Basic Concepts of Legal Studies
Law can not
escape from the developments
of his time. In principle, the law has a wide
range of conditions to ensure the
adjustment of freedom and the will of a
person with another person.[1] Based on this opinion, basically
the law governing relations between
people in society based on the
principles of diverse as well.
Here's a basic concept in Legal Studies:
A. Subject Law
Subject Law
consists of:
1.
People
2.
Legal Entity
a.
Private
b.
Public
Legal subject
is anything that can acquire rights and obligations.
Which can acquire
the rights and obligations
of the law are
just humans.[2] So humans by law recognized as
persons with rights and obligations, as a
legal subject or person. As the development of the legal world, the subject of law is
divided into two:
1.
The person / people (natuurlijke
person)
2.
Legal Entity (rechtsperson).
Every human
being in Indonesia, without exception, during
his life is the person or subject of law. Since human
beings are born acquire rights and obligations.
If passed, the
rights and obligations
will switch to
the heirs.
That every
human being in Indonesia
is one who can be
concluded from Article 15 of
the Provisional Constitution which says
that “no one
any legal cause civil
death or loss of any
rights of authority”.[3]
In the
known history of human
existence that does not have the
rights and obligations, is not a subject of law,
which is a slave. Slave is not a legal
subject but, a legal object can
sells by people. In addition, the
first known civil
death (burgelyke Dood)
court statement (lijke
Dood) kyang states
that a person is not able to obtain any rights anymore.
Revocation of rights
and obligations is
still limited and only temporary.[4] The following are certain rights that can be revoked,
among them:
1.
The right to hold
office in general or a particular position
2.
The right to enter the armed
forces
3.
The right to vote and to
be elected in the general election held by
certain rules
4.
The right of an adviser, guardian
or custodian of the
supervisor or custodian of
a child who is
not pengwas on the child's own
5.
The right to run the rule
of the father, running a representative, or pengampu
over their own
6.
The right to run a certain
income.
Thus people regarded
as a supporter of the rights and obligations, from
birth to death, even from his mother's womb. But even so minors
are still not enough to make their own laws.
Here are deemed
insufficient to conduct
its own laws are:[5]
1.
People who
are minors or minors
2.
Those crazy drunks,
spender, ie they
are placed under
guardianship (curatele)
3.
People of women in marriage
(married women).
Humans are not
the only subject of law. Needed something else that
is the subject of law. In
addition to the known human subjects other
than the law called Legal Entity. Legal Entity is an organization or
group of people who have certain goals
that can assume the rights and obligations.[6] State and limited
liability companies such is
organization or group
of people which is a legal entity.
The Legal
Entity acting as a single entity in the traffic laws like those.
Law creates a
legal entity because of the
recognition of an organization or
group of human beings as subjects hukumitu indispensable
since proved beneficial to traffic laws.
Legal entities can be
divided into two types:[7]
1.
The legal entity under
public law environment, the founding bodies and
the order ditenktukan by public law. This
legal entity is the result of the formation of the
ruling, based on the legislation
that implemented the
executive, government or governing body mandated to it. For example, State,
Provincial, District, Bank Indonesia, village, Subak
etc.
2.
Legal entities within
the private law, namely the establishment of bodies
and the order is determined
by private law. This
legal entity is a private legal entity established
by a private person for a specific purpose, namely for-profit, social
education, science, politics, culture, health,
sports, etc. Are included
in private law such cooperatives, NV, and
endowments.
According to its purpose, private
legal entities can be divided into:[8]
1.
Trust with
no materialistic or
charitable purposes. For example, church group, agency endowments, foundations
etc.
2.
Fellowship with the aim of obtaining
profits. For example, a limited liability company.
Jurisprudence In
Indonesia, the legal entities are classified into three kinds, namely:[9]
1.
According to European
law, among others: the State, PT,
and associations based
Stb. 1870 No.
64
2.
According to the European
law is written, among others:
associations based Stb. 1939 No. 570 jo.1939 No. 717, and Stb. 1958 No. 139
3.
According to customary law, among
others: waqf foundation.
Here are some
theories related to legal entities:[10]
1.
