Inheritance Law Research Articles

Kajian Terhadap Pembagian Harta Warisan Tanah Dati Ditinjau Dari Hukum Islam Dan Hukum Adat

Introduction: Land has a very important position in customary law communities.Purposes of the Research: The purpose of this study is to find out and explain the distribution of inheritance on land based on Islamic law and customary law. Methods of the Research: The method used in this study is a normative juridical method with a statutory approach, a conceptual approach and a case approach. The legal materials used are primary, secondary and tertiary legal materials. The legal material is analyzed qualitatively in order to answer the problems studied.Results of the Research: Based on the results of the study, it shows that based on the provisions in Islamic inheritance law, all legal heirs have the right to inherit according to their respective portions or calculations so that regarding the distribution of inheritance land from dati is not prohibited and can be divided among legitimate heirs. However, it is different from customary law. It is clearly specified in the customary law inheritance system that the name of the land is communal so that it cannot be divided or divided. Therefore, the judge in the decision number of the Supreme Court Decision Number 2290 K/PDT/2003 which strengthened the previous decisions which basically stated that the distribution of the inheritance of dati land to the existing heirs, according to the author, if it is based on the Islamic inheritance law system, it is permissible. However, if it refers to the provisions of the customary inheritance law system, it is not allowed to divide the inheritance of the land to each heir.

Grants as a Model of Inheritance Prospective Distribution in the Coastal Santri Community

The practice of Islamic inheritance law in Muslim communities in Indonesia experiences many obstacles. One of the reasons is that there is still a tradition of distribution of assets when parents are still alive and the prevailing kinship system. It was found in transferring property to the coastal santri community in Pekalongan City. This paper reveals the method of dividing the prospective inheritance of the coastal santri community and the mechanism for resolving disputes in the event of a dispute. This article uses a qualitative socio-legal studies approach and is descriptive and analytic. This article finds two things. First, the model for distributing the assets of the coastal santri community in Pekalongan City is carried out using grants orally and deliberation for consensus. Prospective inheritance is divided by the grant system equally, without distinguishing between men and women. The dispute resolution mechanism is carried out in negotiation and mediation.

Inheritance Based on a Will That Exceeds Portie's Legitieme in a Civil Law Perspective

Any human behavior that is always wrapped in regulations without exception in inheritance law which is a branch of the field of the law of things and also correlates with the dimensions of family law. The issue of inheritance can be seen in the 1945 Constitution which provides for the protection of the right to control his property and from disputes that are likely to arise due to inheritance problems, namely Article 28G paragraph (1). This research focuses on the analysis of inheritance law based on the Civil Code. There is a conflict of norms between Article 916a of the Civil Code and Article 913 of the Civil Code. Section 916a of the aforesaid Penal Code actually favors the heirs of the testamentair because this Article allows for the existence of heirs outside the Act whether the intended aris is granted during life or by will. And this can be considered as not providing protection to legitimaris (heirs according to law) so that what is the purpose of Article 913 of the Civil Code is not achieved where this article provides full protection to the heirs of legitimaris by not allowing the heir to rule out anything either between the living and the will. This research is a type of normative juridical research with a problem approach using a Statute Approach and Conceptual Approach. The formulation of the issue raised is Whether inheritance under a will can diminish Portie's Legitieme And How the legal standing of the heirs in the division of Legitieme Portie. So the conclusion is that inheritance under a will can reduce Portie's Legitieme and The legal position of the heirs in the division of Portie's Legitieme is to have binding legal force.

SHIFTING THE ROLE OF MEDIATION IN ISLAMIC INHERITANCE DISPUTES: AN OVERVIEW OF ISLAMIC LEGAL PHILOSOPHY

This article aims to see the other side of mediation as an alternative settlement of inheritance disputes. The general view of the community is that mediation is carried out after the occurrence of a dispute as a form of dispute resolution between the disputing parties. However, the perspective of Islamic legal philosophy sees the other side of the role of mediation in dealing with disputes, including inheritance disputes. The writing of this paper is done in an analytical descriptive manner that combines a normative juridical approach with a philosophical approach. The study results show that the settlement of inheritance disputes can be done in two ways; litigation and non-litigation. As one of the non-litigation channels and acting as a dispute resolution institution, mediation also prevents disputes. Mediation is positioned to avoid disputes arising at the philosophical level in inheritance cases. This argument can be seen from the statements in the Qur'an and hadith regarding inheritance law which indicate that the existence of inheritance law is intended as an effort to prevent disputes.

