Introduction to Law in Indonesia
Background of the problemHuman beings as creatures of God Almighty and as a representative of God on earth who receives his mandate to manage natural resources. As a servant of God who has a duty to serve and worship the Creator God with a sincereDestinationThe purpose in writing this paper is to increase knowledge and would be useful for us all.Writing MethodsAuthors use the method of observation and literature.The means used in this study are:Library StudiesIn this method the authors read books related premises of this paper.What is the civil law?Civil law is also called the civil law is the law that governs the legal relationship between a person and another person, where such relationships give rise to rights and obligations of each party.Example: - Lease rent;- Buying and selling, pawning;- Heritage;- And others.So to be clear: the Civil Code is set up so that different individual relationship with the Criminal Law that governs the legal relationship between an individual and a society and the State, the civil law is not of public interest, but rather to set the interests of certain parties ..Civil Law derived from the Book of the Law of Civil Law (KUHS). KUHS Pancis used mostly, but also Dutch French KUHS because there are also people who live in the Netherlands.Civil law consists of:a. Civil law is the law governing Indigenous among individuals with indigenous peoples, with regard to the interests of individualb. European Private Law is the law that governs the relationship legal duties concerning the interests of the people of Europe and the people who enacted the law.c. The National Civil law is the law governing the interests of individuals who made / applied to all the inhabitants of Indonesia.The principles contained in the civil law:1. The principle of freedom of the parties;2. The principle of freedom of the agreement;3. The principle of equality;4. The principle of acting prowess in lawCivil law is divided into civil law and civil law formal material.Arrange formal civil law civil interests. Pedata laws regulate material interests with civil civil or other: how to maintain the rules of civil law material to help judge.What is the scope of the definition of the Civil Code?Are included in the scope of civil law include:- Individual or Private Law (rights and obligations);- Family or Marriage Laws (inner and outer relationships between two people of the opposite sex);- Law of Property (have money);- Legal Warih or Grant (transfer of property means a person who died).Fourth of civil law in civil law including judicial review. Civil law material called civil law (burgelijk recht). The first name is a common name and in law, civil law terms here and there is still contained in the meaning.Thus in section 9 of Act AB: Kingdom of Civil Law is the same for foreigners and Dutch people, throughout the law does not specify otherwise. See also Article 160 of the Constitution and Article 2 of Law RO. But now that the civil law is used in a narrow sense: for civil law material without commercial law or in other words to express legal materials set forth in the Book of the Law and the Civil Law Act which is at variance with it. Similarly, in Article 157, Constitution: civil law and commercial law, civil and military criminal law, procedural law and judicial power structure regulated by law in the book of common law, except the right of the legislators the power to regulate some cases in a separate law.
Indonesian lawIndonesia's legal system is a mix of European laws, the laws of Religious and Customary law. Most of the system adopted, whether civil or criminal, based on continental European law, particularly from the Netherlands because of aspects of the past history of Indonesia as a colony as the Dutch East Indies (Nederlandsch-Indie). Religious law, because the majority of Indonesian people Muslim and the dominance of Shari'a law or a lot more, especially in the areas of marriage, kinship and inheritance. In addition, Indonesia also applies in Indigenous legal system, which is a continuation of the local rules of society and cultures that exist in the archipelago.Indonesian civil lawOne area of law that governs the rights and liabilities held on the subject of the relationship between law and legal subjects. Civil law is also called the law of private or civil law as opposed to public law. If public law regulate matters relating to the state and the public interest (eg, politics and elections (constitutional law), activities of daily administration (administrative law or state administration), crime (criminal law), the civil law governing the relationship between residents or citizens everyday, such as maturity, marriage, divorce, death, inheritance, property, business activities and action-acts of other civil. There are several legal systems prevailing in the world and the legal system differences also affect the field of civil law, such as Anglo-Saxon legal system (ie the legal system in force in the United Kingdom and Commonwealth countries or the countries affected by the UK, for example the United States), the continental European legal systems, legal systems communists, Islamic legal system and other legal systems.Indonesia's civil law is based on civil law in the Netherlands, in particular Dutch civil law in the colonial period. Even