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Sabtu, 28 Januari 2012

Injunctions in idem NEBIS State vs Miranda

This short (meascure provisional) is an important decision for the judge issued a court hears both civil and criminal cases. In this case, the authors are limited to the preliminary determination in criminal proceedings. Practical examination in criminal cases, usually brief imposed following the exclusion of the defendant or his counsel. The lawyer for the defendants, except usually plays an important role in the imposition of the preliminary determination by the examiner of the court.

Exception to the defendant or the judge must inform the law provides for "provisional decision" to accept or reject the request. The form and nature of the decisions of courts in exceptional cases that the defendant or the defendant is composed of three types:. The determination, a preliminary injunction and final decision-making over the objection can be formulated in terms of design, the Court held that the Court refers is not entitled to be informed and to delegate to another judge. While others may take the form of a trial, which means that among the verdict was announced before the imposition of a final decision. It is a short form and nature of the final decision, which means that the treatment is stopped the same thing. The consequences of this decision shall enter into force in idem principle NEBIS. (See: Letter No. 3 Ederan MARI 2002 January 30, 2002 NEBIS in idem).

Consequences and legal implications of each of these forms of short certainly different. In short, the determination of the form, then the attorney / defend his case directly to the court hearing. Although this form of decision of the Decision contains a rejection of the exception to the judge continued the case to the Attorney / Prosecutor immediately filed a series of test instruments. However, if the preliminary determination in the form of a final decision, efforts can be made by the Attorney / Prosecutor is the resistance, or the final resort, given the substance of its decision. That the preliminary decision meruapakan a mechanism in the judicial process in our country which has confirmed the existence and function.

The author believes that the preliminary decision is a means to monitor the performance of the Attorney General / Attorney, which means they were in no hurry to make the prosecution, the presentation of a valid application datau an investigation. In practice, this is a preliminary determination that the prosecution by attorney Attorney / can not be accepted because the charge is based on studies that are not valid or does not conform to the edicts of the law, including criminal investigation punishable death, 15 years imprisonment or a fine of 5 years imprisonment or more for those who can not afford, where suspects in the investigation process is not accompanied by a lawyer (attorney), because the employee concerned has not complied with his court-appointed duty of the suspect / accused, then the results of investigations in this case must be reversed, even if the researcher has obtained a declaration that the defendant is not prepared to recommend its use.

So if a researcher has, in fact, Article 56, paragraph (1) of the Code of Criminal Procedure and the results of the study (BAP) in this case violated if an exception is the attorney / attorneys, judges have the courage to selanya declare the verdict, the results of the study (BAP) to cancel the same suspicion. The case against the lawyer / prosecutor may not directly cause the new rates and then to the Court, but legal action against these cases, the prosecutor can appeal and the appeal is not a resistance to the legislation. There is also a preliminary decision is a final judgment of the case shall be final. This can happen if you do not, except in the areas of competence requires acceptance of the fall, and all claims, since it is a civil dispute.

In this case, if the latter case, again by the NEBIS Attorney / Prosecutor applied in idem. Among the scholars who say the conditions to be met NEBIS part in idem is a suspect is convicted on the basis of the contents of your case, the main form of belief, free or free from any claim, is not completely wrong or no, because in fact, there are exceptions that are not yet involved the main proceedings and the decision is final and the decision NEBIS in idem applies, among other exceptions to the authority "of the court" (incompetence Exseption) in both absolute and relative terms than is the "requiring authority, the fall", namely: 1) except Judas category (Article 76 of the Criminal Code) 2), an exception tempores (Article 78 of the Criminal Code), and 3). matrices defendant (Article 77 of the Criminal Code).

Jumat, 27 Januari 2012

We complained to the legality

The legal expert Prof. Sociology Satjipto Raharjo, in his book "The other side of the law in Indonesia, Compass Publishing, 2003," implying that, in the sense of innocence, even if the trial faction Judex (PN and PT) pleaded guilty, is a bad precedent for the creation of the legal culture in this country. "Critical view of the legal sociologist kmenjadi worth reflecting on the whole, it is a profound message about our own need mentradisikan culture in this country, as it contains the law is not possible without an overall culture of a just law can be performed.

Legal culture is closely related to the law and knowledge of the law within the community. In the legal culture is a tradition that can be seen every day in public behavior that is consistent and reflects the will of the laws or guidelines set apply to all subjects of law in the life of the nation and state. In the legal culture of society can also be seen if our society is in serious legal conscience, the law has applied a rule of common life and the basis for any problems resulting from the risk of living together to solve. However, looking at the material, is difficult to develop a culture of right to build there.

Real awareness of the law alone is not enough to build the legal culture in this country, because the legal conscience of the community is always an abstraction, not really a form of behavior, even if our society is indeed instinctively or rationally recognizes the need for obedience and respect for the law. Therefore, although we are aware of the laws of the country, our society is not necessarily in accordance with the law. Obey the law may be important in building the legal culture in this country, and if it is indeed legal requirements?.