Sources and Legal Principles of Islamic Inheritance* Dynamics in Indonesia

Islamic inheritance law is one of the important issues in Islam, and is a pillar between the pillars of law which is fundamentally reflected directly from sacred texts that have been agreed upon for its existence. The resutls show that The results of the research were brought to the formal discussion forum of the National Workshop in 1988. Subsequently, in 1991, the government of the Republic of Indonesia formalized the results of the study into an official regulation under the legal umbrella of Presidential Instruction R.I. No. 1 of 1991 concerning the Dissemination of the Compilation of Islamic Law (KHI) as a result of the Workshop held on February 2 to 5, 1988, can be used by Government Agencies and by the public who need it as a guide in resolving problems in the fields of marriage, inheritance, and endowments. As a written formulation of the provisions of Islamic law in Indonesia, the Compilation of Islamic Law (KHI) is organized into several chapters and articles according to the object of the regulation. Specifically regarding Islamic inheritance, the arrangements are arranged in book II which consists of 6 chapters with 44 articles.

Settlement of Inherited Land Conflicts for Sale Unilaterally

Conflict is a conflict or dispute, a process carried out by people or groups of people to fulfill their goals by opposing the opposing party accompanied by threats and violence. The problem of land disputes between inheritance is currently a scourge because it is thought that the inheritance can provide welfare for those who receive the inheritance. The existing and applicable inheritance law in Indonesia is still not a legal unification. The form and system of inheritance law is closely related to the form of society and the nature of kinship. The research method used is a normative juridical approach, namely a legal research that uses secondary legal sources, carried out by emphasizing and adhering to the juridical aspects. Nature of Inheritance Law The existing and applicable inheritance law in Indonesia is still not a legal unification. The form and system of inheritance law is closely related to the form of society and the nature of kinship. Meanwhile, the family system in Indonesian society is based on the system of drawing a lineage, which is basically known to have three types of hereditary systems.

Strengthening of the Notary's Financial Responsibility in the Aspect of Invalidation of Notarized Transactions