the Code of Civil Law (known Civil Code.) Prevailing in Indonesia is nothing but the translation is less precise than Burgerlijk Wetboek (or known as BW) prevailing in the kingdom of the Netherlands and enforced in Indonesian (and Dutch colonies) based on the principle of concordance . For Indonesia, which was then called the Dutch East Indies, BW imposed from 1859. Dutch civil law itself adapted from civil law in force in France with a few adjustments. The book of the law of civil law (abbreviated Civil Code) consists of four parts, namely: Book I of the People; laws governing individual and family law, the law governing the status and the rights and liabilities held by the subject of the law. Among other provisions regarding the emergence of civil rights of a person, birth, adulthood, marriage, family, divorce and the loss of civil rights. Especially for the marriage part, some of its provisions have been declared invalid by in undangkannya Act No. 1 of 1974 concerning marriage. Book II of the material; governing bodies of law, ie the law governing the rights and liabilities owned law relating to the subject matter, among other rights, property rights, inheritance and underwriting. The meaning of objects includes (i) tangible objects that are not moving (eg land, buildings, and ships with a certain weight), (ii) moving tangible objects, other than the tangible objects that are considered as tangible objects do not move, and (iii) intangible objects (eg the right to collect or receivables). For portions of land, most of its provisions have been declared invalid by in undangkannya Act No. 5 of 1960 concerning agrarian. Similarly, the section on underwriting the mortgages, has been declared invalid by in undangkannya law on security rights. Book III of the Engagement; governing legal commitment (or sometimes referred to as the agreement (although this term actually means to have a different meaning)), the law that governs the rights and obligations between subjects of law in the field of engagement, among others, about the types of engagement (which consists of engagement arising from (specified) legislation and engagement arising from the agreement), the terms and procedures for the preparation of a treaty. Specific to the field of trade, book trade law legislation (to businesses) is also used as a reference. Fill KUHD closely related to Civil Code, particularly Book III. Can say to businesses is a special section of the Civil Code. Book IV of the expiry date and Evidence; regulate the rights and obligations of legal subjects (specifically limit or deadline) to use their rights in civil law and matters relating to evidence. Systematics of the Criminal Code that is still used as a reference by legal experts and is still taught in law schools in Indonesia.Civil law is the provision that governs the rights and interests of the individuals in the community. In the legal tradition in mainland Europe (civil law) known legal division into two public law and private law or civil law. In the Anglo-Saxon system (common law) is not known this kind of division.History of Private LawDutch civil law derived from the French civil law Napoleonic Code which is based on Roman law Corpus Juris Civilisya which at that time was regarded as the most perfect law. Private law in force in France was published in two codification called the Code Civil (civil law) and the Code de Commerce (commercial law). When the French controlled the Netherlands (1806-1813), both codification was enacted in the Netherlands are still used on until 24 years after Dutch independence from France (1813).In the year 1814 the Dutch began to draw up the draft Civil Code (Civil) or KUHS the Netherlands, by Dutch law codification made by MR.JM Called ONTWERP KEMPER KEMPER KEMPER but unfortunately passed away [in 1824] before completing his duty and followed by Nicolai, who served as Chairman of the High Court of Belgium. Dutch desire is realized on July 6, 1880 with the formation of two new codification into force on October 1, 1838 because there has been a rebellion in Belgium namely:1. Burgerlijk Wetboek abbreviated BW [or the Book of the Law-Dutch Civil Code.2. Wetboek van Koophandel abbreviated WvK [also known as the Code of Commercial Law]This codification according to Prof Mr J, Van Kan BW is a translation of the CodeCivil plagiarized copied from French into Dutch national language.Civil CodeWhat is meant by Indonesian Civil law is civil law that applies to the entire region in Indonesia. Civil law in force in Indonesia is a civil law west [Dutch] which was originally orphaned on the draft Civil Code was originally known as the Dutch or Burgerlijk Wetboek and commonly abbreviated to BWMost material B.W. had been removed and was replaced with the enactment of Act such as the Marriage Law, Mortgage Law, Bankruptcy Law. On October 31, 1837, Mr.C.J. Scholten van Oud Haarlem was appointed as chairman of the committee with Mr codification. A.A. Van Vloten and Mr. Meyer respectively as members of these members who later replaced by Mr. J.Schneither and Mr. A.J. van Nes. Codification KUHPdt.Indonesia announced on 30 April 1847 through Gazette No.. 23 January 1948 and apply. After the Indonesian Independence by the rules of Article 2 of the 1945 Constitution transitional rules, KUHPdt. Dutch still declared valid until replaced by