Written Civil Law Source
Source of Civil Law
Written Civil Law SourceSource of law is anything that gives rise to coercive rules, namely rules which, if violated, result in firm and real sanctions. What is meant by source civil law is the origin of civil law, or the place where civil law is found. The origin refers to the history of its origin and formation. While the place is to show the formula is loaded and can be read.

1. Sources of material law

The source of material law is the place from which matter law it was taken. For example, social relations, political power, results of scientific research, international developments, and geographical conditions. Source in the Material Meaning is the State Gazette or formerly known as the Staatsblad, where the provisions of the Civil Law Law are formulated to be read by the public. For example Stb.1847-23 contains BW/KUHPdt. Apart from that, it also includes sources in the sense of the place where civil law forms judges. For example, the Supreme Court’s jurisprudence on inheritance, legal entities, land rights. The source in the sense of place is called the source in the material sense. Sources of civil law in the material sense are generally still remnants of the colonial era, especially those contained in the Staatsblad. While the others are mostly in the form of MA-RI jurisprudence & only a small part is in the State Gazette of the Republic of Indonesia.

2. Sources of formal law

Formal legal sources are a place to obtain legal force. This relates to the form or manner that causes the formal legal regulations to apply. The source in the historical sense of the origin of civil law is the civil law made by the Dutch colonial government which is compiled in the BW (KUHPdt). Based on the transitional rules of the 1945 Constitution B.W (KUHPdt) it is declared to remain valid as long as it has not been replaced by a new law based on the 1945 Constitution. The source in the sense of its formation is the formation of a law based on the 1945 Constitution. The 1945 Constitution is stipulated by the Indonesian people which includes the rules On the basis of the transitional rules, the BW (KUHPdt) is declared to remain in effect. This means that the formation of the Indonesian Constitution has also been declared the entry into force of the B.W (KUHPdt). Sources in the sense of origin are called sources of law in the formal sense.

Volamar divided the sources of civil law into four types. Namely the Civil Code, treaties, jurisprudence, and customs. The four sources are further divided into two types, namely written and unwritten sources of civil law. What is meant by written sources of civil law is the place where the rules of civil law are found from written sources. Generally, written civil law rules are contained in legislation, treaties, and jurisprudence. Unwritten sources of civil law are places where civil law rules are found from unwritten sources. As in customary law.

Basically source civil law, including material law sources and formal legal sources. Sometimes the sources of law are written and some are not. In particular, sources of Indonesian civil law are written in the form of:
  • Algemene Bepalingen van Wetgeving (AB), were general provisions of the Dutch East Indies government which were enforced in Indonesia (Stbl. 1847 No. 23, dated April 30, 1847, consisting of 36 articles).
  • The Civil Code or Burgelijk Wetboek (BW), is a legal provision for products of the Dutch East Indies promulgated in 1848, enforced in Indonesia based on the principle of concordance.
  • KUHD or Wetboek van Koopandhel (WvK): The KUHD consists of 754 articles, including book I (about trade in general) and Book II (about rights and obligations arising in shipping.
  • Law Number 5 of 1960 concerning Agrarian Principles: This law revokes Book II of the Civil Code as long as it concerns land rights, except for mortgages. In general, this law regulates land law based on customary law, namely the law that characterizes the Indonesian nation itself.
  • Law Number 1 of 1974 concerning the Basic Provisions of Marriage, this Law makes the provisions contained in Book I of the Civil Code, especially regarding marriage, not fully valid.
  • Law Number 4 of 1996 concerning Mortgage on Land and Objects Relating to Land. This law revokes the validity of the mortgage as regulated in Book II of the Civil Code, as long as it concerns land and the provisions regarding Credieverband in Stbl. 1908-542 as amended in Stbl. 1937-190. The purpose of revocation of the provisions contained in Book II of the Civil Code and Stbl. 1937-190 is because it is no longer appropriate to the activities of credit needs, in connection with the development of the Indonesian economic system.
  • Law Number 42 of 1999 concerning Fiduciary Guarantees. There are 3 considerations for the birth of this law:
  1. there is a very large and increasing need for the business world for the availability of funds, it needs to be balanced with clear and complete legal provisions governing guarantee institutions;
  2. Fiduciary guarantee as a form of guarantee institution is still based on jurisprudence and has not been regulated in legislation in a complete and comprehensive manner;
  3. to meet the legal needs that are more able to spur and be able to provide legal protection for interested parties, it is necessary to make complete provisions regarding fiduciary guarantees; and the guarantee needs to be registered with the Fiduciary Registration Office.
  • Law Number 24 of 2004 concerning Deposit Insurance Corporation (LPS), this law regulates public legal relations and regulates civil law relations, Presidential Instruction Number 1 of 1991 concerning the Compilation of Islamic Law (KHI). KHI regulates three things, namely:
  1. marriage law,
  2. inheritance law, and
  3. endowment law. The provisions in the KHI only apply to people who are Muslim.

What is meant by a treaty is an agreement made between two or more countries in the civil sector. Especially closely related to international agreements. For example, the profit-sharing agreement made between the Indonesian government and PT Freeport Indonesia.

Jurisprudence or court decisions are judicial products, which contain legal rules or regulations that bind litigant parties, especially in civil cases. For example HR 1919 regarding the definition of an unlawful act. With this decision, the notion of being against the law does not have a broad meaning. But narrow. This decision is used as a guideline by judges in Indonesia in deciding disputes over unlawful acts.

Source :

  1. Code of Civil law
  2. Salim HS, INTRODUCTION TO WRITTEN CIVIL LAW [BW]

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