scholarly journals The Principle of Consensualism and Freedom of Contract as a Reflection of Morality and Legal Certainty of Contract Laws in Indonesia

Webology ◽  
2020 ◽  
Vol 17 (2) ◽  
pp. 336-347
Author(s):  
Tarmi zi
Keyword(s):  
Civil Law ◽  
Legal Certainty ◽  
Basic Principles ◽  
Law System ◽  
Legal Principles ◽  
Freedom Of Contract ◽  
Binding Force ◽  
National Legal System ◽  
Treaty Law ◽  
Civil Law System

Differences in the civil law system in each country will substantially distinguish the legal principles adopted and the regulation of the treaty law. This study seeks to analyze the principles of law that exist in Indonesia in ensuring certainty in the implementation of contracts as a derivation of treaty law. In general, the basic principles of treaty law have been legalized in various forms of regulations and in the national legal system. Taking various perspectives on the main theories on justice and expediency, this study originally focused on the state's authority to guarantee the rights of citizens in agreements. The results of the study revealed that the principle of consensualism relating to the birth of the contract, the principle of freedom of contract relating to the contents of the contract and the principle of binding force relating to the effect of the contract of principles in carrying out the agreement absolutely must be fulfilled if the parties agree to bind themselves in carrying out legal actions.

scholarly journals DISKRESI HAKIM DALAM MENETAPKAN HUKUM DI PENGADILAN AGAMA KELAS IB BATUSANGKAR

2017 ◽  
Vol 16 (1) ◽  
pp. 77
Author(s):  
Sri Yunarti
Keyword(s):  
Social Justice ◽  
Public Interest ◽  
Civil Law ◽  
Family Court ◽  
Law System ◽  
Legal Principles ◽  
The Law ◽  
The Right ◽  
Dynamic Community ◽  
Civil Law System

So far the verdict courts made by Pengadilan Agama (PA/ Family Court) have been criticized for being too fixated on legal justice approaches and lack of attention to social justice approaches. This criticism demands that judge's understanding of the law holds to the spirit that underlies the formation of the law. The judge needs to use his or her authority to exercise legal discretion, using more moral rather than formal legal ideas. A judge must understand the law in the right contest and act as a creative lawyer. Discretion is the authority of the judge to decide cases with more consideration of the senseof justice, public interest and morality, which develops in society rather than deciding on the basis of the decisions of the regulations contained in the Law. This authority can be used an alternative in response to the absence and weaknesses in the application of legal principles in Civil Law System. Thus the law is expected to play a maximum role to serve the interests of the dynamic community put the interests of both parties who are in dispute and growing as well.

scholarly journals Formulasi Pengaturan Tahapan Pra Kontrak dalam Proses Pembentukan Kontrak di Indonesia

2020 ◽  
Vol 22 (02) ◽  
pp. 84-93
Author(s):  
Bebeto Ardyo
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Civil Code ◽  
Legal Certainty ◽  
Law System ◽  
Human Needs ◽  
Contract Formation ◽  
The Common ◽  
The Times ◽  
Civil Law System

The increasement of human needs in society goes hand in hand with the development of technology. To meet these needs, there must be interaction between people which sometimes has the potential to cause disputes. That’s why a contract is needed. The existence of a contract guarantees legal certainty regarding protection of the rights of the parties and also the obligations that they must fulfill. There are several stages of contract formation which consist of pre-contract and agreement between the parties. According to the system in the Book III of Indonesia’s Code of Civil Law, consensus is the base for the formation of contract that means once the agreement has reached between the parties then a contract is formed. Indonesia’s Code of Civil Law doesn’t yet regulate pre-contract stages of contract formation, even though these stages are equally important. The regulation of pre-contract stages are usually set in the common law system, but along with the times, the regulation of pre-contract stages should also be regulated in the civil law system. As a comparison, Het Nieuw Burgerlijke Wetboek (New Civil Code of Netherlands) has already regulated that pre-contract stages, although the Netherlands is a country that implements civil law system. The pre-contract stages are very important to be regulated in Indonesia because there are many potential pre-contractual issues. This paper aims to formulate the outline of what needs to be regulated in the pre-contract regulations. Keywords : Interaction, Contract, Formation, Civil Code  

scholarly journals Tinjauan Yuridis tentang Rechtvinding (Pemenuhan Hukum) dalam Hukum Perdata Indonesia

