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APPLICABLE LAW IN INDONESIA

Selasa, 23 Juli 2013

APPLICABLE LAW IN INDONESIA
LEGAL TRADEA. history.
Development of trade law has actually been halted since the Middle Ages in Europe (1000/1500) that occurred in the state and the cities in Europe and at that time in Italy and southern France have been born the cities as a trading center (Genoa, Florence, vennetia, Marseille, Barcelona and other countries). but at that time the Roman law (corpus straight civilis) can not resolve the matters in the trade, then made new law in addition to Roman law that stands alone in the 16th century and into the 17th that apply to the class of so-called law of merchants (koopmansrecht ) specially set the case in the field of trade (trade justice) and the law merchant is unification
Because of the rapid increase of trade relations the 17th century codified in law trademarks held by finance ministers of the king Louis XIV (1613-1715) ie Corbert with regulations (Ordonnance DU COMMERCE) 1673. And in 1681 drafted DE LA MARINE Ordonnance governing sovereignty tenteng
And in 1807 in France made its own trade laws of civil law that there is (CODE DE COMMERCE) which is composed of the Ordonnance du commerce (1673) and the Ordonnance de la marine (1838). At that time Nederlands want a separate trade law is to businesses Dutch, and in 1819 in the Commercial code drencanakan have 3 books and do not know the special court. then in 1838 finally passes. Netherlands to businesses based on the principle of concordance KUHD an example for the Netherlands in 1838 pemmbuatan to businesses in Indonesia in 1848. and at the end of the 19th century Prof. molengraaff designing bankruptcy laws as books Nederlands III in Commercial code into a stand-alone Act (1893 applicable 1896). KUHD And until now Indonesia has 2 books, namely, about trade in general and about the rights and obligations of the cruise orderly
B. understanding
Trade laws are laws that govern human behavior are participating in the trade for a profit [1]. or laws governing the legal relationship between the human and legal bodies to each other in the field of trade. legal system in its broadest sense is a trademark laws divided by 2 is written and not written about trading rules [2]
C. systematic trading law

    
The writing itself:
1. codified: Commercial code, Civil Code and Commercial code consists of 2 books of
1. about trade in general (Chapter 10)
2. about the rights and obligations in the shipping order (Chapter 13)
note: "according to stb 1936/276 which came into force on 17 July 1938, the first force on 17 juli1938, pigs, entitled: about traders and trading of the act, which include 2,3,4,5 article has been abolished. "
2. not codified: 1. regulations on cooperatives
2. of the State enterprise (UUno.19 / prp 1969
3. Law no. 14 yrs. 1965 tentqng cooperative
4. etc.
D. ties to businesses and Code peredata
With said Prof sudirman kartohadiprojo where Khud is a sepecialis of Lex Lex KUHS as generalists. If words are to businesses and KUHS same rules then prevailing rules in the Commercial code. as has been specified in Article I to businesses.


CRIMINAL LAW
1.
DEFINITIONS
Criminal law is the law governing the violations and crimes against the public interest, which acts in the punishment threatened with a suffering or torture
Criminal law is the law governing adverse dankejahatan violation of public interest [3]

    
The principle is a principle of criminal law enactment legaliatas Article 1 (1) of the Criminal Code
2. Criminal law purposes
1) preventive (prevention)
to scare - mongering every person not to do something that is not good
2) respresif (educate)
educate someone who never melakuakanperbuatan not be good and be accepted back in society
3. division of criminal law
1) objective of criminal law (ius poenale)
all peratuaran about commands or prohibitions against the violation of which of which are threatened with punishment torture, divided by 2:
a) criminal law material
law governing what, who, and how where people can be punished
b) formal criminal law
that govern the ways to punish a person who violated the rules of criminal
2) subjective criminal law (ius puniendi)
is the right of the State or the tools to punish by criminal law objective.
3) the general criminal law
Criminal law is applicable for every population except military personnel

    
criminal offense

    
understanding crime (offense)
offense is an act that violates the law, and therefore contrary to the Act that was done on purpose by people who can be accountable or act that may be charged by the criminal law.

    
elements
1) the elements of the crime (offense):

    
there should be a behavior (gedraging)
    
must be in accordance with the description of the Act (wettelijke omshrijving)
    
law behavior is behavior without the right
    
behavior that is punishable by a
2) objective elements, is about action, effects and circumstances;
· Actions:
· In a positive sense, human actions were intentional
· In a negative sense, negligence
· A result, the effects arising from an act
· Circumstances, a depressing thing that causes someone in the law relating to the time
3) subjective elements
Is about the state can be accounted and schold (errors) in the sense of dolus (intentionally) and culpa (negligence).

    
the types of offenses
a) 1. formal offense, it is a crime if the act as completed where in rurmuskan in criminal legislation that has been done
2. offense material, which is prohibited by the Act is the result
b) 1. delicta commissionis, violation of the ban held by the Law
2. delicta ommissionis, violation of necessity held by the Law
c) 1. offense is committed intentionally (dolus)
2. offense committed by negligence (culpa)
d) 1. stand-alone crime
2. crimes that run continues
e) 1. understated crime
2. organized crime
f) 1. crime that goes off (evil done at a time)
2. crime continues
g) 1. defamation provisions
2. offense commune (not requiring a complaint)
h) 1. political offense
crime aimed at the security of the State or the head of state, directly or indirectly
2. common offense (commune delict)
Crimes that can be committed by any person
3. specific offense
Crimes that can only be done by certain people


