scholarly journals Legal reasonings of religious court judges in deciding the origin of children: a study on the protection of biological children’s civil rights

2021 ◽  
Vol 21 (1) ◽  
pp. 1-20
Author(s):  
Rohmawati Rohmawati ◽  
Ahmad Rofiq
Keyword(s):  
Civil Rights ◽  
Legal Status ◽  
Legal Protection ◽  
Constitutional Court ◽  
Philosophical Approach ◽  
Legal Relationship ◽  
Biological Children ◽  
Document Collection ◽  
Biological Fathers

This study explores the extent to which religious court judges decided the origin of biological children following the implementation of the Indonesian Constitutional Court Decree number 46/PUU-VIII/2010. A substantial ambiguity was apparent in the Indonesian family law concerning civil relationships between children born out of wedlock and their biological fathers. Consequently, judges had different legal interpretations over status of children, which created disparities of the children’s civil right protection. This study focuses on investigating the judges’ legal reasonings when deciding origin of biological children born out of wedlock. This is a case study with a legal philosophical approach. Data collection includes document collection, whereas data analysis involves deductive and inductive approaches. This study found three typologies of judges’ legal reasonings in relation to how they decided the origin of the biological children. Pragmatic judges would not provide legal protection to the biological children as they failed to accept lineage of these children towards their parents, creating uncertainty over the children’s legal status. Conservative judges with a positivistic mindset would acknowledge legal relationship between the biological children and their mothers, generating the children’s civil rights in relation to their mothers. Progressive judges would provide legal protection to the biological children. Progressive judges accepted the lineage of these children towards their parents but acknowledged their civil rights in relation to their fathers in limited ways such as living allowance and testament. Disparities of judges’ decisions regarding the origin of the biological children substantially created a legal uncertainty to these children.

scholarly journals THE BIOLOGICAL FATHERS HAVE CIVIL RIGHTS WITH EVIDENCE AND CONVICTION OF THEIR CHILDREN

2020 ◽  
Vol 18 (2) ◽  
pp. 127
Author(s):  
Anwar Hafidzi ◽  
Nadiyah Khalid ◽  
Rina Septiani
Keyword(s):  
Civil Rights ◽  
Islamic Law ◽  
Court Decision ◽  
Constitutional Court ◽  
Dna Testing ◽  
Biological Father ◽  
Comparative Aspect ◽  
Biological Children ◽  
Biological Fathers ◽  
Correct Data

This paper aims to prove that Biological Children can provide Civil Relations with their fathers if they have an apparent legal force. This study differs from other researchers in the comparative aspect of normative Law and Islamic Law. This difference lies in the Constitutional Court decision results, which states that children produced outside of marriage have a civil relationship with the mother and family of their mother, father, and family of their biological father, which can be proven by DNA testing between them. Meanwhile, according to Islamic Law, children outside of marriage (Zina) only have a civil relationship or blood relationship with the mother and the mother's family. The method used in this research is a literature review with a normative approach to the Constitutional Court decision and the Scholar's opinion on children outside of marriage (Siri). This research found that children can biologically provide civil relations with their parents if done in marriage and proven by clear legalities such as witnesses and marriage documents. The presence of a decision of the Constitutional Court is a legal assurance or defense of the human rights of a citizen, whether they have the correct data and facts to their civil relations.

scholarly journals PERSAMAAN DERAJAT TERHADAP PEMBAGIAN HAK WARIS ANAK DALAM PUTUSAN MAHKAMAH KONSTITUSI NOMOR 46/PUU-VIII/2010

2014 ◽  
Vol 6 (2) ◽  
Author(s):  
Atik Abidah
Keyword(s):  
Civil Rights ◽  
Constitutional Court ◽  
Case Study Approach ◽  
Study Approach ◽  
Equality Rights ◽  
Biological Children ◽  
Legal Consequence ◽  
The Republic ◽  
The Relationship

This research aims to analyze the equality rights of biological children in the decision of the Constitutional Court of the Republic of Indonesia number: 46/PUU-VIII/2010 and its legal consequence. This research included in the normative legal research that used a statue approach and case study approach. The research’s data analyzed using preskriptive-analytic methode and hermeneutic methode. The Research’s results showed that the  decision of  Constitutional Court of the Republic of Indonesia number: 46/PUU-VIII/2010 expand the interpretation of the concept of nasab from legal  children towards biological children to achieve the equality and the sense of fairness. This verdict also expand the interpretation of the evidence. The relationship between parents <br />and their childrens can be proved with the aid of science and technology. The similarity of DNA / RNA betwen parents and their childern is the ratio legis ('illat al-hukm) that into consideration the biological children acquire the civil rights, including inheritance rights.

