International Civil Law Research Articles

Legal Agreement on Supreme Court Decision Number 2992 K/Pdt/2015: Legal Issues in Capital Goods Sale and Purchase Agreements reviewed from International Civil Law

Legal Agreement on Supreme Court Decision Number 2992 K/Pdt/2015: Legal Issues in Capital Goods Sale and Purchase Agreements reviewed from International Civil Law

Analysis of Joint Property Division in Mixed Marriages: A Case Study of The Supreme Court Decision Number 1400 K/Pdt/2017 Perspective of International Private Law

This study seeks to evaluate the effectiveness of Indonesia's Law Number 1 of 1974 on Marriage, specifically concerning the division of joint property in mixed marriages that involve aspects of international civil law. Supreme Court Decree Number 1400 K/Pdt/2017 offers a key reference point, showcasing how Indonesian law has been applied to govern property division in these cases. The study applies a normative juridical approach to examine legal norms and standards, including legislative analysis of the Marriage Act and the Basic Agrarian Law. It also uses case-based methods to assess international civil law's impact, such as the principle of lex situs, which mandates that immovable property like land be governed by the laws of its location. This Supreme Court ruling reveals an attempt to balance Indonesian law with foreign property rights, ensuring that foreign nationals’ rights are acknowledged in property division. Such cases underscore the importance of reforming Indonesia’s mixed marriage laws to enhance legal clarity and fairness for all parties.

CHOICE OF LAW IN CODESHARE FLIGHT AGREEMENT

Purpose: The purpose of this study were to to analyze legal issues regarding the practice of codeshare agreements and what law applies when a dispute or claim for compensation occurs. Methods: The approach used in this research are statute approach, historical approach, and conceptual approach. Result and conslusion: The results of this study are that in dealing with claims for compensation submitted by passengers, the concept of choice of law cannot be deviated according to international civil law because codeshare agreements are included in the field of contract law, but depend on the law that has been determined by the airline company. Research implications: This study provides explanation about the theory of liability that can be imposed on airline companies such as liability based on fault, presumption of liability and liability without fault. Originality/value: This study provides valuable insights about several efforts that can be made if there is a dispute or claim for compensation because of the practice of codeshare agreements.

Legal Certainty in The Validity of Interfaith Marriages Performed Abroad

This research examines in more depth how legal certainty regarding the validity of marriage certificates of different religions is held abroad after being recorded and reported to the Population and Civil Registry Office (Dukcapil), where the couple resides upon returning to the homeland. With lex loci celebrationis and lex fori principles, the state is expected to accept, recognize, and respect as the basis for recording and registration with the Dukcapil. This type of research is normative research using a statutory and factual approach. The data collection method used literature study, field research, and interviews. Based on the results and discussion of the research, it is found that Indonesian Citizens (WNI) who enter into marriages of different religions abroad under International Civil Law (HPI) are valid and recognized. However, when viewed from the applicable marriage law in Indonesia, it is invalid because it still has to be based on religious law. However, sociologically, the community still recognizes and accepts the existence of interfaith marriages.

Dispute over the 1974 MoU Box between Indonesia and Australia: How MoU Legally Binding in Two Countries?

This study aims to delineate the legal authority of Memorandum of Understanding (MoUs) within the jurisdictions of Indonesia and Australia, particularly concerning the resolution of international civil law disputes. The research employs a normative juridical approach, utilizing legal reviews and secondary data for support. The findings reveal that in civil law states, notably Indonesia, MoUs are regarded as binding agreements in accordance with the "Agreement is Agreement" perspective as per Article 1338 (1) of the Civil Code. Conversely, common law states, such as Australia, generally perceive MoUs as non-legally binding. However, an MoU may attain validity and binding status if it fulfills the six stipulated requirements outlined in Australian contract law. To address the dispute surrounding the 1974 MoU BOX between Indonesia and Australia, resolution options include examining international civil law rules based on primary and secondary links or resorting to an international arbitral tribunal.