Theory assumption (fiction)
from Von savigny,
CW Opzoomer and
Houwing. Basically legal subjects are human beings, and the only legal entities only and intangible notion. It
was made by the
State therefore depends on the
recognition of the legal entity of the State.
2.
Theory-purpose A.
Brinz wealth and
riches Siccana separated
and given specific
purposes. Wealth is considered
miik a legal
entity when wealth was tied to the goal.
3.
Theory organ of Otto Van Gierke that the legal entity
such as a human. He
really existed in the association
law. Legal entities forming their own will with intermediary devices (organ)
available to it (the board) as well as humans. Therefore, the function of a legal entity similar to man.
4.
The theory of collective
belonging (together richness theory) of
W.L.P.A. Molengraff and Marcel Planiol
that the legal entity is a treasure that can
not be divided from the members together. Rights
and obligations of legal entities is actually the rights and obligations of its members
together. Thus, the only legal entity juridical
construction.
5.
Theory duguit of Duguit that legal
entity that does not exist.
Humans are the only legal subjects. This is in accordance with the teachings that
the social function that must be carried.
6.
enggens theory that the
body is Hulp
figuur, because of the required and permitted
by law to exercise rights appropriately.
B.
Objects Law
Legal object (object recht)
is everything that is useful for legal
subject (person), and who became the object of the law of a legal
relationship is right. It may therefore be controlled by law subject.
Law relationship is
an authority owned
by a person to
master something from someone else, and the
obligation of others to behave in accordance with
existing authority.[11] The content of the powers
and duties prescribed by law (for
example, the relationship between
the buyer and seller).
In the legal relationship under public law (in
this case, the tax law), the
object of the law is the amount of money that
can be collected from
the taxpayer, and the criminal is a criminal
law to be imposed on offenders. In
civil law, common law object called
object (substance). According to the European civil law Article 503
of the Civil Code, the object can be divided into:[12]
1.
tangible objects, ie
everything that can
be captured by the senses,
for example: home, books, etc.
2.
intangible objects, namely
all kinds of rights. For example: copyright, trademark, etc.
Then at the same time, objects and intangible realized
it was divided into
two, namely under
Article 504 Civil
Code:[13]
1.
Moving objects (objects
not fixed) which
objects can be
moved, such as: tables, chairs, bicycles, etc.
2.
The object is not moving
(fixed objects) are objects that can not be
moved, such as: land,
including trees, buildings, machinery, etc. Vessel
size magnitude of
20 m3 including group also fixed objects.
C.
Deeds Law
Legal act is every human
action that is done intentionally
to cause the rights and obligations.[14]
Legal act is an act that
has legal consequences. So as a result of the
bias is regarded as doing the will of
the law. For
example, debt payments, either
form of money or
goods.
Legal actions or tndakan hukm will happen if there is a statement of will. And to the existence of the will need for the following:[15]
Legal actions or tndakan hukm will happen if there is a statement of will. And to the existence of the will need for the following:[15]
1.
The existence of the will
of the people to bertidak, publish
/ consequences are
governed by law
2.
Statement of the will in
principle not be tied to particular forms and there
are no exceptions, debab can occur:
a.
The statement will
explicitly, among others:
1)
Written own
2)
Written by certain
officials.
b.
Say the word agree, for
example OK, YES, etc.
c.
Statement by the will of
cues, such as: nods, etc.
3.
Statement will secretly.
Legal acts consist of:
1.
unilateral legal act.
Legal act is committed by
one party alone
but raises the
rights and obligations on the one hand as well.
For example: the creation of a will
(Article 875 of
the Civil Code), the grant of an
object (Article 1666 Civil Code).
2.
Legal actions of two
parties.
Is a legal act performed
by two parties
with rights and obligations for both
parties. For example: the sale and purchase agreement (Article 1457 of the
Civil Code), the tenancy agreement (Article 1548 of the
Civil Code), etc.
According to another opinion that legal opinions, legal
acts are divided into two,
namely:[16]
1.
The legal actions carried
out by legal subjects.
a.
Act according to the law. Example: Zaakwarneming (1354).
