How do Indonesian Judges Approach Human Rights in Private Law Cases? A Comparative Exploration

서지정보

ㆍ발행기관 : 이준국제법연구원 ㆍ수록지정보 : Journal of East Asia and International Law / 15권 / 2호
ㆍ저자명 : Shidarta, Stijn Cornelis van Huis, EkoRiyadi

목차

I. Introduction
II. The Relationship between Human Rightsand Private Law
A. Models of Intersections between Human Rights and Private Law
B. Human Rights Application in Indonesian Private Law
III. Application of Human Rightsin Indonesian Private Law
IV. Human Rights in the Supreme Court’sInternal Regulations
V. Conclusion

영어 초록

This explorative paper investigates the application of human rights to civil law cases in Indonesia. Human rights are often placed within the realm of public law. Yet, fundamental rights and freedoms also apply to private law cases. The human rights literature, however, does not exist in Indonesian private law. This article explores how human rights are applied in Indonesian civil law cases with reference to the models of human rights application developed by Aharon Barak and Olha Cherednychenko. We found that in Indonesia, judges apply human rights law to civil law cases indirectly, yet this application is inconsistent. The Supreme Court has attempted to increase legal unity by making case law (yurisprudensi) more accessible and by issuing internal regulations that must serve as guidelines for judges-including the application of fundamental rights in civil law cases. Case law and guidelines, however, lack thorough legal reasoning and are, therefore, difficult to apply to complex cases.

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