2018 ◽  
Vol 1 (1) ◽  
pp. 77
Author(s):  
Nurmin K Martam
Keyword(s):  
Law Enforcement ◽  
Civil Law ◽  
Human Beings ◽  
Legal Certainty ◽  
Law System ◽  
Legal Development ◽  
Positive Law ◽  
The Law ◽  
Sense Of Justice ◽  
Civil Law System

The law has a function to provide protection to human interests (all human beings without exception). Therefore, the law must be implemented so that human interest can be protected. In practice, the law may proceed normally and peacefully, but there may also be legal violations in practice. In this case the law that has been violated must be enforced. It is through law enforcement that this law becomes a reality. In upholding the law there are three elements that must always be considered: legal certainty (Rechtssicherheit), usefulness (Zweckmassigkeit) and justice (Gerechtigkeit).In the life of society required a legal system to create a harmonious and orderly society life. In fact the law or legislation that is made does not cover all cases that arise in society, making it difficult for law enforcement to complete the case. In the scope of positive law in Indonesia, the principle "that judges should not refuse a case", contained in article 10 paragraph (1) of Law no. 44 Year 2009 on Judicial Power.Constitutional judges and judges are required to explore, follow, and understand the legal values and sense of justice living in society. This is the basis that it is unavoidable that the rechtsvinding process should still be done by the judge in deciding cases not found clearly and firmly in legislation.The approach used in this study is a normative juridical approach, namely by using the theories and opinions of scholars by conducting an analysis of the provisions applicable in positive law of Indonesia.In line with the increasingly dynamic society, it demands a dynamic legal development as well. This is in line with the civil law system itself that is dynamic and not static. The important task of the judge, therefore, is to adapt the law to concrete events in society. If the law can not be judged appropriately according to the words of the law or the law is unclear, then the judge must interpret the law, so that the judge can make a truly fair law decision in accordance with what Which is the purpose and objective of the law, namely the achievement of legal certainty.

Juridical Review of The Provision of Catering Services In Theory And Practice And Problematic at PT. Well Harvest Winning Alumina Refenery Site Kendawangan, Ketapang Regency, West Kalimantan

Authentica ◽  
2020 ◽  
Vol 3 (1) ◽  
pp. 1-31
Author(s):  
Limas Mentari Putri
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Theory And Practice ◽  
Main Function ◽  
Legal Certainty ◽  
West Kalimantan ◽  
Law System ◽  
The Common ◽  
Civil Law System ◽  
Contractual Agreement

Traditional Covenant Law theory has characteristics emphasizing the importance of legal certainty and predictability.  The main function of one of the contracts is to provide certainty about the binding of an agreement between the parties so that the principles of good faith in the civil law system and promissory estoppel in the common law legal system. which in this article the author will discuss PT ADEN's contractual agreement with PT Well Harvest Winning Refinery Alumina in the catering contract for employees of PT Well Harvest Winning Alumina Refinery which discusses whether the agreement made between the customer and the catering party has qualified the validity of the agreement and the issues contained in the valid agreement.Keywords: Treaty Law Theory, Civil Law, Agreement.

scholarly journals Peran Yurisprudensi dalam Sistem Hukum di Indonesia

2019 ◽  
Vol 16 (1) ◽  
pp. 83 ◽  
Author(s):  
Enrico Simanjuntak
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Case Law ◽  
Comparative Approach ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Literature Study ◽  
Law System ◽  
The Common ◽  
Civil Law System