scholarly journals Outer Children Marriages Status After Constitutional Court Decision No: 46/PUU-VII/2010

Rechtsidee ◽  
2016 ◽  
Vol 1 (1) ◽  
pp. 119 ◽  
Author(s):  
Sri Budi Purwaningsih
Keyword(s):  
Civil Rights ◽  
Science And Technology ◽  
Legal Protection ◽  
Court Decision ◽  
Constitutional Court ◽  
Legal Relationship ◽  
Starting Point ◽  
Illegitimate Children ◽  
The Republic ◽  
The Right

The decision of the Constitutional Court of the Republic of Indonesia No.46/PUU-VIII / 2010 dated 17 February 2012, granted the judicial review of Article 43 (1) of Law No. 1 of 1974 on Marriage by deciding that the article should read "Children who are born outside of marriage just had a civil relationship with her mother and her mother's family as well as with men as a father who can be proved based on science and technology and / or evidence, has blood ties according to law, including a civil relationship with his father's family". This Indonesian Constitutional Court's decision bring Juridical consequence that illegitimate children not only have a legal relationship with her mother, but also has a legal relationship with the father (biological) and his father's family, as long as it is proven with science and technology. The Constitutional Court's decision is a starting point in the legal protection of illegitimate children, namely the "right alignment" between the illegitimate child with the legitimate son. Illegitimate children have the rights to demand their civil rights toward their father (biological) as the same rights obtained by the legitimate son. How To Cite: Purwaningsih, S. (2016). Outer Children Marriages Status After Constitutional Court Decision No: 46/PUU-VII/2010. Rechtsidee, 1(1), 119-130. doi:http://dx.doi.org/10.21070/jihr.v1i1.99

scholarly journals The Right of a Child Outside the Legal Marriage of a Biological Father: The Analysis of Ḥifẓ Al-Nafs as Law `Illat

2021 ◽  
Vol 5 (1) ◽  
pp. 153
Author(s):  
Ali Abubakar ◽  
Juliana Juliana ◽  
Maisyarah Rahmi Hasan
Keyword(s):  
Civil Rights ◽  
Islamic Law ◽  
Court Decision ◽  
Constitutional Court ◽  
Biological Father ◽  
Islamic Jurisprudence ◽  
The Right ◽  
Biological Fathers ◽  
Legal Marriage ◽  
Protection Of Life

This article aims to analyze the protection of life (ḥifẓ al-nafs) as the law reason (`illat) of the rights of children outside of legal marriage (ALPS) of biological fathers. Ḥifẓ al-nafs is assumed to be `illat emerging from many neglected ALPS phenomena and resulting in negative stigma and discrimination. This research is a study of Islamic law using the theory of `illat in analyzing the problem of children's rights outside of legal marriage. The research concludes that the presence of the 2010 Constitutional Court decision regarding the civil rights of ALPS with biological fathers reveals new spaces in seeing the nature of ALPS rights. This is different from the fatwa of the Indonesian Ulema Council and classical fiqh (Islamic jurisprudence) arguments, which tend to only link the child to the mother. Based on the Constitutional Court decision, the essence of ALPS rights from biological fathers is limited to civil rights. The responsibility of the biological father to ALPS is in the form of physical and mental support, while denying other rights such as guardianship of marriage; ALPS rights today have been largely abandoned. Thus, the protection/care is necessary. `Illat (the reason of law) in ḥifẓ al-nafs (protection of the life) is real and can be juxtaposed with `illat ḥifẓ al-nasl (protection of heredity). Ḥifẓ al-nasl does not completely fulfill the real requirements of an `illat which can abolish the abandonment of ALPS.

scholarly journals Unrestricted (absolute) rights and freedoms of man and citizen in the Constitution of the Russian Federation of 1993 and international acts

2019 ◽  
Vol 2019 (4) ◽  
pp. 69-75
Author(s):  
Aleksandr Podmarev
Keyword(s):  
Human Rights ◽  
Civil Rights ◽  
Russian Federation ◽  
Legal Status ◽  
Religious Affiliation ◽  
International Standards ◽  
Constitutional Court ◽  
Federal Law ◽  
The Russian Federation ◽  
The Individual

