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VOL. 7, ISSUE 3 (2021)
The basis of sociological consideration of the judges in deciding the cases of non-muslim heritist in Indonesia
Authors
Futmasepta Fanya Ulinnuha, Burhanudin Harahap, Hari Purwadi
Abstract
The purpose of this research is to find out how the judge's thinking in deciding inheritance cases for non-Muslim heirs in Indonesia is related to the determination of compulsory wills. By using the research methods of law (legal research )it could be concluded that Islamic law derived from the Quran and Hadith clearly states that religious differences are a barrier to inherit each other. The compilation of Islamic Law which is the reference for the formation of Islamic inheritance law in Indonesia does not explicitly regulate inheritance cases for non-Muslim heirs. This legal vacuum is exploited by judges who have the authority to use their function as rechtsvinding or in Islamic law it is called ijtihad as an alternative effort to resolve disputes that have not been regulated by positive law by taking into account the values of living law so as to give decisions that are in accordance with the sense of justice in society. Based on Article 209 Compilation of Islamic Law, the portion of the wills must not exceed 1/3 (one third) of the inheritance that is left behind. This is intended to protect the share of the other heirs. However, there are other opinions based on several jurisprudence decisions of the Supreme Court judges No. 368 K / AG / 1995, No. 51 K / AG / 1999 and No. 16 K / AG / 2010 which stipulates that the share of the mandatory will for heirs of different religions is the same as the share of his position as heirs. The part of the mandatory will that is given does not come from the inheritance, but rather from the inheritance. These decisions are issued to fulfill the principle of justice for the heirs who have a real emotional relationship with the heir so that they cannot be damaged by inheritance cases.
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Pages:92-96
How to cite this article:
Futmasepta Fanya Ulinnuha, Burhanudin Harahap, Hari Purwadi "The basis of sociological consideration of the judges in deciding the cases of non-muslim heritist in Indonesia ". International Journal of Law, Vol 7, Issue 3, 2021, Pages 92-96
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