Karakteristik sistem hukum common law adalah hukum yang berorientasi kepada kasus (case-law), sedangkan sistem civil law, hukum berorientasi kepada undang-undang (codified-law). Namun peraturan perundang-undangan sebagai basis legalitas hukum dalam tradisi Rechtstaats, memiliki keterbatasan tersendiri. Peraturan perundang-undangan tidak pernah mengatur secara lengkap dan detail bagaimana pemenuhan aturan hukum dalam setiap peristiwa hukum, oleh karenanya yurisprudensi lah yang akan melengkapinya. Selain untuk mengisi kekosongan hukum, yurisprudensi merupakan instrumen hukum dalam rangka menjaga kepastian hukum. Tulisan ini berusaha mengkaji kedudukan yurisprudensi dikaitkan dengan tugas dan fungsi MK sebagai pengawal konstitusi, bukan sebagai penegak undang-undang. Metode analisis yang digunakan adalah studi pustaka dengan pendekatan perbandingan. Kesimpulan yang didapat dalam penelitian ini adalah bahwa yurisprudensi merupakan salah satu sumber hukum yang penting dalam tradisi civil law. Setiap diskursus tentang yurisprudensi dalam tradisi civil law mengisyaratkan bahwa tradisi civil law mengakui hukum selain yang tertuang dalam bentuk undang-undang, juga terdapat hukum yang bersumber dari hukum hakim (judge made law) (rechtstersrecht) yang lebih dikenal dengan nama yurisprudensi (jurisprudentierecht).The characteristics of the common law legal system are case-law, whereas the civil law system, the law is codified-law. However, legislation as the basis of legal legality in the tradition of Rechtstaats, has its own limitations. Legislation never regulates in full and detail how compliance with the laws in every legal circumtances, therefore it is jurisprudence that will complement it. In addition to filling a legal vacuum, jurisprudence is a key legal instrument in order to maintain legal certainty. This paper seeks to examine the position of jurisprudence associated with the duties and functions of the Constitutional Court as a guardian of the constitution, not merely as statute enforcement. The analytical method used is a literature study with a comparative approach. The conclusion obtained in this study is that jurisprudence is an important source of law in the civil law tradition. Any discourse on jurisprudence in the civil law tradition implies that the civil law tradition recognizes law other than those contained in statutes, there is also a law that comes from judge made law (rechtstersrecht) better known as jurisprudence (jurisprudentierecht).

ASAS KEPASTIAN HUKUM DAN ASAS KEBEBASAN BERKONTRAK SEBAGAI PERTIMBANGAN UTAMA DALAM PENYELESAIAN SENGKETA PERBANKAN SYARIAH (Kajian Yuridis Putusan MK Nomor 93/PUU-X/2012)

2018 ◽  
Vol 3 (1) ◽  
pp. 69
Author(s):  
Edi Hudiata
Keyword(s):  
Dispute Resolution ◽  
Judicial Review ◽  
Alternative Dispute Resolution ◽  
Contract Law ◽  
Islamic Banking ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Ideal Norm ◽  
Freedom Of Contract ◽  
Binding Force

Since the verdict of the Constitutional Court (MK) Number 93/PUU-X/2012 pronounced on Thursday, August 29, 2013, concerning the judicial review of Law No. 21 of 2008 on Islamic Banking, it is no longer dualism dispute resolution. The verdict as well as strengthen the jurisdiction of Religious Court to resolve Islamic banking disputes. In consideration of the judges, judges agreed stating that Article 55 paragraph (2) and (3) of Law No. 21 of 2008 which is an ideal norm, contains no constitutional problems. The problem is the explanation of the constitutional article 55 paragraph (2) of the Act. The emergence of the Constitutional Court verdict No. 93/PUU-X/2012 which substantially states that the explanation of Article 55 paragraph (2) of Law No. 21 of 2008 does not have binding force, basically does not violate the principle of freedom of contract which is common in contract law. The parties are allowed to make a dispute resolution agreement out of religious court based on provisions as Act No. 30 of 1999 on Arbitration and Alternative Dispute Resolution. Keywords: dispute resolution, legal certainty and the principle of freedom of contract

Twenty-Five Years of Civil Law System in Kuwait

1986 ◽  
Vol 1 (2) ◽  
pp. 216
Author(s):  
Isa A. Huneidi
Keyword(s):  
Civil Law ◽  
Law System ◽  
Civil Law System

The Civil Law System. Cases and Materials

1958 ◽  
Vol 106 (8) ◽  
pp. 1180
Author(s):  
George W. Stumberg ◽  
Arthur T. von Mehren
Keyword(s):  
Civil Law ◽  
Law System ◽  
Civil Law System

scholarly journals Contract Law Of Malaysia and Indonesia: Some Basic Comparison

1993 ◽  
Vol 23 (4) ◽  
pp. 308
Author(s):  
Shaik Mohd Noor Alam S.M. Hussain
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Contract Law ◽  
Law System ◽  
Common Law System ◽  
Civil Law System

Malaysia dan Indonesia memiliki persamaan dan perbedaan dalam sistem hukum. Keduanegara mengenal Hukum Islam dan Hukum Adat. Namun berkenaan dengan hukum Baratmaka Malaysia menganut "Common Law System ", sedangkan Indonesia negeri yangdimasukkan dalam "Civil Law System ". Karangan berikut ini mencoba memperbandingkansahnya suatu perjanjian menurut hukum "Common Law" Malaysia dan "Civil Law" Indonesia. Terlihat adanya perbedaan dalam unsur-unsur yang harus dipenuhi untuk sahnya suatu perjanjian di kedua negara tersebut.

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