Introduction. The number of real estate transactions certified by notaries is growing every year. Сompared to 2020, the number of transactions with non-residential real estate certified by notaries increased by 24%, with residential premises - by 13% The Federal Notary Chamber notes. It happens due to the continued trend of legislative expansion of real estate transactions subject to mandatory notarization, as well as the desire of citizens and organizations to obtain maximum legal guarantees and protection of their property rights and interests. The powers of a notary in real estate transactions are very wide. So, the notary himself can request supporting documents, check wills, powers of attorney, pledge of property based on the data of registers, draw up an agreement correctly, send a package of documents to the Federal Service of State Registration, Cadastre and Cartography (Rosreestr) authorities for state registration of the transfer of ownership, hand over the registered agreement to the parties, etc. At the same time, annually facts of notaries participation in fraudulent schemes with real estate, recognition by courts of notarized transactions as invalid (due to nullity), bringing notaries to disciplinary and criminal liability are revealed. The article provides specific examples from judicial practice and statistical data confirming this thesis, substantiates proposals for further improvement of civil legislation in order to prevent fraudulent actions with real estate and violations of the legal rights of citizens and organizations committed with the participation of notaries.Materials and methods. This study is based on a combination of such methods of scientific knowledge as: the dialectical method, which made it possible to connect the theory of civil and inheritance law and judicial practice; the formal legal method made it possible to analyze legislative norms; the systematic method allowed us to consider the institution of liability of notaries as a system with internal unity and interconnections with other institutions of law.The results of the study. In the course of the study, the provisions of the Fundamentals of the legislation of the Russian Federation on the notary, regulating the goals and objectives of the notary in ensuring the protection of the rights and legitimate interests of citizens and legal entities, the Civil Code of the Russian Federation on the recognition of transactions as invalid, were analyzed. The judicial practice on invalidating certain real estate transactions certified by notaries (including from the author’s personal practice), the statistics of the Ministry of Justice of Russia on bringing notaries to criminal and disciplinary liability, the number of complaints against the actions (inaction) of notaries, on the recognition invalid transactions, insurance compensation for losses incurred through the fault of notaries in 2019-2021. The conclusion is substantiated that the victims of fraudulent actions with real estate involving notaries are, as a rule, pensioners, the disabled, whose rights and legitimate interests need special legal protection. Such facts, to a certain extent, undermine the trust of the participants in the property turnover in the institution of the notary. A number of gaps in civil legislation and legislation on notaries in the area under study have been identified, and proposals have been formulated to fill them. Discussion and conclusion. The strengthening of the role of a notary in the process of real estate transactions, the improvement of technologies for notarial actions (remote transactions, transactions using an electronic digital signature, the introduction of the "electronic notarized power of attorney" service, etc.) certainly correspond to the dynamics of modern property turnover. However, at the same time, fraudulent schemes with real estate are also being improved, in which, as evidenced by judicial practice and statistics, notaries themselves are involved. For maximum legal protection of the interests of participants in property turnover, it is proposed to include in the legislation the norms on compensation by notaries of the full market value of property lost through their fault, lost profits, as well as moral damage, damage to business reputation and court costs incurred due to illegal actions of notaries of the parties to the transaction. It is also proposed to legislate the presumption of moral harm to the citizens participating in the transaction, which, according to the court decision that has entered into force, is declared invalid due to nullity.

Pembagian Warisan Tanah Hukum Adat Minangkabau dalam Perspektif Kompilasi Hukum Islam

The Unitary State of the Republic of Indonesia itself has three inheritance legal systems in its implementation, namely based on local customary law or customs, religious law or beliefs adopted such as Islamic inheritance law, and there are also laws that are made and arranged in such a way by legislators such as inheritance law. Civil Code. In Indonesia, the three types of legal systems live in society according to the beliefs and religions of each community. This writing will examine specifically the comparison of inheritance that applies in Indonesia, namely "Customary Inheritance Law" with "Islamic Inheritance Law". Inheritance will take place if the testator dies and the heir to the inheritance. In the Minangkabau tribe itself in terms of inheritance from the past until now adhered to the matrilineal system or based on the maternal line, in other words, in the inheritance system, the degree of women was higher than that of men. The problem that will be raised in this study is how the distribution of inheritance in the Minangkabau tribe and comparing the inheritance system based on "customary law" with "Islamic law" and what obstacles are caused in the distribution of inheritance in the Minangkabau tribe. With this comparison, it is hoped that it can be seen and differentiated between pure inheritance law and customary inheritance law and which are included in the receptie theory. This study uses a field research method, with a comparative approach that is descriptive in nature. The data used are primary data and secondary data and draw conclusions based on descriptive-analytic-qualitative. The research conducted includes qualitative causality research. The purpose of this study is the results of this study indicate that there are differences and similarities between Minangkabau customary inheritance and the compilation of Islamic law itself.

Maine's comparative jurisprudence in British Sinology: George Jamieson's interpretation of China's lack of wills

AbstractNineteenth-century comparative sciences profoundly informed Sinology, but this field remains largely unexplored. Despite recent attention to the comparative study of Chinese religion, researchers have overlooked the comparative spirit underpinning British understanding of Chinese law. This article addresses this oversight by focusing on George Jamieson's (1843–1920) translation and interpretation of Chinese inheritance law in the Qing Dynasty (1636–1912). Drawing on Henry Maine's (1822–1888) comparative jurisprudence, Jamieson reflected upon China's lack of the legal concept of wills, which was a starting point for him to decipher the different developmental routes of Roman and Chinese law. As a parallel to Maine's comparison of Hindu and Roman law, Jamieson compared Chinese with Roman law, revealing that sacrificial duties to ancestors and underdevelopment of the legal profession were key factors contributing to China's legal particularities.

