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Selasa, 26 Februari 2013

Difference between syariah and fiqh


  1. Sharia law, is found in the Quran and the Hadith books. When talking about religious law, that question is the revelation of God and the Sunna of the Prophet Muhammad as his Messenger. Principles contained in the books of Fiqih. When talking about jurisprudence, that question is a qualified human understanding about Sharia law and the results of understanding it.
  2. Sharia law is fundamental and have a broader scope because it is into it, by many experts, included also the belief and morals. Fiqih have an instrumental characteristic, Chamber in scope limited to the laws that govern human action, which is usually referred to as the deeds of the law.
  3. Shari'a is the Ordinance of Allah and his Messenger, the provision because it applies the timeless; Fiqh is the work of man who does not apply, are subject to change from time to time.
  4. Shari'a is only one,fiqih may be more than one such as (for example) looks at the law schools termed mazāhib or sects. 
  5. the Shari'a showed unity in Islam, while the jurisprudence demonstrates its diversity.

The difference between syariah and ibadah ( worship )


  1. norms of worship: referred as pure worship, govern the way and direct relationship of humans with God. Norms of muamalah: govern  the relationship of human with other humans and objects in the society.
  2. norms of worship revolves around purification (taharah) and the tenets of Islam or Islamic arkanul i.e. salat, zakat, lent or fasting and Hajj. Norms of muamalah  is only the basics which is specified in the Qur'an and the Sunnah of the Prophet Muhammad,Open attribute to human reason that qualify for berijtihad set it up further and determine its rules according to time and space.
  3. Rules of worship apply general principles, namely all acts of worship are prohibited unless carried out for deeding that have been the benchmark set by Allah and his Messenger epitomized okeh. The rule applies general principles muamalah, which is basically all of works be done, unless the deed of there has been a ban on the Quran and Sunnah of the Prophet Muhammad.
  4. Rules of worship, there can be no renewal or modernization for the relationship with God that is fixed, cannot be altered substantially. A rule can only do muamalah, renewal or modernization, modernization or update course origin it fits, or, at the least, it is not contradicting with the soul doctrine (religion) Islam in General.

Minggu, 03 Februari 2013

Civil Law


Legal Subject
someone who are legaly able to do things. (Means had fullfil the condition)

Civil Law : deals with the relationship between individuals.
source: Indonesian Civil Code, Commercial Code, Law

Book 1: person -> have a rights, obligation,etc
NB:
prenuptial agreements: separation inheritance when want to marry
children born out of wed law (anak diluar nikah), it called like that because there is no married sertificate (no legal action)
minority: anak dibawah umur (they not able yet to do legal action) so they must have guardian (pengampuan)
when woman n man get merried, their inheritance is become one, when one of them died, the inheritance will separate to 2, and the died inheritance will separated to mother n child.
Book 2: goods

Book 3: contract in general, termination of contract, etc

Book 4: evidence (bukti), witnesses (min is 2, one is not witnesses),etc

Legal subject: 1).Individual/natural person 2).Legal Entity

when the person can be considered as a legal subject :
  • when she/he is born until she/he dies
  • exception : article 2 ICC(indonesian civil code), regulates 2 point:
      • Unborn children can be  considered as a legal subject if thre is a specific importance, esp in relation to the inheritance law (article 836 & article 1679 ICC)
      • If a child died when he/she is born, he/she will be considered never exist.


Legal Capacity:
  • if the person is able to conduct any legal action for him/her
  • age requirement : minimum 21 years old (art 330 ICC)
  • art 1330 ICC regulates about the incapability under the law : 
  1. minor person (those who are not yet 21 years old or not married yet)
  2. person under custody (pengampuan) -> art 433 ICC (mentaly unstainable)
  3. wife- has been revoked thorough SEMA(Surat Edaran Mahkamah Agung) N0.30/1963 and Marriage Law
Legal Entity : a group of people who jointly establish an entity for a specific purpose and has a separate asset.
Firma (CV) is not a legal entity because it has not a separate asset.

Legal entity is a organ as man is, which can express its will thorough its organ. Legal entity is a reality
Joint property : property owned by the legal entity shall be considered as joint property of its member

TYPE OF LEGAL ENTITY
1. PUBLIC LEGAL ENTITY
2. PRIVATE ENTITY

Establishment of a legal entity:
- specific purpose
- separate asset
- proper structure organization
- should written in bahasa

Civil registrar is institution created by the government to collect and register the informations regarding their citizens (catatan sipil) 
legal basis: Article 4 - Article 16 ICC

information related to the legal status: birth (legal subject- legal rights and obligations), marriage (legal status as husband and wife), divorce (not bound to the marriage commitment - ikatan pernikahan), death (inhertance), change of name (legal subject)

the purpose of registration:
~ to obtain a legal certainty in relation to someone's legal status
~why it is important? Because it relates to the legal action -> rights and obligations based on the law
~ related to evidence
~procedural requirement

Domicile (art 17)
Legal Basis: article 17-article 25 ICC
why this topic is important? because related with the legal rights and obligations

Legal rights and obligations on this matter can be classified into rights and obligations under civil law and public law


classification of domicile
  • Legal domicile -> ID card
  • actual domicile
  • optional domicile -> contract -> legal domicile -> court -> dispute settlement between the parties