 LAW CIVIL, CRIMINAL LAW AND LEGAL ADMINISTRATION STATE
Civil law
history
civil law (burgerlijkrecht) principal sources Burgerlijk Boek wet (esp) or the book of the law of civil law in force in Indonesia on 1 May 1848 of the Criminal Code is the copy of the Dutch Penal Code, based on the principle of concordance.
most of the khus is French civil law. the code Napoleon (1811-1838) consists of a code napoleon civil code derived from the author of the French nation on Roman law, canon law, local customs and laws.
Dutch is the colonial French to the French position to the position of the French end, at that time in the form of a small committee chaired by Mr. J.M. Kemper, to make a codification of civil law which is based on code napoleon and a small part of ancient Dutch law. The codification then launch on the 1st of October 1838

    
basic force of civil law in Indonesia
which the force of BW in Indonesia is article 1 of the 1945 transition rule, which reads:
"Any legislation that is still in effect for not holding the new rules according to the constitution."

    
understanding of civil law
        
civil law (burgerlijkrecht) is a series of legal rules governing the legal relationship between one person to another person by focusing on the interests of individuals [1]
        
civil law are provisions that regulate and restrict human behavior in meeting its importance [2].
        
Civil law are rules and regulations that govern and restrict human life or someone in an attempt to meet the needs or interests of his life.

    
Sistyematika civil law
I. KUHS (Burgerlijk wetboek) as a source of civil law consists of the four books:
1) book I: about people (van personen)
2) book II: subject matter (van zaken). Article 499 of the Criminal Code, the material is called, every item and every right, which can be controlled by proprietary
3) book III: about engagement (van verbintennissen), which contains laws pertaining denganhak property-rights obligations apply to the particular person or party.
legal relationship between one person and another in the legal field property, which is one and the other got the achievement for achievement obligations
there are 2 sources of engagement: the laws, and treaties
4) book IV: about verification and expired or overdue (van bewijsen verjaring), which contains perihgal verification tools and the consequences of the expiration of the legal relationships
According IPHK II. civil law (contained in KUHS), can be divided into 4 parts:
1) private law (personen recht), the provisions of law governing the rights and obligations and the legal position of a person
2) family law (familierecht), the provisions of law governing the relationship tenteng physically and spiritually between two people of the opposite sex (in marriage) and the legal consequences
3) property law (vermogen recht), the provisions of law governing the rights of a person in relation to the acquisition of other people who have the money
4) legal heir (erfrrecht), the provisions of law governing the transfer of property means a person who died for the right to have it


TAX LAW
A.
understanding
Tax contributions to the State which is calculated by the taxpayer paid (taxpayer) is based on the law and can not get achievements (remuneration) back directly. And tax for some groups
Where hukumpajak itself is the set that governs the relationship between the government and the obligatory-compulsory taxes and, among others, set a nobody in terms of what is taxable (taxable)
B. foundation, characteristic, function of tax law
Juridical basis:

    
Constitutional: Article 23A of the 1945 "tax and other levies that are forced to state purposes is set by law
    
Operations: Year no.6 Act. 1983 general provisions and procedures perpajakkan
        
Law no. 7 yr. 1983 on income tax
        
Law no. 8 yr. 1983 on value added tax, goods and services and sales tax on luxury goods
o Sociological: maximum tax used for the welfare of the people
o Philosophical: taxes to create social justice
C. tax function
To finance public expenditures in connection with the duty of organizing the government and welfare of the people
There is also a split tax function:

    
Budgetary functions: the maximum input into state revenue, for the construction of the State
    
Function set: in the private sector in order to run the company for the betterment of the national economy
D. tax classification
1. Direct taxation: tax to be borne solely by siwajib taxes, eg income tax, payroll tax, etc.
2. Indirect taxation: no tax can eventually take the price, for example, sales tax and development tax, etc.
3. local taxes / regions: taxes collected by local governments, for example: road tax, advertisement tax, etc.
4. State tax / center: levied by the central government for public purposes by the tax inspection, eg rehabilitation of the dues and contributions of regional development
E. theory, system, principle of taxation

    
His theory: a taxpayer must fill out tax returns, to approach his own tax return, the tax return to the tax inspection within a specified period, are required to provide tax information and show proof of tax accounting
    
System: in Indonesia in tax collection still using self siste assessiment system in which every taxpayer is given the trust to calculate your own tax debt
F. tax characteristic
1. Tax collected under the provisions of the law and its implementing regulations
2. the payment can not be shown montra individual achievements by government
3. taxes levied by the central government or local government
4. taxes are used to finance public investment
5. taxes may also have goals that are not budgetary but aims to set
G. principles
1. General principles (fairness)
That the principle of taxation law and practice in the day-to-day implementation should pay attention to justice
2. according to the principles of the philosophy of law
This principle there are several theories: the theory of insurance, interest, power piker, devotion theory, the principle of purchasing power