scholarly journals ASAS INTEGRASI DALAM UNDANG-UNDANG KEPAILITAN VERSUS CITA-CITA KODIFIKASI DAN UNIFIKASI HUKUM ACARA PERDATA

2018 ◽  
Vol 4 (1) ◽  
pp. 159
Author(s):  
Dewa Nyoman Rai Asmara Putra
Keyword(s):  
Law Enforcement ◽  
Civil Rights ◽  
Task Force ◽  
Civil Law ◽  
Legal Reform ◽  
Civil Procedure ◽  
Legal Certainty ◽  
Conceptual Approach ◽  
National Legal System ◽  
Is Integration

Civil procedure has important role in enforcing civil rights. Therefore codification and unification of civil procedure may guarantee the legal certainty which necessary and urgent in law enforcement. Philosophically, codification and unification is an idea in the development of national legal system. The regulation of civil procedure until nowadays is distributed into many parts of law and regulation, which mostly inherited from the Dutch Colonial Administration or substantive statutory laws enacted by the Indonesian legislative body and government. Since 1967, the bill of civil procedure had been ratifi  ed in 13th plenary session of National Legal Reform Task Force (BPLPHN), which expected to be the new Indonesian civil procedure. However, until today, the bill is not ratifi  ed yet to be a law by the parliament. There is an idea of codification and unification of civil procedure, on the other side there is integration principle, which adopted in Law of Bankruptcy and Suspension of Payment. The integration principle means that all civil procedural laws should be into one system of civil law. The main issue is that whether integration principle align with the idea of codification and unification. This article will answer the issue as a result of doctrinal research with statutory approach and conceptual approach.

Lessons from St. Petersburg: Commerce and Civil Law

2009 ◽  
Vol 34 (2) ◽  
pp. 107-117
Author(s):  
Keyword(s):  
Eighteenth Century ◽  
The Netherlands ◽  
Legal History ◽  
Civil Law ◽  
Legal Reform ◽  
Collaborative Effort ◽  
Legal Certainty ◽  
Critical Factors ◽  
Reform Processes ◽  
Similarities And Differences

AbstractThrough the prism of legal history, the author links the circulation of ideas in the eighteenth century between Russia and The Netherlands with Russian-Dutch collaboration at the end of the twentieth century: codification as a tool to provide legal certainly. The concern that the transition in the new Russia of the 1990s to new social and economic models would quickly give rise to legal uncertainty was one of the critical factors pushing for the rebirth of Russian civil law.The collaboration between Russian and Dutch legal scholars and practitioners was grounded in legal reform processes—similar at one level and quite different at another. The author (for the last decade and one-half, a member of this collaborative effort) discusses the similarities and differences in the results flowing from these processes: fundamental principles and formalities being two examples. He also considers the balance between legal certainty and flexibility.The reader is reminded, however, that this has been a two-way street; the case of recent reforms governing the judiciary in Russia is cited by the author as a part of the legal fabric from which The Netherlands might have more to learn from Russian than vice versa.

scholarly journals Realization of res judicata principle in civil proceedings: the experience of foreign countries

2020 ◽  
pp. 220-225
Author(s):  
Tetiana Tsuvina
Keyword(s):  
Common Law ◽  
Civil Law ◽  
Civil Procedure ◽  
Court Decision ◽  
Court Decisions ◽  
Legal Certainty ◽  
Res Judicata ◽  
Foreign Countries ◽  
Negative Effect ◽  
The Subject

