Continental European Legal System Research Articles

Tinjauan Yuridis Pelaku Tindak Pidana Kejahatan Seksual pada Anak dibawah Umur

The criminal act of sexual violence that often disturbs society is sexual violence against children committed by adults. This is because children are physically weak so it is easier for adults to commit crimes. This research uses a type of normative juridical legal research. The research approach method used in this research is a statutory approach and an analytical approach. In this research, secondary data is used, namely data obtained from library research by collecting legal materials. Conclusions are made deductively, which means drawing conclusions from general things to specific things. Based on the results of research and discussion of the Juridical Review on Punishment for Perpetrators of Sexual Relations with Children, in this case the judge determines whether a person is guilty or not because the judge is God's representative in determining the length of the sentence. guided by the minimum and maximum threat provisions formulated in the law. -invitation. The minimum and maximum criminal threats have been formulated generally in the Criminal Code, while the minimum and maximum criminal threats have been specifically formulated in every law outside the Criminal Code, and the judge's advice in handling cases of criminal sexual violence against children must pay attention to the laws in force in Indonesia , because Indonesia adheres to the Continental European legal system which places legislation as the main source, so that justice can be guaranteed to everyone who comes into contact with the law.

Perbandingan Pengaturan Tata Hukum Antara Indonesia dan Amerika Serikat

Perhaps the most important development in patients' rights has been that in Indonesia and the United States regarding the doctrine of informed consent. Embracing the Continental European legal system, the doctrine of informed consent in Indonesia is articulated in Law No. 36 of 2009 on Health, Government Regulation No.32 of 1996 on Health Worker, Law No.29 of 2004 on Medical Practice, and Law No. 8 of 1999 on Consumer Protection. It is also specifically regulated by Health Ministerial Decree No. 29 of 2008 regarding Medical Action Approval. This doctrine requires physicians to share certain information with patients before asking for their consent to treatment. The Court in the United States of America used the term of informed consent to describe the physicians obligations to provide information. The legal consequences if informed consent is not given, it is considered as an act of abuse (intentionally) to the patient. According to Rule of law in the United States that physicians have to open all the information about all the necessary facts, so that patients can determine appropriate treatment options. Tort Law in Anglo-Saxon legal system, similar to "act against the law" in the Continental European legal system. This article examines a comparative study of informed consent in the Indonesian Health Laws and regulations and those of the United States.

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.

Procedural Conditions for the Admissibility of an Expert's Opinion as Evidence in a Criminal Case

The proposed work examines the issues of the admissibility of such type of evidence as an expert opinion, which are traditional for any country with a continental European legal system. The appeal to this issue is not accidental due to the rather rapid development of science and technology in recent years, the course of global digitalization processes in the human environment. Objectively, it is necessary to discuss the issue of adjusting the procedural conditions for admission of expert opinions as evidence in a criminal case, especially those that are carried out in actively developing areas of application of special knowledge.

Criminal Law Formulation Policy to Prevent Corporate Crimes Conducting Mining in Forest Areas without Permission

Corporations carrying out mining activities in forest areas are still widespread, the existing laws and regulations currently in force are still not enough to prevent corporate crimes in the criminal sector without a business permit from the central government, which causes the risk of environmental damage and social disadvantage for the community, which means In the absence of harmonious law enforcement in the field, there is a need for a concept to provide legal certainty regarding the burden of criminal liability for violations by corporations carrying out mining activities without a permit through policy formulation to provide certainty. The purpose of this writing is to know, understand, analyze, describe and discover the concept of criminal law formulation policies in preventing corporate crimes that carry out mining activities in forest areas without ministerial permission. The results of this writing, through the Connectivity Legal Theory, will be believed to provide a breath of fresh air in law enforcement within the police in order to ensnare corporations that carry out covert and organized business activities. This will provide certainty in the basic guidelines. It differs in that the interpretation method is still ambiguous from various points of view and is still difficult to apply without basic references in countries that adhere to the continental European legal system. The idea of law enforcement in realizing an Article which still contains ambiguities but is based on other rules can be used as a reference to strengthen the position of the Article with the following provisions: a. Still relevant in law in the same environment; b. Still in the same hierarchy of laws and regulations; c. Connected regulations provide clarity on legal issues in legislative formulation; d. Bag-connected rules provide clarity in criminal liability

