Author: Dr. Guan Yue

Use of Foreign Workers in Indonesia

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In the Act No. 20 of 2018 concerning the Use of Foreign Workers, foreign workers users are required to provide workshops with certain positions and within a specified period of time, and must prioritize the use of Indonesian workers in all available positions. But if there is no personnel Indonesian employment that is incapable in the position, is then employed by foreign workers.

Foreign workers are also prohibited from occupying positions that take care of certain personnel and / or positions determined by the minister.

Every foreign workers users  must have a Planning for the Use of Foreign Workers (RPTKA) issued by the Minister of Religion and a designated official, which contains:
1. Reasons for using Foreign Workers;
2. Position of Foreign Workers in the organizational structure of the company concerned;
3. The period of use of Foreign Workers;
4. Appointment of Indonesian workers as a companion for Foreign Workers employed.

Requests for ratification of Planning for the Use of Foreign Workers submitted by foreign workers users must attach:
1. Business license from the authorized agency;
2. Letter of establishment of the company issued by the Ministry of Law and Human Rights;
3. Chart of the organizational structure of the company;
4. A statement letter to show the accompanying workforce and the implementation of work education and training; and
5. Statement letter to implement education and job training for Indonesian workers in accordance with the qualifications of positions occupied by foreign workers.

Planning for the Use of Foreign Workers Approval is given by the minister or appointed official no later than 2 days after the application is received in full.

By Eni Oktaviani

Queen Law Firm Became The First Member Of WinTeam500 in Indonesia

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On January 23, 2019, Queen Law Firm signed an agreement with the Winteam500 Law Group to formally become the first member law firm of winetem500 in Indonesia.

Winteam500 law group (hereinafter referred to as “winteam”) is an agency providing comprehensive legal service and a platform operated in Internet model. With the integration of domestic and international affairs, online and offline lines, legal affairs and business, Winteam has established a set of legal service system with its own characteristics by taking the spirit of the Internet as its development orientation. After four years of development, Winteam has established more than 100 law firms at home and abroad and established 15 professional committees with services in various fields. In the future, Winteam will complete the global network of 500 law firms and create a global legal service platform with tens of thousands of lawyers.

The team concept of openness, equality, collaboration, and sharing was integrated into every aspect of the service, winning the praise of internal lawyers, external customers and partners, and enjoying a high reputation in the industry. With the advanced service concept, and an efficient execution team, Winteam quickly achieved the promotion of the brand’s initial stage. Currently there are offices in Beijing, Shanghai, Guangzhou, Shenzhen, Shenyang, Wuhan, Chengdu, Xiamen, Changchun, Changsha, Hangzhou, Kunming, Urumqi, Xinxiang, Zhenjiang, Baotou, Xi’an, Fuzhou, Tianjin, Taiyuan, Yancheng, Baoding, Chaoyang, Shijiazhuang , Chongqing, Yinchuan, Zhengzhou, Tongliao, Longyan, Guiyang, Suzhou, Taipei, Kunshan, Jinan, Wuxi, Dali, Huizhou, Yuncheng, Chaozhou, Handan, Yulin, Shangrao, Lanzhou, Ganzhou, Nanning, Dongying, Quanzhou, Yan’an, Cixi , Danyang, Dalian, Fuyang, Suqian, Liaocheng, Changzhou, Tai’an, Karamay, Zhongshan, Linyi, Ezhou, Yantai, Xuzhou, Shangqiu, Guangyuan, Zhuhai, Taizhou, Anshan, Guang’an, Luliang, Fuyang, Zhaoqing, Wenling, Sanmenxia, Xingtai , Nantong, Harbin, Huai’an, Dongguan, Nanjing, Xining, Xianning, Jincheng, Anyang, Bazhou, Weifang, Zhangzhou, Huanggang, Dezhou, Quzhou, etc. More than 100 law firms are operating throughout the country. And we set law firms in Russia, the United States, the United Kingdom, Germany , Italy, Canada, Australia, South Korea, New Zealand, Malaysia, Laos, Indonesia and more countries and regions, with domestic and international integration, complementary resources to promote global legal resources integration. In the future, Winteam will complete the global network of 500 law firms and create a global legal service platform with tens of thousands of lawyers.

Winteam insists on the development of “people-oriented” talent strategy, and Winteam founding partners are senior lawyers with extensive industry experience, all played important roles in the Asia-Pacific region’s largest law firms. At the same time, Winteam focuses on talents introduction, and it has a large number of professional lawyers, operations management talents, and brand planning talents. The team is also dedicated to improving and optimizing the overall eco-environment of the legal profession while deepening its service. Winteam lawyers are exploring a new path for the healthy development of the industry as a whole.