Certainty of Divorce Laws in Different Countries Based on Indonesian International Civil Law

International divorce cases involving spouses from different nationalities present complex challenges that necessitate a solid grasp of private international law principles. The divorce process in Indonesia, particularly for couples with different nationalities, requires adherence to national legal regulations and applicable laws. International treaties, notably the Convention on the Civil Aspects of International Divorce, provide a uniform legal framework for addressing such cases. Recognizing and enforcing foreign divorce judgments across jurisdictions is vital to prevent multiple divorces and ensure legal certainty, necessitating coordination between countries. Child protection takes center stage in interstate divorce cases, emphasizing jurisdictional determination and the proper application of the law to safeguard the child's best interests. This research, using normative juridical methods, explores the application of international private law in inter-state divorce cases in Indonesia, shedding light on legal complexities and contributing to a deeper understanding of legal certainty. In essence, addressing interstate divorce issues involves considerations of jurisdiction, choice of law, recognition, and the protection of children's rights, making a profound understanding of international private law increasingly crucial in the context of marriages and divorces across different countries amid rising human mobility and globalization

Certainly of Divorce Laws in Different Countries Base on Indonesian International Civil Law

Recognition and implementation of the divorce decision. Therefore, a thorough understanding of the principles of private international law is essential to navigate these complex legal challenges. Principles such as lex loci celebrationis, lex domicilii, and the principle of recognition and enforcement of foreign judgments serve as guidelines in handling inter-country divorce cases. Court jurisdiction, the choice of applicable law, and the process of recognizing and implementing divorce decisions between countries are important focal points in legal settlements. International divorce, especially involving spouses of different nationalities, raises a number of complex issues. From determining jurisdiction to choosing the applicable law, every step in the divorce process requires careful consideration. In this context, several international treaties, such as the Convention on the Civil Aspects of International Divorce, provide a uniform legal framework for dealing with such divorce cases.
 In addition, the importance of recognizing and enforcing foreign divorce judgments in other jurisdictions is an important factor in preventing multiple divorces and providing legal certainty. This process involves coordination between countries to respect and recognize foreign court decisions. Protecting children's rights in interstate divorce is an important focus, with jurisdictional determination and appropriate application of the law to ensure the child's best interests are safeguarded. An in-depth understanding of international private law, especially in the context of divorce from different countries, is the key to ensuring justice and legal certainty for all parties involved.
 In handling inter-country divorce cases in Indonesia, especially those involving couples with different nationalities, it is important to pay attention to national legal regulations, applicable laws and regulations, and guidelines from relevant international conventions. The divorce process in Indonesia, as explained in Article 66 of the Marriage Law, must follow the applicable national laws and regulations. This research, using normative juridical methods, provides in-depth insight into how international private law is applied in inter-state divorce cases in Indonesia. By exploring the principles of private international law and examining expert views, this research discusses the legal complexities involving marriage between countries and contributes to further understanding of legal certainty in this context. Overall, interstate divorce opens up a broad discussion of private international law issues, including jurisdiction, choice of law, recognition, and protection of children's rights. With increasing human mobility and globalization, a deep understanding of the principles of international private law is becoming increasingly important in dealing with marriages and divorces from different countries.

PEMBAGIAN HARTA BERSAMA PASCA PERCERAIAN PASANGAN BERBEDA KEWARGANEGARAAN: PERBANDINGAN HUKUM INDONESIA DAN BELANDA

This study examines the separation of marital property after divorce between mixed married couples. It compares Indonesian and Dutch laws on the division of matrimonial property upon divorce, focusing the case of Henk Willem van Der Spil (a Dutch citizen) and Dyah Supriyantini (an Indonesian citizen). The study shows how the two legal systems are alike and different The research type is normative and descriptive, utilizing secondary data, qualitative analysis, and a comparative legal approach with deductive conclusions. The findings display similarities: 1) Research considers the division of shared belongings among couples in mixed marriages according to the HPI factors; 2) Both the Indonesian and Dutch HPI designate Indonesian law as applicable. The variations include: 1) Under Indonesian law, land and buildings are not counted as community property, whereas Dutch law regards them as such and divides them equally. 2) Indonesian law excludes the income of the Tulips Hotel and Resto from community property, while Dutch law includes it. 3) The Dutch law recognizes "divorce covenant," a concept that is not present in Indonesian law. Recommendations: to achieve fairness, judges should. consider international civil law and foreign law aspects when dividing property in joint ownership between mixed marriage couples.

