspective. This research is field research. Data comes from observations, interviews, and documentation. Data will be analyzed using a descriptive qualitative method with a deductive mindset. Based on laboratory test results on 800ml of tuak drink, it contains alcohol of 8.5%. Based on Islamic law, it considered as khamr. The Regional Regulation of Lamongan Regency, Number 03 of 2004 concerning Supervision and Control of the Distribution of Liquor, alcohol of 8.5% categorized as level B liquor and it's distribution is prohibited. Those who violate the rule, punishable with imprisonment for a maximum of 3 months or a maximum fine of Rp. 50,000,000- (fifty million rupiah). According to Islamic law’s perspective, the penalty given to the seller of liquor is ?add's penalty of 40 to 80 whips. In case of the punishment of ?add cannot be carried out, the criminal can be punished by ta'z?r referring to the applicable laws or regulations.</p> Nur Lailatul Musyafaah, Nabilatul Faiza Copyright (c) 2021 Al-Jinayah: Jurnal Hukum Pidana Islam http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1056 Thu, 14 Jan 2021 00:00:00 +0000 Pembaharuan Hukum Acara Pidana Melalui Mekanisme Afdoening Buiten Process http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1053 <p>Law of Criminal procedure is a framework for law enforcement officers to carry out law enforcing duties in enforcing the law, which contained in the Criminal Procedure Code. In its development, reforms needed in the Criminal Procedure Code. One of which is by adopting a mechanism or provisions for the settlement of cases out of court or Alternative Dispute Resolution (afdoening issuer process). This article aims to examine the significance of reform in the penal system in Indonesia. Through the spirit of actualising justice, usefulness, and legal certainty in criminal law, the author tries to describe the systematic problems of punishment in Indonesia. Also, the author uses several approaches, including a statutory, a conceptual, and a case approach. The results of the study reveal that the Indonesian criminal system enriched with corporal punishment. As the purpose of punishment adopted by the Indonesian is a combination of distributive theory and utilitarian theory, the emergence of Prosecutor's Regulation Number 15 of 2020 concerning Cessation of criminal Prosecution Based on Restorative Justice is the practical strategy to produce justice, benefit and legal certainty.</p> priyo handoko Copyright (c) 2021 Al-Jinayah: Jurnal Hukum Pidana Islam http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1053 Thu, 14 Jan 2021 00:00:00 +0000 Pola Praktik Penyelesaian Tindak Pidana Anak di Lamongan Dalam Perspektif Restorative Justice http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1077 <p>Protection of children is a constitutional obligation and for children is a constitutional right. In the context of children as national assets, protection for them is a necessity for the State. Then the incident of children in conflict with the law is also the scope of children who must be protected by the State, and in handling it, is it the same as adults who commit criminal acts. On the basis of this premise, research under the above title was conducted. Then this research is intended to portray legal practice, its relevance to the concept of justice restoration which has actually been adopted by the Child Protection Law with the terminology of diversion.</p> <p>In this study using the normative juridical method and collaborating with a sociological approach, then in the normative approach method, preceded by an inventory of positive laws governing child protection in the criminal justice system, then studying legal principles, in concreto legal discovery and the level of vertical synchronization. and horizontal. Then the sociological juridical approach is used to determine the implementation of child protection in the practice of the criminal justice system, where there are social aspects that influence the operation of law in society (law in action).</p> <p>The result of this research is to try to portray the concept of justice restoration as a model for solving children who are dealing with the law, with the reality of the law in its enforcement.