Civil Law Legal Systems Research Articles

Reconstruction of Civil Law Systems and the Law of Obligations under the English Common Law Heritage

The central theme of this research is to illuminate the role of judicial precedents in the reconstruction of civil law legal systems around the world. Consistent with this pursuit and analysis it will be essential to explore the historical background that underpins the role of judicial precedents in civil legal systems. There are significant differences between civil and common law jurisdictions. Thus evidence will be presented to show that judges have found precedents to be persuasive when adjudicating similar cases. This research will also juxtapose the role judicial precedents against the backdrop of the doctrine of Juris Constantein the development of civil law legal systems.

Marriage Agreement on Common Property in Marriage (Comparative Study of Indonesia and The United States)

This article compares Indonesia and the United States to discuss a prenuptial agreement for joint marital assets. Indonesia adheres to a civil law legal system by basing prenuptial agreement on Article 29 of the Marriage Law. Meanwhile, the United States, which adheres to a standard legal system, implements the Uniform Premarital and Marital Agreements Act (UPMAA). The research method used in this writing is legal research with a statutory approach and a comparative approach. The results of this research are the reasons for making a prenuptial agreement, among others, because the agreement will facilitate the division of assets, which will benefit both parties in the event of a divorce and as a step to prevent conflicts from arising in the future. The difference between prenuptial agreements between Indonesia and the United States is that for prenuptial agreements in Indonesia, each couple can freely determine the contents of the prenuptial agreement as long as it does not conflict with law, religion, decency, decency, or public order. Meanwhile, in the United States, each couple has specific restrictions regarding what can and cannot be written in the prenuptial agreement. So, freedom in making prenuptial agreements is still bound and limited to specific points.

Exploring the Role of Notaries in Common Law and Civil Law Legal Systems: A Comparative Analysis of Authentic Deed Making

The role of notaries in Civil Law and Common Law legal systems, with a focus on Indonesia and Malaysia as examples of each. The Civil Law legal system in Indonesia regulates notaries as public officials responsible for making authentic deeds with strong evidentiary power in the eyes of the law. This study uses a normative research approach to explore the legal regulations governing notaries in both legal systems, by analyzing the UUJN in Indonesia and the Notaries Public Act 1959 in Malaysia. The main findings show that notaries in Civil Law have broader authority in making authentic deeds compared to Notary Public in Common Law, which focuses more on document verification and attestation. This difference reflects the characteristics of each legal system in regulating the role of notaries in maintaining legal certainty in society. Further research on these differences and similarities can provide valuable insights for legal development in both systems, as well as help formulate more effective strategies in meeting the increasingly complex and connected global legal needs.

Regulation of The Use of Marijuana for Medical Purposes: A Comparison of Civil Law and Common Law Legal Systems

This study aims to determine the Regulation of the Use of Marijuana for Medical Purposes: Comparison of Civil Law and Common Law Legal Systems. This research uses normative juridical research methods using literature studies derived from Legislation, scientific journals, books related to medical cannabis discourse and analyzed qualitatively. Regulations related to Class I Narcotics in Indonesia are regulated in Law Number 35 of 2009 and Regulation of the Minister of Health of the Republic of Indonesia Number 30 of 2023. The use of cannabis as medicine is an urgent need. European countries are at the forefront of legalizing medical cannabis. Some European countries with a Civil Law legal system have different regulations in legalizing marijuana for medical purposes based on ownership restrictions. Meanwhile, countries with a Common Law legal system establish medical cannabis legalization policies based on the needs of patients, the quality of health provision, and the protection of patient rights. This study concludes that countries with a Common Law legal system have a pragmatic, case-based legal style that functions through logical reasoning while countries with a Civil Law legal system are more about practical implications.

The Influence of Positivism and Empirism in The Enforcement of Islamic Inheritance Law in Indonesia

Positivism and empiricism are modern paradigms become the basic guidelines for the schools of legal philosophy, namely legal positivism and legal realism. However, the current condition in Indonesia is dominated by the paradigm of legal positivism so that everything must be by written law. The practice of inheritance division that is always based on the concept of 2:1 as in the Compilation of Islamic Law is felt to be incompatible with community justice. The purpose of this research is to enrich the study of the positivism and empiricism paradigms as a renewal of Islamic inheritance law in Indonesia. The benefit of this research is to inform that the integration of positivism and empiricism in law will produce competent law enforcement. This research is a normative research with a conceptual approach and data sources in the form of literature and data analysis techniques, namely evaluation. The results of this research are; (1) The factor that causes judges in Indonesia to use the judicial restraint approach excessively as a characteristic of legal positivism is the legal culture of the application of the civil law legal system. (2) The solution to the problem offered is to borrow Fazlur Rahman's double movement theory, namely historical contextualisation by taking universal values from the norm. Therefore, it is time for judges to be free to move to realize moral justice within the limits set by the Constitution and the Law on Judicial Power.

