Applicability of the Civil Law in Indonesia

Civil law in a broad sense includes all material private law, namely all basic laws that regulate individual interests. That is why, civil law is often referred to as private law or civil law. Civil law in Indonesia comes from the Dutch Burgerlijk Wetboek, which is enforced based on the principle of concordance.

In accordance with its character, civil law is private, so it binds the parties concerned, because it regulates the interests of individuals. If it is violated, then the person (the injured party) is the one who files the lawsuit. The legal subject, in the form of a person or legal entity, is subject to civil law as long as he is a supporter of the rights and obligations arising from the civil law. Even Article 2 of the Civil Code already considers children who are still in the womb as legal subjects who have an interest.

In contrast to the unified criminal law (can apply to all citizens without any class distinction), civil law is actually diverse. Prof. Subekti termed it 'diversity'. Why, because civil law, in the narrow sense of the Civil Code, is not unified and applies to all citizens.

The Netherlands has imposed Article 113 Indische Staatsregeling ("IS") which divides the population based on groups, for example European, Chinese, Foreign East, Bumiputera. Despite the principle of subordination (onderwerpen) to European law, differences in civil law systems continue to emerge today.

For example, in terms of marriage and divorce, Chapter IV Book I of the Civil Code cannot be used to 'ensnare' because Indonesia already has Law No. 1 of 1974 concerning Marriage ("Marriage Law"). The Marriage Law is one of the efforts to unify the civil law that applies to all Indonesian citizens. However, for residents who are Muslim, the provisions governing marriage and divorce refer to Presidential Instruction No. 1 of 1991 concerning the Dissemination of the Compilation of Islamic Law ("KHI").

On the other hand, when we talk about the arrangement of heirs, the rules on heirs in the Civil Code do not apply to Muslims. Similarly, when entering the realm of inheritance for indigenous peoples, customary inheritance law also applies. More on the differentiation of inheritance law that applies

Efforts to unification of law are carried out partially, causing the complexity of the application of certain civil laws for all residents. Although the classification of the population as made by the Dutch no longer exists, civil law has not yet been successfully unified so that it can apply to all citizens. In terms of contract law, the agreement is automatically binding and can ensnare the people who make the agreement. You can read the references (references) that we have compiled below to understand further the differences in the applicable civil law system.

Book II of the Civil Code regulates how to manage the interests of persons under guardianship, pardon, and missing persons. Insane people are of course unlikely to be held accountable (trapped) by civil law. So, the validity of the Civil Code depends on what areas are regulated. If it is about heirs, then KUH Perdata does not ensnare or does not apply to people who are Muslims or people who submit to customary law. However, when we talk about the agreement, then the Civil Code applies (traps) for all Indonesian citizens.

Sourch : Hukum Online by Muhammad Yasin, S.H., M.H