Immaterial Compensation in Tort Law Acts Judge Made Law Through Rechsvinding

DOI

10.2991/aebmr.k.200513.095How to use a DOI?

Keywords

onrechmatige daad, immateriële schade vergoeding, ratio decidendi

Abstract

Burgelijk Wetboek (BW) contains two main sources of civilization, namely Binding (verbintennis) and Tort Law (onrechmatige daad) respectively under Article 1320 BW and Article 1365 BW. This can be found in almost all legal events (rechtsgevolg) in the practice of justice sourced from it. As such, a legal subject (rechtssubject) performs an act (daad) that is contrary to his legal obligations and his faults (schuld), which can harm other legal subjects, in other words the act violates written legal rules (geschreven recht) or unwritten (ongeschreven) recht) in the form of decency (goede zeden), obedience, thoroughness and caution (zorgvuldigheid). Lawsuits for disadvantaged legal subjects can claim material damages that can be valued in money and immunity (vordering van materiële en immateriële schade vergoeding), even regarding the final compensation the legislator (wetgevende macht) does not normalize in the provisions of Article 1365 BW. Because immaterial damages reflect moral values and ideals, no doubt in the practice of the Supreme Court of the Republic of Indonesia in its legal considerations (ratio decidendi) to grant claims for compensation which can be valued in nominal terms. However, there is no norm (ugeran) as a guideline for judges to grant immaterial compensation. Moving on from this legal problem, it can be formulated into a legal issue: The Lawsuit for Compensation for Immunity in Unlawful Acts should the judge grant through Rechsvinding In order to answer the legal issue, in Judicial Practice it is conducted by Rechsvinding. In casu, the method of interpretation that is by means of comparative interpretation, is the interpretation by comparing to comparing the clarity of a statutory provision.

Copyright

© 2020, the Authors. Published by Atlantis Press.

Open Access

This is an open access article distributed under the CC BY-NC license (http://creativecommons.org/licenses/by-nc/4.0/).

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TY  - CONF
AU  - Markus Suryoutomo
AU  - Sri Purwaningsih
PY  - 2020
DA  - 2020/05/20
TI  - Immaterial Compensation in Tort Law Acts Judge Made Law Through Rechsvinding
BT  - Proceedings of the International Conference on Law, Economics and Health (ICLEH 2020)
PB  - Atlantis Press
SP  - 487
EP  - 493
SN  - 2352-5428
UR  - https://doi.org/10.2991/aebmr.k.200513.095
DO  - 10.2991/aebmr.k.200513.095
ID  - Suryoutomo2020
ER  -