Abuse of Circumstances as a Reason for Cancellation of Agreement in the Indonesian Legal System

This research aims to find out the development of the doctrine of abuse of circumstances as a reason for canceling an agreement in the Indonesian Legal System. The proposed problem formulation contains: How is the development of the doctrine of abuse of circumstances in the Civil Law Legal System, especially Indonesia? and how is the consideration of judges in Indonesia in giving court decisions related to the doctrine of abuse of circumstances? This research includes normative legal research, with data collected based on written regulations and expert opinions. The results of this study indicate that the development of the doctrine of abuse of circumstances has been recognized in the Netherlands which adheres to the Civil Law System in the form of legislation, while Indonesia only recognizes this doctrine as limited to court decisions or has not been adapted in the form of legislation. Nevertheless, some judges in deciding civil cases in Indonesia recognize and use the doctrine of abuse of circumstances as a reason for canceling agreements in several civil cases. This shows a dilemma in the enforcement of justice in Indonesia, especially in the context of civil law considering that Indonesia adheres to the Civil Law System so that the main reference for judges in deciding cases is the law. In this case, the doctrine of abuse of circumstances has not been regulated in written civil law in Indonesia.

Regulation of Corporate Criminal Liability According To Law Number 1 Year 2023 On The Criminal Code

Corporation as a subject of criminal law that can be held criminally responsible is not known in the old Criminal Code. This is because the old Criminal Code is a legacy of the Dutch colonial government whose legal system adheres to the Continental European legal system (civil law). Countries that adhere to the civil law legal system are a little behind in terms of regulating corporations as subjects of criminal law, in contrast to countries that adhere to the common law legal system, which has regulated corporate liability and this has started since the industrial revolution. In Indonesia itself, the regulation on corporation as a subject of criminal law is regulated in the Law outside the Criminal Code. Meanwhile, the new Criminal Code has regulated corporations as legal subjects that can be held criminally liable. As regulated in Article 45 to Article 50, Article 56, and Articles 118 to 124 of Law No. 1 of 2023 on the Criminal Code. Although prior to the enactment of Law No. 1 of 2023 on the Criminal Code there was already Perma No. 13 of 2016 concerning Procedures for Handling Criminal Cases by Corporations and Regulation of the Attorney General of the Republic of Indonesia Number PER-28/A/JA/10/2014 concerning Guidelines for Handling Criminal Cases with Corporate Legal Subjects. Prior to the issuance of the regulation, the Attorney General's Office had first issued Circular Letter of the Attorney General of the Republic of Indonesia Number B-036/A/FT.1/06/2009 regarding Corporations as Suspects/Defendants in Corruption Crimes addressed to the Head of High Prosecutors throughout Indonesia. Thus, Corporations as a subject of criminal law can already be held criminally liable with the strength and legal certainty stipulated in the New Criminal Code.

Perbandingan Penerapan Yurisprudensi Pada Sistem Hukum Civil Law Dan Cammon Law Antara Indonesia Dan Australia

Every country must have a legal system that is used either civil law or common law. Both systems make jurisprudence a source of law in resolving cases in court. The purpose of this study is to examine and analyze the comparison of the application of jurisprudence in the State of Indonesia which adheres to a civil law legal system and Australia which adheres to a common law legal system. this research includes juridical-normative research using a comparative approach, which is an approach taken to compare the laws of one country with the laws of another country and a conceptual approach. the main legal source in civil law law is statutory provisions, but jurisprudence also plays an important role in the application of law in the civil law legal system. While the Common Law legal system whose main source of law is (judge made by law / binding force of precedent), where legal issues are resolved in court cases and the results are reflected in the judge's decision (jurisprudence).

Studi Komparasi Hukum atas Perlindungan Hukum Hak Cipta pada Media Elektronik dalam Common Law dan Civil Law

This article aims to compare the legal protection of copyright in electronic media in common law and civil law. This research adopts normative legal research methods. This method is used to understand, explain, and evaluate normative aspects of the legal system. The research results show that the Common Law system relies on precedents and previous court decisions as the main source of law. Copyright laws may be more general and may evolve through court interpretation. Copyright is automatically granted when a creative work is created without formal registration requirements. Meanwhile, the Civil Law system has more detailed and codified coverage of the law. Copyright law is often regulated in specific and detailed copyright statutes. In some Civil Law systems, copyright registration is an important requirement to obtain legal protection. Copyright may not be granted automatically and requires registration steps. Similarities in Copyright Protection The Common Law and Civil Law legal systems lie in the legal system generally recognizing copyright as the exclusive right of the owner of a work to control the use and distribution of his work. In the context of international protection, both Common Law and Civil Law generally follow international agreements such as the Berne Convention to protect copyright across borders.

