MASLAHAT ASPECTS AS A BASIS FOR JUDGES CONSIDERATIONS IN THE IMPLEMENTATION OF FORCED MONEY (DWANGSOM) IN RELIGIOUS COURTS

Abstract

One of the important issues in the judge's decision and its relation to legal discovery due to a legal vacuum, especially in the Religious Courts, is regarding the application of forced money penalties (dwangsom). Previously, there were 3 sources of civil law applicable in Indonesia, namely HIR (for natives for Java and Madura), RBg. (for natives outside Java and Madura), Reglement op de Rechtsvordering or better known by the abbreviation Rv (group of Europeans and Foreign East residing in Indonesia). The provisions regarding the dwangsom itself are regulated in the Civil Procedure Regulations (the existence of the dwangsom institution itself is regulated in Chapter V Part 3 Rv. namely in Articles 606a and 606b. However, the enactment of UU Emergency t 1 of 1951 Article 5 paragraph (1) expressly states the application of HIR and RBg and confirmed through the Supreme Court Circular Letter (SEMA) Number 19/1964 and SEMA Number 3/1965 which confirms the application of HIR and RBg. As for Article 393 paragraph (1) HIR in conjunction with Article 721 RBg, it strictly prohibits all forms of procedural law other than those stipulated in the HIR and RBg, including Rv.. However, in fact dwangsom applications are still frequently encountered in cases proceeding at the Religious Courts. The type of research used is normative research. The type of research conducted in legal development activities according to legal science practice or legal dogmatics.The results of this study indicate that the application of forced money (dwangsom) in the Religious Courts is carried out in an effort a Eliminate difficulties or difficulties with the implementation of the judge's decision so that it is obeyed by the defendant/respondent. In line with the concept of maslahah mursalah, the application of dwangsom regulated in Rv. even though it is no longer valid, the facts are still relevant and in fact needed and bring benefits in judicial practice to facilitate the implementation of judges' decisions in the Religious Courts. This was reinforced by jurisprudence, doctrine and the results of the 2012 Supreme Court National Work Meeting.

Keywords: Consideration, Maslahat, Dwangsom, Religious Court