  The article is devoted to the analysis of res judicata as an essential element of the legal certainty. Res judicata is considered to be one of the main guaranties of the legal certainty principle in civil procedure which allows a stability of the court decisions in democratic society and increase the public confidence to judiciary.  The author analyzes national characteristics of the realization of the principle of res judicata in civil procedure of foreign countries. The author explores the preclusion effect of court decisions, highlighting two effects of the res judicata principle: positive and negative one. The negative effect of res judicata is aimed at preventing the re-consideration of identical disputes between the parties if the dispute has already been resolved by the court, in turn, the positive effect of res judicata allows the parties to refer to circumstances that have already been established by a court decision in the dispute between them, in new proceedings, where they are involved. It is concluded that there are significant differences in the understanding of this principle in common law and civil law legal systems. The common law countries have a broad understanding of the res judicata principle, which includes positive and negative effects, and is implemented through such institutions as the claim preclusion and the issue preclusion. Civil law countries follow a narrow approach to understanding of res judicata principle, which is limited only by the negative effect and is reflected in the claim preclusion, which blocks filing an identical claim if there is a final court decision on the dispute between the parties. In common law jurisdiction there is a wider conception of the “claim”, according to which it is understood in the context of entire dispute and comprise all claims based on the legal relationship between the parties, whether or not they were the subject of court proceedings. At the same time in civil law countries identity of the claims can be notified with the help of the triple identity test, which contains the identity of the subject of the claim, the identity of the cause of action and the identity of the parties of the claim.

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 Reformulation of Dispute Resolution Mechanisms for Public Information Requests to Achieve Constructive Law Enforcement and Legal Certainty

2021 ◽  
Vol 4 (1) ◽  
pp. 25
Author(s):  
Peter Jeremiah Setiawan ◽  
Xavier Nugraha ◽  
Elma Putri Tanbun
Keyword(s):  
Law Enforcement ◽  
Criminal Law ◽  
Logical Consequence ◽  
Public Information ◽  
Legal Certainty ◽  
Civil State ◽  
Conceptual Approach ◽  
Public Agency ◽  
State Administration ◽  
Information Requests

The nature of law enforcement in resolving multi-dimensional information disputes has a logical consequence on the need for constructive law enforcement. This research aims to examine the forms of law enforcement that exist in resolving disputes over requests for public information and to formulate a constructive mechanism to realize a series of law enforcement procedures with legal certainty. This research is normative legal research using a statutory and conceptual approach. The results showed that law enforcement in the settlement of public information disputes consists of the objection, non-litigation adjudication, and litigation covering civil, state administration, and criminal law. In this case, The Criminal law instruments are placed as the final law enforcement if the relevant public agency does not carry out a decision that has permanent legal force. In addition, in the context of realizing comprehensive and constructive law enforcement, a Memorandum of Understanding was held between the Information Commission and the Police to synergize and effectively implement the criminal law as a final resort.

scholarly journals On the issue of restriction of individual rights in civil law. Correlation between the concepts of restriction and encumbrance of civil rights

2021 ◽  
pp. 146-150
Author(s):  
V.M. Marovdi
Keyword(s):  
Civil Rights ◽  
Civil Law ◽  
Fundamental Principle ◽  
Individual Rights ◽  
Basic Law ◽  
National Legal System ◽  
Definition Of ◽  
The Right ◽  
The Relationship ◽  
Work First