Examining the environmental tax and the fishing grounds footprint nexus: Case of the African fishing industry

AbstractThe implementation of environmental stringent policies faces a trade‐off between ensuring livelihood sustainability and reducing global fishing footprints. This study investigates the impact of environmental tax on fishing footprints in 23 African countries from 2000 to 2018, using the smoothed instrumental‐variables quantile regression approach. The need to establish a sustainable fishing business in Africa, considering the growing fishing footprint, and investigate if environmental levies could help achieve this goal are the driving forces behind this study. The findings reveal that environmental tax reduces footprints in African fishing grounds up to the 0.75th quantile, beyond which its impact remains insignificant in its conditional distribution. More importantly, environmental tax stringency‐reducing impacts are only apparent in the coastal and middle‐income groups up to the 0.90th and 0.50th quantiles, respectively. Environmental tax appeared to only contribute to reducing fishing footprints beyond the 0.75th quantile with higher levels of pollution tax across its conditional distribution in landlocked countries, but remaining insignificant in the low‐income group. The insignificant impact on the low‐income group is due to relatively relaxed environmental regulations that are unable to address the ecological deficit. The findings further indicate that digital infrastructures and financial development can contribute to enhancing fishing grounds biocapacity, in promoting environmental awareness and ecofriendly strategies. These findings are significant because they show that, regardless of whether environmental standards are governed by common law or civil law legal systems, environmental taxes can be utilized to stop deleterious ecoenvironmental practices within the African fishing industry. The study recommends that policy makers adopt more stringent environmental regulations, particularly for the landlocked countries, whose limited fishery grounds biocapacity has dropped in recent years.

PENGARUH SISTEM HUKUM COMMON LAW TERHADAP SISTEM HUKUM INDONESIA

Indonesia as a legal country adheres to a legal system influenced by colonial countries, namely the Netherlands which adheres to the Continental European legal system or Civil Law System. The aim of this research is to determine the influence of the common law legal system on the Indonesian legal system. This research uses legal research with a normative juridical approach. The research results show that the influence of the common law legal system on the legal system in Indonesia is much related to economic activities, including business contracts, court decision making is also affected by this legal system, such as arbitration and commercial advertising in resolving contract disputes. Meanwhile, regarding the influence of common law in business contracts in Indonesia, it can be seen from the first entry of foreign capital. The implementation of legal institutions originating from the Common Law legal system in Indonesia which adheres to the Civil Law legal system shows that there is a situation of mixed legal systems (mixed jurisdiction). With the entry of the Common Law legal system into Indonesia's economic institutions, the law requires adjustments because the law must provide legality for all changes that occur.

UNDERSTANDING THE DECISION OF THE CONSTITUTIONAL COURT NUMBER 90/PUU-XXI/2023 IN THE PERSPECTIVE OF CIVIL LAW AND COMMON LAW PERSPECTIVES

This research discusses the understanding of the Constitutional Court Decision Number 90/PUU-XXI/2023 in the perspective of Civil Law and Common Law. The decision has a significant impact on the Indonesian legal system, because it contains interpretations and implications that are relevant to both legal systems. significant differences which are then applied to adherent countries in accordance with the spirit of law enforcement. As for Indonesia, the use of the legal system is more inclined to the Civil law legal system even though it also implements several rules in the Common Law legal system, so that the application of the legal system in Indonesia is more suitable to be called prismatic. The results of this research are expected to contribute to the development of legal thinking in Indonesia and become an important reference for legal practitioners, academics, and policy makers in drafting or revising relevant laws.

The Sociological Perspective on The Study of The Living Law: Is It a Part of Legal Discipline or Social Discipline?

The legalistic positivist Civil Law tradition still dominates legal thinking in Indonesia. Therefore, law is often only defined as legislation. Law that is realized in norms is postulated in the form of laws. Whereas outside state law there is also a law that grows and develops in society which has a very effective force. The law is known in the concept of The Living Law which is translated by academics in Indonesia as Customary Law, where the law is realized in the attitude of legal action. Its existence as an embodiment of the original Indonesian Legal system is different from the Civil Law legal system. The problem is when each claims the truth of the law. Meanwhile, if we look at the legislation, the existence of Customary Law as The Living Law is highly dependent on state recognition. Therefore, to understand and explain it brings methodological consequences that use an external perspective. The question that arises is whether the law embodied in the attitude of legal action can be interpreted sociologically? If it can, is this sociological study part of the study in the discipline of law or is it a study of social disciplines? This paper will argue about the importance of an interdisciplinary perspective in the study of legal disciplines, such as the Sociology of Law in the study of The Living Law.