An International Civil Law Approach to the Legal Certainty of Same-Sex Marriage with Differences in Citizenship (Case Study of Ragil Mahardika and Fred Vollert Frederik)

The phenomenon of same-sex marriage is a phenomenon that is widely discussed in society. The marriage of Ragil Mahardika and Fred Vollert Frederik contains foreign elements when viewed from the perspective of the subjects who are citizens of different countries, Indonesia & Germany. Their marriage can be considered valid in Germany in accordance with the principle of "Lex Loci Celebrationis" which means that the law that applies to a marriage is in accordance with the law of the place where the marriage took place but cannot be said to be valid. If we refer to Indonesian state regulations, the benefit of this writing is to know for sure whether the marriage can be said to be valid or not. The research method used in this research uses normative juridical by studying and analyzing social phenomena that occur in society in order to understand the conditions and solutions to the problems that occur. This article was written about same-sex marriage to find out whether the marriage can be said to be legal or not.

Juridical Review of International Private Law in Interfaith Marriages Outside Indonesia (Case Study of the Marriage of Dimas Anggara and Nadine Chandrawinata)

One of the most important aspects of Indonesian culture is marriage. One topic that is considered very close to the essence of humanity is marriage. There is much debate about what is meant by marriage, especially when it comes to inter-religious unions that occur outside the Unitary State of the Republic of Indonesia. This case study investigates the legal framework of private international law that regulates interreligious unions that occur outside the Unitary State of the Republic of Indonesia. In the case of interfaith marriages that occur abroad, there is disagreement about the legitimacy or legality of marriage in Indonesia for couples who marry in different religious traditions. UU no. 1/1974 regulates marriage and states, in line with the 1945 Constitution, that no religious law or belief system can legitimize marriage. Every marriage performed outside Indonesia is deemed to have occurred between two Indonesian citizens or between an Indonesian citizen and a foreign citizen, in accordance with Pasal 56 Undang-Undang Nomor 1 Tahun 1974. According to Lex Loci Celebrations, a marriage is perfected in accordance with local law when it is performed in accordance with international private law. Interfaith marriages performed abroad are a kind of legal smuggling which is contrary to pasal 2(1) of international civil law and is regulated by it. Regarding legal certainty and how the status of interfaith marriages entered into abroad is treated, this topic will be discussed in a separate section below.

Hak Waris Hail Perkawinan Kewarganegaraan Campuran Yang Tidak Tercatat

The law that applies to mixed nationality marriages can be seen based on the principles of Indonesian International Civil Law, including the principle of lex loci celebrationis, nationality or joint residence, where the marriage is held, where the husband and wife become citizens after marriage or where the husband and wife live. However, mixed marriages that are not recorded according to applicable regulations do not deprive children of their inheritance rights, especially from their fathers as long as there is recognition with an authentic deed. The fact that the marriage is not recorded does not mean that the marriage is void, but only that it has not been recognized so that the inheritance rights of the children are not obtained properly. Decision.of.the.Constitutional.Court.No.46/PUU-VIII/2010 is the latest legal breakthrough in which children outside the marriage of an unregistered marriage still have civil rights from both parents.

THE ROLE OF INTERNATIONAL LAW IN EXPORT IMPORT ARRANGEMENTS AND ITS IMPACT ON THE ECONOMY IN INDONESIA

International law plays a crucial role in the lives of the international community. Its role is essential in the current era of globalization to bridge any existing issues. Through international legal provisions, states prevent disputes from arising and settle those that have already occurred. In practice, international trade is often equated with exports and imports. Considering the increasingly complex processes of export and import, it would be challenging to apply the regulations of only one country. That is why international law exists, to provide solutions in minimizing differences in regulations between parties. The processes of unification and harmonization of laws come into play. The research questions in this study are: What is the role of international law in regulating exports and imports in Indonesia, and what is the influence of export-import activities on Indonesia's national economic growth? The research method used is normative juridical with a descriptive-analytical research specification. From the results of this study, the following conclusion is obtained: The legal aspects of international trade agreements for exporting and importing goods in Indonesia involve contractual aspects in accordance with the Civil Code Book III on obligations and principles of international law regulated in the Vienna Convention of 1986 and UNIDROIT on the harmonization of international civil law. Meanwhile, the organization of exporting and importing goods follows the provisions issued by the Indonesian government regarding export-import payment procedures and implementation methods in accordance with foreign exchange laws.

