by Dharma Na GaraMedical records
Medical records
Doctors who practice medicine are obliged to make notes which must be made immediately after the patient receives services. Every health service must record and document the results of examinations, treatment, actions and other services that have been provided to patients.
Article 46 Indonesia’s Law Number 29 Year 2004 concerning Medical Practice determines:
- Every doctor or dentist in carrying out medical practice is obliged to keep a medical record;
- Medical records as intended in paragraph 1 must be completed immediately after the patient has finished receiving health services;
- Every medical record must contain the name, time and signature of the officer who provides the service or action.
From the provisions of Article 46 of the Medical Practice Law above, it is clear that the recording referred to is medical records. In practice, the term medical record has developed into other terms, namely:
- Medical Document = Dokumen Medis;
- Medical Notes = Catatan Medis;
- Medical Record = Rekam Medis;
- Health Record = Rekaman Kesehatan;
- Personal Health Record = Rekaman Kesehatan Pribadi;
- Medical Report = Laporan Medis.
Every recording (medical record) that is made must contain the name, time and signature of the doctor, dentist or certain health worker who provides health services directly. In the event that an error occurs in recording, correction must be made immediately by crossing out without removing the corrected note and initialing the doctor, dentist or health service worker concerned. Recording and documenting the results of examinations, treatment, actions and other services that have been provided to patients, is what generally called a medical record.
Organizing medical records at a health service facility is one way to measure the quality of service at that health service. Based on the data in the medical record, it will be possible to assess whether the service provided is of good quality or not, and whether it meets standards or not. For this reason, medical records were originally regulated in Minister of Health Regulation Number 749a/MENKES/PER/XII/1989 concerning Medical Records, then updated in Minister of Health Regulation Number 269/MENKES/PER/III/2008 concerning Medical Records. This is further regulated in the Regulation of the Minister of Health of the Republic of Indonesia Number 24 Year 2022 concerning Medical Records.
Meaning of Medical Records:
- In article 1 letters 1, 6 and 7 of the Minister of Health Regulation Number 269/MENKES/PER/III/2008, what is meant by medical record is a file containing notes and documents regarding patient identity, examination, treatment, procedures and other services that have been provided to the patient. Notes are writings made by a doctor or dentist regarding all actions taken to patients in the context of providing health services. Documents are notes from doctors, dentists and/or certain health workers, reports of supporting examination results, daily observation and treatment records and all records in the form of radiology photos, imaging and electro-diagnostic records.
- In the explanation of Article 46 paragraph (1) of Law Number 29 Year 2004 concerning Medical Practice, what is meant by medical records are files containing notes and documents regarding patient identity, examinations, treatment, procedures and other services that have been provided to patient.
- In the Regulation of the Minister of Health of the Republic of Indonesia Number 55 Year 2013 concerning the Implementation of Medical Recorder Work, Specifically in Article 1 paragraph (2) Medical Records are files containing notes and documents regarding patient identity, examination, treatment, procedures and other services to patients at Health facility.
- According to Ery Rustiyanto, medical records are who, where and how the patient was treated while in hospital to complete the medical record, it must have sufficient written data in a series to produce a diagnosis, guarantee, treatment and final result[1].
- According to Gemala R. Hatta, a medical record is a file containing notes and documents regarding patient identity, examination, treatment, procedures and other services provided to patients in health service facility[2].
- According to the Regulation of the Minister of Health of the Republic of Indonesia Number 24 Year 2022 concerning Medical Records, Medical Records are documents that contain the patient’s identity, examination, treatment, actions and other services that have been provided to the patient.
The content in Medical Records
According to the Regulation of the Minister of Health of the Republic of Indonesia Number 24 Year 2022 concerning Medical Records Article 26 paragraph 6 states:
The contents of the medical record as intended in paragraph 2 at least consist of:
- Patient identity;
- Results of physical and supporting examinations;
- Diagnosis, treatment, and health service follow-up plans; And
- Name and signature of the Health Worker providing Health services.
According to the Regulation of the Minister of Health of the Republic of Indonesia Number 24 Year 2022 concerning Medical Records Article 26 paragraph 7 states: Medical records as intended in paragraph (2) must be made by the person in charge of the service.
For further information, please consult your problem with us.
Source:
Zaeni Asyhadie, 2017, Aspek-Aspek Hukum Kesehatan di Indonesia, Rajawali Pers, Depok.
Peraturan Menteri Kesehatan Republik Indonesia No. 24 Tahun 2022 tentang Rekam Medis (Regulation of the Minister of Health of the Republic of Indonesia Number 24 Year 2022 concerning Medical Records).
[1] Ery Rustiyanto, 2009, Etika Profesi Perekam Medis dan Informasi Kesehatan, Graha Ilmu, Yogyakarta, h. 5.
[2] Gemala R. Hatta, 2008, Pedoman Manajemen Informasi Kesehatan di Sarana Pelayanan Kesehatan, Universitas Indonesia, Jakarta, h. 73.
by Dharma Na GaraThe General Meeting of Shareholders or GMS (Rapat Umum Pemegang Saham/RUPS)
The General Meeting of Shareholders or GMS (Rapat Umum Pemegang Saham/RUPS) is a Company Organ.
Based on Article 1 number 2 of Indonesia’s Law Number 40 Year 2007 regarding Limited Company, the Company has three organs consisting of:
- GMS
- Directors; And
- Board of Commissioners.
Furthermore, the existence of the GMS as an organ of the Company is reaffirmed in article 1 point 4 which states, the GMS is an organ of the Company. Thus, according to law, the GMS is a Company organ that cannot be separated from the Company. It is through the GMS that shareholders as owners (eigenaar) of the Company exercise control over the management carried out by the board of directors as well as over the assets and management policies carried out by the Company’s management.
Authority of the GMS
In general, according to Article 1 point 4, the GMS as an organ of the Company, has authority that is not given to the board of Directors or Board of Commissioners, but within the limits determined in this law and/or the Company’s Articles of Association.
Then the authority of the GMS is stated again in Article 75 paragraph (1) which reads: The GMS has authority that is not given to the Board of Directors or the Board of Commissioners within the limits specified in this law and/or the articles of association.