Changing Forms of Maximalism in the Decision-Making of the Czech Constitutional Court

Abstract The article analyses how wide and general conclusions are formulated in case law, using a sample of decisions of the Czech Constitutional Court from 1998 and 2018. The article shows tendencies towards institutionalisation of maximalist decision-making in the form of formulating general principles as starting points for decisions made in individual cases. Another important observation is connected with the changing form of maximalist judicial decisions, shifting from maximalism characterised by depth of the reasoning towards maximalism manifested in the width of impacts of an individual case, whereby the Czech Constitutional Court has been strengthening its position vis-à-vis other branches of government. In the conclusion of the article, it is emphasised that maximalism, in terms of separation of powers, rather represents an anti-systemic element in the laws of countries with civil-law legal system, such as the Czech Republic.

Exploring Contemporary Issues and Key Takeaways: A Comparative Analysis of Civil-Law Notary Laws in Indonesia and Louisiana

Notary as a public official authorized to make authentic deeds in each country has its own rules by adhering to the civil law and common law legal systems, this is specially true for Indonesia and Louisiana which have similarities in adhering to the civil law legal system. This study aims to compare the legal arrangements of notaries in Indonesia and Louisiana where to examine contemporary issues or important points found from legal comparisons. This method uses a type of normative legal research with a comparative approach, statute approach, and conceptual approach made from primary and secondary laws, which are collected using document research techniques in a description analysis. The results and findings of this comparative analysis are that there are significant differences related to notaries from countries that both adhere to the civil law legal system, this can be seen in terms of history, qualifications, duties and authorities to become a notary, sanctions and resolutions for violations that will occur. This legal difference raises interest in the realm of notaries which is expected through this research can be one of the supporting sources for the Indonesian state to discover the findings of notaries in various jurisdictions so as to improve positive law and or at least form a deeper body of knowledge in the field of notaries.

A Comparative Analysis of Contract Law in Common Law and Civil Law Jurisdictions

Contract law's key tasks include the creation, interpretation, and enforcement of agreements between parties. As a result, contract law is seen as an essential component of all types of legal systems. However, due to the distinct historical, cultural, and judicial contexts of common law and civil law states, the development of contract law has taken a different path in each of these jurisdictions. A comparison is made between the core ideas, central concepts, and different approaches that are characteristic of contract law in common law and civil law regimes. the beginnings and development of contract law within the context of both the common law and the civil law legal systems. the development of contractual ideas, shedding light on the various foundations that continue to have an impact on contemporary legal philosophy, and making reference to the legacy left behind by the Roman law tradition and the English common law history. a comparison and contrast of the impact of reasoning based on precedent in common law and codified statutes in civil law is used to illustrate the various techniques that are used to govern the interpretation and adjudication of contracts.

Geography has little impact: a comparative study on the role of judges in Singapore and Indonesia in the taking of evidence in civil proceedings

ABSTRACT Indonesia and Singapore are neighbouring countries with vibrant economic relations. Despite the geographical proximity, the legal systems in both countries are strikingly different. The author suggests that the most influencing factor of a country’s legal system is often its former colonial master. Singapore (a former British colony) applies the common law legal system while Indonesia (a former Dutch colony) applies the civil law legal system. Chan and van Rhee suggest that the differences between the two legal systems are often exaggerated, but differences remain. This paper sets out these differences with a focus on the judges’ role in taking evidence in civil proceedings, given the inevitable fact that disputes would arise among the business players of the two countries and that taking of evidence is an essential part that may be decisive to the outcome of a dispute. Doctrinal and comparative methods will be used, namely through analysing various procedural laws as found in the statute, case laws, as well as commentaries. This paper contributes to the scant collection of comparative literature on the two legal systems and assists business players in understanding better the procedures of taking evidence applied by the relevant dispute resolution forum that they can choose to resolve their commercial disputes.