The legal status of the subjects of inheritance under the law in the Republic of Kazakhstan and the Republic of Turkey: a comparative legal analysis

In the context of actively developing relations between the Republic of Kazakhstan and the Republic of Turkey, the issues of regulating the legal status of subjects of inheritance by law are of particular relevance. Due to the peculiarities of national, historical, religious, cultural and family traditions, inheritance relations complicated by a foreign element are among the most difficult in legal regulation. According to the authors, the study and analysis of the legal status of subjects of inheritance under the law seems to be so significant, because due to active migration processes between the two countries, many citizens of Kazakhstan and Turkey have relatives in these countries, and, accordingly, inherit after them under the laws of another state. A comparative legal analysis of the current inheritance legislation in the field of regulation of the legal status of inheritance under the legislation of the Republic of Kazakhstan and the Republic of Turkey showed significant differences in the legislative regulation of subjects of in-heritance under the legislation of the two countries. Based on a comparative legal analysis of the current legislation of the Republic of Kazakhstan and the Republic of Turkey, a number of differences were identified in the order of precedence, the spouse's share in the inherited property and the policy of taxation of inherited property. At the same time, there are also general approaches to determining the hereditary status and to determining the status of the testator. In practical terms, this study is of interest to lawyers practicing in the field of inheritance law, as well as private international law.

EQUALIZATION CASE IN THE TURKISH INHERITANCE LAW

Mirasta denkleştirme, miras bırakanın sağlığında yasal mirasçısına miras payına mahsuben yaptığı karşılıksız kazandırmaların mevcutsa aynen, değilse değerinin miras ortaklığına geri verilmesi ya da miras payına mahsup edilmesidir. 
 Miras bırakandan denkleştirmeye tâbi kazandırma almış olan bir yasal mirasçı, diğer yasal mirasçılara karşı bu kazandırmayı iade ile yükümlüdür. Böylece, miras bırakandan sağlararası karşılıksız kazandırma almış olan mirasçı ile kazandırma almamış olan mirasçılar arasında eşitliği ve hakkaniyeti tesis etmek amaçlanmıştır.
 Bu çalışmada, uygulamada sıklıkla karşılaşılan, miras hukukunun en karmaşık ve hayli kapsamlı konularından biri olan mirasta denkleştirme kurumu dava boyutu ve tarafları açısından ele alınacaktır.

Analisis Pemahaman dan Problematika Kelas XII ‎ SMK Dr Indra Adnan Indragiri College tentang Hukum Waris Islam

In writing this journal, the author uses the empirical legal research method in which the data collection process is carried out in the form of a survey by conducting a questionnaire or questionnaire technique where the author sends a Google Form link to class XII students at SMK Dr. Indra Adnan Indragiri College to be filled in by the respondent. In terms of learning Islamic inheritance law, basically at the high school or vocational school level, it is a subject that is quite difficult for students and even university students. As happened to students of class XII SMK Dr. Indra Adnan Indragiri College where there are still many of these students who do not understand Islamic inheritance law. This is because the material is quite complicated and also in inheritance law there are calculations and provisions that apply to be able to calculate each part in a particular case so that this is what makes it difficult for the majority of students to understand. If it's only material without counting students and female students, of course many understand and understand about these roses, but if it is related to mathematics, of course this becomes a complicated matter and must be studied carefully. So that in this case there are problems in terms of studying rosemary science among high schools, where the problems and problems can come from the teacher, the students themselves, as well as the learning strategies and models applied in each school.