თანაზომიერების პრინციპის თეორიული და პრაქტიკული ასპექტები (ქართული და გერმანული სამართლის მიხედვით)

The principle of proportionality brings governmental activities into a strict constitutional and legal framework and thereby contributes to the adequate balancing of basic human rights and public legitimate goals set by the state. In the current edition of the Constitution of Georgia, specifically, in paragraph 3 of Article 34, it is explicitly stated that the limitation of the basic human rights must correspond to the importance of the legitimate goal that it serves to achieve. The dogmatics and practice of the principle of proportionality have been developed in German law since the 50s of the 20th century and spread throughout the continental European legal system. In the present situation, the constitutional courts consider the principle of proportionality as a universal constitutional principle and evaluate the justification for limiting the basic rights based on the established practice. However, there is no unambiguous and doctrinal discussion-free approach to the individual components of the principle of proportionality, especially where the line is drawn between the scope of the legislative view and the constitutional requirement of proportionality. The principle of proportionality and its proper articulation in practice represents a crucial achievement, although it is necessary to adequately understand its dogmatic nature in order to avoid separate theoretical or practical objections regarding this issue. Key words: the principle of proportionality, legitimate purpose, utility, necessity, proportionality in the narrow senses.

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.

Kajian Hukum Pemeriksaan Selaput Dara dari Perspektif Ham dan Ditinjau dari Sistem Hukum Negara

Hymen examination is synonymous with the 'virginity test' which is a controversial examination by medical professionals. One of the famous myths about virginity is that 'virginity' is proven by writing the appearance of "intact hymen". Along with the times, this can also have an impact on the field of law, especially health law, that examination of the hymen which is carried out by medical professionals raises pros and cons. when viewed also from the side of Human Rights (HAM) and how it relates when faced with the State Law system for the sake of law. The form of this research is normative juridical research. with a conceptual approach (Conceptual Approach), while the type of research is descriptive exploratory using the philosophy of Integrative Law Theory. Examination of the hymen which can be called a virginity test is not allowed because it is not in accordance with the dignity of women and contains elements of discrimination. Medical examinations that aim to assist law enforcement include making a post mortem et repertum for someone sent by the police (investigators). The application of Article 133 of the Criminal Procedure Code in Indonesia is an application of the Continental European legal system. judicial medical experts (forensic doctors) can be included in the examination at the crime scene (TKP) in order to establish the cause of death and the manner of death.

Comparative Study of Legal Responsibility of B3 Waste Producers in Medical B3 Waste Management Crowded in Hospitals Under the Law Indonesia and South Korean Law

This study uses a normative legal research type, while the nature of the research used in this writing is descriptive, analytical to analyze and describe the comparative legal responsibility of B3 waste producers in solid medical B3 waste management in hospitals in Indonesia and South Korea. The regulation of the legal responsibility of B3 waste producers in the management of solid medical B3 waste in hospitals in Indonesia is regulated in Law No. 32 of 2009 which states that everyone who produces B3 waste is obliged to manage the waste they produce, including in this case health service facilities that produce medical B3 waste. Medical B3 waste management activities include Reduction and sorting, Storage, Transportation, Processing, Burial and/or Landfill activities of B3 Waste. The management of solid medical B3 waste in hospitals in South Korea was regulated by the Medical Law under the Ministry of Health and Welfare until 1999. The Ministry of Environment announced several regulations for the definition, segregation, packaging, tracking, and final disposal of medical waste. Medical B3 waste management in Korea and Indonesia has similarities in legal, technical and operational aspects. This is one of them because Korea and Indonesia adhere to the same legal system, namely the continental European legal system (civil law).

Hakim Sebagai Pembaru Hukum Dalam Sistem Peradilan di Indonesia

In Indonesia, the legal system adheres to the European continental system, which is a legacy of the legal system inherited from the Netherlands, which once colonized Indonesia and thus had a significant influence on the country's legal system. Within the framework of the Continental European legal system, judges play a crucial role in adjudicating cases and ensuring justice for all parties involved. According to the Judicial Power Law, judges are prohibited from rejecting a case and are expected to possess a comprehensive knowledge of the law. Therefore, in addition to upholding justice, judges must also be capable of creating or discovering legal principles This research employs a qualitative approach to explore the role of judges as legal innovators within Indonesia's judicial system. It concludes that in the European continental system, judges hold a highly significant position in legal innovation, which, in this context, pertains to law enforcement. In fulfilling their duties, judges must uphold values such as independence, morality, and justice to render fair judgments, aligning with the ultimate aspiration of the legal system..