Winteam focuses on providing legal services. It always puts the interests of customers first, providing professional, comprehensive, pragmatic legal and business solutions for domestic and foreign customers in a timely manner. The professional areas of Winteam include: corporate comprehensive business, corporate acquisitions, mergers and reorganizations, securities and capital markets, private equity and investment funds, state-owned enterprise restructuring and equity transactions, banking and finance, foreign direct investment and foreign capital mergers and acquisitions, overseas investment, Antitrust and national security review, taxation, international trade, international trade remedy and WTO business, maritime commercial and maritime affairs, intellectual property rights, real estate and construction projects, mining, energy and natural resources, litigation and arbitration, criminal defense, etc.

 

 

“Chinese E-Commerce Law” Officially Applied

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On January 1, 2019, the “E-Commerce Law of the People’s Republic of China” (hereinafter referred to as the “E-Commerce Law”) was officially implemented. Micro Business, Procurement Service and other formalities were included in the supervision, all E-Commerce activities must be registered, and pay taxes in accordance with the law. This shows that the era of savage growth of E-Commerce has passed, and the norm will be the key word for E-Commerce in the future.

Since this year, micro traders, procurement services, etc. Has been given a new identity – “E-Commerce Operator”. Many of them sell goods through a network of acquaintances, high consumer confidence and stickiness. According to Zhiyan Consulting data, from 2014 to 2017, the number of social media merchant businesses in China increased from 7.52 million to 20.18 million. By 2019, the size of the social media business market is expected to reach 1 trillion yuan. These include “social E-Commerce” which has grown wild in recent years and has formed a counterweight to traditional E-Commerce.

Three Keywords “E-Commerce Law”

It is undeniable that E-Commerce currently has various types of chaos such as fake items, fake praise comments, leaked personal information, and responsibilities that ignore sales after sales. The application of “E-Commerce Law” has resulted in a strong increase in strength on both the traditional E-Commerce platform and the new social E-Commerce platform.

  1. Payment of Taxes

For a long time, the phenomenon of tax evasion in the field of E-Commerce has become serious. Article 11 of the E-Commerce Law stipulates that E-Commerce operators must carry out their tax payment obligations in accordance with the law and enjoy tax benefits in accordance with the law. The main payment body must include the operator on the E-Commerce platform. This means that all trading methods through E-Commerce channels require tax.

2. Business Permit

Article 10 of the E-Commerce Law stipulates that E-Commerce operators must handle the registration of market entities in accordance with the law. In particular, overseas online deposit services must have business licenses from China and the other country. Article 29 stipulates that it is necessary to take steps to deal with products that are not licensed or prohibited and report to the authorities.

3. Platform Responsibility

In actual E-Commerce business activities, regarding the commercial status of parties involved in transactions, platform operators> e-commerce operators> consumers. Article 38 of the E-Commerce Law stipulates that joint responsibility is borne or known to know business violations without taking the necessary actions. Article 83 stipulates that if the E-Commerce platform operator violates the provisions of Article 38 of the law, or fails to qualify for an operator audit on the platform, the supervision department and market management will order the time limit to be corrected, and the situation will be ordered to stop repair. Fines not less than 500,000 yuan but not more than 2 million yuan will be charged.

Although the implementation and difficulties of the actual implementation of the E-Commerce Act are unknown, it is now clear that in the future, E-Commerce operators will be subject to strict supervision and the industry will be overhauled.

Will being a small company be a solution for micro traders?

Procurement services that originally came from international students or people who worked abroad, when they returned to their home countries, brought some cosmetics, bags, etc. to relatives and friends. With the increasing demand for foreign consumption, private entrusting services are getting bigger because of the unique price advantage. Overseas tour guides, flight attendants, and ordinary tourists have joined the ranks. They buy goods at low prices abroad, and then sell them after returning home to make a profit.

Chinese Commerce Minister Zhong Shan said at this year’s meeting that according to preliminary estimates, the Chinese population spends around 200 billion US dollars shopping overseas a year, and its shopping list includes luxury goods and daily consumption goods.

After the adoption of the “E-Commerce Law”, the Deposit Service has two choices: the first to keep the original business unchanged, to register and pay taxes in accordance with the law; the second is leaving the original service business and changing other ways to create cash flow.