</p> anshori anshori Copyright (c) 2021 Al-Jinayah: Jurnal Hukum Pidana Islam http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1077 Thu, 14 Jan 2021 00:00:00 +0000 Keberlakuan KUHP dan Qanun Jinayat terhadap Tindak Pidana Pencabulan di Aceh (Studi Putusan Nomor: 417/Pid.B/2018/Pn.Jth) http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/990 <p>Penal Code is a material law applicable to any person who commits a crime in the state. Meanwhile, the criminal law of Aceh (Qanun Jinayat Aceh) is material law applies specifically to every person who is Muslim and who has committed a crime within the jurisdiction of the Aceh Province. In Decision Number 417 / Pid.B / 2018 / PN.Jth the defendant was sentenced by the judge to imprisonment for the indecent acts against the victim under Article 289 of the Criminal Code, the case also comes under Article 46 of the criminal law of Aceh (Qanun Jinayat Aceh). Thus, this paper aims to analyze the defendant's actions under Article 289 of the Penal Code of Indonesia and Article 46 of the criminal law of Aceh (Qanun Jinayat Aceh), as well as the court's decision. It concluded that: First, the defendant's actions are more under Article 46 of the criminal law of Aceh (Qanun Jinayat Aceh) regarding sexual harassment. Secondly, applying the case under the Penal Code is inappropriate because the public prosecutor overlook the principle of criminal law, namely; lex specialis derogate legi Generali in formulating a criminal act.</p> Andry Bhakti Perdana Copyright (c) 2021 Al-Jinayah: Jurnal Hukum Pidana Islam http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/990 Thu, 14 Jan 2021 00:00:00 +0000 Analisis Syar’iyyah Ijtihad Umar Bin Khattab terhadap Hadd Sariqah http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1065 <p>Umar bin Khattab acknowledged as a reformer in Islamic Criminal Law. He considered as a source of authority for liberal Muslim thinkers over his thoughts. His ideal of ijtihad differ from what being understood in the Qur'an and Sunnah which raises the pros and cons among the companions. Even liberal thinkers consider Caliph Umar bin Khattab has a hermeneutic consciousness and an actual rationalist figure. One example of his ijtihad is declining the implementation of hadd punishment of cutting off hands for thieves under certain circumstances. The research aims to re-examine of Umar bin Khattab ijtihad, especially on hadd of sariqah. This research is a qualitative literature review, where data come from the Quran, Hadith, and references which further analyzes by descriptive-analytical methods. The result of the study showed that inapplicability of sariqah punishment due to the emergencies, namely famine. Also, there was doubt in the crime that caused Umar to abhor the punishment. Based on these reasons, then Umar's ijtihad is allowed according to the Shari'ah and not a form of Shari'ah deconstruction.</p> Khairatun Hisan, Arif Dian Santoso Copyright (c) 2021 Al-Jinayah: Jurnal Hukum Pidana Islam http://creativecommons.org/licenses/by-nc/4.0 http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1065 Wed, 10 Feb 2021 00:00:00 +0000 Relevansi Pemikiran Ibnu Qayyim al-Jauziyah tentang Peranan Keyakinan Hakim dengan Sistem Pembuktian dalam Hukum Acara Pidana di Indonesia http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1023 <p>The paper aims to expose the relevance of Ibn Qayyim al Jauziyah's thoughts in the role of judges' conviction with the evidence in the criminal procedural law system in Indonesia. The result shows that the function of the judge's conviction is considered a base or a consideration in deciding cases, in the sense that the belief is the act of the judge accompanying the emergence of evidence presented before the court. Ibn Qayyim al-Jauziyah argues that a judge's conviction is related to the broad knowledge of the law and the skill in reading the signs that arise in the case, it also considered a&nbsp; basic guideline for judges in deciding cases,&nbsp; in addition to legal provisions. The relevance of Ibn Qayyim al-Jauziyah's thoughts in criminal procedural law in Indonesia regarding the role of judges' belief is that both (according to Ibnu Qayyim and criminal procedural law in Indonesia) both emphasize that the conviction of judges has a very critical role in deciding cases.</p> Nailul Ilmiyah Copyright (c) 2021 Al-Jinayah: Jurnal Hukum Pidana Islam http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1023 Thu, 14 Jan 2021 00:00:00 +0000 Tinjauan Filsafat Hukuman dalam Islam terhadap Overspel dan Zina http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1074 <p>The article aims to examine the legal philosophy that underlies the punishment of&nbsp;<em>overspel</em>&nbsp;written in article 284 of the Indonesia Criminal Code and zina in Islamic criminal law. Apart from studying its philosophical grounds, this article also seeks to understand the differences between&nbsp;<em>overspel</em>&nbsp;and zina. This article is a literacy study with interviewing several sources regarding their understanding of both&nbsp;<em>overspel</em>&nbsp;and zina. The results showed that there are connections between the community's view of the definition of zina and&nbsp;<em>overspel</em>.