PENEMUAN HUKUM OLEH HAKIM DALAM PERKARA PIDANA BERDASARKAN UNDANG-UNDANG NOMOR 48 TAHUN 2009 TENTANG KEKUASAAN KEHAKIMAN
ABSTRACT: The discovery of the
law is according Sudikno Mertokusumo , typically defined as the process of
law-making by a judge or other officer law officer who was given the task of
implementing the law or apply the common law rule against concrete legal events
. But especially those in the criminal case judges in Indonesia are faced with
a dilemma where on the one hand he had to perform legal discovery , but on the
other hand he was blasted by a tight principle of legality that does not allow
any punishment unless there is a law that regulates the actions that can be convicted
. The purpose of this study , to determine the legal discovery in criminal cases
based on Law No. 48 Year 2009 on Judicial Power , and to determine the barriers
to discovery of the law by a judge in a criminal case based on Law No. 48 Year
2009 concerning Judicial Authority .This type of research is a normative legal research
or can be referred to as the doctrinal legal research . The discovery of the law
in criminal cases based on Law No. 48 Year 2009 concerning Judicial Authority ,
still has some issues ,one of which is the discovery of this law does not have
a standard or special rules , such as law , legal discovery despite having some
of the methods proposed by the legal experts , and the judges , but for its use
is left entirely to the judge overseeing the case , the lack of legal discovery
in criminal cases is still espoused understand the principle of legality set
forth in Article 1 paragraph (1) Indonesian Criminal Code Plus after the
Constitutional Court ruled in its decisionNo. 003 / PUU - IV / 2006 on July 25,
2006 which has been decided to remove the use tort understand the material in a
positive sense . Efforts to overcome the weaknesses or shortcomings of this is
to make a clear and unequivocal rule of the ability of judges to perform legal
discovery , especially in criminal cases in Indonesia , and there are clear
rules regarding the methods of the invention legitimate law and recognized by
the laws of Indonesia . Soon the passing of the Bill Indonesian Criminal Code ,
to make it clear that in addition to the written law / legislation , there is
also customary law recognized certain in the Draft Bill and the judges do not hesitate
to dig , and find a sense of justice that live in society .
Penulis: Rian Kurniawan
Kode Jurnal: jphukumdd151328
