CHAPTER V
BASIC UNDERSTANDING OF THE LEGAL SYSTEM
1. Legal Community
By defining a community as a system of an orderly
relationship, we then may define a “legal community” as a
system of an orderly relationship with its own law. Meanwhile
the term “with its own law” refer to law which is created
under the relationship system itself. A relationship in this case
may be interpreted as a relation (something abstract) or a
communication (something concrete). A relation may exist
without a communication and will continue to exist even
when all the parties in this relationship are not
communicating with each other, or they are all asleep or even
when one of the party is dead.
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2. Legal Subject
A Legal Subject is anything which legally may support
one’s rights and obligations. A Legal Subject in the
study of law is also referred to as “person” as a
supporter of rights and obligations. Therefore, a
person as a legal subject has the authority to act
according to law.
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From the perspective of law a person has 2 (two) forms
Curzon is of the opinion that:
1. Personal Character “human” (Human Personality) which
possesses the following traits:
a.
Physical.
b.
Spiritual.
c.
Corporeal.
d.
Mental.
2. Legal Personality, this is what we refer to as the legal
subject
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A legal subject may be in the form of:
a. A natural person (naturlijk persoon)
A human being from the moment of birth until death.
b. An artificial person (Legal Personality) or rechts persoon, each
and every supporter of rights and obligations in a group of
natural persons who act as a single entity. Example: a country,
a limited liability company, or a foundation which possesses
wealth.
c. An official or a figure in a bundle of roles (rights and
obligations) which is executed by the role player, usually a
natural person.
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Characteristic of a legal subject is as follows:
1.
2.
3.
Independent, because it has the full capacity to act within the law,
Protected, because it is considered incompetent to act on its own,
Intermediary, even though it has the capacity but its actions are limited
Protected and Intermediary are a group of persons/ individuals without
authority or “personal miserabile” which is :
a)
a natural person under the age of 21 (a minor) who needs a legal
guardian before s/he can execute a legal action.
b)
an adult person under guardianship/ custodianship or a person of
unsound mind under guardianship (Curatele)
c)
a wife who is subject to Article 110 of the Civil Code (this provision
was annulled by SEMA No.3/1963).
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A person (a mature adult) under Curatele is classified into 2 (two)
groups:
(1) A person with unsound mind:
 Neurosis which is an abnormalities in the psychiatric
system
 Psychopath which is an abnormalities of the whole soul
(2) Spendthrift or a drunkard (being incompetent only in the
aspect of wealth management).
According to Article 433-434 of the Civil Code, a person may be put
under Curatele if s/he is:
(1) of weak mind
(2) a spendthrift
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3. Role According to Law
One’s role in law is always connected to one’s
rights and obligations.
Obligations is an imperative role (mandatory) – it
must be executed.
Rights, on the other hand is a facultative role.
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The rise of rights and an obligations
The rise of a right or an obligation is based upon the
circumstance of a legal event. For instance, the selling and
purchasing of an object or leasing of a house is a legal event
which may cause or incur the rights and obligations between
the parties involved.
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In general, obligations may be classified as follows:
a. Absolute Obligation and Relative Obligation
(1) An absolute obligation is an obligation without a
corresponding rights. For example, an obligation to
oneself, usually this type of obligation is attached to a
position of power.
(2) A relative obligation is an obligation with its own
corresponding rights. For example, a car owner must pay
taxes for his/her vehicle, so s/he has the rights to use the
public road which is build by the government.
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b. Public Obligation and Civil Obligation
(1) Public Obligation is an obligation that correlates
with public rights. For example, the obligation to
obey the rules (i.e. criminal law).
(2) Civil Obligation is an obligation that correlates
with civil rights. For example, the obligation of a
seller to surrender sold goods to the buyer.
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c. Positive Obligation and Negative Obligation
(1) Positive Obligation is an obligation that demands
someone to perform a positive action. For
example, the obligation of a seller to surrender
sold goods to the buyer.
(2) Negative Obligation is an obligation that
prohibits someone from performing an act. For
example, someone is obliged not to expropriate
or disturb other people’s belonging.
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4. Legal Event
A legal event is “any and all incidents or facts which
occurred in a person’s live that has legal
consequences”. For example, (1) a marriage
between a man and a woman has a legal
consequences (regulated by law), namely in the
incurrence of rights and obligations for the couple;
(2) the event of a sale and purchase of any goods
will incur a legal consequences, namely the rise of
rights and obligations for both parties (the buyer
and the seller).
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Act against the law, Tort Law, Illegal Act (Onrechmatigedaad).
The definition of an act against the law is dissimilar to a legal event.
The definition of “an act against the law” before and after 1919,
before and after the enactment of the Arrest Hoge Raad on
December 19, 1919, are as follows:
(1) Violating the rights of others’ which are recognized by the Law,
or violating a provision of written law, for example,
expropriating other person’s goods (rights) without obtaining
permission from the owner or destroying other person’s
property,etc;
(2) Committing an act which is contrary to the perpetrator’s legal
obligations, for example, by not helping others when obliged
to do so, by refusing to give the rights to pass in intersection,
and so forth.