So in general, any authority that is not given to the Board of Directors and/or Board of Commissioners, becomes the authority of the GMS. Therefore, it can be said that the GMS is the highest organ of the Company. However, this is not exactly the case, because basically the three organs of the Company are parallel and side by side in accordance with the separation of powers regulated in the law and articles of association. Thus, it cannot be said that the GMS is superior to the Board of Directors either the Board of Commissioners. Each has a position and authority according to the functions and responsibilities they have.
If described, the main authority of the GMS is in accordance with the 2007 Limited Liability Company of Indonesia’s Law, including the following:
- Declare to accept or take over all rights and obligations arising from legal actions carried out by the founder or his proxies (Article 13 paragraph 1);
- Approve legal actions on behalf of the Company carried out by all members of the Board of Directors, all members of the Board of Commissioners together with the founders provided that all shareholders are present at the GMS, and all shareholders approve them at the GMS (Article 14 paragraph 4);
- Changes to the Articles of Association shall be determined by the GMS (Article 19 paragraph 1);
- Give approval for the repurchase or further transfer of shares issued by the Company (Article 38 paragraph 1);
- Hand over authority to the Board of Commissioners to approve the implementation of GMS Decisions regarding the repurchase or further transfer of shares issued by the Company (Article 39 paragraph 1);
- Approve the increase in Company capital (Article 41 paragraph 1);
- Approve a reduction in the Company’s capital (Article 44 paragraph 1);
- Approve the annual work plan if the Articles of Association determine so (Article 64 paragraph 1 jo. paragraph 3);
- Approving the annual report and ratifying the financial report and supervisory duties report of the Board of Commissioners (Article 69 paragraph 1);
- Decide on the use of net profit, including determining the amount of allowance for statutory reserves and other reserves (Article 71 paragraph 1);
- Determine the division of duties and management of the Company between members of the Board of Directors (Article 92 paragraph 5);
- Appoint members of the Board of Directors (Article 94 paragraph 1);
- Determine the amount of salaries and allowances for members of the Board of Directors (Article 96 paragraph 1);
- Appoint another party to represent the Company if all members of the Board of Directors or Board of Commissioners have a conflict of interest with the Company (Article 99 paragraph 2 letter c);
- Give approval to the Board of Directors to:
- Transfer the Company’s assets, or
- Serve as collateral for debts of the Company’s assets, This approval is required if more than 50% (fifty percent) of the Company’s net assets are in 1 (one) or more transactions, whether related to each other or not (Article 102 paragraph 1);
- Give approval to the Board of Directors to submit a bankruptcy petition for the Company itself to the Commercial Court (Article 104 paragraph 1);
- Dismiss members of the Board of Directors (Article 105 paragraph 2);
- Strengthen the decision to temporarily dismiss which done by the members of the Board of Commissioners against members of the Board of Directors (Article 106 paragraph 7);
- Appoint members of the Board of Commissioners (Article 111 paragraph 1);
- Determine the amount of salary or honorarium and allowances for members of the Board of Commissioners (Article 113);
- Appoint Independent Commissioners (Article 120 paragraph 2);
- Give approval to the Merger Plan (Article 223 paragraph 3);
- Give approval regarding Merger, Consolidation, Takeover or Separation (Article 127 paragraph 1);
- Give a decision on the dissolution of the Company (Article 142 paragraph 1 letter a);
- Accept the liquidator’s responsibility for completing the liquidation (Article 143 paragraph 1).
For more information, please consult your problem with us.
Source:
Yahya Harahap, 2016, Hukum Perseroan Terbatas, Sinar Grafika, Jakarta.
by Dharma Na GaraFormulation of a lawsuit
Formulation of a lawsuit.
In this article, only the main things are discussed.
What is meant by formulation of a lawsuit is the formulation of a lawsuit which is deemed to fulfill the formal requirements according to the applicable legal provisions and statutory regulations.
- Addressed to the District Court in accordance with Relative Competency
The letter of claim must formally be addressed to the District Court in accordance with it’s relative competence. It must be firmly and clearly written the addressed District Court, in accordance with the relative competency benchmarks regulated in Article 118 HIR. If the claim letter has the wrong address or does not correspond to relative competence:
- Resulting in the lawsuit containing formal defects, because the lawsuit is submitted and addressed to the District Court which is outside the jurisdiction which has the authority to examine and try it;
- Thus, the lawsuit is declared inadmissible (niet onvankelijke verklaard) on the grounds that the judge does not have the authority to try.
- Dated
- Signed by the Plaintiff or Attorney
- Identity of the parties. To Mention the identity in the lawsuit is a formal requirement for the validity of the lawsuit. A lawsuit that does not mention the identity of the parties, moreover does not mentioning the identity of the defendant, will cause the lawsuit to be invalid and it will be deemed not exist. The main purpose of including identity is so that summons and notifications can be delivered. The identity that must be mentioned simply includes full name, address or place of residence. Mentioning other identities is not mandatory.
- Fundamentum Petendi
Means the basis of the lawsuit or the basis for the claim (grondslag van de lis). Elements of the fundamentum petendi:
1) Legal Basis (Rechtelijke Grond)
Contains confirmation or explanation of the legal relationship between:
- The plaintiff with the disputed material and/or object, and
- Between the plaintiff and the defendant regarding the material or object of the dispute.
2)Basic Facts (Feitelijke Grond)
Contains explanatory statements regarding:
- Facts or events that are directly related to or around the legal relationship that occurred between the plaintiff and the material or object of the case or with the defendant.
- Or an explanation of facts that are directly related to the legal basis or legal relationship argued by the plaintiff.
- Petitum of Lawsuit
Another requirement for formulating a lawsuit is the petitum of lawsuit. In order for a lawsuit to be valid, which means that it does not contain formal defects, it must include a petitum of lawsuit which contains the main points of the plaintiff’s claims, in the form of a clear description stating one by one at the end of the lawsuit regarding what things are the main points of the plaintiff’s claims which must be stated and charged to the defendant. In other words, the lawsuit petitum contains demands or requests for the Court to declare and determine the rights of the plaintiff or punishment for the defendant or both parties.
For more information, please consult your problem with us.