Analysis of the Case PT Metro Mini Sues the Limited Liability Company Law to the Constitutional Court

The General Meeting of Shareholders (GMS) is the highest institution and part of the Company as a place for shareholders to make important decisions whose authority is not given to the Board of Directors or the Board of Commissioners within the limits determined by law and/or the Articles of Association. The law is based on Article 1 paragraph 4 of the Limited Liability Company Law. Pursuant to Article 86 paragraph 1 of the Limited Liability Company Law, a GMS can be held if more than 1/2 of the total shares with voting rights are present or represented, unless the law and/or articles of association determine a larger quorum. In the second GMS as referred to in paragraph 2 is valid and a decision can be made if in the GMS at least 1/3 of the total shares are represented or represented, unless the articles of association determine a larger quorum based on the provisions of Article 86 paragraph 4 of the Limited Liability Company Law. If the quorum for the second GMS as referred to in Article 86 paragraph 4 is not reached, the Company may request the chairman of the district court whose jurisdiction covers the Company's position to determine a quorum for the third GMS based on the provisions of Article 86 paragraph 5. The GMS will have a grace period regarding the implementation of the second GMS and third, namely no later than 10 (ten) days and no later than 21 (twenty one) days after the GMS that preceded it was held, according to the provisions of Article 86 paragraph 9 of the Limited Liability Company Law it becomes a matter to be decided by the Constitutional Court. The problem caused by the Judicial Review of Article 86 paragraph 9 of Law Number 40 of 2007 concerning Limited Liability Companies is due to the length of time in which the decision of the District Court was received in the implementation of the GMS made the results of the implementation of the Third GMS of PT. Metro Mini was blocked in the Ministry of Law and Human Rights system so that it became a loss in the legality of the Metro Mini company due to the holding of the Third GMS of PT. Metro Mini is carried out more than the time specified in Article 86 paragraph 9 of the Limited Liability Company Law. Therefore, the Government should immediately revise Law Number 40 of 2007 concerning Limited Liability Companies, in particular Article 86 paragraph 9 which previously stated "The second and third GMS shall be held within a period of no sooner than 10 (ten) days and no later than 21 (twenty one) ) days after the GMS that precedes it is held” becomes “the second and third GMS is held within a period of no sooner than 10 (ten) days and no later than 21 (twenty one) days after the GMS that precedes it is held or in the event that the GMS is held based on a court order This is no later than 21 (twenty one) days after the district court's decision is obtained. Because of the Constitutional Court Decision No. 84/PUU-XI/2013, so that the meaning of the Constitutional Court's decision becomes a positive norm reference, because the Indonesian legal system adheres to the continental European legal system.

An Examination of the Liability for Compensation for the Breach of Choice of Court Agreements: In the Light of the German Federal Court Decision of 17.10.2019

In the case subject to the decision of the German Federal Court (BGH) dated 17.10.2019, there was an exclusive choice of court agreement in favor of the Bonn courts, because of one of the parties filed a lawsuit in the US courts, the other party had to pay high amounts of litigation costs and attorney fees. In the case, the BGH accepted that the international choice of court agreement was violated, and it was decided that compensation be paid in accordance with the provisions of the law of obligations. This decision could set a precedent for the states included in the Continental European legal system. The reasonings accepted in the decision are of a nature that can also be asserted in terms of Turkish law. With the exclusive choice of court agreement, the parties are obliged to file a lawsuit in the chosen court (prorogation) and not to file a lawsuit in other non-chosen state courts (derogation). Although the dominant approach was accepting of the legal nature of the international choice of court agreement as a procedural law contract in the past, the new jurisprudence confirmed that the choice of court agreement also has a substantive law character. Article 112 of the TCO will have to be applied to the compensation liability under Turkish law in case of a breach of the choice of court agreement. The conditions sought in article 112 of the TCO are as follows: a breach of an obligation, occurrence of damage, existence of a fault and the presence of a causal link. These elements must be present for the breach of the choice of court agreement to lead to a liability for compensation.