In this case, a friend who carried out the procurement service said to Queen Law Firm: “Initially we were able to profit from different prices. If you have to pay taxes, the price of goods will be increased, and nobody wants to buy it anymore.” Obviously, the increase in tax costs makes it lose its price advantage in market competition. The first method does not work for small personal purchasing businesses. In this way, it is more likely to switch to the second.

At the same time, the social E-commerce platform must carry out identity platforms, fight counterfeit goods, ensure authenticity, and improve quality. The information above is the core of the social E-commerce platform competition.

The introduction of the “E-Commerce Law” aims to standardize the fast-growing and mature E-Commerce industry and create a more equitable and reasonable competitive environment. Of course, under the cold winter of capital, the adoption of the E-Commerce Law will accelerate market changes and will also bring some new opportunities.

by Derrick Guan

Arrest of Wisnu Wardhana in the Corruption Case

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We as citizens greatly appreciated the performance of the Surabaya training team which had arrested Wisnu Wardana who was a fugitive from the Corruption case, who was arrested on Wednesday 9 January 2019, previously Wisnu Wardana was on the run for three months. With the arrests that took place very dramatically so that the motorbike of the Surabaya team was hit by Wisnu Wasdana to smoky. After being arrested, the convict was then taken to the Surabaya District Prosecutor’s Office to undergo several document checks before being taken to Surabaya Class I Lapas in Porong Sidoarjo.

Wisnu Wardana is a convicted corruption case that has cost the country Rp 11.7 billion. Wisnu Wardana was proven to violate Article 3 of Law Number 31 of 1999 concerning Eradication of Corruption Crime as amended in Law Number 20 Year 2001 concerning Amendment to Law Number 31 Year 1999 in conjunction with Article 55 paragraph (1) of the First Criminal Code.

The case of Wisnu Wardana Alone was sentenced to 3 years in prison and a fine of Rp 200 million subsidiary 2 months in prison at the Surabaya Corruption Court. Then Wisnu Wardhana appealed to the East Java High Court which reduced his sentence to 1 year in prison. After that, the East Java Attorney appealed to the Supreme Court which later in December 2018 raised the Wisnu Wardhana verdict to 6 years in prison and a fine of Rp. 200 million subsidiary six months in prison, and obliged Wisnu Wardhana to pay a compensation of Rp1,566,150,733 three years in prison.

Precious Calligraphy from Beijing

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On July 12, 2018, Queen Law Firm received valuable prizes from Beijing, China, namely calligraphy with the words “Da Zhan Hong Tu” (Opening a Broad Future).

This precious calligraphy came from the hands of General Fu Leping, matan Director of the Propaganda Department of the 47th Army of the Chinese People’s Liberation Army. As an old friend of the Queen Law Firm, General Fu heard that we opened a new office in Bandung, Indonesia. He felt very happy and specifically sent this precious calligraphy from Beijing as a gift.

The hopes of the older generation will inspire the younger generation to advance and contribute more to maintaining legal justice.

Prenuptial Agreement on Indonesia

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Prenuptial Agreement namely agreement made by prospective husband and wife about their marriages, the contents of which depend on the agreement between the two parties provided that it does not conflict with the Law.

According to Indonesian civil law expert Wirjono Prodjodikoro, the word Prenuptial Agreement is defined as a legal relationship regarding property of wealth between two parties, in which one party promises or is considered promising to do something, while the other party has the right to demand the implementation of the agreement. The goal is to protect the assets of each bride and groom where the parties can determine their respective assets.

In general, Prenuptial Agreements are made to separate the assets and debts that are owned by both parties, but in the development of Prenuptial Agreements not only made for the separation of assets, many couples enter questions of interest in the Marriage Agreement. For example, still allowed to pursue his or her hobbies or collect luxury items. Couples can balance each other and remind the family financial stability not to be disturbed.

In principle, the parties determine the contents of the marriage agreement freely to make a deviation from the Indonesian Civil Code’s rules on the union of assets but with the following restrictions:

  1. The agreement may not conflict with decency and legal issues concerning the authentic deeds of public order (Article 139 of the Indonesian Civil Code).
  2. In the Agreement no promises made are deviated from:
    a. Rights arising from the authority of the husband: for example to determine the place of residence or the right of the husband to take care of the union of marital assets;
    b. Rights that arise from the power of parents: for example the right to take care of children’s wealth or children’s education;
    c. Law-determined rights for husband and wife who live the longest: for example being a guardian or appointing a guardian (Article 140 of the Indonesian Civil Code).
  3. There is no promise that contains the release of rights to the inheritance of the people who lowered it (Article 141 of the Indonesian Civil Code).
  4. They should not promise that one party must pay a portion of the debt which is greater than the portion in the union profit (Article 142 of the Indonesian Civil Code).
  5. No promises can be made that their marriage will be governed by foreign law (Article 143 of the Indonesian Civil Code).