Les biens appartenant aux Juifs. Démocratie ethnique et Shoah, 1944-1946

In the final years of World War II, the atrocities committed by Nazi Germany became widely known in the West. The information, however delayed and fragmentary, reached the exiled representatives of Polish Jewry and the Polish authorities alike, triggering reflections on both sides about the initial implications of the massacre of the nation’s community of three million Jews. One of these implications was the unresolved question of Jewish property, which had seemingly been left heirless in the wake of the mass deaths of Polish Jews. This article examines how the ownership of Jewish property was decided in Poland. Primarily, it discusses the actions of Jewish representatives to the exiled Polish government, especially their initiative, launched in the summer of 1944, to amend the existing Polish inheritance law in light of this unprecedented situation. The initiative lasted merely half a year, apparently thwarted by legislation passed by the Soviet-backed Communist Polish authorities, who had seized power in the recently liberated Polish territories. The January 1945 law on abandoned property pertained not only to Jewish property. In fact, its scope was vastly different than that imagined by the Jewish politicians in exile. It gave pre-war individuals a ten-year window to reclaim their property, after which their rights were transferred to the Polish state. This legal solution conformed to the expectations set forth by the Polish underground and voiced in the underground press. Nevertheless, it did not meet the expectations of Polish Jews.This article seeks to understand the similarities between the exiled and the domestic authorities’ approach to the issue of Jewish property in Poland. It argues that both applied ethnically-oriented policies to Jewish property, in line with the expectations of the Polish society considered in ethnic terms. The actions of Jewish representatives in the exiled Polish institutions concerning Polish legislation constitutes a case of an ethnic minority negotiating its status vis-à-vis the dominating ethnic majority, which meets the model of ethnic democracy (as defined by Sammy Smooha) practiced by the Polish exiled administration during the war. The political takeover by the Polish Communists put an end to ethnic democracy and replaced it with a new Socialist regime. Nonetheless, even though Socialism was introduced to a significantly less heterogeneous society in Poland, the Communist authorities did not shy away from utilizing ethnic policies. The legislation pertaining to abandoned property is a clear case in point.This article contributes to scholarship on the Shoah by drawing attention to how information about the Holocaust reaching the West shaped early reflections about its implications. It thus adds to the understanding of the general dynamics of ethnic minority-ethnic majority relations, particularly in wartime.

Protection in Inheritance Relationships: Theoretical Issue

This article explores the theoretical construction of civil rights protection in hereditary legal relations. Authors substantiate the use of both general and special ways of protection in the field of inheritance. Taking into account the requirements of judicial practice, the peculiarities of general protection methods in their extrapolation to inheritance law (recognition of rights, vindication of inherited property, etc.).

Inheritance settlement of descendants of children and siblings in Islamic law with local wisdom in Indonesia

Islamic inheritance law is one aspect that is regulated in Qur’an and Hadith. However, the inheritance distribution of the descendent of children and siblings is not explicitly explained in the Qur’an and the Sunnah, which often creates conflicts and disputes. Therefore, this study aims to reveal the approach of Islamic law in completing inheritance for the descendant of children and siblings with the local wisdom of Indonesian society. This research used a qualitative descriptive analysis method. This research also observed Indigenous Peoples in West Java Province, a local cultural representation in Indonesia. The results of this study found that there is a factor of kanyaah (love affection), which is local wisdom as a separate mechanism in resolving the distribution of inheritance for descendent of children and siblings without causing family conflict, besides the understanding of Islamic inheritance law and educational factors.

Conflicts occurring due to the application of different legal inheritance systems in Indonesia

The Republic of Indonesia applies three legal systems on inheritance, namely the Islamic law, the Civil Code, and the Indigenous law. Conflicts occur when families use different legal systems in splitting inheritance. This paper aims to analyze: (1) The considerations of the judge in deciding the right of heirs with different religions to obtain inheritance; (2) Whether or not using wasiat wajibah in distributing inheritance to non-Muslim heirs violates Islamic laws; and (3) The legal efforts which may be taken if heirs who follow a different religion from the decedent do not obtain an inheritance. This is normative prescriptive legal research employing a comparative approach. Primary and secondary data were collected from the literature review. Results showed that the Supreme Court judge decided that a non-Muslim widow has the right to obtain an inheritance from her deceased Muslim husband based on the wasiat wajibah stipulations, considering that the widow had been married to the deceased for 18 years. Referring to wasiat wajibah to give inheritance to non-Muslim heirs does not violate Islamic law, in which the maximum amount is a third of the inheritance. This paper suggests two ways to resolve conflicts on inheritance: (1) Let the inheritance laws be plural. If there are legal conflicts, they can be resolved in court, (2) Unify the laws by creating new inheritance national laws to achieve national unity. This research provides novelty, recalling that there has not been any previous research on the same theme in Ternate City.