a new law by virtue - the Constitution. BW also called Dutch Civil Code - Civil Law hukun Indonesia as an Indonesian civil legal parent.Indonesian civil procedural lawIndonesian civil procedural law is the law governing the procedures for the hearing (litigants in the judiciary) in the sphere of civil law.The term lawLawyerSince the enactment of Law No. 18 of 2003 concerning an advocate, a term for someone who is providing legal aid in private - which originally consisted of various designations, such as advocate, attorney, law consultants, legal counsel - is an advocate.Advocates and lawyersBoth of these terms actually mean the same, although there are some opinions that different states. Before the enactment of Law No. 18 of 2003, the term for the defenders of justice black plate is very diverse, ranging from term lawyers, legal advisers, legal consultants, advocates and others. Attorney in accordance with the words literally can be interpreted as the proceedings, which means that individuals, whether incorporated in an office together or individually running the law enforcement profession as a black plate on the court. While advocates can move in court, as well as acting as a consultant in legal matters, both civil and criminal.Since the enactment of Law No. 18 of 2003, then the terms are istandarisasi become advocates only.First that distinguishes both the Advocate is someone who holds a permit air "event" in the Court by the Minister of Justice as well as the region has to "proceedings" in all regions of the Republic of Indonesia, while the practice of lawyer is a person who holds a license to practice / proceedings based on the Decree of the High Court Where local beracaranya region was "only" region of the High Court which issued the license to practice. After Law. 18 years 2003 applies then authorized to appoint a person to be an Advocate is an Advocate.Legal consultantLegal counsel or in English counselor at law or the legal consultant is a person who is providing legal services in the form of consultation, the legal system in each country. For Indonesia, since the Act number 18 of 2003 applies, all the terms of the legal consultants, lawyers, legal advisers and others that are within the scope of the provision of legal services has become an advocate standardized.Prosecutors and policeTwo public institutions that play an active role in enforcing public law in Indonesia is the prosecutor and police. Police or the police role is to receive, investigate, investigate a crime that occurred within the scope of its territory. If found the elements of a crime, either specific or general, or specific, then the perpetrator (suspect) will be asked details, and if need be retained. In the period of detention, the suspect will be reached for comment about the alleged crime occurred. In addition to the suspect, the police are also examining the witnesses and evidence are closely related to the alleged crime. The information gathered in the investigation report (BAP) which, when expressed P21 or complete, will be sent to the prosecutor for the trial period prepared in court. The prosecutor will run the checking function analysis of BAP and evidence and witnesses to be brought to justice. If the prosecutor argued that the lack of supporting evidence or witnesses, the prosecutor will return the file to the police, to come. Once complete, the prosecutor will do the prosecution case. At this stage, the perpetrator (suspect) has changed the status of a defendant, who will be tried in court. When the verdict was handed down, the status changed to convict the defendant.Examples of civil lawsuitsInternational Marital Status and Marital AgreementsA citizen married to a French citizen in Japan. Catholics are Christians, but do not hold a marriage according to religious law (church wedding). The marriage was registered in their respective embassies in Japan. They will still live in Japan for at least one year to the next. Afterwards, they have not decided yet, but they agreed to children in the future will be born and raised in France.AnalysisSince the enactment of Law 1/1974, interfaith marriage is forbidden, but the inter-marriage of Indonesian citizens with foreign nationals for meeting the requirements of Indonesian law may be made under Article 57-62 of Law 1/1974.Marriage citizens held abroad apply Article 56 of Law 1/1974 are set for each wedding citizens abroad apply the principle of lex loci celebrationis. This principle means that the marriage should be executed under the law of the country where the marriage took place, in this case the laws of Japan. Marriage Japanese law, passed Horei Law only regulates a civil marriage and uphold the law made choice of the parties. So that your marriage has been formally valid.But the implementation of Article 56 must be preceded by the implementation of Article 60 of Law 1/1974 which states any citizen wishing to marry must meet the material requirements specified marriage and the conception of Law 1/1974.After illegal under religious law then came the necessity to register the marriage at the register office. The embassy is not a registry office. But civil records to be visited is the Japanese Civil, Civil Indonesia instead. Deed issued by the civil registry Japan applies universally, but in order to have legal effect in Indonesia, the marriage