PERANAN HAKIM DALAM MEWUJUDKAN KEPASTIAN HUKUM KEADILAN DAN KEMANFAATAN DI PERADILAN PERDATA

• Main Author: Wantu, Fence M.
• Format: Theses and Dissertations NonPeerReviewed
• Language: English
• Published: [Yogyakarta] : PROGRAMPASCASARJANAFAKULTASHUKUM UNIVERSITAS GADJA 2011
• Subjects: Equity and Trusts Law; Law and Legal Studies
• Online Access: https://repository.ugm.ac.id/94852/1/PERANAN%20HAKIM%20DALAM%20MEWUJUDKAN%20KEPASTIAN%20HUKUM%20KEADILAN%20DAN%20KEMANFAATAN%20DI%20PERADILAN%20PERDATA%20-%20Fence%20M.%20Wantu.pdf; https://repository.ugm.ac.id/94852/
• Institution: Universitas Gadjah Mada

Courts\' verdicts issued by the judge ideally contain aspects of legal certainty, justice, and utility. The three aspects are supposed to be employed proportionally, so that later on its turn, aquality verdict can be obtained. It is not easy though to synergize the three aspects aforementioned. Between aspects of legal certainty and justice, in particular, there are always disagreements. The problems raised in the research are stated as follow: (1) have the civil justice verdicts created or shown legal certainty, justice and utility?; (2) are there any obstacles faced by the judge in creating legal certainty, justice and utility in civil justice?; (3) what legal principles are reflected by the civil justice verdicts in regard to legal certainty, justice and utility? Meanwhile, the research aims at: (1) identifying and comprehending whether the civil justice verdicts have reflected legal certainty, justice and utility; (2) understanding and analyzing the obstacles faced by the judge in realizing their verdicts which contain legal certainty, justice, and utility; (3) tracing and analyzing legal principles reflected from the civil justice verdicts. The research adopts normative juridical approach which is descriptive in nature. It is based on the availability of primary and secondary data. Secondary data are obtained through library study by using document study tool on certain legal materials. Meanwhile, primary data are gained through field study by using questionnaire and interview guidance. Qualitative analysis method is applied in the research as the method of analysis. The research results conclude that a judge does not have to stick on one principle whenever examining and deciding a case. On each case, casuistically, a judge can changeably move from one principle to another. The emphasis on legal certainty principle initiated by the judge tends to\' maintain the written legal norms of the existing positive law. In terms of obstacles, the judge is facing a deadlock whenever written stipulations cannot answer the problems arose. The emphasis on justice principle means that the judge should take into consideration the law, which exists in the society, including customs and unwritten laws. The judge in his argument and legal consideration must be able to accommodate anystipulations exist in the society, both customs and unwritten law.The emphasis on utility principle tends to direct to an economicnuance circumstance. It bases its thought on the idea that law is for human beings or public. Therefore, the objectives of law should bethat of ensuring the prosperity of people.The obstacles face4 by the judge in realizing legal certainty, justice and utility can be categorized into internal and external obstacles. Internal obstacles, which come from within the judge himself: consist of: the judge's appointment, education, science and knowledge, morality, and prosperity. On the other hand, external obstacles, which come from outside the judge, consist of: the independence of judicial power, legislation, prevailing judicial system, community participation and judge SUpervtsory.Basically, legal principles in civil law are general in nature.This means that those principles can be applied in varioussituations. Several legal principles in civil code which needs much attention are: point d' interest point d' action principle, justice principle which is carried out quickly in a simple and cheap way; judge's independence principle; judge's active act principle; judge's passive act principle; judge and council principle; open court principle; equality principle; optional representatives principle; justice principle based on The Divine Omnipotence; verdicts by arguments principle; and objectivity principle.