Source:
Yahya Harahap, S.H., 2008, Hukum Acara Perdata tentang Gugatan, Persidangan, Penyitaan, Pembuktian dan Putusan Pengadilan, Sinar Grafika, Jakarta.
by Dharma Na GaraCapability to Act in Front of the Law
Capability to Act in Front of the Law
People who are not capable of acting before the law
Although according to current law, everyone without exception can have their rights, but under the law, not everyone can be allowed to act alone in exercising their rights. There are several groups of people who by the law have been declared incompetent or incompetent to act alone in carrying out legal actions, thus they must be represented or assisted by other person. According to Article 1330 of the Indonesia Civil Code, those who have been declared incompetent by law to carry out legal actions themselves are:
- Minors;
- People who are placed under guardianship (curatele);
- The woman in marriage (married woman) has been revoked.
Ad.1 Minors (immature people)
Minors can only exercise their rights and obligations through the intermediary of others, or are prohibited from doing so. The ability to act under the law for persons who are not yet mature is regulated in the following provisions:
- According to article 330 of the Indonesia Civil Code, a person is said to be immature if he has not reached the age of 21 years and has not been married before. If he is married, then he is considered an adult and he will not be a minor anymore, even though the marriage is terminated before he reaches the age of 21 years.
- To enter into marriage:
- According to Article 29 of the Indonesia Civil Code, a man must be 18 years old and a woman must be 15 years old.
- According to Article 7 paragraph (1) of Indonesian Law Number 1 year 1974 regarding Marriage, for a man must be 19 years old and for a woman 16 years old and after the enactment of Indonesian Law Number 16 year 2019 regarding Amendments to Indonesian Law Number 1 year 1974 regarding Marriage, marriage is only permitted if a man and a woman have reached the age of 19 (nineteen) years old.
- In the law of inheritance, a person who has not reached the age of 18 years cannot make a will (Article 897 of the Indonesia Civil Code).
- According to Article 198 of Indonesia Law Number 7 Year 2017 regarding the , to be able to vote in general elections must be 17 years old or more or has marriaged or was marriaged.
Ad. 2 People who are placed under guardianship (curatele)
According to Article 433 of the Indonesia Civil Code, a person who is placed under custody/guardianship is a person who is dull-witted, has memory problems and is an extravagant person. Regarding this matter, it is regulated in the following provisions:
- A person who because of his intellectual imperfection is placed under guardianship, has bound himself in a marriage, could be asked to annul the marriage (Article 88 paragraph 1 of the Indonesia Civil Code).
- To be able to make or revoke a will, a person must have his mind (Article 895 of the Indonesia Civil Code).
- Those who are placed under guardianship are considered incompetent to make an agreement (Article 1330 of the Indonesia Civil Code).
Ad. 3 The Position of Woman in Law
Especially for a woman who is declared incompetent in legal actions in terms of:
- To make an agreement, require assistance or permission from the husband (Article 108 of the Indonesia Civil Code).
- To appear before a judge must be with the help of the husband (Article 110 of the Indonesia Civil Code).
For now, the provisions of Article 108 of the Indonesia Civil Code had been revoked by Circular Letter of the Supreme Court Number 3 year 1963 dated 4 August 1963. This is also reaffirmed in Article 31 of Indonesia Law Number 1 year 1974 regarding Marriage, where the rights and position of the wife is balanced with the rights and position of the husband in domestic life and social life also in society; and each party has the rights to take legal action. Furthermore, according to Article 36 paragraph (2) of Indonesia Law Number 1 year 1974 regarding the property of inheritance of each husband and wife have the full right to take legal actions regarding their property of inheritance.
However, in certain cases, even though a wife who is considered capable of carrying out legal actions by Indonesia Law number 1 year 1974, in carrying out actions against marriage joint property/assets she must be act with the consent of the husband, unless there is a marriage agreement in which there’re strict and clear separation agreement on marriage assets.
For more informations, please consult with us.
Source:
Prof. Subekti, S.H., 2003, Pokok-pokok Hukum Perdata cetakan XXXIV, PT. Intermasa, Jakarta.
Prof. R. Subekti, S.H., and R. Tjitrosudibio, 2007, Kitab Undang-undang Hukum Perdata/Burgerlijk Wetboek, Pradnya Paramita, Jakarta.
P.N.H. Simanjutak, S.H., 2015, Hukum Perdata Indonesia, Prenadamedia Group, Jakarta.
by Dharma Na GaraEvidences in Indonesia’s Civil Law Procedure
Evidences in Indonesia’s Civil Law Procedure
Definition of evidence:
Evidence (bewijsmiddel) in various forms and types, which are capable to provide information and explanations about the problems being litigated in court. Evidence is submitted by the parties to justify the argument of a lawsuit or the argument of rebuttal. Based on the information and explanation provided by the evidence, the judge evaluates which party has the most perfect authentication.
Types of evidence in civil cases
Based on the provisions of Article 164 HIR, Article 284 RBg and Article 1866 of the Civil Code, in Indonesia there are 5 (five) main types of evidence in civil case, namely:
- Letter;
- Witness;
- Presupposition;
- Confession;
- Oath.
Ad. 1 Letter of Evidence is classified into 3 (three) types, namely:
A. Ordinary Letters
In principle, this ordinary letter was not made with the intention of being used as evidence. However, if the letter is later used as evidence in court due to incidental (coincidentally). For example, love letters, letters related to trade correspondence, notes on the use of money and so on.
B. Authentic Deed
Regarding authentic deeds, it is regulated in Article 1868 of the Civil Code which reads: “An authentic deed is a deed made in the form determined by law by or before a public official authorized to do so (Judges, Notaries, bailiffs, Civil Registry Officers, etc.) who has the authority to do so at the place where the deed was made.
From the explanation of this article, the authentic deed is made by or before an authorized official called a public official. Noted it was made by competent or authorized official and the form/content is not defect.
The power of authentication attached to the authentic deed is the power of perfect and binding authentication which is a combination of several strengths contained in it. If one of the strengths is defect, the authentic deed does not have the value of perfect proof/authentication (volledig) neither binding (bindende).