Authors should keep in mind that law enforcement is essentially a community or an organization whose loyalty was loyalty to the law is reflected in the shape of a real law-abiding behavior. Against the tide in a lawless society, because society is confronted with two cases in which the fidelity between conflicting loyalties to loyalty to another. So people are faced with fidelity to the law or comply with the "personal interests" that conflict with the law, such as trafficking, corruption, acts of anarchism, and so on. Besides, people dare not be law abiding interest in people, because the law is no longer the authority in law for their personal interests are no longer good law. So in this case, loyalty to their own interest, at the foot of a human being or decline, because our society does not comply with the law.

If the duty of loyalty can not be invoked to enforce the new law, the state or the government will not build and public fear as a factor that makes people obey the law. If we have always made the country the law, any person subject to the law. The law can not be applied in a discriminatory manner, not on the side of everything and everyone, except for truth and justice itself. Here is the righteousness of the law. But if justice is discriminatory, may be invoked as a means of fighting for justice and right, then it should not be blamed if people fight for their rights through the law of the jungle or physical violence. Therefore, the legal authority to enforce the law, so that people can be in the form of obedience to the law itself. Therefore, the need to build a culture of law is a matter of principle in the law, the law must be able to change society for the better, more organized you can rely on the defense of rights and justice, more able to create a sense of security. I wish ..!.

Kamis, 26 Januari 2012

Negligence Health Law

The allegations of irregularities are not really intended only for people who work in the health sector, there is a doctor, but may be due to lack professionalism, if groups of journalists, lawyers, paranormal, and other groups. The understanding of these bad practices are among those who work as health professionals, including physicians.

Excessive restrictions on malpractice in the general sense of health personnel, workers in the health of someone in the provision of professional responsibilities to patients and carried out of the profession in general stardard caused disability and death. However, the formulation of professional standards that will be the norm, particularly for health professionals (doctors) do not explicitly required by law.

Regarding the size of the standard, we have professional legal advice of doctors, Professor Van der Mr.WB be mine, who said that a health care professional must adhere to the 3 (three) general measures, namely: 1. Authority, 2. The average power, and 3. The overall accuracy, ie a health system must be legally authorized to perform the work (from right to left), a license for practicing physicians and other health professionals, a company or other authorized health care providers such as hospitals or clinics.

The following health care worker measures the average capacity should be determined on the basis of experience working in environments that support their work, then health should be careful to work with precision the size varies. But how difficult is it for a rating scale (scale) the standards of health care workers, the law requires people who work as caregivers should meet professional standards and respect the rights of patients (see:. Article 53 , paragraph 2 of Law 23 of 1992 on Health). And everyone is entitled to compensation for damages resulting from errors or omissions on the part of health workers. (See Article 55, paragraph 1 of Law 23 of 1992).

And the health of employees who make mistakes or negligence in the exercise of their profession may be subject to disciplinary action by the Board of Discipline of Health (empty .. Article 54, paragraphs 1 and 2 of Law No 1992 23 years Jo health PP No. 32 of 1996 on Health). Disciplinary Board of Health (MDTK) with right and authority to investigate the presence or absence of fault or negligence of the rules of the profession conducted by the health of patients, presumably. (See Article 5 of Presidential Decree 56 of 1995 MDTK RI).

In short, if a health professional is a doctor, nurse, pharmacy, nutrition staff and other personnel not only be charged and prosecuted by guilt, but the medical staff may also be sued based on breach rights patients presenting in the presence of a therapeutic contract between healthcare for patients include: 1. The right to information about the disease, 2. The right to consent to an unconscious patient infotmed, 3. The right to be kept secret about the disease, 4. The right to good medical ikhtikad, and 5. The right to adequate medical care, as well as possible. Patients' rights are the key here is the law of the relevant information of which usually contains about patients: diagnosis, treatment with the possibility of alternative therapy, about how physicians experience and risk the possibility of pain or other feelings that lead to medical, therapeutic and prognostic.

Caregivers can be prosecuted under Article 1365 of Civil Code Jo. Article 55 of Law 23 of 1992 and may be convicted under section 359, 360 and 361 of the Penal Code, Article 80, 81, 82, 23 of Law No. 1992 and other penal provisions. In addition to the rights of patients, we must also point out a little 'more about the rights of health personnel especially doctors. With regard to the rights of doctors can be stated as follows: The right to work according to the standards of the medical profession, the right to refuse medical procedures that can not be responsible for their professional practice, in accordance with the law of conscience the poor , the right to refuse to terminate the relationship with the patient, if the judge to conduct cooperation with the patient no longer has the right to privacy of a doctor, the right of both the patient application of a therapeutic (healing), the entitled to compensation, the right to defend itself and the right to select patients, but this is not absolute ikhtikat. So here, we can conclude that the abuse is closely related to the violation of the rules of the medical profession, the medical act of infringement and violations will be prosecuted for criminal penalties and administrative practices of the revocation of the license is given.