&nbsp;<em>Overspel</em>&nbsp;is a part of zina in its broader meaning. Zina categorised into zina&nbsp;<em>al-lamam</em>, namely all immoral act, zina&nbsp;<em>muhshon</em>, which is illegal sexual intercourse by married couples and zina&nbsp;<em>ghairu muhshon</em>&nbsp;for unmarried people.&nbsp;<em>Overspel</em>&nbsp;fall into the second category, namely zina&nbsp;<em>muhshon</em>. The legal philosophy that underlies zina is utilitarian principles, a punishment which aims to achieve future effects such as deterrent influence on society and a rehabilitative result for zina&nbsp;<em>ghairu muhshon</em>. Whereby&nbsp;<em>overspel</em> based on personal losses and regarded as a complaint offence.</p> Marli Candra, Nanda Pricilia Nadhiva Copyright (c) 2021 Al-Jinayah: Jurnal Hukum Pidana Islam http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1074 Thu, 14 Jan 2021 00:00:00 +0000 Penyimpanan Mata Uang Asing Palsu dan Penggunaan Uang Hasil Transfer Dana yang Bukan Miliknya http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1076 <p><strong>Abstract:</strong> The paper aims to analyze whether the conducts of S, who has the counterfeit foreign currency with the intention of circulating the money and the use of the transferred funds that do not belong to him are under the Criminal Code and the Funds Transfer Law. The results of the study showed that S infringed the Article 245 of the Criminal Code which proved that S kept counterfeit foreign currency with the intent of distributing the money through his actions of keeping 10 (ten) pieces of 100 (one hundred) United States dollars which he obtained from A, a friend of S at Bima's Terminal. S also had violated Article 85 of the Funds Transfer Law through his act of utilizing the transferred money that did not belong to him. S knew that the money transferred to his account was not from the platinum metal buyer, based on a telephone's statement between the platinum metal buyer and S, who then took the money from his account and used the money. Therefore, S should be liable for his criminal actions.</p> Priscillia Tiffany Sutantyo Copyright (c) 2021 Al-Jinayah: Jurnal Hukum Pidana Islam http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1076 Thu, 14 Jan 2021 00:00:00 +0000 Studi Komparatif Kewenangan Pengadilan TIPIKOR dan Wilayah Mazalim http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/924 <p>The paper aims to determine and compare the authority of the TIPIKOR court and Wilayah Mazalim Courts in the Islamic judicial system. The results of the study showed the similarity and differences in both judicial systems. The similarity is that they were established specifically to handle and resolve corruption cases. It is their authority, the TIPIKOR Court and Wilayah Mazalim, to settle and solve corruption cases. The differences are that the TIPIKOR Court has a lower level of institutional position than Wilayah Mazalim. It is because of Wilayah Mazalim is equated with the Supreme Court of today.&nbsp; Also, the TIPIKOR Court has a narrower scope of authority than Wilayah Mazalim. The TIPIKOR Court only wields power on corruption cases, whereas Wilayah Mazalim court, apart from handling and settling corruption cases, is also authorized to resolve other cases such as criminal acts.</p> Ainul Huda Copyright (c) 2021 Al-Jinayah: Jurnal Hukum Pidana Islam http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/924 Thu, 14 Jan 2021 00:00:00 +0000 Implementasi Undang-undang Pornografi terhadap Penyanyi Dangdut dalam Prespektif Hukum Islam http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1022 <p>Dangdut music is one type of music genre found in Indonesia. It is the most loved music by the majority public. However, dangdut music is often misrepresented lately by individuals as the source of pornography. This paper aims to find out how the implementation of prescriptions and constraints of pornography on dangdut singers in the view of the Pornography Law, and Fiqh Siyâsah ideas. The study determined that the prohibitions and restrictions on pornography contained in Law Number 44 of the Year 2008 have not been fully implemented. The Law is applicable only if certain events occur and dangdut singers have violated the restrictions. So it is clear that there is a lacuna between the prevailing rules and the existing phenomena. In terms of Islamic law, the pornographic acts committed by dangdut singers are considered as prohibitory deeds and against Islamic law. It comes under ta'z?r punishment.</p> Achmad Agus Amin Copyright (c) 2021 Al-Jinayah: Jurnal Hukum Pidana Islam http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1022 Thu, 14 Jan 2021 00:00:00 +0000