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) Sat, 12 Sep 2020 00:00:00 +0000 OJS 3.1.2.4 http://blogs.law.harvard.edu/tech/rss 60 Peningkatan Angka Kejahatan Pencurian pada Masa Pandemi dalam Tinjauan Kriminologi dan Hukum Pidana Islam http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1037 <p>This article discusses the increase of number in theft crimes during the pandemic based on criminology and Islamic criminal law. The condition of the world today that struck by a pandemic gave many impacts on various aspects of life, one of which is the economy. The “stay at home” policy to reduce the spread of the Covid-19 outbreak resulted in many massive layoffs, which in turn weakens the economy's community, which on the other hand increased the theft crime rate. According to criminology, the increase of theft crime during the pandemic is affected by sociological factors. It is because of those with a weak economic capacity who cannot meet their basic needs. Besides, there is also an imbalance in the structure of society, which then results in dysfunction of social construction. Meanwhile, in the study of Islamic criminal law, the reason for the occurrence of criminal acts is due to the inability of humans to maintain their nature and the presence of outside influences. Of course, this also rejects the theory of the existence of a relationship between poverty and crime, because basically, those who in material poverty and material wealth all have the potential to commit crimes so that all depend on their return to their respective nature.</p> Laila Mamluchah, Nafi' Mubarok Copyright (c) 2020 Al-Jinayah: Jurnal Hukum Pidana Islam http://creativecommons.org/licenses/by-nc/4.0 http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1037 Sat, 12 Sep 2020 04:41:39 +0000 Penyelenggaraan Perlindungan Anak dalam Perda Kota Surabaya No. 6 Tahun 2011 Perspektif Maqasid Al-Shari’ah http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1018 <p>Regional Regulation (Perda) of Surabaya No. 6 of 2011 concerning the Implementation of Child Protection. It contains provisions regarding children and their obligations, the implementation of child protection, and the obligations of parents, families, communities, and local governments towards them including child labor in informal sector work, community, and private sector participation, Child-Friendly City Task Force, prohibition, guidance and supervision as well as administrative, investigative, and criminal sanctions. The implementation of Regional Regulation related to child protection in Surabaya City, by Regulation No. 6 of 2011 is in accordance with maqasid al-shari'ah based on the five main elements which are the objectives of the legal designation, even though in the regional regulation, hifz al-din and hifz al-mal get a smaller portion of the setting and a different degree of clarity than the other three components. Therefore, there must be a balanced aspect of five legal objectives in the regional regulation of child protection to work optimally. Apart from that, there should also be clearer regulations, especially regarding the protection of religion and children's property so as not to create different interpretations from policy implementers and other interested parties.</p> Zakiyatul Ulya Copyright (c) 2020 Al-Jinayah: Jurnal Hukum Pidana Islam http://creativecommons.org/licenses/by-nc/4.0 http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1018 Sat, 12 Sep 2020 04:42:15 +0000 Pembantaran Pelaku Tindak Pidana yang Menderita Gangguan Jiwa dalam Tinjauan Hukum Pidana Islam http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1021 <p>The paper aims to find out the Islamic Criminal Law's perspective on the postponement of the penal sentence on the criminal offenders who suffer mental disorders at the Surabaya Police Headquarters. At the end of the paper, it is concluded that the implementation of postponement arouses two main points of discussion. First, it is seen from the condition and fitness of the perpetrator that is the effect of mental disorders on the criminal. According to the opinions of ulama 'Malikiyah and Hanafiyah, the insane condition that occurred before the judge's decision could stop the court examination process and postpone it until the insane state disappeared. Their reason is that to impose a sentence requires a taklif, which must be present when conducting an examination. Second, because of postponing penal sentence on the criminal offender who has a mental disorder aims to facilitate the police to obtain clarity on a criminal case committed by the perpetrator or the suspect, so whether the suspect can be held accountable for the criminal act or not is in the interest of smooth examination. Therefore, in the view of Islamic Criminal Law, it is appropriate to postpone the legal sentence, because it is based on the text related to the prohibition of carrying out punishment if still in doubt (shubhat).