Concretely, the authentic deed was made purposely for the authentication. Because it is for the authentication, authentic deeds based on the provisions of Article 1868 of the Civil Code can be classified into 2 (two) types, namely: first, deeds made by public employees. This type of deed is commonly referred to by the following terms: official deed, acte ambtelijk, relaas deed or procesverbaal acte. For example, the deed made by notary, sub-district head, clerk, summons of bailiff, judge’s decision and so on are authentic deed made by the public employee. Second, the deed made before a public employee. This type of deed is commonly referred to as the party deed or Acte Partij. In principle, in the aspect of making the party deed, the initiative lies within the parties to create it and public official only listen, witness and write down the agreement. For example, a deed made before a notary regarding an agreement (leasing, buying and selling and so on).
C. Underhand Deed/Ordinary Deed/Akta di Bawah Tangan
The definition of an underhand deed/ordinary deed or in Indonesian language akta di bawah tangan is a deed that is not made by neither before a public official who is authorized to make it, or specifically, as the essence of Article 1874 of the Civil Code, an underhand deed is made by the parties themselves without the assistance of a public employee. For example: Receipts, debt agreements, lease agreements, statement letters, registers, household affairs letters and so on.
The power of authentication of underhand deed/ordinary deed or akta di bawah tangan is not as wide and as high as the degree of authentic deed.
Ad. 2 Witness Evidence:
Regarding witness evidence, it is basically regulated in Article 139-152, Article 162-172 HIR, Article 165-179, Article 306-309 RBg and Article 1895, Article 1902-1908 of the Civil Code.
The most important essence of witness evidence is that in general every event can be proven by testimony, unless the law expressly stipulates otherwise. This exception appears, for example, in the agreement for the establishment of a company between the company itself, it must be proven by a notarial deed (Article 22 of the KUHD).
To a person as witness, in principle, all people who are mature and capable of carrying out legal actions (rechtsbekwaamheid) can become witnesses and are required to testify if requested.
In relation to a person’s obligation to be a witness, there are several provisions that regulated people who cannot be heard as witnesses and can refuse also are asked to be released to testify as detailed in the provisions of Article 145, 146 HIR, Article 172, 173, 174 RBg and Article 1909, 1910 of the Civil Code and several Supreme Court decisions of the Republic Indonesia, namely:
People who cannot be heard as witnesses are:
- Straight descendants who are bound by blood or marriage relations with one of the litigants. This is also confirmed as the Supreme Court Decision of the Republic of Indonesia Number: 84 K/Sip/1973 dated 25 June 1973 in the case: Karsilah versus 1. Murati, 2. Baeah and 3. Wari.
- The husband of one of the parties to the litigants even though they divorced. This is in parallel with the Decision of the Supreme Court of the Republic Indonesia Number: 140 K/Sip/1974 dated 6 January 1976 in the case of: 1. Ni Tanjung alias Ni Bukit, 2. Bukit al. I Daha versus I Ngayus; and
- Children who are not known for certain whether they have reached the age of fifteen and people who are insane even though they sometimes can think sanely. This aspect is also emphasized in the Decision of the Supreme Court of the Republic Indonesia Number: 1409 K/Sip/1975 dated 12 May 1976 in the cases: 1. Umi Kalsum et al., against Roekijah and H. Maskur et al.
However, in certain cases they are capable of being witnesses, even though the litigants consist of blood relatives or by marriage or husband or wife. This is regulated in Article 145 paragraph (2) of HIR and Article 1910 paragraph (2) of the Civil Code and other regulation.
People who can ask to be released/can refuse as witnesses, namely:
- Brothers and sisters, brother-in-law and sister-in-law of one of the litigants.
- Families of straight descent and brothers and sisters of the husband or wife of one of the litigants and
- Everyone based on their position, business or occupation is obliged to keep a secret but only because of the knowledge due to the position, business or occupation that has been entrusted to them.
Basically, if someone become a witness in a civil case, what is explained is only limited to what he/she sees, hears or experienced him/herself. Then each of these testimonies must be accompanied by reasons as to the caused and how he/she knew the things that they’ve explained.
Ad. 3 Evidence of Presupposition (Vermoedens)
The existence of presupposition evidence which is common in doctrine is called the term “vermoedens” or “presumptions” it can be seen that in the examination of civil cases, it is difficult to find evidence of witnesses who have seen, heard or felt the case themselves, so that legal events that must be proven are sought to prove through presuppositions.
From the definition of Article 1915 BW and judicial practice, there are 2 (two) kinds of suspicions, namely:
- Presupposition according to law
- Presupposition according to judge
Ad. 1) presupposition according to law
According to the provision of Article 1916 BW, a statutory presupposition is an assumption which, based on a special provision of the law, is associated with certain actions or certain events. Example: every child born during a marriage gets the husband as the father (Article 250 BW). In this context, it means that the law concludes that from the existence of marriage, the children were born during the marriage due to the husband.
Ad. 2) presupposition according to Judge
Identical to presupposition according to the law, in this context the conclusion drawn from an event is the judge. For example: in the case of a child adoption application where A (applicant) will adopt a child named B. At a trial in the District Court, A explains that the child to be adopted had been taking cared by her for a long time. Later in the trial it turned out that the child had called the applicant “mom”. This gives a presupposition and the judge can draw a presupposition that it is true that the child had been taking cared by the A (applicant).
Ad. 4 Evidence of Confession (Bekentenis Confession)
Basically, a confession/ acknowledgment is a statement in written or oral form from one of the litigants in which the contents justify the opponent’s argument either partially or completely. So concretely, the confession is a one-sided statement and there is no need approval from other party.
According to the doctrinal view, the principle of confession (article 1923 BW) can be divided into 2 (two) types, namely:
Confession before the Judge at the Trial (Gerechtelijke Bekentenis)
Confession before the trial has perfect authentication power (volledig bewijs) and binds the person concerned or through the intermediary of a person specifically authorized for it (Article 174 HIR, Article 311 RBg and Article 1925 BW). In this context it means that the judge must consider the arguments recognized as true and grant the claim based on those arguments.
Confession outside the trial
Confession outside the trial is the opposite of confession in the trial or before the judge as outlined in Article 1925 BW and Article 174 HIR. In the form of confession or statement of “justification” regarding the arguments of the lawsuit or denial as well as rights or facts, but the statement is delivered or uttered outside the trial/court session.
