Contoh Sistem Hukum Civil Law Di Indonesia


Even if the formation of laws and regulations is a consequence of the continental legal system adopted by Indonesia, this does not mean that the process of its formation can be carried out arbitrarily. Community. Before Indonesia was colonized by the Dutch, laws used customary law to settle disputes that arose in the community. Public law includes the legal regulations that govern the power and authority of the ruler / state, as well as the relations between society and the state, including in this public law: one of the reasons for the need to combine the differences between the two legal systems due to the development of civilization with the progress and interconnection of information via the Internet, that goes beyond the limits of forced changes to the legal system. By bringing information closer to communication between countries, they will have a mutual impact on each other`s legal systems. Influence in a positive sense, because it is indeed of no use if you always give priority to existing differences. In the age of digitization and globalization of information, state barriers can no longer be maintained. These conditions are slowly mitigating two differences in the main common law and civil law legal systems in some areas. The common law (Anglo-Saxon) is a legal system originating in England and developed in its colonies. The common law legal system is based on court decisions as a source of law.

Meanwhile, the civil legal system (continental Europe) that applies in continental European countries and their colonies, including Indonesia, adheres to the codification of laws to be its main source of law. In addition, the judicial system of the civil justice system is inquisitorial (judges play a major role) in the management and decision of a case they are handling. With two legal systems that are not the same, there should always be a dichotomy in both by not trying to find common ground behind the differentiation of the two legal systems. Of course, with various global social phenomena occurring, it should be pursued with the differences between the two legal systems between the civil legal system and the common law legal system. Why and should this continue? Indonesia, as a country that adheres to the legal system of continental Europe (civil law system), the existence of laws and regulations is very important, because if it is the principle of legality, which means that any governmental action must have a basis in the applicable laws and regulations. Therefore, in the absence of a basis of authority granted by an ordinance, not all types of government officials will have the authority that can influence or alter the circumstances or legal positions of their citizens. Another concept recognized by other countries is the concept known in the oil and gas and mining industry, such as the concept of profit sharing, which was then known as the Production Sharing Contract (PSC) for the oil sector, where this legal concept was accepted through the implementation of international agreements between Indonesian parties and foreign companies with different legal backgrounds. Even in 2017, Indonesia launched the legal concept of gross split (GS), although it is still in the controversy phase to replace cost recovery (CS). This shows that the civil law system can also influence the common law legal system.

With the above image, there is an acculturation of the legal system from one to the other due to the influence of the rapid development of information technologies and the ability to penetrate the barricades of obstacles that exist in this world. For the above reasons, the dichotomy between civil law and common law should be brought to an immediate end. The director of the Van Vollenhoven Institute for Law, Governance and Development, Professor Jan Michiel Otto, notes that the difference between common law and civil law has become smaller. Even in the Netherlands, as a supporter of the civil justice system, it has been argued that court decisions are important as an alternative source of law. Nowadays, many students have also begun to learn jurisprudence (cases or court decisions) as part of the lesson to be learned. For example, in the conference «Laws against the law» (onrechtmatige daad). In Indonesia, for example, although the legal system differs from civil law, in some areas, particularly in corporate law, business concepts from the common law system have been adopted along the way, such as the concept of: fiduciary duties, commercial judgment rule (BJR), piercing corporate veil (PCV), Ultra Vires vs Intra Vires, shareholder derivative action, corporate social responsibility (CSR), not all of which come from Indonesia. However, the whole of the above concept has been regulated in the Limited Liability Companies Act No. 40 of 2007 (UU-PT).

Although the above is not explicitly acknowledged, they have been regulated and have become provisions of the UU-PT. This shows that Indonesia has implicitly accepted the legal concepts of pt in the common law legal system. The reverse is also the case, namely the recognition and acceptance of Indonesia`s legal concepts within the framework of international law, including countries with the common law legal system, such as the concept: Wawasan Nusantara in International Law of the Sea (UNCLOS 1982), which was initiated by Prof. Dr. Mochtar Kusumaatmadja, SH, LLM. The Indonesian legal system adheres to the legal system or civil law of continental Europe. This can be seen from the history and politics of the law, the source of the law, and the law enforcement system. However, over time, the boundaries between public and private law are increasingly blurring. In 1848, the Civil Code, the Commercial Code, the Code of Civil Procedure and the Code of Criminal Procedure applied to the Dutch population in Indonesia. Private law includes the legal provisions that govern the relationship between individuals to meet the needs of life for their lives.