Akibat Hukum Bagi Anak Hasil Perkawinan Kewarganegaraan Campuran Yang Tidak Dicatatkan

The law that applies to mixed nationality marriages can be seen based on the principles of Indonesian International Civil Law, including the principle of lex loci celebrationis, nationality or joint residence, where the marriage is held, where the husband and wife become citizens after marriage or where the husband and wife live. However, mixed marriages that are not recorded according to applicable regulations do not deprive children of their inheritance rights, especially from their fathers as long as there is recognition with an authentic deed. The fact that the marriage is not recorded does not mean that the marriage is void, but only that it has not been recognized so that the inheritance rights of the children are not obtained properly. Decision.of.the.Constitutional.Court.No.46/PUU-VIII/2010 is the latest legal breakthrough in which children outside the marriage of an unregistered marriage still have civil rights from both parents.

The principle of legal certainty concerning the implementation of legalization according to the apostille convention viewed from an international civil law perspective

The principle of legal certainty is a foundational principle in the field of international law. The law must possess clarity, predictability, and accessibility for all individuals. The Apostille Convention is a multinational agreement that streamlines the procedure of authenticating public documents for international use. This is achieved by eliminating the need for authentication by a diplomatic or consular officer. This research study investigates the concept of legal certainty within the framework of the Apostille Convention. In writing this legal research, the author uses the concept of legal research with a comparative approach to compare the application of Apostille in Indonesia with Apostille in other countries. According to the researcher, implementing the Apostille Convention, already underway in Indonesia, has yet to fulfil reasonable legal assurance regarding international private law. The reason is that international law has a different legal system and regulations; the HCCH organization, as an Apostille melting pot, still needs legal arrangements that apply to all convention countries equally. Indonesia has more documents that can be ratified in submitting an Apostille application, but not all countries are the same in confirming an Apostille document.

Succession of Multijurisdictional Estates: Conflict of Laws, Conflict of Jurisdictions and Substantive International Regulatory Treatment

An essential part of contemporary international civil law practice consists of matters concerning succession of multijurisdictional estates, which in turn accounts for the practical significance and relevance of the scientific study of the regulatory treatment of the respective matters. An understanding of the subject matter of conflict of laws and international civil procedure is essential to effective succession of international estates for clients who own assets in or otherwise have significant contacts with more than one jurisdiction. The primary focus of this article is to describe the approaches to resolving the most typical problems in the practice of succession of multijurisdictional estates on the basis of analysis of the legal doctrine, legislative enactments and case law of foreign jurisdictions. The author considers the approaches to solving the most typical problems of succession of multinational estates, in particular: the practical importance of the location of a testator's assets, the formal validity of testamentary dispositions, establishment of the true domicile of a person, the advantages and disadvantages of a single multijurisdictional will disposing of international property, etc. In the context of these problems the author analyses Regulation EU № 650/2012 of the European Parliament and of the Council of 4 July 2012 on jurisdiction, applicable law, recognition and enforcement of decisions and acceptance and enforcement of authentic instruments in matters of succession and on the creation of a European Certificate of Succession; Convention of 5 October 1961 on the Conflicts of Laws Relating to the Form of Testamentary Dispositions; Convention of 25 November 1973 providing a Uniform Law on the Form of an International Will.

The Problems of International Civil Law of Indonesia in Protecting Transnational E-Commerce Consumers

Technological advances on a transnational scale have had a considerable impact on all levels of Indonesian society. One of the technological advances is the existence of gadgets. Not only positive effects, but they also bring negative impacts. Furthermore, the existence of gadgets continues to grow with more transactions being carried out. Unfortunately, this can be a dispute. The purpose of this research is to propose the problems of Indonesian International Civil Law which have not regulated and provided guarantees to protect transnational e-Commerce interests and their solutions. The method used in this research is normative with a statutory and conceptual approach. The results of this study are the existence of Consumer Protection Law (UUPK), Electronic Information and Transactions Law (ITE Law), Money Supply Law (UUUP), and International Civil Law (HPI) of Indonesia have not provided a clear guarantee of protection related to the choice of law in transnational scale e-commerce contracts. Besides, they also have not been able to accommodate the interests of consumers. One of the solutions offered is concretizing the principle of the recipient country. It is a rule that allows end-users to apply the Consumer Protection Law of their country. This principle is excluded from consumer transactions. This also does not apply .e-commerce contracts. This principle is taken from the Rome and Brussels Convention which is incorporated into the Directive, namely the Law for the EEC community (Europe Union). To provide legal guarantees for consumers, thus the interests’s of consumers can be protected.