In this article the author considers the concept of restriction of individual rights in civil law, as well as the re-lationship between the concepts of restriction and encumbrance of civil rights. First of all, the lack of a legislative definition of the concept of restriction of individual rights in civil law, as well as the ambiguity of the position of the legislator on the use of the term restriction and its place among related conceptsIn writing this work, first of all, attention was paid to the Constitution of Ukraine, which is the Basic Law, which serves as a guide that establishes the general boundaries of human and civil rights. The connection of the provisions of the Constitution with the norms of the Civil Code of Ukraine within the framework of the chosen topic was presented. Emphasis is placed on the fundamental principle according to which the national legal system is built, namely: “everything is allowed that is not expressly prohibited by law.”The views of some scholars who adhere to their vision of the concepts under study are given. In addition, in this study, the relationship between the concepts of restriction and encumbrance of individual rights in civil law. In the process of writing this work, the positions of legal scholars who had relatively similar positions were given. They distinguish between the above concepts, and provide the relevant features. However, outside the scope of this study were many works of scientists who do not see a difference in these concepts.None of this was left out of the regulatory framework for the definition of the above concepts at the legislative level. In particular, it was found that in contrast to the concept of restriction of individual rights, including in civil law, the current legislation contains a definition of encumbrance. There are several acts that provide this definition. And in all cases, the definition is different.Based on the analysis of regulations, it was found that the legislator does not consistently approach the definition of encumbrance. In particular, in some cases the latter includes the encumbrancer’s right to the debtor’s movable property or restriction of such right, in others - prohibition or restriction of disposal and / or use of real estate, and in some cases the legislator identifies encumbrances and restrictions.According to the results of the study, the conclusions on the failure to define in national law the concept of re-strictions on the rights of persons in civil law, as well as the lack of a clear distinction between the concept of restric-tion of the right of person and encumbrance, in particular under civil law. There is a position on the need for further research on relevant topics, which will ensure clarity and clarity of the law, and promote its effective application, as well as consensus on this issue among scholars.

scholarly journals TINJAUAN YURIDIS PENEGAKAN HUKUM MALPRAKTIK DOKTER PADA PELAYANAN KESEHATAN DALAM PERSPEKTIF HUKUM PIDANA

2020 ◽  
pp. 47
Author(s):  
Budi Handoyo
Keyword(s):  
Law Enforcement ◽  
Medical Malpractice ◽  
Health Workers ◽  
Medical Profession ◽  
Criminal Liability ◽  
Health Sector ◽  
Medical Personnel ◽  
Criminal Code ◽  
Legal Certainty ◽  
Conceptual Approach

The problem of malpractice committed by doctors and medical personnel in health care is an act that is very detrimental to the patient in conducting treatment can result in worsening medical conditions, or death of a patient. Errors in carrying out the medical profession will form criminal liability. Therefore, it is necessary to have a special legal certainty in the health sector to provide legal justice for injured patients. the research used is normative juridical research or normative law. The approach taken is, the law approach, case approach and conceptual approach. Based on the results of the discussion, it was found that the process of criminal law enforcement for medical malpractice cases is regulated in Article 360 paragraph (1) and (2) of the Criminal Code which contains elements of negligence (kulpa) of doctors or medical personnel. To provide a stronger guarantee of legal certainty, law enforcement for medical malpractice and health workers is regulated in Law No. 36 of 2009 concerning Health and Law No. 36 of 2014 concerning Health Workers.

scholarly journals Intensification of Application of the Analogy of Law in Overcoming Civil Law Uncertainty

2021 ◽  
Vol 16 (8) ◽  
pp. 63-71
Author(s):  
V. A. Mikryukov
Keyword(s):  
Law Enforcement ◽  
Civil Law ◽  
Law Enforcement Officers ◽  
Direct Application ◽  
Legal Certainty ◽  
Economic Relations ◽  
Judicial Practice ◽  
Administration Of Justice ◽  
The Supreme Court ◽  
The Russian Federation

The purpose of the paper is to show how actively and effectively the mechanism of analogy of law is used in modern practice of applying civil legislation. Based on the analysis of judicial acts in specific cases, the author substantiates the conclusion concerning the regularity of the expansion of the application of the analogy of law in judicial practice. The importance of using this mechanism to ensure the absence of gaps in law is demonstrated not only for the administration of justice, but also for effective civil law regulation of the continuously developing economic relations of organizationally and property-separated enterprising participants (subjects). The author substantiates a new view on the correlation between the increase in the volume and detail of the normative material and the level of civil legal certainty and with the degree of demand for the analogy of law in the activities of law enforcement officers. It is proposed to keep selecting and examining specific examples of the use of the analogy of law in the resolution of civil disputes in order to provide generalizations and explanations of the practice of direct application of the principles of civil legislation at the level of the Plenum of the Supreme Court of the Russian Federation.