In practice, confession outside the trial can be done in written or oral form and is regulated in Article 175 HIR, Article 312 RBg and Article 1927-1928 BW.
In practice and according to legal science, apart from the 2 (two) kinds of confessions above, there are also 3 (three) other kinds of confessions, namely:
- Pure confession (Aveu pur et Simple): this pure confession is simple in nature and basically justifies all the arguments of the opponent (Plaintiff).
- Qualified confession (Gequaliceerde Bekentenis/Aveu Qualifie): basically, qualified confession is confessions accompanied by partial denial of the opposing arguments.
- Confession with a clause (Geelausuleerde Bekentenis/Aveu Complexe): Basically, a confession with a clause is given by providing additional information that is liberating.
Ad. 5 Oath Evidence
The definition of an oath evidence is a statement that is corroborated in the name of God, with the aim of:
- So that the person who takes an oath in giving statements is afraid of the wrath of God, if he lies;
- Fear of God’s wrath or punishment, is considered a driving force for those who swear to tell the truth.
Evidence of oath can be classified into 3 (three) types, namely:
- Decisive Oath
In practice, the decisive oath is commonly referred to by the following terms: “dicisoir oath” or “decisoir eed” which is regulated in Article 156 HIR, Article 183 RBg and Article 1930-1939 of the Civil Code. The essential purpose of the decisive oath is to decide cases (litis decisoir), imposed by the judge on one party at the request of his opponent due to the absence of evidence.
- Complementary Oath
Complementary oaths or commonly referred to by the terms: “addition oath”, “supletoir oath” or “supletoire eed”. This oath is regulated in Article 155 HIR, Article 182 RBg and Article 1940 of the Civil Code and is ordered by the judge to one of the parties if there is just a small amount of evidence against the plaintiff’s claim or to confirm the truth of the defendant’s rebuttal, but the evidence is not sufficient and there is no possibility of adding the incomplete evidence with other evidence to complete the authentication. In such a case, the judge because of his position (ambthalve) can charge one of the parties to take an oath so that the case can be decided.
- Appraiser’s Oath
In common practice the appraiser oath is referred to by the following terms: “taxatoir oath”, “aestimatoire eed”, “waarderingseed” or “schattingseed”, which is an oath ordered by the judge because of his position to the plaintiff (the plaintiff in the convention/the defendant in the reconvention) to determine the amount of compensation for losses. The imposition of the appraiser oath to the plaintiff is carried out selectively in the meaning that there must be no other way to determine the amount of the claim for compensation and the judge can set a highest limit on the amount (Article 1942 of the Civil Code).
Expert Statement (Deskundigenbericht)
The main essence of expert testimony is to provide an opinion on matters submitted to him in accordance with his expertise and aims to clarify the situation of the case.
Also, there’re other evidences such as email, screenshots, photos and videos etc., which regulated in law of information and electronic transaction.
For more information, please consult your problem with us.
Source:
Lilik Mulyadi, S.H.,M.H., 2005, Hukum Acara Perdata menurut Teori dan Praktik Peradilan Indonesia, Djambatan, Jakarta.
Yahya Harahap, S.H., 2008, Hukum Acara Perdata tentang Gugatan, Persidangan, Penyitaan, Pembuktian dan Putusan Pengadilan, Sinar Grafika, Jakarta.
by Dharma Na GaraDactyloscopy
Dactyloscopy origin from the Greek words daktulos, which means finger and skopioo, which means observing. So it literally means observing fingerprints.
The importance of fingerprints has been known to people for centuries. Found in Babylon a finger-stamped clay coin. In China also known as clay like that, during the Tang dynasty known trade contacts with fingerprints (thumbprint) (618-907). But fingerprints since centuries ago have not been used for practical purposes.
Professor Marcello Malpighi, an Italian anatomist in 1686 wrote about the edges of fingerprints. It shows the ability to draw straight lines and spirals at the edges of the fingers. But this knowledge was not developed further. His contemporaries, Dr. Nehemiah Grew with his book The Description and Use of the Pores in the Skin of the Hands and Feel, London, 1684, followed by G. Bidloo of the Netherlands in 1685, Christion J.H. Hintze of Germany in 1707 and Bernard S. Albinus of Germany in 1764.
In 1880 Sir Francis Galtom, a British anthropologist who is often called the founder of dactyloscopy, introduced the first scientific method of classifying fingerprint forms.
In 1882, the first official fingerprint record was made in the United States, when Gilber Thompsom wrote his order with his own fingerprint to avoid forgery.
Fingerprints are classified into 3 major groups, namely group L (from the word Loops, meaning hooks, and W from the word Whorls, meaning round). Group L is further divided into three groups, namely hooks, bow and pole bow. While the W group is divided into 5 more groups, namely circles, side pockets, twin hooks, inner pockets and extraordinary pictures, the third group is Arches (meaning: arches) which are further divided into flat (plai) and looks a like tent (tented).
For more information, please consult your problem with us.
Source:
Dr. Andi Hamzah, S.H., 1986, Pengusutan Perkara Kriminal Melalui Sarana Teknik dan Sarana Hukum, Ghalia Indonesia, Jakarta.
by Dharma Na GaraA will or Testament
A will or testament is a statement from someone about what he/she wants after he/she died. Article 875 and 874 BW, which explain the meaning of a will or testament, does contain a condition that the contents of the statement must not conflict with the law.
The most common, a testament contains what is called an “erfstelling“, namely the appointment of one or several people as “heirs” who will receive all or part of the inheritance.
According to the form there are three kinds of testament, namely:
- “openbaar testament”;
- “olographic testament”;
- “closed or secret testament”.
An “openbaar testament” is made by a notary. The person who will leave the inheritance goes to a notary and declares his will. The notary makes a deed which is attended by two witnesses. This form is the most widely used and also the best, because the notary can supervise the contents of the will, so that he can give advice so that the contents of the testament do not conflict with the law.
“olographic testament” must be written by the hand of the person who will leave the inheritance itself (eigenhandig). Must be submitted to a notary for safekeeping. The submission must also be attended by two witnesses. As the valid date of the testament, is when the date of the deed is given (deed of van depot). Submission to a notary can be done openly or privately.