The Legality of Grants by Foreign Citizens on Land Objects in Indonesia: Case Studies of Court Decisions

This study aims to examine and analyze the legality of granting by Singaporean citizens to Indonesian citizens before the Notary Public of Singapore on land objects located in the territory of Indonesia based on Decision No. 912/Pdt.G/2018/PA.Jmb. In addition, this study further analyzes the laws and regulations that should apply in handling grants case based on international civil law. This research was conducted using a normative juridical approach with analytical descriptive specifications. The literature study was used to obtain the legal materials needed in this research. The collected legal material is then analyzed using qualitative data analysis methods with a statute and case approach. The results show that the legality of granting the object of land wills in Indonesia from former Indonesian citizens who have become foreign citizens to Indonesian citizens based on Decision No. 912/Pdt.G/2018/PA.Jmb is invalid and void by law. This case is contrary to Article 21 section (3) of Law No. 5 of 1960 and Article 37 section (1) of Government Regulation No. 24 of 1997. Based on the concept of International Civil Law, that action can be categorized as law smuggling, namely an act committed in a foreign country and recognized as legal in that foreign country. As for immovable objects, the general principle accepted in international civil law has stated that immovable objects in their status are based on the principle of lex situs or lex rei sitae. Therefore, it is recommended that every foreign citizen who has land rights or other property rights in Indonesia must relinquish the right of ownership within one year. The granting of land rights or property rights must be made in the grant agreement before the Land Deed Official of Indonesia. Furthermore, the registration of the transfer of land rights will be carried out at the National Land Agency of the Republic of Indonesia. Thus, land rights or property rights will get guarantees, protection, and legal certainty to avoid disputes in the future.

Kajian Perkawinan Campuran dalam Perspektif Hukum Perdata Internasional (Perkawinan antara Warga Indonesia dan Warga Belanda)

The rapid progress of science and innovation affects the simplicity of relations between individuals and nations. One of the impacts is the mixing of relations between couples with different identities, including Indonesian experts and workers from various countries. Issues that mixed-identity relationship strategy are the stage of producing supporting documents from the marriage registrar and at the different stages of planning archives. The purpose of this legal research is to identify and analyse mixed marriages between Indonesia and Netherlands also the procedures under international civil law. The method using normative juridicial research based on statute approach and conceptual approach.

Kepemilikan Tanah Oleh Warga Negara Asing Melalui Perjanjian Pinjam Nama Sebagai Bentuk Penyelundupan Hukum Dalam Hukum Perdata Internasional

Introduction: Land as a gift from God Almighty deserves to be protected, managed and preserved. In the regulation of land law in Indonesia, based on the UUPA, land ownership with property rights is only by Indonesian citizens. The practice that occurs is that foreigners who carry out legal smuggling efforts through name-borrowing agreements to be able to control and own land in Indonesia with property rights.Purposes of the Research: This study aims to analyze the practice of borrowing names in land ownership by foreigners in Indonesia as a form of international civil law smuggling.Methods of the Research: This study uses a normative juridical method. The approach used is a statutory approach and a conceptual approach with primary and secondary legal sources. The technique of collecting legal materials is through literature study. The legal materials obtained were analyzed qualitatively in order to answer the existing problems.Results of the Research: A name borrowing agreement is an agreement made between a person who according to law cannot be the subject of certain land rights (property rights), in this case a foreigner and an Indonesian citizen, with the intention that the foreigner can control (own) the right of ownership legally. facto, but legally-formally (dejure) the property rights are in the name of the Indonesian citizen. The name-borrowing agreement is clearly a form of legal smuggling to avoid regulations that stipulate that foreigners are not eligible as subjects of land ownership rights holders in Indonesia in accordance with the provisions in Article 9 paragraph (1) jo. Article 21 paragraph (1) of the UUPA clearly states that only Indonesian citizens can have full relations with the earth, water and space, and clearly stipulates that only Indonesian citizens can have property rights.

Sistem Hukum dalam Penyelesaian Perkara Perceraian pada Perkawinan Campuran di Indonesia

This study aimed to analyze the legal system and the attitude of judges to resolve intermarriage divorce cases. This study used a normative juridical method with a statutory and conceptual approach. The study results showed that the judge determines the legal system in intermarriage divorce cases by evaluating the link points and collecting facts to find a relationship between the case and the possible legal system used based on the principles of international civil law. The attitude of judges in efforts to resolve mixed marriage divorce cases should not necessarily apply to Indonesian law. Judges should pay attention to foreign national parties' personal and national legal status based on Article 16 Algemeene Bepalingen van Wetgeving Voor Nederlands Indie.