must be registered in the registration books and reportedly RI Representative to the Civil Indonesia, namely in the area of origin of the citizens (eg: West Jakarta Civil Registration Office, Bogor, or Bekasi).Reporting marriage is usually done within a year after the couple returned to their hometown to Indonesian citizens. To report a marriage in the Civil Registry in accordance with Article 72 Jakarta Jakarta Governor Regulation No. 16 of 2005 required proof documents legalization of marriage outside of Indonesia, quotes birth certificate, family card and identity card, birth certificate or quote quote husband's death certificate / wives for those who never married, the bride and groom passport and passport photo size 4x6 cm alongside four pieces.Of children, marital reporting is also required so that dual citizenship status unknown. Then by knowing dwikewarganegaraan status, a child can later have the same rights and obligations as the other citizens to own land. If his citizen status is unknown, it will be difficult to accept the inheritance or perform any legal act concerning any land or restricted to foreigners.Article 1395 French Civil Code also states about marriage agreements should only be done before the marriage occurred. Moreover, in general, the French Civil Code regulate marriage covenant as the applicable law of marital property, not the law or how to educate children.Internationally, France is also subject to the Hague Convention on the Law Applicable to Matrimonial Property regimes. Article 3 of the above also clearly states marriage agreements should be implemented before the marriage takes place. If it is not made before the marriage then the bride wealth after mating should be set to follow fixed abode bride after marriage or state law most relevant.A. Analysis According to the Theory of International LawAccording to the theory of International Law, to determine the status of the child and the relationship between children and parents, need to be seen first marriage of his parents as a preliminary issue, whether legitimate marriage of his parents so that the child has a legal relationship with his father, or the marriage was not valid, so the child is considered as a child out of wedlock who only have a legal relationship with his mother.Long ago recognized that the question of heredity including personal status. Common law countries adhering to the principle of residence (ius soli), while civil law countries adhering to the principle of citizenship (ius sanguinis). Commonly used is the personal law of the father as the head of the family (pater familias) on issues of legitimate descent. This is the law for the sake of unity in the family and for the sake of the family, for the sake of stability and honor of a wife and maritalnya rights.
Nationality of the father is the system that is used in most other countries, such as Germany, Greece, Italy, Switzerland and the group of socialist countries.In the Indonesian legal system, Prof.Sudargo Gautama declared disposition on the legal system of the father for the sake of unity in the family law, that all of the children in the family along on a certain power of parents to their children (ouderlijke macht) subject to the same laws. Inclination is in accordance with the principles of the old Citizenship Law: Act No. 62 of 1958.Biases in the legal system for the sake of unity of the legal father, has a good purpose which is unity in the family, but in terms of citizenship is different from the mother's father, and there was a split in the marriage then it will be difficult for the mother to care for and raise their children of different nationalities, mainly when the children are still minors.B. Analysis According to Law No. 12 of 2006 concerning citizenshipAct contains new civic general principles or universal citizenship. The principles espoused in this Act as follows:1. The principle of ius sanguinis (law of the blood) is a principle that determines a person's citizenship based on descent, not by country of birth.2. The principle of ius soli (law of the soil) on a limited basis is the principle that determines a person's citizenship by country of birth, which imposed limited for children in accordance with the provisions stipulated in this Law.3. Single citizenship principle is the principle that determines the citizenship of every person.4. The principle of dual citizenship is limited to determining principle of dual citizenship for the children in accordance with the provisions stipulated in this Law.The law basically does not recognize dual citizenship (bipatride) or stateless (apatride). Dual citizenship given to children under this Act is an exception.Regarding the loss of citizenship the child, the loss of citizenship of the father or mother (if the child has no legal relationship with his father) does not automatically lead to citizenship of children being lost.Under this Act a child born of the marriage of a woman with a male citizen foreigners, as well as children born of the marriage of a woman with a male foreigner citizens, equally recognized as Indonesian citizens.The child will be dual nationals, and after a 18-year-old child or married, then he must make his choice. To choose the statement must be submitted no later than 3 (three) years after the child turned 18 years of age or after mating.