 

Men’s Purchase of Luxury Goods Tax Evasion of 740,000 Yuan

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Carrying a large number of expensive luxury goods such as famous watches and famous bags, you must declare to the customs and pay customs duties according to regulations, which is undoubtedly unknown. However, the man whose name is Yin took the means of wearing a white card and separating the watch boxes in an attempt to evade taxes. The result was discovered by the customs officers on the spot. After the event, the tariffs smuggled by a certain company should be as high as 74,000 yuan. Yesterday, due to the crime of smuggling ordinary goods, Yin was tried in the Fourth Intermediate People’s Court of Beijing.

Escaping customs duties

According to the prosecution’s accusation, the defendant Yin flew from Lisbon, Portugal, and arrived at Beijing Capital International Airport on June 18. When he entered the country, he chose to go without a declaration channel and did not declare any goods or articles to the customs. When the Customs officers of the Capital Airport checked the goods, they seized the watches, necklaces, cosmetics, bags and other goods carried in their suitcases and carried them. According to the customs’s calculation, the tax evasion amounted to a total of RMB 740,000.

The public prosecutor believes that Yin violated the provisions of national laws, evaded customs supervision, and the amount of tax payable for carrying goods into the country to evade. The act violated the provisions of China’s Criminal Law and should be investigated for criminal responsibility for the crime of smuggling ordinary goods. In view of the fact that a crime should be summoned to the case by a telephone, and the crime of truthful confession is surrendered, it can be punishable.

Make a purchase fee of 4,000 yuan

Yesterday morning, the case was heard in the Beijing Fourth Intermediate People’s Court. In the face of the allegations of the public prosecution, Yin did not raise an objection. Yin said that he and his son returned home to visit relatives when the incident occurred. For the smuggled goods, Yin said that he brought five watches from brands such as Richard Miller, Amy, Omega and Tissot. Only one Richard Miller watch has a price of 160,000 euros, while another Omega watch has a price of 130,000 euros. “A Richard Miller’s watch and a Le Méridien watch, I paid for the purchase, and earned a total of 4,000 yuan.”

In addition to watches, Yin also carries a large number of luxury brands such as brand-name cosmetics, Bulgari necklaces, LV bags and so on. And these three boxes of goods, Yin claimed to be brought back to the country. Items carrying such huge value are not declared, but for their own actions, they also know that items carrying more than a certain value must be declared for entry, but they have not gone through the declaration channel in order to evade taxes.

Watch and box are separated from the inspection

At the time of the incident, Yin set off the plane and tried to get out of the airport. When the customs cleared, the customs officers unpacked it and found several empty boxes in the box. It was originally before the clearance, all the watches should be taken out and put in the pocket. Yin said that the first move is to prevent being stolen, and the second is to prevent it from being investigated. Yin said that he does not make a living from purchasing. “I operate two KTVs and one hotel in China and a KTV in foreign countries.”

According to the testimony of the customs officers, when the customs officer inspected Yin out of the box, he saw that the empty box in the box suspected that there was smuggling. Because of the previous experience, the separation of the watch and the box is one of the typical manifestations of the hiding behavior when carrying the item. He asked Yin.

In view of Yin’s act of surrender, the public prosecutor stated that it is recommended that the court sentenced him to a fixed-term imprisonment of three years and fined the penalty and applied probation.

For his own smuggling of goods, Yin said that his legal awareness is weak, and there is no objection to the conviction and sentencing recommendations put forward by the public prosecution. In the final statement, Yin expressed his regret that he would not make a similar mistake in the future. Yesterday the court did not pronounce the case in court.

National Seminar

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On August 25, 2018, Advocate Eni Oktaviani and Legal Counsel Guan Yue were invited to participate in the National Seminar on “How judges at all levels of courts across the country should make more fair, honest and authoritative judgments” at the University of Suryakancana.

Also attending the seminar were Dr. Muhammad Syarifuddin who is Associate Dean of the Supreme Court of Indonesia, and Chief Justice Dr. Dudu Duswara Machmudin.