Zaakwarneming act
consequently is governed
by the law although
not desired by
the people. Example:
take care of the interests of others without being asked by the person that
if there are cases of accidents that result
in a person seriously injured
and had to be operated as soon as the doctors
had to operate without asking permission from the
person or family.
b.
Act against the law. Example:
Onrechtmatigdaad (1365).
Onrechtmatige daad is
an act that is contrary
to law. Although unintended or accidental,
the offender must replace the losses suffered by the
injured party as a result of acts
committed by the offender.
2.
Legal actions are
not carried out by
legal subjects. Example: maturity or expiration,
birth, death.
D. Legal Events
What is meant by the law
or the occurrence of events or rechtsfeit
law is the
result of social events
regulated by law, in order to more clearly
will present some examples that are relevant to the term legal events, because
not every social
event consequently regulated by law.
1.
The first example: Event
buying and selling goods. At this event there are
consequences prescribed by law, namely the emergence of rights and obligations,
as Article 1457
Code Civil Code that
"Buying and selling is an agreement, whereby
one party binds
himself to submit
a material, and
the other party to who has promised
to pay the price ".
2.
The second example: The
events of someone's death. On
the death of a person fairly, in civil law will
lead to the consequences of which
are regulated by law, such as the
determination of the heir and the
heir. In Article 830
Code of Civil Law reads "Inheritance only lasts for death". Whereas if
the person's death was due to
murder, then the
criminal law will arise as a result of the
law for the killer that he must account for his
actions as mentioned in article 338 of the Criminal Justice Act that "Whoever
intentionally eliminate another soul,
punished, because treason or murder
or doodslag, with
imprisonment for ever fifteen years ".
3.
The third example: A
man marries a woman official.
Events wedding or
marriage will lead
to a result which is governed by the law of marriage law in
these events arise where the rights and obligations
of husband and wife. In Article 31, paragraph
(2) of Act No.
1 of 1974 concerning
marriage reads "Each
party has the right to take legal actions". Whereas Article 34 paragraph
(2) provides "The wife shall manage the affairs of the household as well as possible".
Having
noted the above examples, it
turns out that legal events
can be differentiated into two, namely:
1.
Events law
because the law subject
deed
2.
Legal events that are not subject
to legal action.
Events law
because the law is
the subject acts committed
acts of human or
legal entity which may lead to legal
consequences. Examples of events
making of wills and
events about the grant
of goods.
Legal events that are
not the subject of legal action is all legal events that do
not arise because the subject of legal action,
but in case it may cause certain legal consequences.
Suppose the birth of a baby, death of a person,
and expiration (ie
aquisitief expired extinctief creating rights and obligations that
eliminate expiration).
E.
Rights and Obligations
Laws to protect the
interests of a person by giving
him a power
to act in the
framework of the interests.
Giving power was
done in a measured, in a sense, determined power
and kedalamanya. Such
power is what is
referred to as rights.[17] Thus, not every power in the general population can be called as a right, but only certain
powers, which are
granted by law to a person.
In a book entitled "Inleiding
tot de studie
van Nederlandse hed
recht," Prof. Mr. LJ Van Apeldoorn said that
"legal rights are human or a person associated with
a particular legal subjects and thus transformed into power" and a
right arises when the law began to move.[18]
So right there
in protecting the
interests of power. However
(Paton 1971: 250)
adds an element in
the will of the power. So the right is
the provision of power by law to protect the interests and will
of a person in the act.
Between rights and
obligations are very
close relationship, which reflects
the existence of the other one. We say, that
person A has an obligation to do something. If
the A's action leads
to a specific person, namely the
B. By doing an act directed against B's, Person A has
to perform its obligations. Instead,
because of the obligation on the B that is, the A has
a right. Rights
in the form of power that can be applied to
the B, namely the
pressure to perform that
obligation.
The characteristics inherent
to the right under
the law is as:
1.
Rights paste it on to someone who
is referred to as the owner or the subject and
the right, it is
also called as the person who
has the title of
the goods that were targeted
from the right.
2.