PENEGAKAN HUKUM TINDAK PIDANA PUNGUTAN LIAR YANG DILAKUKAN DESA ADAT DITINJAU DARI PERSPEKTIF HUKUM PROGRESIF

2020 ◽  
Vol 17 (1) ◽  
pp. 86-95
Author(s):  
Ni Luh Sri Mahendra Dewi
Keyword(s):  
Law Enforcement ◽  
Task Force ◽  
Law Enforcement Officers ◽  
Conceptual Approach ◽  
Enforcement Action ◽  
Procedural Law ◽  
Construction Techniques ◽  
Illegal Acts ◽  
Substantive Justice ◽  
Materials Used

Since the issuance of Presidential Regulation No. 87 of 2016 concerning the Clean Sweep Task Force (Satgas Saber Pungli), several times law enforcement officers have arrested the officers of the Adat Village who have levied in their territories. These levies are carried out based on the awig-awig and/perarem applicable in the Customary Village, but in the perspective of the Pungli Saber Task Force, these levies are qualified as criminal acts of illegal levies. The law enforcement action creates unrest and raises polemics within the community, so it is important to be investigated. This study aims to identify and analyze two problems, namely (1) regarding the efforts made by law enforcers on acts of illegal fees carried out by Adat Village; and (2) the need for progressive law enforcement against illegal acts of crime committed by Desa Adat. The above problems were examined using normative legal research methods, with a legal approach and conceptual approach. The materials used in this study include legal materials (primary legal materials and secondary legal materials) and non-legal materials, which are collected through literature search techniques in libraries and the internet. The materials that have been found are then read and recorded. After the relevant research materials are collected, they are then processed and analyzed by reasoning techniques and legal arguments, such as legal construction techniques and legal interpretation. The overall results and discussion of this study are presented descriptively. The results of the study show the following conclusions. First, the legal efforts taken by law enforcers against illegal acts of crime committed by Desa Adat are to enforce procedural law with an orientation that emphasizes the provision that anyone who levies outside the statutory provisions qualifies as illegal levies, so that it must be processed law. Second, law enforcers need to implement progressive law enforcement in dealing with illegal acts of crime committed by Desa Adat in order to provide substantive justice to the Desa Adat who carry out levies based on the adat village perarem. Keywords: Customary Village, Illegal Levies, Progressive Law Enforcement.

scholarly journals LEGAL CERTAINTY AS AN EVALUATIVE CATEGORY IN CIVIL PROCEEDINGS

2020 ◽  
pp. 3-7
Author(s):  
M.A. Bolovnev ◽  
I.V. Rekhtina
Keyword(s):  
Law Enforcement ◽  
Civil Procedure ◽  
Judicial Discretion ◽  
Legal Certainty ◽  
Legal Proceedings ◽  
Effective Implementation ◽  
Judicial Practice ◽  
Civil Proceedings ◽  
Subsequent Application ◽  
Judicial Protection

The article explores the effect of the legal certainty of civil procedure legislation and its application onthe creation of appropriate conditions for the effective implementation of justice. It is stressed that the lack of legal certainty, namely, its opposite — legal “uncertainty,” creates both legislative conflicts and, even moresignificantly, law enforcement problems, which significantly reduce the accessibility of justice to personsin need of judicial protection. The courts used different procedural rules, using a formalistic approach,jeopardizing the delivery of a lawful and justified judicial act. In order to overcome the state of legaluncertainty and, as a result, to improve the efficiency of legal proceedings, it is necessary to use techniquesof legal technique that do not lead to the emergence of causal rules of law. The model of the most generalrules is capable of being applicable to any emerging procedural situation, taking into account systemic andtargeted modes of interpretation. It is this approach to the construction of the system of legislation, togetherwith the subsequent application of the rules on the basis of internal conviction and judicial discretion, thatwill ensure the unity of judicial practice.

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.

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