Definition Of International Civil Law And Its Types Of Disputes

Supreme Court Building (Photo: Setkab.go.id)

JAKARTA - International civil law can be said to be a device in the national legal system that takes care of legal relationships or events with the involvement of more than one national legal system.

The clarity of the definition of international civil law itself will be more visible when it comes to the definition of international law. This is because the two definitions both use international terms, in addition to often also disputed.

From the terms used, experts in Indonesia agree on the use of international civil law terms with a number of juridical or non-juridical considerations.

Furthermore, to understand a legal event that belongs to the scope of international civil law material, we must know, identify, and analyze a legal event. Whether it can be categorized as an international civil law event or not.

If the process can be resolved, then the case of international civil law will be resolved in a runtut and systematic manner, because the flow of the main problems in international civil law is well known.

Identification of the use of International Civil Law

International civil law itself is used for the following reasons.

- This law has become a common habit

- International scope concerning cross-border issues

- The law of dispute is not used because a legal event is not always conflicting

- Intergovernmental law is not used because the scope of validity is too wide

Hpi Main Problem

The most basic issues that are often considered in international civil law include:

- Which judge or court has the authority to address legal issues containing foreign elements;

- Which laws must be enforced to regulate and/or address legal issues containing foreign elements;

- Where/to what extent a court shall pay attention and recognize the decisions of foreign courts and/or recognize the rights/legal obligations issued under the laws/decisions of foreign courts.

Speaking of international civil law, it also speaks of the overall rules and regulations that apply in disputes between two or more persons of different nationalities.

International civil law questions in which jurisdictions disputes should be reviewed and resolved, what laws are used to resolve such disputes, and how to enforce foreign laws.

Types of disputes

1) The disputes referred to include marriage, divorce, child custody, trade contracts with foreign parties. Especially in Indonesia, arrangements related to international civil law still use articles 16, 17, and 18 Algemene Bepalingen which is a legacy of colonial times. With codification efforts in the national law is still limited to the bill in the House of Representatives.

2) International civil disputes may be caused by:

a). contractual disputes

This dispute arises between the parties bound by an agreement or agreement, in other words the dispute relates to a contractual relationship;

b). non-contractual disputes

Disputes involving parties that are not bound in a contractual relationship or disputes that do not recognize or are not bound by an existing contractual relationship;

c). conflict of law

Occurs due to differences in jurisdiction and/or legal system in a civil dispute that contains foreign elements. In addition, many things must be considered in international civil disputes, including the jurisdiction of the right court (choice of forum), applicable law on the substance of the dispute (choice of law) and enforcement (implementation of the award).

Examples of international civil law cases

International civil law can be applied in the following cases:

An Australian citizen is married to an Indonesian woman in Australia. The marriage took place in Australia because the woman's parents did not approve. Furthermore, from the marriage, the couple had two sons, namely Mitch and Harry.

Right at the age of 20 marriage, the two felt they did not have a match because the wife was still domiciled in Indonesia. The husband also filed for divorce in the Jakarta high court, as well as asking for custody of his two sons. However, before the lawsuit went to the Jakarta court, the husband died and left the testament that the property owned by the husband was passed on to Mitch and Mark, the husband's adopted son in Australia. Testament itself was made by her husband during his business trip to Italy.

In such cases, it can be known that there is a legal act with the existence of marriage and testament making in Australia with a different marriage of nationality, and the making of a testament in Germany by the husband.

Based on national law in Indonesia, materially marriage must be conducted in accordance with the KuHPdt and marriage Law No.1 of 1974. However, because it is done in Australia, it is materially and formil the case must be resolved by Australian law.

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