“closed or secret testament”, also made by the person who will leave an inheritance, but he is not required to write it with his own hand. A secret testament must always be closed and sealed. The submission to a notary must be attended by four witnesses.
For more information, please consult your problem with us.
Source:
Prof. Subekti, S.H., 2003, Pokok-pokok Hukum Perdata Cetakan XXXIV, penerbit PT. Intermasa, Jakarta.
by Dharma Na GaraActio Pauliana.
To protect the rights of creditors claims, Article 1341 of the Indonesian Civil Code authorizes each creditor to in certain circumstances can file a cancellation of the debtor’s actions that are not required which harm the creditors.
The lawsuit based on article 1341 is called actio pauliana with the following conditions:
- The act as stated in Article 1341 of the Civil Code must be a legal act.
For real actions, such as damage that results in a decrease in the debtor’s wealth or acts against the law, the creditor cannot ask for cancellation.
- It is not an obligatory legal act.
What is meant by legal actions that are not required are legal actions that are not carried out because of obligations caused by law or approval. Payment of debts that have been collected is a legal act which is the obligation of the debtor so that such payments cannot be contested by other creditors, even if the payment to one creditor is detrimental to other creditors.
- Only aggrieved creditors have the rights to apply for cancellation.
The provisions of the law that stipulate that each creditor can apply for the cancellation of actions that are detrimental to creditors can give the impression that the loss must affect all creditors. However, what the law actually means is that a creditor who is suing under Article 1341 of the Civil Code must be a creditor who is harmed by legal actions of the debtor.
- Debtors and third parties must know that their actions are detrimental to creditors.
The word “knowing” that the act is detrimental to the creditor must be measured objectively, it must be interpreted that the debtor and the person with whom he/she has committed the act should clearly understand that his/her actions are detrimental to the creditor. therefore, not only the debtor concerned but also the parties who have a relationship with the debtor must know.
Source:
R. Setiawan, S.H., Pokok-pokok Hukum Perikatan, 1978, Binacipta, Bandung.
by Dharma Na GaraMarriage in Balinese Custom Society
Marriage in Balinese Custom Society
Marriage includes family law, family law is the entire legal norms, written or unwritten, which regulate family relations, whether caused by blood relations or certain legal actions. Legal actions such as marriage, adoption of children, etc. Family relations, among others, contain obligations and rights in family life, such as the obligations and rights of children to parents or vice versa.
The existence of customary family law in Balinese Custom Society is still very strong. This means that it is still recognized and followed by the Balinese Custom Society, beyond what has been regulated by Law number 1 year 1974 regarding Marriage.
Family System
The family system that applies in a society is the key to being able to understand the issues that are the scope of family law, especially in relation to marriage and inheritance. The family system here is defined as a way to draw a lineage, so that it can be known with whom someone has a family legal relationship.
The family system that prevails in society in Indonesia is very diverse, due to the plurality of the socio-cultural conditions of the Indonesian people, both in terms of ethnicity, religion, and others. These factors make it difficult to establish a national family law. In general, in Indonesian society, there are three family systems, namely:
- The patrilineal family system. Under this system, descent is traced from the father’s line, such as in Batak, Nias, Sumba, Bali.
- The matrilineal family system, according to this system, kinship is traced from the mother’s line, so that children were born from marriage will get a family line from the mother’s line. As happens in Minangkabau, West Sumatra.
- Parental family system, in this system the lineage is traced from two parties (bilateral), namely both from the mother’s line and the father’s line, so this system is also called the maternal-father family system. Adopt by the people of Java, Sunda, Aceh, Kalimantan, and others.
Balinese Custom Society adhere to a patrilineal family system, which is more widely known as Kapurusa or purusa. As a consequence, in a marriage, the wife will enter and settle in her husband’s family environment and a son is seen as having a more important position than a daughter. As a result, married couples who have not yet been blessed with a son often “feel” that they do not have children yet.
It is also important to mention that the clan (soroh) in Balinese Custom society, which tends to lead to a caste or wangsa system, in the past greatly influenced the customary law in Bali, as reflected in the prohibition of inter-wangsa marriages called asupundung and anglangkahi Karangulu, which in 1951 had been removed.
Marriage System
In Balinese Custom Society, marriage is known by several terms such as pawiwahan, nganten, mekerab kambe, pewarangan, etc. The words “married” in everyday language are called nganten and makerab kambe, which are essentially the same as marriage as regulated in the marriage law. According to Law number 1 year 1974 regarding Marriage, marriage is defined as an outer and inner bond between a man and a woman as husband and wife with the aim of forming a happy and eternal family (household) based on the One Godhead.
Gde Pudja (1975: 15) stated that marriage according to Hindu is a bond between a man and a woman as husband and wife in order to regulate proper sex relations in order to obtain male offspring in order to save the spirits of their parents.
The purpose of marriage according to Hindu teachings is to have children (descendants) in order to atone for the sins of their parents. The description of the importance of having children can be seen from the provisions of Article 161 of Book IX Manawa Dharmasastra. In the explanation of this article, it is explained that the child is likened to a boat that will take someone, namely a spirit who is suffering in hell and to save it, a child with all the consequences must have a son and if he does not have a son, he must replace him with another child. Families who suffer in the afterlife are ancestral spirits floating in hell before the funeral cremation ceremony (pitra yadnya) being carried out by their grandchildren or son.
Form of Marriage
It has been explained above that the kinship system adopted by Balinese Custom Society is a patrilineal kinship system (kapurusa). In line with the kinship system adopted, in Bali there are two forms of marriage, namely ordinary marriage and nyentana marriage. The form of a nyentana marriage is actually an alternative path that can be passed by a married couple who happens to only have a daughter.
Ordinary Marriage
As the name implies, ordinary marriage or nganten biasa, is the most common form of marriage (many or ordinary) is carried out by members of the Balinese Custom Society. Ordinary marriage is a marriage that takes place between a man and a woman and the woman leaves her house, to hold a marriage ceremony at her husband’s residence and then is fully responsible for continuing the obligations (swadharma) of her husband’s ancestors and parents on a daily activity or sekala (real world) also niskala (spirits realms). This marriage is considered an ordinary marriage because it is carried out in accordance with the kinship system adopted in Bali, namely patrilineal (fatherhood).