Granting dual citizenship is a positive breakthrough for children from mixed marriages result. But should be examined, whether the provision of this kewaranegaraan a new problem in the future or not. Has dual citizenship means subject to the two jurisdictions.Indonesia has a system of Private International Law Dutch heritage. In terms of personal status of Indonesia holds the principle of concordance, which are listed in Article 16 AB (Follow Article 6 AB Holland, who copied again from the French Civil Code Article 3). Under Article 16 of the AB adopted the principle of nationality for personal status. This means that Indonesian citizens abroad, all on matters relating to personal status, remain under the jurisdiction of national environmental Indonesia, on the contrary, according to the jurisprudence, the foreigners who are in the territory of the Republic of Indonesia19also used their national laws to the extent they enter the field of their personal status. In Indonesian jurisprudence that include personal status such as divorce, annulment of marriage, child custody, legal authority, and the authority to take legal actions, about the name, about the status of children who are under age.When assessed in terms of International Law, dual citizenship also has potential problems, for example in terms of personal status determination based on the principle of nationality, then it means the child will be subject to the provisions of its national state. When the provisions of the law of nations with each other not against it no problem, but what if there is a conflict between state law with each other, and setting personal status the child will follow the rules of the country where. Then what if the provision violates the principle of public order on the other provisions of the state.An example is in the case of marriage, according to Indonesian law, there is a material and formal requirements that need to be met. When a child who is not yet 18 years old about to get married then have memuhi both these conditions. Material terms must follow the laws of Indonesia while following the formal requirements of law where the marriage took place. Suppose the child is about to marry her uncle (blood relation to the straight line), based on material requirement Indonesian law it is prohibited (Article 8 of Law No. 1 of 1974), but by the law of the country granting nationality to another, it is allowed, then provisions which must be followed.The thing that seems to need to be considered and studied by scholars of private international law in connection with this dual citizenship. The author argues for citizenship law is still new, the potential problems that could arise from the problem of dual citizenship is not a study of international law experts.
From the description can be formulated some conclusions, as follows:As social beings every human being is always to make contact with other human beings. This relationship occurred since humans were born to die. The onset of the relationship between humans by nature, meaning that as human beings it is predetermined to always live together. Implement the live nature of human life as a process that occurs is done from birth to death. Natural processes that occurred since man consists of a predetermined born male and female gender. Both sexes was a time to form a family. Every human being has a predetermined property acquired during his life, will then be given to the right to pass on that has passed away. This natural process will be experienced by every human being, but there are things that menghalanginhya, and related pobud in relationships with others. Civil law governing the rights and obligations of the person as "legal subject". Private law in the subject is the person in a legal sense. Artiinya have rights and obligations. The rights and obligations of every person in kodratif since birth until death. In fact, according to the European civil law specified in section 2 pardata Code provides that "the child is in the womb of a woman regarded as having been born, where also the interests of the child wishes.Death when she bore no dianggaplah.According to article 1330 of the Civil Code comprises:1. Minors;2. People insane and extravagance;3. A married woman.Oorang against this, except "married woman" who was removed by the Supreme Court circular 3 of 1963, is an exception to every person in exercising its right to take legal action themselves. Understanding adults under customary law in general depend on the assessment of each indigenous people. It is often associated with the completion of the transition period ending on her child has been declared as one who can have children.