THE APPLICABILITY OF THE ISLAMIC LAW OF SUCCESSION IN SOUTH AFRICA

Islamic law is divine law since it is based on the totality of the commands of Allah as embodied in the Holy Qur’an. The non-recognition of Muslim personal law has resulted in great prejudice for Muslims residing in South Africa. The general principles of the Islamic law of succession are prescribed in the Qur’an. The Qur’an fixes the shares of each individual. The shares of the heirs as determined by theQur’an are binding on all Muslims. In accordance with Shari’ah the testator is allowed to bequeath one-third of his estate.The focus of this article is to give an overview of the Islamic law of inheritance with the aim of increasing awareness that South African Muslims can implement the Islamic law of inheritance by means of drafting a valid will, without any difficulty.

The Position of Adopted Children (Mangain) in Obtaining the Status of the Heirther According to the Batak Toba Traditional Instruction Law

The adoption of adopted children in the Toba Batak community is carried out in an open and cash way. The main reason in the Toba Batak community is the absence of descendants. The indigenous Batak Toba community itself adheres to a patrilineal system that is based on male/father lineage. The requirements for adopting children by the Toba Batak indigenous people are carried out according to the customs of the indigenous people, by carrying out a traditional ceremony "dirajahon" in front of dalihan na tolu, traditional leaders / leaders, and local indigenous people by giving ulos parompa (carpet) and dekke sitio. tio (carp) as evidence of an inauguration in the process of the traditional ceremony. The position of an adopted child is basically legal to become an heir and his rights are equal to the position of a biological child, because according to the customary inheritance law of the Toba Batak with evidence of the existence of the traditional ceremony, an adopted child is legally the heir of his adoptive parents himself, without the need for tools. evidence as well as a deed. Adopted children have the right to joint property and inheritance from their adoptive parents

The Position of Adopted Children (Mangain) in Obtaining the Status of the Heirther According to the Batak Toba Traditional Instruction Law

The adoption of adopted children in the Toba Batak community is carried out in an open and cash way. The main reason in the Toba Batak community is the absence of descendants. The indigenous Batak Toba community itself adheres to a patrilineal system that is based on male/father lineage. The requirements for adopting children by the Toba Batak indigenous people are carried out according to the customs of the indigenous people, by carrying out a traditional ceremony "dirajahon" in front of dalihan na tolu, traditional leaders / leaders, and local indigenous people by giving ulos parompa (carpet) and dekke sitio. tio (carp) as evidence of an inauguration in the process of the traditional ceremony. The position of an adopted child is basically legal to become an heir and his rights are equal to the position of a biological child, because according to the customary inheritance law of the Toba Batak with evidence of the existence of the traditional ceremony, an adopted child is legally the heir of his adoptive parents himself, without the need for tools. evidence as well as a deed. Adopted children have the right to joint property and inheritance from their adoptive parents

Pembagian Harta Warisan Berdasarkan Pertimbangan Ekonomi

Islamic inheritance law is one of the sources of legal inheritance which regulates the affairs of a person who has left his property because he has died and that property will fall to the person who has rights.Soepomo said that the inheritance law makes regulations that regulate the process of directly transmitting and obtaining property and intangible goods from a generation of people to their descendants. This process has started while the parents are still alive. The process does not become acute due to the death of a parent. Indeed, the death of a father or mother is an important event for that process, but in fact it does not radically affect the process of succession and transfer of property and immovable property.A person has been designated as an heir because between the heir and the heir have a relationship of marriage, kinship and liberate slaves. Basically, most of the people prefer to solve inheritance problems by conducting family deliberation even though there have been stipulated rules in the Qur'an and al-Hadith. Basically, this family deliberation system is also allowed in Islamic law. However, there are exceptions in it if a dispute occurs during deliberation which results in an inheritance dispute