1 chapter v basic understanding of the legal system 1.legal community by defining a community as a...

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CHAPTER VBASIC UNDERSTANDING OF THE LEGAL SYSTEM

1. Legal CommunityBy 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.

Lily Mulyati, SH., MH. 1

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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. Independent, because it has the full capacity to act within the law,2. Protected, because it is considered incompetent to act on its own,3. 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 systemPsychopath 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 EventA 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 RelationshipLegal Relationship is classified as follows:a. 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.b. 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 ConsequencesLegal 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)

-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

Legal subject = a system of orderly relationship which ties various parties connected within the system.

Legal subject= each party


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Legal event (= a social circumstances with a legal perspective)

-Circumstances which may have different 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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Role (rights and obligations) in Law

Obligations (= imperative role ------------ must be executed).

Rights (= Facultative role ------------ optional, non-obligatory)

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 : in state laws the prevailing principle is public rights equal to public obligations


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Legal Relationship

Equal Relationship : Civil Law (husband and wife), State Laws (province to province)

Unequal Relationship : Civil Law (parent-children), State Laws (Authority – state – state)

Reciprocal Relationship : all parties have rights and obligations

Uneven Relationship : one party has rights, the other has obligations

Legal Object(interest for legal subject)

Material in nature and tangible: goods (different in meaning from “zank or “goed”

Immaterial in nature and intangible : intellectual rights (arts, literature, etc)


1 chapter v basic understanding of the legal system 1.legal community by defining a community as a...

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