In the ordinary marriage, the children who were born will follow the lineage of their father. Generally, Balinese-Hindu people tend to have ordinary marriages. Therefore, problems rarely arise regarding the implementation of this form of marriage, both related to how to carry it out, the implementation of the ceremony and when the bride and groom complete the marriage administration (marriage certificate) at the Population and Civil Registry Office.
Nyentana Marriage
In addition to the usual/ordinary form of marriage, it is also known as a form of nyentana marriage. The main difference between these two forms of marriage lies in the legal status of the bride and groom. In an ordinary marriage, the groom is in the position of male legal status, while in the nyentana marriage, the bride is in the position of the male legal status. Nyentana marriage is a marriage that is carried out between a man and a woman in which the man leaves his house to hold a marriage ceremony at his wife’s residence and then is fully responsible for continuing the obligations (swadharma) of his wife’s parents and ancestors, on a real world/daily activity (sekala) and niskala (unseen/spirits realms).
In the ordinary marriage, the woman who leaves her family, while in nyentana marriage, the man who leaves his family and becomes a member of his wife’s family. This form of marriage is chosen in the condition that the family only has a few daughters without having a son. Under this circumstance, one of the daughters will be confirmed as a “boy” or male legal status (purusa status). The girl who has male legal status is known as sentana rajeg. If a sentana rajeg marries a man who comes from a family consisting of several sons, she will not leave her house nor won’t go with her husband, on the contrary the husband who goes with his wife, and then resides in his wife’s place of residence. In this case, the husband is called meawak luh (female legal status/predana status) while his wife is meawak muani or has male legal status (purusa status).
This marriage took place at the residence of his wife. Therefore, when the marriage takes place, women’s families are relatively busy compared to men’s families. The busyness of the marriage ceremony includes completing the marriage administration. The male family mostly waits (madia) or follows a series of ceremonies according to the order in which the marriage ceremony is held as determined by the female family.
This form of marriage is less common among Balinese-Hindus than the ordinary form of marriage. It means, it is only carried out by families who are not blessed with a son. Therefore, it made sense when at the beginning of the enactment of Republic Indonesia Law number 1 year 1974 regarding Marriage, there are several families who had conducted a nyentana marriage, experiencing difficulties in completing the marriage administration (marriage certificate) at the Department of Population and Civil Registry, because a nyentana marriage which places the wife as male legal status (purusa status), is apparently not in line with the format of the marriage certificate as specified in the rules on marriage.
Thankfully the authorities (in this case the Bali Provincial Government, in particular the Population and Civil Registry Offices in all Bali regencies), had not implemented the Marriage Law purely and consistently, so that the completion of the marriage administration (marriage certificate) for couples who had nyentana marriage can be completed wisely, namely by adding a “note” in the marriage certificate which explains that “… and Ni Made Yuliani, S.Sos, (name of the bride) as purusa status/male legal status then the problem is solved.
Perhaps because of this changes in status, the woman is changed her status to meawak muani or male legal status and the man is changed his status to meawak luh or predana or female legal status, causing this marriage to be less attractive to some men.
Once again, it needs to be emphasized that nyentana marriages are generally carried out by families who are not blessed with a son. The nyentana marriage was chosen with the intention that all the responsibilities and obligations (swadharma) that this family had to carry out are still carried on. However, in some cases, even though a family has been blessed with sons and daughters, they still feel they need to have a nyentana marriage for their daughter. This happens when the parents very love to their daughter and the groom agrees to choose the form of nyentana marriage.
Marital status as mentioned above, is closely related to the issue of inheritance later in life, as well as the lineage for children who then born. In the case of ordinary marriages, the children born will follow the father’s line with the status of purusa/male legal status, while in the nyentana marriage, the children born will follow the line of the mother, who has the status of purusa/male legal status. Another consequence of a nyentana marriage is that the man is legally considered to have left the house/throne (ninggal kedaton) or has broken up relationship with his family, so that all his rights to continue the inheritance according to Balinese Customary Law are also considered null and void.
Matunggu Marriage
Citing the research results of V.E. Korn in his book entitled Het Adatrecht van Bali (1932), Pangkat (1971) suggests that matunggu or ninggonin marriage is a form of marriage in Bali. This form of marriage is chosen if the husband cannot pay his wife’s petukon (buyer price), therefore he is forced to wait at the house of the father in-law. There he works, usually working in the fields without wage, until the petukon money is paid in full or calculated with wages or results that must be part of the husband (father in-law).
Paselang Marriage
According to Artadi (2009), a paselang marriage, also known as a ditoroni marriage, is a form of marriage that is commonly practiced among the Balinese Puri (royal family), with the aim of preventing the lost of successor generations/heirs in the Puri (Palace). As is known, the number of caste people (the Puri group/royal family) is relatively not as much as the average person, so that often happens, it’s difficult to find a mate for a single daughter, who happens to have a fate of “difficulty to find a soulmate”, while Puri’s (royal) inheritance are so many in both immaterial and material that must be borne, so that the continuation of the lineage is an absolute must in the castle. If it is difficult for a girl to find a mate, until her time is over and she is burdened with the obligation to continue her descent in Puri (castle), any way is impossible, including the way to raise a child, because she has not yet married, so the only “exceptional” way is to do a paselang marriage. Paselang marriage is a marriage by borrowing (paselang) a married man from another castle for the purpose of fertilization of offspring for the continuation of inheritance in the woman’s house/castle.
It was further stated that regarding the procedure for implementing the paselang marriage, there’s no explanation had not been found. However, the decision of the Kerta Court in Denpasar Number 2/1948 dated 3 February 1948. In connection with the decision of the Denpasar District Court Number 23/Pdt.G/2007/PN. Dps dated 18 September 2007 and upheld by the decision of the Supreme Court of the Republic of Indonesia Number 1042 K/PDT/2008, dated 21 October 2008 stated that the paselang marriage was legal.
In the paselang marriage, two sons were legally adopted, namely the biological child of the paselang man in his marriage to his other wife. The two sons then legally inherit in the new castle and the continuation of the inheritance is declared valid by the jurisprudence mentioned above.
