Rudy, Rudy (2019) The Pathway of Civil Law Development in Indonesia: Laws on Land. Manual. Springer, Singapore.

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CIVIL LAW REFORMS IN POST-COLONIAL ASIA.pdf

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Abstract

The Indonesian legal system is inherited mostly from the Netherland legal system, while Netherland had been inherited the legal system mostly from French. The Indonesian Civil Code, as a concordant edition of Netherlands Civil Code, is a part of legal system that follows the Civil Law countries. Civil Code of Indonesia itself consists of four books namely Book I of Person, Book II of Property, Book III of Agreement, and Book IV of Statue Limitation. The discussion of civil law development can’t be separated from the discussion of the civil code applicability and its changes. The development of laws after independence has brought implication on the applicability of the civil code. The demand of institutionalization of Islamic law had pushed the Indonesian government to enact legislations in the foundation of Islam, such as Law No. 1 of 1974 on the Marriage and Law No. 7 of 1989 on Religious Court. By the enactment of those laws, Book I of Civil Code is only applied for non-Muslim in Indonesia. In its next development, the Law of Person regulated in the Indonesian Civil Code has been regulated specifically in the Population Administration Law and other related law. In the other side, Book II on Properties of the Indonesian Civil Code divides properties into movable and immovable properties. The manifestation of immovable property is the land as the result of the property interpretation according to Article 506 paragraph 1 of the Indonesian Civil Code, it is stated that immovable properties are yard and everything built on them. The development of property law as part of civil law system then very connected with the land law regulation in Indonesia. The Basic Agrarian Law in 1960 (here in after called BAL) had been annulled mostly by the applicability of the book II of Civil Code on property. BAL stipulated that all property rights except hypothec in the Book II of the Civil Code had been annulled and replaced by the land rights stipulated in BAL. By the enactment of BAL and various land law related such as the Security Law in late nineties, the development of law has gone to undirected direction. In addition, Book III of the Civil Code, specifically regulate the contract, had less importance since the enactment of the 1967 Foreign investment law and other regulation on the specific contract. However, basic principles of contract in the civil code had been remained applicable such as freedom of contract and validity of contract (Sunaryati Hartono 2001). There was a draft of contract law prepared in 1960, but faded away as the result of regime changes during sixties (Lev 1965). In sum, very few provision of civil code is applicable and civil law has been developed in many laws and regulation, enacted especially during the developmental state. Among the huge area of the civil law development above, this article focuses on the land law development as the main part of the property law. The discussion on the land law is very important especially after the independence. Post independence Indonesia saw huge developments, arising from internal and external influences. Beside the internal need for economic development and political stability, Indonesia is witnessing profound changes of the international legal system that imposes so-called international requirements to comply (Kadelbach 1999). Those internal and external dimensions are related with the land use and utilization for economic development. To achieve the goal of discussion, the next section will trace back the development of law during the colonial period. It is important to see the root of civil law development in Indonesia and the problem during the first engagement between local and western law. After that, the Sect. 4.3 of this article will provide the analysis of the effort to construct unified legal system after independence and how the land law development was used as tools of economic development. The Sect. 4.4 of this article provides analysis of huge development after the democratization of Indonesia. The last section analyze the direction of law development especially development of land law.

Item Type: Monograph (Manual)
Subjects: K Law > K Law (General)
Divisions: Fakultas Hukum (FH) > Prodi Ilmu Hukum
Depositing User: RUDY
Date Deposited: 21 May 2019 03:00
Last Modified: 21 May 2019 03:00
URI: http://repository.lppm.unila.ac.id/id/eprint/13056

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