The 1993 Constitution of the Russian Federation as one of the principles of the legal status of an individual establishes the possibility of restricting human and civil rights and freedoms, while also providing for the necessary conditions for imposing such restrictions (the existence of a constitutional goal of restriction; setting restrictions only by federal law; proportionality; compliance with international standards of restrictions; prohibition restrictions on rights based on social, racial, national, linguistic or religious affiliation). The need for the existence of restrictions on the rights and freedoms of the individual is due to various reasons: the protection of the foundations of the constitutional order, the rights and freedoms of other persons, and the interests of the state. However, certain human rights and freedoms cannot be restricted under any circumstances; this so-called absolute rights and freedoms. But neither national legislation nor international law contain a precisely defined list of absolute rights and freedoms. The aim of the article is to identify in the Constitution of the Russian Federation of 1993 and in international acts unrestricted (absolute) rights and freedoms of a person and citizen. The relevance of the research topic for the Russian constitutional legal science is due to the fact that certainty in the understanding of the list of unrestricted rights and freedoms is necessary for the improvement of lawmaking and law enforcement activities. The article examines the provisions of the Constitution of Russia, the main international legal acts on human rights, the legal positions of the Constitutional Court of the Russian Federation.

scholarly journals LEGAL PROTECTION OF THE PARTIES IN CREDIT AGREEMENT WITH FIDUCIARY GUARANTEE AFTER THE ISSUENCE OF CONSTITUTIONAL COURT DECISION No. 18/PUU-XVII/2019

2021 ◽  
Vol 6 (2) ◽  
pp. 65-77
Author(s):  
Celina Tri Siwi Kristiyanti
Keyword(s):  
Economic Value ◽  
Legal Protection ◽  
Court Decision ◽  
Constitutional Court ◽  
Legal Certainty ◽  
Study Approach ◽  
Credit Agreement ◽  
Wheeled Vehicles ◽  
Legal Consequences

Fiduciary Guarantee Law is one of the material guarantees specifically regulated in Law No. 42 of 1999 on Fiduciary Guarantees that realizes the public's need for legal certainty but guaranteed objects still have economic value.  Article 15 of Law No. 42 of 1999 concerning Fiduciary Guarantees is felt burdensome to debtors, because creditors make forced efforts to take fiduciary guarantee objects in the form of 2-wheeled and 4-wheeled vehicles. The purpose of this study is (1) Finding and analyzing the basis of the Constitutional Court's Decision No. 18/PUU-XVII/2019 (2) Finding and explaining the legal consequences of the Constitutional Court Decision No. 18/PUU-XVII/2019 on legal protection for parties to credit agreements with fiduciary guarantees (3) Finding and explaining constraints on Financial Service Institutions (LJK) in the implementation of constitutional court decision No. 18/PUU-XVII/2019.  The research method used is juridical normative and empirical with a case study approach so that achievements are more comprehensive related to the principle of legal protection for parties in fiduciary guarantees. The result obtained that since the Decision of the Constitutional Court No. 18/PUU-XVII/2019, the executive confiscation cannot be done directly by creditors must go through a court decision. The executorial confiscation in Article 15 of Law Number 42 concerning Fiduciary Guarantee has been contrary to Article 1 (3), Article 27 (1), Article 28D (1), Article 28G (1) and Article 28H (4) of the Constitution of 1945. It takes good faith from the parties so that the implementation of the Constitutional Court Decision No. 18/PUU-XVII/2019 guarantees justice, legal certainty and provides legal protection. An agreement is required in accordance with the principle of freedom of proportionate contract, there is a balance of position between the debtor and the creditor.

On Interaction between Prosecutors and Specialists when Exercising Supervisory Powers outside the Criminal Law Sphere

2021 ◽  
Vol 16 (12) ◽  
pp. 212-220
Author(s):  
D. V. Kocheva,
Keyword(s):  
Civil Rights ◽  
Criminal Law ◽  
Legal Status ◽  
Law Enforcement Officers ◽  
Legal Regulation ◽  
Scientific Discussion ◽  
Legal Relationship ◽  
The Right ◽  
Material Form ◽  
Theoretical Developments

Prosecutors outside the criminal law sphere have the power to identify violations of the law, such as the right to demand that the heads and other officials “supervised” by the prosecutor’s office assign specialists to clarify the issues that have arisen. The conclusions of knowledgeable persons, clothed in material form, are in demand among law enforcement officers in various spheres of public life. At the same time, scientists and practicing lawyers have accumulated a number of issues concerning the legal status of a specialist in the Russian legislation, which also affect prosecutorial activities. In the paper, the author attempts to call interested researchers to a scientific discussion about the need for improvement of the legal regulation of the relevant legal relationship. Thus, the author outlines the results of the analysis of the legal regulation of the mechanism of cooperation between specialists and prosecutors in the course of the latter’s supervision over the implementation of laws, the observance of human and civil rights and freedoms, existing theoretical developments, personal experience of work in the prosecutor’s office.

scholarly journals STATUS HUKUM ANAK LUAR KAWIN PASCA PUTUSAN MAHKAMAH KONSTITUSI NOMOR 46/PUU-VIII/2010