Pada Gelahang Marriage
It has been stated above that the most common form of ordinary marriage is held in Bali and there are relatively no problems in relation to the ceremony or the completion of the marriage certificate. The form of nyentana marriage is actually an alternative path that can be passed by husband and wife couples who are only blessed with daughters and are not blessed with male offspring. The question is, what form of marriage should be chosen if there is a family with only one son, intending to marry a woman who also happens to be the only child in the family? Or in the case that one family is blessed with several children but it is believed that only one of the children may take care of and continue the inheritance left by their parents, for some reason. Based on several cases found in several custom villages in Bali, such a situation was overcome by choosing the form of pada gelahang marriage, which means “duwenang sareng” or “shared ownership”.
There are several terms used to describe the form of pada gelahang marriage, such as the marriage of negen dua (Banjar Pohmanis, Penatih, Denpasar), mepanak bareng (Banjar Kukub Perean, Tabanan, Banjar Cerancam, Kesiman, Denpasar), negen dadua mapanak bareng (Banjar Kerta Buana neighborhood) Denpasar, Peguyangan Custom Village, Denpasar), nadua umah (Krambitan, Tabanan), makaro lemah (Gianyar Custom Village, Gianyar), magelar warang (Sangsit, Buleleng and Melaya, Jembrana). There are also those who call it a fairly long phrase, such as “nyentana (nyeburin) marriage with an agreement without a farewell ceremony”, as it is known in Kerobokan, Denpasar. In the words of I Gusti Ketut Kaler (1967), this marriage is called “parental marriage”.
Source:
Dr. Wayan P. Windia, S.H.,M.Si, dkk, 2009, Perkawinan Pada Gelahang di Bali, Denpasar, Udayana University Press.
by Dharma Na GaraIntellectual Property Rights
Are you a fan of Marvel Superheroes characters like Spiderman, Captain America and etc.? Fan of video game like GTA (Grand Theft Auto) or fans of box office movie or Disney? All of it was the result of intellectual works which has economic value that in the process of the creation and invention takes a lot of time, expenses and energies, hereby the brief review.
Definition of Intellectual Property Rights
Intellectual Property Rights (IPR) is a concept of rights, wealth, and the result of human intellectuality. IPR also described as the result of human thought or human creativity which produces a creation in art, literature, science and technology which has economic benefits. IPR also is economic rights that granted by law to a creator or inventor for a work of human intellectual ability.
IPR is a type of intangible movable goods that was first recognized in countries with an Anglo Saxon legal system (common law system). Intellectual Property Rights can be regarded as objects (zaak in Dutch language) as known in civil law. So that IPR as objects are assets that can be transferred to other parties, either in the form of buying and selling, inheritance, grants or special agreements such as licenses. The license agreement that is often used in the transfer of IPR is an agreement granting the right to use IPR (an information from a system or technology, the use of a logo, brand and trade name, patent or trade secret) in exchange for payment of royalties or fees or premiums by the licensee to the licensor. These agreements usually provide exclusive rights in the form of the use of economic rights to intellectual property rights.
Intellectual Property Rights can be considered as a valuable asset, this is because intellectual works in the fields of science, art, literature, or technology that were born with the sacrifice of energy, time and money make them precious and valuable. The economic benefits that can be enjoyed and the inherent economic value give rise to the concept of property for these intellectual works. For the business world, these works can be referred to as company assets.
IPR as movable objects that are intangible and have economic value, of course IPR can also be used as collateral in debt-receivable agreements. The old Copyright and Patent Laws did not stipulate regarding IPRs which could be used as collateral, but in the new amendments, namely Law Number 28 year 2014 regarding Copyright and Law Number 13 year 2016 regarding Patents stipulates that copyrights and patents can be used as objects of fiduciary guarantees.
Protected Creation
Article 40 paragraph 1 Indonesia’s Copyrights Law states that in this law protected works are creations in the fields of science, art, and literature which include:
- Books, pamphlets, presentations of published works and all other written works;
- Lectures, speeches and other similar creations;
- Props made for the benefit of education and science;
- Songs and/or music with or without subtitles;
- Drama, musical drama, dance, choreography, wayang and pantomime;
- Works of art in all forms such as painting, drawing, carving, calligraphy, sculpture, statue or artistic composition (kolase);
- Applied works of art;
- Architectural works of art;
- Map;
- Batik artworks or other motif art;
- Photographic works;
- Cinematographic works;
- Portrait;
- Translations, interpretations, adaptations, anthologies, databases, adaptations, arrangements, modifications and other works resulting from the transformation.
- Translation, adaptation, arrangement, transformation or modification of traditional cultural expressions;
- Compilation of works or data, both in a format that can be read by computer programs or other media;
- compilation of traditional cultural expressions as long as the compilation is an original work;
- video games; and
- computer programs.
IPR Branch
The IPR branch generally refers to TRIPs (Trade Related Aspects of Intellectual Property Organization) which is an agreement that regulates IPR provisions under the WTO (World Trade Organization). Some of the main elements according to TRIPs include:
- Copyrights and related rights;
- Trademark;
- Geographical indicators;
- Industrial design;
- Patent;
- Design of integrated circuits;
- Protection of undisclosed information.
Benefits of IPR for Indonesia’s Development
In general, there are several benefits derived from a good IPR system, namely:
- IPR can increase the growth of a country’s trade and investment;
- IPR can develop and improve technology;
- IPR is able to encourage companies to compete globally;
- IPR can help increase inventory innovation effectively;
- IPR can develop the socio-cultural community;
- Intellectual Property Rights can maintain the company’s reputation in the international world for export purposes.
Intellectual Property Rights are able to provide benefits in various fields of life, both social and economic. In addition to economic benefits through trade and investment, intellectual property rights are also able to provide social and cultural benefits. The existence of IPR is able to change social behavior into behavior that always respects the work of others, such as copyright. Patent protection is also able to change social habits into positive behavior, namely always willing to develop science and technology through a research culture based on benefits for human life.
IPR Violation
Violation of intellectual property rights certainly has clear and definite legal consequences, such as the imposition of criminal sanctions, fines or both.
For more information, please consult with us.
Source:
Dr. Khoirul Hidayah, S.H.,M.H., 2020, Hukum HKI Hak Kekayaan Intelektual, Setara Press, Malang-Jawa Timur.