</p> <p>&nbsp;</p> Djakfar Sodiq Copyright (c) 2020 Al-Jinayah: Jurnal Hukum Pidana Islam http://creativecommons.org/licenses/by-nc/4.0 http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1021 Sat, 12 Sep 2020 04:43:28 +0000 Tinjauan Filsafat Hukum Islam terhadap Pelaksanaan Remisi bagi Pelaku Tindak Pidana http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1024 <p>The paper aims to examine the perspective of Islamic legal philosophy on the implementation of Remission in terms of legal principles and justice. There are three conclusions from this article. Firstly, good behavior which is a requirement for a criminal to receive remission cannot be named as the concept of repentance in Islamic law. Secondly, the remission given to the perpetrator is not based on the principles of law and justice in Islam. Thirdly, it is suggested that Presidential Decree No. 174 of 1999 concerning Remission needs to be reviewed by distinguishing the types of crimes committed, so that justice, peace, and benefit for the community can be obtained. Even so, it should be noted that based on the philosophy of Islamic law, remission which is given to the criminals (convicts or child criminals) who have committed serious human rights crimes, corruption, drug dealers, murder, and transnational crimes, etc. is not following the principles of law, justice and benefit.</p> Inayatur Rahman Copyright (c) 2020 Al-Jinayah: Jurnal Hukum Pidana Islam http://creativecommons.org/licenses/by-nc/4.0 http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1024 Sat, 12 Sep 2020 00:00:00 +0000 Analisis Hukum Pidana Islam terhadap Orang yang Membantu Aborsi http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1028 <p>Abortion as a crime has a long story and many people do not realize that abortion is related to the public wellbeing issue. Within the Islamic's perspective, fetus removal is prohibited because it kills the fetus (human candidate) which is glorified by Allah SWT. Ironically, abortion is supported by some groups. The impact is that there are an estimated 2,000,000 cases of abortion that occur each year in Indonesia. This paper concludes that the punishment received by the perpetrators who are indirect actors comes below the term of ta'zir offense. Where the form, the amount, and the way of its sentence being carried out are under the judge's discretion. It is demanded that the authorities should be bolder and more resolute in punishing offenders so that the harsher the punishment is given, the more likely it would deter. The public is demanded to be cautious against any persuasion efforts, incitement, and other forms of influencing that made them a party in a crime.</p> Faisol Faisol, Arif Jamaludin Malik Copyright (c) 2020 Al-Jinayah: Jurnal Hukum Pidana Islam http://creativecommons.org/licenses/by-nc/4.0 http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1028 Sat, 12 Sep 2020 04:58:16 +0000 Tinjauan Hukum Islam terhadap Putusan PN Sidoarjo No. 189/Pid.B/2009/PN.Sda Tentang Pemerkosaan Anak di Bawah Umur http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1027 <p>The purpose of this paper is to find out a review of Islamic criminal law on the Sidoarjo District Court's decision on the crime of rape against minors. The research results obtained explain that the legal basis used by the judge in deciding case No. 189 / Pid.B / 2009 / PN.Sda, using article 81 paragraph 1 of the Child Protection Law No. 23 of 2002. Whereas in practice the Sidoarjo District Court only imposes a 7-year prison sentence and a fine of Rp. 60,000,000, -, a 5-month subsidy based on considerations of burdensome and mitigating matters. In Islamic criminal law, punishment for the perpetrator of the criminal act of rape is equated with adultery. From an Islamic point of view, the sentencing of the Sidoarjo District Court to the perpetrator of rape against minors is deemed unbalanced, when viewed from the perspective of the consequences of the act committed by the perpetrator against the victim, and it does not preclude the perpetrator from repeating the same act, because considered mild enough and could not cause a deterrent effect.</p> Asyifa Asyifa Copyright (c) 2020 Al-Jinayah: Jurnal Hukum Pidana Islam http://creativecommons.org/licenses/by-nc/4.0 http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1027 Sat, 12 Sep 2020 04:58:44 +0000 Pengajuan Grasi yang Berulang-ulang dalam Perspektif Hukum Pidana Islam http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1029 <p>The paper aims to answer questions about how the procedure for filing clemency under Law No. 22 of 2002, as well as what are the consequences of repeatedly filing clemency by death convicts, and how Islamic law evaluates it. The results of this study concluded that the procedure for filing clemency according to Law no. 22 of 2002 creates more legal certainty for convicts who want to apply for clemency regarding the requirements and the time frame, because it stipulates the timeframe and procedures for completing the clemency request for each agency. Meanwhile, repeated applications for clemency will have an impact on the convict's psyche, because the submission is not necessarily accepted. What is clear is