2017 ◽  
Author(s):  
Ida Martinelli
Keyword(s):  
Science And Technology ◽  
Legal Protection ◽  
Constitutional Court ◽  
Biological Father ◽  
Legal Relationship ◽  
Civil Status ◽  
The Law

Decision of Constitutional Court gives the child outside the civil status married to the biological father, the purpose of which provide legal protection to children outside of mating, so that the child’s rights as a whole can be obtained. The legal relationship between the child outside of mating with her biological father must be proven with science and technology and/or other evidence according to the law have blood relations.

scholarly journals Separatist Creditors vs Preferred Creditors Rights in the Bankruptcy Case Based on the Decision of Constitutional Court of 2013

FIAT JUSTISIA ◽  
2019 ◽  
Vol 13 (3) ◽  
pp. 231
Author(s):  
Rilda Murniati ◽  
Desma Cahya Selvya
Keyword(s):  
Judicial Review ◽  
Legal Status ◽  
Labor Law ◽  
Bankruptcy Law ◽  
Constitutional Court ◽  
The Right ◽  
Case Based

Workers are preferred creditors whose payment must take precedence in the bankruptcy of the company. Problems in practice occur in the company's assets as collateral for debt to separatist creditors so that workers' rights are ruled out. Therefore, workers submit applications for judicial review of the Bankruptcy Law and Labor Law. This study is normative research using primary legal materials, namely laws and case study decisions that are analysed qualitatively. The results of the study and discussion determined that the Bankruptcy Law and the Labor Law regulate the same as the legal status of workers as preferred creditors who are entitled to prioritize payment in the distribution of bankrupt assets strengthened by the results of a judicial review in Decision of the Constitutional Court Number 67/PUU-XI/2013 The right of workers to wages is prioritized and calculated from collateral objects which are the rights of separatist creditors. For this reason, curators with authority must share the right of separatist creditors and preferred creditors with the principle of balance and justice so that all the assets of a bankrupt company can pay off the debts of its creditors.

The Status of Outside Marriage Children (The Study of Constitutional Court Regulation No. 46/PUU-VIII/2010 on February 27th, 2012 Based on the Fuqaha' Perspective)

2021 ◽  
Vol 2 (3) ◽  
pp. 574-584
Author(s):  
Hamam Hamam
Keyword(s):  
Civil Rights ◽  
Legal Protection ◽  
Secondary Data ◽  
Constitutional Court ◽  
Biological Father ◽  
Her Family ◽  
Library Research ◽  
Legal Implications ◽  
The Status ◽  
The Right

Fornication is a kind of jarimah (felony) resulting in confusion of the biological father. However, nowadays, there is clarity on the status of the children out of marriage. The Constitutional Court issued a decision of regulation No. 46/PUU-VIII/2010 on February 27th, 2012 about the out wedlock children who have a civil relationship and the blood rapport with their biological father as long as it can be proven biologically. This regulation drives some criticisms from various parties; the pro-side of the Court Regulation will claim it in the term of the doer of the adultery, while the contra-side of the Court Regulation will review it in the term of legalized the adultery. Furthermore, the aims of this study are: First, to know the opinion of jurists' law (fuqaha‟) about the status of the out of wedlock children; Second, to find the legal implications of the out of wedlock children after the application of the Constitutional Court regulation No. 46/PUU-VIII/2010 on February 27th, 2012 based on the Fuqaha' perspective?. Moreover, this study uses the library research. The data are collected through the documentary of the primary and secondary data sources. The collected data are, then, analyzed qualitatively by using the content analysis. The results of this study are: Firstly, This according by the Shafi'i jurists' of four and the ad-Dzahiri the out of wedlock children (bastard) are not related to their biological father, but they are related to their biological mother and her family. Secondly, This according by some groups of Hanafi and Shaykh of Islam Ibn Taymiyah corroborated by ibn Qayyim al-Jauziyyah the wedlock children (bastard) are related to the men as their biological father and their father's family. Thirdly, the Constitutional Court (MK) regulations do not have any legal implications associated on the civil relationships of the out wedlock children (natural children) with their biological father. Moreover, the attitude of the biological father is classified as a jarimah (felony), and it is entitled to a penalty of the ta'zir; it is an obligation to provide the children, which the amount is considered to the fit and proper in accordance income of his; while the other civil rights includes the right of lineage, inheritance, and the rights of guardians. The ta'zir punishments in the provision of livelihood can be executed after the filing of a lawsuit and obtain an order from the Religion Court. The provision of the living is solely to satisfy the justice and legal protection for the interests of children's rights.

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