Perbandingan Konsep Misbruik Van Omstandigheden dan Undue Influence Dalam Kaitannya Dengan Pembentukan Klausula Baku Untuk Kredit Perbankan

Misuse of circumstances in business practices in Indonesia is part of legal problems that often cause disputes between parties in business activities. Misuse of circumstances that generally occurs due to an imbalance in position between one party and another also occurs in the making of business agreements, especially in banking credit. The development of the concept of abuse of circumstances which initially developed in the Anglosaxon legal system which is known as undue influence, in its development later it was also known in the continental European legal system as misbruik van omstandigheden. In this legal research using normative juridical research methods, it will be analyzed regarding to the development of the concept of abuse of circumstances in the two existing legal systems in order to formulate the concept of abuse of circumstances that is in accordance with the times in the practice of forming standard clauses for bank credit. The results of this research will also compare the forms of legal protection for the parties in business practices against the potential abuse of circumstances that can occur in the formation of credit agreements.

Perbandingan Konsep Misbruik Van Omstandigheden dan Undue Influence Dalam Kaitannya Dengan Pembentukan Klausula Baku Untuk Kredit Perbankan

Misuse of circumstances in business practices in Indonesia is part of legal problems that often cause disputes between parties in business activities. Misuse of circumstances that generally occurs due to an imbalance in position between one party and another also occurs in the making of business agreements, especially in banking credit. The development of the concept of abuse of circumstances which initially developed in the Anglosaxon legal system which is known as undue influence, in its development later it was also known in the continental European legal system as misbruik van omstandigheden. In this legal research using normative juridical research methods, it will be analyzed regarding to the development of the concept of abuse of circumstances in the two existing legal systems in order to formulate the concept of abuse of circumstances that is in accordance with the times in the practice of forming standard clauses for bank credit. The results of this research will also compare the forms of legal protection for the parties in business practices against the potential abuse of circumstances that can occur in the formation of credit agreements.

Application of The Concept of Justice in the Perspective of Pancasila State Law

This research is an empirical normative juridical research using a statute approach. This research is carried out by examining all laws related to the legal issue being studied. This research focuses on research that views law as a complete system that includes a set of legal principles, legal norms, and legal rules (written or unwritten). From the research, it was found that the application of the concept of justice in criminal law enforcement has not been implemented perfectly due to differences in the interpretation of the rule of law in its implementation and is influenced by the legal system adopted in Indonesia. Indonesia adheres to the Continental European legal system which does not recognize precedent decisions. Meanwhile, the embodiment of law enforcement when viewed from the perspective of the state of Pancasila law has not been fully implemented in the implementation in the field. This is a matter of debate among jurists. The law does not only refer to the principle of legality but also to the benefits of a sense of justice in the order of people's lives.

The Rise of Hermeneutics in Human Rights Interpretation in the Case-Law of the ECtHR and the Domestic Courts

This paper aims to argue that over approximately the last 70 years, both constitutional courts in Continental European legal systems and the European Court of Human Rights have implemented an evolutive (dynamic) approach to human rights by making broad interpretation of both constitutional or Convention rights. It also argues that the philosophical grounds of this interpretive approach are consistent with Gadamer’s conception of “philosophical hermeneutics,” which refers to interpretation as a cognitive dialogue on the text, between the author’s and the reader’s intent, which is not strictly bound by an obligation on the reader to adhere to the author’s intent.