that the legal process will be protracted, then hinders the enforcement of the rule of law. Whereas in Islamic law, clemency is up to the victim's guardian, whether to accept or reject his apology. Whereas in Islamic law, the exclusion postponed is only when the guardian is in a crazy state and is not yet mature, then waiting to recover and mature</p> Santoso Santoso Copyright (c) 2020 Al-Jinayah: Jurnal Hukum Pidana Islam http://creativecommons.org/licenses/by-nc/4.0 http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1029 Sat, 12 Sep 2020 04:59:15 +0000 Tindak Pidana Penyuapan oleh Korporasi dari Sudut Pandang Teori Identifikasi http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1017 <p>Corporations can become legal subjects of criminal acts of corruption and be criminalized under the Law on the Eradication of Corruption in Indonesia. One of the theories that can be used to make corporations as perpetrators of criminal acts of corruption is the identification theory. It sees the actus reus and mens rea of ??the management as a reflection of the actus reus and mens rea of ??the corporation itself so that the actions of the management must be considered the actions of the corporation. As a result, it is interesting to analyze whether a corporation can be held responsible for the bribery crime committed by corporate management to benefit the corporation from the identification theory? This research is a normative juridical study using a statutory approach and a conceptual approach, to conclude that a corporation can be convicted if the corporation has fulfilled the elements of the criminal act of bribery, and has actus reus and mens rea in committing the act. Based on these results, the Corruption Eradication Commission should emphasize the form of criminal responsibility by corporations and managers for corporate actions and management in carrying out corruption cases committed in the interest of the corporation.</p> Hendrik Lie, Fadiyah Ramadhani Putri, Inggrid Florencya Tanlilessy Copyright (c) 2020 Al-Jinayah: Jurnal Hukum Pidana Islam http://creativecommons.org/licenses/by-nc/4.0 http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1017 Sat, 12 Sep 2020 04:59:42 +0000 Eksistensi dan Kewenangan Mahkamah Syar’iyah dalam Mengadili Tindak Jinayah di Provinsi Nanggroe Aceh Darussalam http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1025 <p>The existence of the Syar'iyah Court in Aceh Darussalam Province is very appealing. Particularly related to (1) the State of Indonesia which is not an Islamic State, and (2) its enforcement from the perspective of fiqh siyasah. The conclusion of this paper inferred that firstly; the background of the Syar'iyah Court in DI Province of Aceh, which has existed since the Japanese era, is not only a gift from the central government to the people of Aceh through the Regional Autonomy Law and the existence of Law No. 44 of 1999 alone, but is more of a return to the rights of the Aceh people that have been lost. Secondly: the Syar'iyah Court has the authority to work and examine, decide, and settle cases at the first level, in the fields of ahwal al-syakhshiyah, Mu'amalah, and Jinayah. Thirdly: the existence of the Mahkmah Syar'iyah is a demand from every Muslim community to resolve various problems that occur as practiced by the Prophet, as well as based on QS al-Nisa '(4) 105, and manifested by the Shari'iyah Court in NAD whose main task is the implementation of Islamic law.</p> Nashihul Abror Copyright (c) 2020 Al-Jinayah: Jurnal Hukum Pidana Islam http://creativecommons.org/licenses/by-nc/4.0 http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1025 Sat, 12 Sep 2020 05:00:01 +0000 Implementasi Euthanasia dalam Perspektif Ulama dan Hak Asasi Manusia http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1026 <p>Euthanasia is a problematical issue among doctors, legal practitioners, and religious scholars. It has become a topic of discussion in various countries, especially Indonesia and Malaysia when viewed from the perspective of religion and human rights. The scholars agree that an action can only be classified as a Jarimah if the action is strictly prohibited by syara'. Although there is no clarity or certainty in determining whether euthanasia is a crime or not, the concept of euthanasia itself, formulated by experts, is written and is prohibited in the Al-Quran and Hadith. For example in the Al-Qur'an in QS. Al-An'am verse 151: "And do not kill the soul that Allah has haraam (kills it) but with the right cause". Killing here means killing in any way, including killing with the help of others, such as the concept of active euthanasia. Meanwhile, from a human rights perspective, euthanasia is an effort to eliminate the right to life of a human being, because the nature of euthanasia itself eliminates human life because it will harm others.</p> Sri Warjiyati Copyright (c) 2020 Al-Jinayah: Jurnal Hukum Pidana Islam http://creativecommons.org/licenses/by-nc/4.0 http://jurnalfsh.uinsby.ac.id/index.php/HPI/article/view/1026 Sat, 12 Sep 2020 05:00:24 +0000