TINJAUAN HUKUM EKONOMI SYARIAH TERHADAP GANTI KERUGIAN IMMATERIIL DALAM SENGKETA EKONOMI SYARIAH

Abstract

Abstract: The statutory regulations governing the determination of compensation due to unlawful acts are very limited, so in practice judges in religious courts often carry out their own legal ijtihad. Cases containing claims for compensation resulting from unlawful acts include cases number 84/Pdt.G/2019/PA.Yk and number 3954/Pdt.G/2019/PA.Tgrs. This research aims to determine the judge's consideration of immaterial compensation for these two decisions and examine the Sharia Economic Law review of immaterial compensation. The research method used was literature study. In its decision, the panel of judges granted the claim for immaterial compensation by basing its decision on several provisions of statutory regulations and civil law in Indonesia and other legal sources, namely jurisprudence and legal doctrine. The results of research and analysis of the decision of the judge's legal considerations viewed from the perspective of Sharia Economic Law, the decision is not in line with Sharia Economic Law, especially in the theory of ta'widh because compensation must be calculated in real terms or what is actually suffered by the parties and is not in line with the theory of maslahah murlahah, because even though legal considerations using a judicial activism approach or in the name of a sense of justice in maintaining and guarding the soul are part of the maslahah murlahah, what can be used as evidence must be based on sharia goals, not solely based on human rationality alone.

Keywords: Compensation, Unlawful Acts, and Sharia Economic Disputes.