The Role of Legal Philosophy in the Protection Women From Violence

This paper aims to examine how the development of an integrated criminal justice system in handling cases of violence against women and the role of legal philosophy in it. This research is normative legal research. This study concludes that the Continental European legal system influences the legal system in Indonesia, so procedural law is an administration of justice that provides guidelines for the working of the institutions involved in the adjudication process. Gender equality during the drafting of the Criminal Procedure Code has not yet become an important issue. This has an impact on the absence of an article formulation in the Criminal Procedure Code that accommodates the special interests of women dealing with the law, both as perpetrators and victims, especially women as victims of gender-based violence, even though many women who are victims of gender-based violence generally experience trauma from the events they experience. The concept of an Integrated Criminal Justice System for Handling Cases of Violence against Women (SPPT-PKKTP) was built as an effort to support the state to be able to carry out its constitutional obligations to fulfill women's human rights in conflict with the law, especially women who are victims of gender-based violence. Considering that the operation of the Criminal Justice System (SPP) is generally regulated based on the Criminal Procedure Code, to present the SPPT-PKKTP so that the criminal justice procedure law becomes a victim perspective, advocating the SPPT-PKKTP concept into the Draft Amendment to the Criminal Procedure Code is something that needs to be done. Philosophy of law is the basic foundation of legal science; it can explain that legal philosophy greatly protects the role of human rights, which guarantees the protection of women.

THE ISSUE OF THE ULTRA VIRES PRINCIPLE IN TURKISH COMPANY LAW: HAS IT BEEN ABOLISHED OR JUST HIDDEN?

The Turkish Code of Commerce (TCC) numbered 6102 contains numerous radical regulations as reforms in the Turkish company law. One of these provi­sions is the TCC A.125 which regulates the capacity of commercial companies to have rights and obligations. This article deals with the ultra vires principle which was transferred to the Continental European law system, including the Turkish legislation from the UK law system. The ultra vires principle had previously ex­pired in the continental European legal system (in particular the Swiss Code of Obligations) which has inspired the TCC as a referring codification. As a result of these developments by the TCC A.125, in contrast to the ultra vires principle, commercial companies are allowed to be entitled and liable for all kinds of mat­ters, except those which are human-specific. For this reason, companies’ legal per­sonalities may have the capacity to have rights and obligations in matters other than their fields of operation. In other words, thanks to the TCC A.135, the ultra vires principle has been abandoned. It can be assumed that harmonization be­tween the TCC and the EU directives has been achieved in the sense of abolishing the ultra vires principle. However, when several provisions randomly scattered in the TCC are taken into consideration, it is obviously seen that the legislator still accepts the field of operation issue as a criterion in about 20 articles. This leads to a question about the actual abolishment of the ultra vires principle. To put it brief­ly, the legislator’s choice in the new company law regime shows that the TCC has not abandoned the ultra vires principle completely, but it still retains its validity in a hidden way by only changing its form and scope.

COMPARISON OF SETTINGS REGARDING THE DEAD INJECTION APPLICATION IN THE NETHERLANDS AND INDONESIAN COUNTRIES


 
 
 Countries around the world have different legal systems. But the most commonly known are the Continental European legal system and the Anglo Saxon legal system. Continental European legal system is a legal system based on various legal provisions that have been codified and the example of the State that has this system is the State of Indonesia. Whereas Anglo Saxon is a legal system based on jurisprudence and the example of the State which has this system is the Netherlands. Each country has a different legal system, as well as in medicine. In the medical world known as Euthanasia. Euthanasia is defined as the act of terminating a person's life (or other creatures) on purpose because of the pain that makes him suffer too much. Indonesia has not specifically and firmly set the issue of Euthanasia and this matter is still being debated. The Indonesian Criminal Code does not find any articles that explicitly regulate eutahanasia. However, if observed, there is an article which shows that the prohibition against Euthanasia is article 344 of the Criminal Code, which is a murder carried out with a very and strict request by the victim. It is different from other Continental European countries such as the Netherlands as the first country to legalize Euthanasia. As of 2002, the Netherlands has adopted the concept of Euthanasia into its legal book.
 
 

TERPENUHIKAH UNSUR PIDANA PENGUASAAN TANAH YANG SAMA-SAMA BELUM MEMILIKI SERTIFIKAT TANDA BUKTI HAK

Law in Indonesia adheres to the Continental European legal system which is divided into two groups, namely the field of public law and the field of private law. Public law is a law that has a scope of legal subject to dispute with legal objects, namely state administration law, state administrative law, and criminal law. While private law is a field of law that has the scope of affairs of legal subjects that conflict with other legal subjects. But sometimes law enforcement often fails to understand these two legal systems, which cannot distinguish between criminal and civil ones, thus confusing civil cases that are made criminal cases and criminal cases used as civil cases for various reasons.