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After 1919, specifically after the issuance of the Dutch’s Arrest
Hoge Raad (Supreme Court Decision) on 31 December 1919 (sic).
An act is considered against the law, if:
(1) each and every act or negligence which give rise to a
violation against the rights of others, or if the act is contrary
to the perpetrator’s legal obligation;
(2) it violates the norm of decency or appropriateness toward
other persons or belongings in the community.
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5 Legal Relationship
Legal Relationship is classified as follows:
a.
b.
nebeneinander relationship/ equal and nacheinander relationship/
unequal; equal relationship is not only found in Civil Law (i.e. between
a husband and a wife) but also in State Laws – between one province
to another province, while unequal relationship is found not only in
State Laws (between the authority and the citizens) but also in Civil
Law, for example between parent and children.
reciprocal relationship and unequal non-reciprocal relationship! A
reciprocal relationship is a relationship where both parties have rights
and obligations. An unequal relationship is when one party has the
rights while its counterpart only has obligations.
Careful observation of these two distinctions will reveal that an equal
relationship is not always reciprocal, for example in lending and
borrowing relationship, it is an equal but uneven. While an unequal
relationship may also be reciprocal as in the case of the relationship
between an employer and employee.
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6. Legal Consequences
Legal consequences is a consequence of a legal event or a
result of an action by a legal subject. In legal literatures, we
recognize the
following legal consequences:
(1) Legal consequences in the form of the appearance of,
the change of, or the disappearance of “a certain legal
situation”, for example:
- when a person reach the age of 21, it “bring forth a
new legal situation” from being an incompetent in
the eyes of the law to a competent.
- a mature adult put under Curatele, the
disappearance of his/her competency to take legal
actions.
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(2)
An example of legal consequences in the form of the
appearance of, a changing of or the disappearance of
“a certain legal situation”:
the moment when a debtor and a creditor entered a loan
agreement (in writing), they “incurred a legal relationship
between them”, in this case the legal relationship between
them will be between “a debtor and a creditor”
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Legal community = a system
of orderly relationship with
its own law
With its own law =law
created within, by
and for its
own relationship
Relation (abstract)
Communication (concrete)
Characteristic of a Legal Subject:
-Independent (= possessing a full capacity to take action)
Legal subject = a system of
orderly relationship which ties
various parties connected
within the system.
Legal subject= each party
-Protected (=considered incompetent to take action)
-Intermediary (= possessing a full capacity but its actions are limited)
The essence of a Legal Subject:
- A natural person (=each human being)
- An artificial person (Legal Personality) (=maybe a whole property,
endowment or foundation; or may be in the form of a relation such as a
cooperative, a limited liability company, public company, state owned
company
-Figure
: Position/ Official
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-Circumstances which may have different perspective: :
Legal event (= a social
circumstances with a legal
perspective)
- natural
: day/ night
- psychological
: normal/abnormal
- social
: a state of war
- Incidents: a state of emergency, birth/death, expiration
-Attitudes in legal action:
- according to law: unilateral or multi-lateral
- breaking the law:
a. exess de pouvoir/ exceeding the limit of power in
Constitutional Law
b. detournement de pouvoir/ abusing the power in State
Administrative Law
c. Civil Law: unlawful acts (see 1365 BW)
(“onrechtmatige daad”). (see Arrest H.R. 1919)
d. Srafbaar felt/ a felony act which actually is a violation in
the three other fields but it is treated as a straf/ felony act
Remarks : with regard to a, b, c and d, see Article XIII P.K.H
-Other legal attitudes, for example buying and selling in
traditional law or Zaakwaarnaming according to Art.1354
BW
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Obligations (= imperative role ------------ must be executed).
Rights (= Facultative role ------------ optional, non-obligatory)
Role (rights and
obligations) in Law
Relationship between rights and obligations : opposite and side by side
Distinction between rights
and obligations
Unidirectional/ relative: commitment/
agreement
Multi direction/ absolute:
-State Laws (= authority : to tax the citizens
– state: rights
-Personal rights (rights over: life, body,
dignity and freedom)
-Family rights : husband-wife, parents,
children etc
-Rights over property
-Rights over immaterial objects
Remarks
Lily Mulyati, SH., MH.
: in state laws the prevailing principle is
public rights equal to public obligations
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Equal Relationship
: Civil Law (husband and wife), State Laws
(province to province)
Unequal Relationship : Civil Law (parent-children), State Laws
(Authority – state – state)
Legal Relationship
Reciprocal Relationship : all parties have rights and obligations
Uneven Relationship
: one party has rights, the other has obligations
Material in nature and tangible: goods (different in meaning from
“zank or “goed”
Legal Object(interest for legal
subject)
Immaterial in nature and intangible : intellectual rights (arts, literature,
etc)
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