The right was drawn to
another person, namely that the holder of the
obligation. Between the rights
and obligations of
the relationship koleratif.
3.
Rights that exist at
this person requiring
the other party to do or not do something other actions
can be called as the content of rights.
4.
Do or do not do it menangkut something
that can be called as an object of rights.
5.
Any rights under the
law mempunai title,
which is a particular event that is the reason that
the owner melekatna
rights.[19]
The concept of rights
which have in
talking about a concept
that is often used
by people and may also be considered as
the only one there. This concept is particularly emphasizes the notion
that rights paired
with a sense of obligation.
Although this concept
illustrates a core understanding of the
legal rights, but we should also consider the concept of the rights
of the means which seem to be more widespread.
Salmond argued, that
the dominant understanding
of rights can be interpreted as a right in
the strict sense. Beyond the understanding
that such salmod
still call their understanding
of other three, namely:
independence, powers and immunity (immunity).[20]
Freedom rights are
the rights that only deal with things that can be done to myself. And power is a right given
to a person for through the law,
realizing his willingness to change the rights,
obligations, liability or other related laws,
both of themselves
and others. And immunity is the liberation
of the existence of a legal relationship to be
changed by others.
The subjects were able to differentiate right anta absolute right (Absolute Rights) and Relative Rights (Relative Rights).[21] Absolute rights are rights which authorizes a person to perform an act, in which rights can be defended against any person, and vice versa each person must also respect that right. While the relative rights are rights that give authority to a certain person or certain people to demand that someone or some certain others give something, do something or not do something.
The subjects were able to differentiate right anta absolute right (Absolute Rights) and Relative Rights (Relative Rights).[21] Absolute rights are rights which authorizes a person to perform an act, in which rights can be defended against any person, and vice versa each person must also respect that right. While the relative rights are rights that give authority to a certain person or certain people to demand that someone or some certain others give something, do something or not do something.
Obligations that constitute
the relationship of rights according to Austin,
"that absolute liability is have not
couples rights, such
as the obligation to self directed
only under whom he addressed to power, relative
power is involving
the rights on the other.[22]
CLOSING
A. Conclusions
From the series
of the above, we can conclude
that the Basic Concepts in Law, as follows:
1.
Subject of law, the
subject is a human law in Indonesia.
Subjects were divided into two, namely the
law of man or persons and legal entities. Then the legal entity is
divided into two private legal
entities and public legal entity.
2.
The object of law, is
everything that is useful for legal subjects, usually
in the form of objects. The object of law is
divided into two forms of tangible
objects and intangible objects.
3.
Legal actions, is an
act that has legal consequences. For example, debt payments, either form
of money or goods. Legal acts are
divided into several types for
example, the law of the parties
and the law between
the two parties, according to another legal
opinion also shared
menjadidua ie, legal
acts performed by the subject,
and a legal act is
not performed by the subject.
4.
What is meant by the law
or the occurrence of events or rechtsfeit
law is the
result of social events
regulated by law.
it turns out that the law of events can
be differentiated into two, namely: Events
law as legal
subjects deeds and legal events that are not subject to legal action.
5.
The right of every power in
society is granted by law to an individual. Between rights and
obligations are very
close relationship, which reflects
the existence of the other one. We say, that
person A has an obligation to do something. If
the A's action leads
to a specific person, namely the
B. By doing an act directed against B's, Person A has
to perform its obligations. Instead,
because of the obligation on the B that is, the A has
a right. Rights
in the form of power that can be applied to
the B, namely the
pressure to perform that
obligation.
[3] Sudikno
Mertokusumo, Mengenal Hukum (Suatu Pengantar), Cet. 1, (Yogyakarta:
Liberty, 2004), 52-53.
[12] Ibid.
[18] Drs. C. S. T.
Kansil, SH, Pengantar Ilmu Hukum dan Tata Hukum Indonesia, Cet. 8,
(Jakarta: Balai Pustaka, 1989), 120.
[19] Fitzgerald,
1966:221 dalam Prof. Dr. Satjipto Raharjo, SH, Ilmu Hukum, Cet. 5,
(Bandung: Citra Aditya Bakti, 2000), 55.
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