EFEKTIVITAS SISTEM HUKUM PERBANKAN SYARIAH DALAM UU NO 21 TAHUN 2008 DAN DAMPAKNYA PADA PEMBANGUNAN EKONOMI

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EFEKTIVITAS SISTEM HUKUM PERBANKAN SYARIAH DALAM UU NO 21 TAHUN 2008 DAN DAMPAKNYA PADA PEMBANGUNAN EKONOMI

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Title: EFEKTIVITAS SISTEM HUKUM PERBANKAN SYARIAH DALAM UU NO 21 TAHUN 2008 DAN DAMPAKNYA PADA PEMBANGUNAN EKONOMI
Author: Nurani, Nina
Abstract: Economic development cannot be separated from the legal development as the efforts to manifest national develoment. Legal development in the era of reform is the effort to perform the effectivity of national legal system covering legal substance, legal structure, and the involvement of society that has high legal awareness to support the formation of the intended national legal system. The efforts to perform the effectivity of national legal system in reaching the national development goals namely creating people’s welfare and justice based on economic democracy, the develoment of economic system based on the values of justice, togetherness, even distribution, and the usefulness in accordance with syaria principles, the government enforce the syaria banking laws in the law itself, UU No.21 Tahun 2008, with the considerations that syaria banking has specification compared to the conventional banking. According to Berkowitz and Walker, the effectivity of legal system is performed in the form of legal behavior willingly, i.e. obedience. This requires legitimacy in terms of regulating the adequate acts leading to the agreement for obedience. The regulating of syaria banking has formerly been regulated in UU No. 10 Tahun 1998 regarding banking, but that has not been adequate as a requirement for the effective syaria legal system. Its regulating has not been specific yet and has been far from adequacy for the characteristics of syaria banking operational. As the growth and the volume of syaria banking business are increasing, it is necessary to conduct legal review through regulating UU No. 21 Tahun 2008 regarding syaria banking so as to perform the syaria compliance. According to Roscou Pound, “law as a tool of social engineering,” which is developed by Mochtar Kusumaatmadja in the law conception as ‘a means of the renewal of Indonesian people through standing out the legislation. However, according to Sunaryati Hartono, this can be carried out through perfecting (changing to the better). This action of perfecting covers 1) legal substance containing syaria aspect and new regulations such as governance, caution principles and risk management for resolving disputes, and sanctions; 2) better effectivity of legal structure containing regulating requirements of fit and proper test for bankers and share holders, and expanding for regulating investigation officers; 3) involvements of wide-range of social components supporting the formation of intended national syaria legal system. UU No. 1 Tahun 2009 as an adequate law can provide better protection for inverstors in particular, and other society in general. In Bagir Manan’s views, adequate laws contain three important elements existing in Acts (UU): their norms must have legal validity, the laws must adequately be enforced due to socially acceptable, and the laws must be in effect for long terms. The three elements are juridical, sociological, and philosophical aspects. From the juridical aspect, the regulating syaria banking existing in UU No. 1 Tahun 2008 is bound in nature. The national banking legal system is supporting system that can contribute syaria banking operational. Sociological aspect is accomodated in offered products and services covering universal banking. Philosophical aspect is the improvement in justice, as the ultimate goals of the legislation, which will support the development of economic activities based on syaria prnciples. According to Sumantoro, laws can function as agent of modernization and instrument of social engineering. The legal develoment will run in progress along with the economic development through regulating adequate syaria banking as agent of economic development. The constraints of UU No. 1 Tahun 2008 are that this Act (UU) has not been comprehensive on regulating the implementation of banking activities or products by means of electronic facilities as the impacts of global economy bringing to national economic development. The aforementioned legal problems require specific rules such as separately regulating.
URI: http://repository.widyatama.ac.id/xmlui/handle/123456789/1208
Date: 2009-10-8


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