Waivers of Constitutional Court Decisions by the Supreme Court Regarding Manpower Laws

The definition of force majeure as a situation that occurs beyond the control of the parties. However, there is a difference, namely in the first definition it is clearly stated that the failure to perform the agreement must cause a loss as a consequence of the failure to perform the agreement. The parties want to carry out the performance according to the contents of the agreement, but there are certain circumstances that make an agreement potentially unenforceable. These circumstances are commonly referred to as force majeure or force majeure. Circumstances where the parties or one of the parties cannot fulfill the performance not because of personal fault, but because of the nature that arises as a barrier to the fulfillment of achievements that result in certain sectors, especially the economy. Achievement can be interpreted as a debt that is an obligation that must be fulfilled by the debtor. Where the debtor is the one who performs an achievement in an engagement. Based on that, it can be understood that achievement is an obligation that must be carried out by a debtor arising from an engagement. Achievement can also be related to the fulfillment of obligations due to the consequences of the contract (contractual obligations). Thus, achievement can be interpreted to include contractual obligations and the fulfillment of legal obligations in general in the context of binding law. Achievement also not only includes obligations born due to contractual but also obligations born due to legislation. The interpretation of achievements like this is closely related to the legal system of ties that exist in the Civil Law legal system where ties are born and sourced from ties and legislation. The parties want to carry out the performance according to the contents of the agreement, but there are certain circumstances that make an agreement potentially unenforceable. These circumstances are commonly referred to as force majeure or force majeure. A situation where the parties or one of the parties cannot fulfill the performance not because of personal fault, but because of the nature that arises as a barrier to the fulfillment of achievements that result in certain sectors, especially the economy. So that this situation raises a situation for both parties, both the state of not being able to carry out the achievement and the state of not accepting the obligation of achievement from the other party which can make a loss for the party who will accept the obligation of the achievement, as long as these things for obstacles to carrying out achievements are true also have a legal basis and can be proven in reality, then there are no things that can make someone held accountable, but after the situation is gone, the party who is obliged to excel must carry out his performance, because in fact the achievement is a debt that must be settled with the obligations agreed upon by the parties.

Penguatan Gugatan Citizen Lawsuit/Action Popularis sebagai Upaya Perlindungan Hak Konstitusional atas Jaminan Penegakan Hak-Hak Konstitusional Warga Negara terhadap Perbuatan Melawan Hukum oleh Negara

Purpose: Citizen Lawsuit or Citizen Lawsuit against State officials is actually not known in the Civil Law legal system as applied in Indonesia. Citizen Lawsuit itself was born in countries that adhere to the Common Law legal system. Methodology: Citizen Lawsuit can be applied as the basis for filing a lawsuit against the law contained in the preamble of the constitution or the 1945 Constitution as a guaranteed basic right, from a number of arrangements regarding human rights (HAM), through the Law of the Republic of Indonesia No. 39 of 1999 concerning Human Rights, and in the realm of administrative law, namely the Law of the Republic of Indonesia concerning Consumer Protection No. 8 of 1999. However, these arrangements are not explicitly regulated. For its application in the judiciary, Law No. 48 of 2009, on Judicial Power, states that judges may not refuse to handle cases. The laws and regulations previously described have been widely used by citizens in filing Citizen Lawsuits in Indonesia so far.. Results: The concept of a Democratic state adopted by Indonesia, regarding sovereignty in the hands of the people, according to the author can be implemented properly by streamlining so that the concept of Citizen Lawsuit, because it is in accordance with the objectives of law in Indonesia, especially equal rights before the law between the State and Citizens.

Studi Komparatif Penerapan Restorative Justice Di Negara IndonesiaDan Amerika Serikat

The concept of restorative justice is increasingly developing and being adopted by several countries in the worldwith different names, the United States calls it victim offender mediation, while in Indonesia it is known as theconcept of restorative justice. This study aims to find out the differences between the legal systems of Indonesiaand the United States, as well as find out the similarities and differences of restorative justice in Indonesia and theUnited States. The research method used is normative juridical with a comparative approach. The results of thestudy show that the differences in the legal systems in Indonesia and the United States are influenced by the formof the state, Indonesia with the form of a republican unitary state that adheres to a civil law legal system, in whichwritten legal regulations are used as laws and legal basis that must be obeyed by all citizens within the territory ofthe unitary Indonesia. Whereas the United States as a federal country that adheres to the common law legalsystem, has several laws that serve as its basis, federal law as the highest state law that applies to all states, andstate law that only applies to each state. In the application of restorative justice, Indonesia and the United Stateshave similarities, namely, its application is limited to minor crimes and applies to both juvenile and adult justice,the application of restorative justice aims as an effort to reduce inmates to prevent overcapacity in detentioncenters. The difference in the application of restorative justice in Indonesia is that laws regarding restorativejustice apply to all communities and regions within the scope of the unitary state, whereas in the United Stateseach state has different laws regarding the application of restorative justice, there are at least forty-five out offifty states that have incorporated restorative justice into state laws.