At the meeting, everyone fully listened to the recommendations of the two judges on the establishment of a more just and honest court system, and launched a positive discussion. The two judges frequented flashes of humor, and they frequently received enthusiastic applause from the audience.

After the meeting, Guan Yue and Eni Oktaviani accepted an exclusive interview with the TV station. For the construction of the Indonesian judicial system, they also published their own opinions.

Advocates Are Ensured That They Cannot Meet If They Do Not Register at E-Court

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The application of case administration in electronic courts (e-court) has a direct impact on the practice of advocates in Indonesia. Advocates who do not have an e-court account will be hindered by proceedings in a number of courts. But the Supreme Court guarantees a fast, easy and practical account registration process for advocates in e-court socialization, Friday (7/20), at the Pullman Hotel, Jakarta.

Director General of the General Judiciary Agency Herri Swantoro, Director General of the Religious Courts Agency Aco Nur, and Director General of the Military Court and State Administration Agency Maj. Gen. Mulyono explained directly to advocates at the socialization event in collaboration with the Indonesian Advocates Association (Peradi) “Indonesian Advocate Voice”.

Supreme Court Regulation No.3 Year 2018 concerning Administrative Cases in the Electronic Court promulgated since April 4, 2018 then covers the administration of civil, civil, religious, military and business administration matters.
Based on the Perma E-Court, proof of membership in an advocate organization and evidence of an official oath by the high court is a key condition for registration.

Article 4
…
(3) The requirements for being a registered user for advocates are:
a. ID card
b. Advocate membership card; and
c. Minutes of swearing in by the high court

Article 6
…
(2) The Supreme Court has the right to refuse registration of registered users who cannot be verified.

Although not all courts have implemented e-court, Director General Badilum Herri Swantoro told hukumonline that the Supreme Court is targeting all district courts, religious courts and state administration courts to be ready to use the e-court system in September 2018.

“The Chief of the Supreme Court is targeting September to be all ready,” Herri said after socialization.

Herri explained that being registered in the e-court system is an absolute requirement for advocates to represent their clients as legal counsel in the trial. “If you don’t register, you can’t enter the system, verify it in the High Court,” he said.

According to Herri, advocates who have been appointed before the Advocate Law must still have a letter of appointment through the Department of Justice at the time. Although it is not in the form of an Oath Minutes, the document still has an administrative number. “If there is a file that is definitely verified by the High Court, if it does not exist, it will be traced,” Herri explained.

Juniver Girsang, Chairperson of Peradi “Voice of Indonesian Advocates” welcomed the e-court system for the future of the advocate profession in Indonesia. “This is good. There are no more illegal advocates, “he said at the event.

According to Juniver, this regulation disciplines lawyers to actually have an oath report and join advocate organizations. “The requirement to have an account is the news of the oath and the sign card of the advocate, beyond that it cannot. Must enter the organization. Can not convene if it is not registered, “he told hukumonline.

Harry Ponto, Peradi Deputy Chairperson “The Voice of Indonesian Advocates” said the same thing. Harry sees that the e-court system will also contribute to improving the quality of the advocate profession. “This is part of policing and hopefully our starting point is solid,” he said when interviewed by hukumonline.

He said that the e-court system had been implemented in Singapore since a dozen years ago. With the fact that e-court is not new in the global world, Harry hopes that advocates support the advancement of this technology to improve the quality of law enforcement. Including the improvement of the quality of the advocate profession.

“For those who have been messing around with the fake oaths, stop, if there is a fake it means criminal, will be pursued again,” he said.

When asked about the complaints of a number of Peradi members who did not have the swearing-in minutes because they were appointed as advocates with the “whitening” of the Advocate Law, he invited immediately to contact Peradi to take care of the swearing. “Let’s report, we facilitate the swearing. Just last year like Mr. Fred, Who doesn’t know? Founder Peradi too. Last year (new) was sworn, “he said.

According to Harry, senior Peradi members who did not yet have an oath report were mostly from legal consultants before the Advocate Law was passed. “They have actually been verified by Peradi in 2004, we have already offered them, there have been quite a number of people sworn in,” he said, who is also a member of the Capital Market Legal Consultants Association (HKHPM). He mentioned that there were not many people who did not have an oath, about 150 people.

Since it was officially launched on July 13, 2018 and then in Balikpapan, the Supreme Court has announced that there are 31 District Courts, 9 Religious Courts, and 6 State Administrative Courts that have used e-court. To be registered as an e-court account owner so that they can convene in these courts, advocates must fill in the following data on the page http://ecourt.mahkamahagung.go.id.