In both legal systems, common jurisprudence and civil jurisprudence, condemnable and civil affairs are the bulk of issues happening in legal proceeding. Condemnable affairs are legal association between authoritiess and citizens in which authoritiess take a superior place. “ Condemnable procedure, typically although non entirely, is initiated by the authorities or an bureau of authorities, and is directed towards the penalty of an person who is alleged to hold contravened a regulation of behavior for which such penalty has been made the countenance ” .[ 1 ]In contrast, civil affairs concern legal relationship among citizens with in which every party has an equal place. Civil affairs are related to protection of personal rights sing loss of the breach of private duties.[ 2 ]Consequently, this wide differentiation influences any procedures during scrutiny in tribunals, peculiarly in the criterions of cogent evidence, in both common jurisprudence and civil jurisprudence systems.[ 3 ]
The range of this essay focuses on the cogent evidence procedure in tribunals. This essay will ab initio explicate the differences between common jurisprudence and civil jurisprudence. Then, it will compare the criterion of cogent evidence in both condemnable and civil affairs in common jurisprudence legal power. Following, it will besides contrast the differences between criterion of cogent evidence in both condemnable and civil affairs in Indonesia as a civil jurisprudence state.
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In this context, common jurisprudence refers to a legal system which comes from the English legal system, whereas civil jurisprudence refers to a legal system which comes from the European continental system or Roman jurisprudence and the Germanic tradition.[ 4 ]It can be seen that both system are “ merchandises of western civilisation ” .[ 5 ]There are three chief differences in the features of common jurisprudence and civil jurisprudence, viz. using and construing the jurisprudence stated in a legislative act to instances, the functions of jury and Judgess, and the adhering force of case in points.[ 6 ]
In the common jurisprudence system, Torahs are normally created by judicial determination, and therefore jurisprudence contained in codification is a secondary resource.[ 7 ]On the contrary, in civil jurisprudence, “ tribunals should be denied any interpretive map and should be required to mention jobs of statutory reading to the legislative assembly itself for solution ” .[ 8 ]This difference is affected because of the difference of function of legislator. In common jurisprudence, the legislator provides the chief undertaking of tribunals to make jurisprudence, while in civil jurisprudence tribunals should use the jurisprudence which is created by the legislator.[ 9 ]
The function of jury has important influence in tribunals in common jurisprudence tradition.[ 10 ]The jury is representative of citizens to set up determination. On the other manus, in civil jurisprudence tradition, Judgess decide instances based on the grounds in scrutiny procedure. Jury is unknown in civil jurisprudence tradition.[ 11 ]After analyzing grounds and informants, and hearing indictment and pleading, Judgess discuss and so explicate finding of fact of a instance. Therefore, in civil jurisprudence tribunals, Judgess ‘ functions include taking test procedure, analyzing grounds and informants, and make a finding of fact.
Courts ‘ determinations should be similar to old determinations. This is a effect of the philosophy of case in points in the common jurisprudence system. However, in civil jurisprudence system, this philosophy is non applied. Every Judgess ‘ determination could be different from other or old determinations. The chief function of the tribunal is to set up the jurisprudence legislated by legislator to instances.
Beside three chief differences, there are besides some differences between common jurisprudence and civil jurisprudence. The common jurisprudence process is normally called “ adversarial ” , while civil jurisprudence it called “ inquisitorial ” .[ 12 ]Another difference is in the common jurisprudence, unwritten grounds normally is positioned over written grounds, whereas in the civil jurisprudence, written grounds prevails over unwritten grounds.[ 13 ]Furthermore, common jurisprudence tradition is known “ readying of informants ” , but in civil jurisprudence, “ readying of informants ” is non allowed.
In common jurisprudence, a criterion of cogent evidence in condemnable jurisprudence and civil jurisprudence tests are different. The criterion of cogent evidence in condemnable proceedings is beyond sensible uncertainty, while in civil proceeding is balance of chances. This unsimilarity might be because of the difference between condemnable and civil affairs are. It has been explained above, that condemnable affairs are legal association between authoritiess and citizens in which authoritiess take a superior place. On the other manus, civil affairs are related to protection of personal rights sing loss of the breach of private duties.[ 14 ]Therefore, the differentiation influences many facets during scrutiny procedure.
In condemnable proceedings, the load of cogent evidence is on the prosecution. “ The prosecution have the load of turn outing the comforter of the accused individual beyond sensible uncertainty ” .[ 15 ]It means that the prosecution should convert the jury that the suspect is guilty by demoing grounds. Furthermore, the suspects besides have the rights to carry the jury by preset their ain grounds. Therefore, it can be said “ The prosecution and defense mechanism have merely two polar options to take from when dickering to settle the condemnable instance ” .[ 16 ]
The Judgess, in condemnable tests, are actively pursuit ultimate truth. The Judgess besides have duty to organize condemnable proceeding in order to guarantee that every party: the prosecuting officer, the suspect and the jury, is able to function their rights. Furthermore, “ one of the maps of the justice is to inform the jury about the significance of cardinal footings, the rules of the applicable jurisprudence, and the facts which must be proved to warrant their finding of fact ” .[ 17 ]
In civil proceeding, on the contrary, Judgess are less active to analyze grounds and informants. The parties in difference has duty to show grounds and informants and it can be established transverse scrutiny. They have to supply sufficient grounds to back up their place.[ 18 ]In the other word, “ the party with the load of cogent evidence demand merely turn out his claim by a alleged “ preponderance of grounds ” .[ 19 ]Furthermore, “ the complainant prevails merely if “ the preponderance of the grounds ” is in the complainant ‘s favor ” .[ 20 ]
Indonesia is a civil jurisprudence state. Historically, this is because Indonesia received the legal system from Dutch colonial authorities and as a effect of harmony rule. Indonesia, late, has revised most of the Acts of the Apostless which it received from the Netherlands authorities. In condemnable jurisprudence, Indonesia revised the chief procedural act in 1981 ( KItab Undang-undang Hukum Pidana/KUHAP ) ,[ 21 ]but the chief substantial jurisprudence is processed in the parliament. On the contrary, Indonesian chief Acts of the Apostless associated with civil affairs have non been revised. Consequently, Indonesia still imposes both the chief substantive and procedural jurisprudence in civil affairs legislated before Indonesia become independent. Therefore, Indonesian Criminal Procedural Code could be in conformity with societal alteration, while the civil procedural act might be unable to be suited with Indonesian societal motion.
Based on this state of affairs, it seems that the differentiation contributes to the execution of condemnable and civil procedural Acts of the Apostless. Standard of cogent evidence, peculiarly, in civil affairs and condemnable affairs are rather different. There are four chief differences in this country, viz. the chief intent of scrutiny on the tribunal, the Judgess ‘ functions and the sorts of grounds and grounds in Judgess ‘ determination.
In common jurisprudence legal power, there are “ beyond sensible uncertainty ” in condemnable affairs and “ balance of chances ” in civil affairs. Similarly, in civil jurisprudence legal power, there are “ material truth ” in condemnable affairs and “ formal truth ” in civil affairs as the chief criterion of scrutiny on tribunals. Basically, condemnable tribunals must actively happen and obtain a material truth or at least closest to the ultimate truth.[ 22 ]Material truth constitutes as the indispensable purpose for all parties ( Judgess, lawyer and suspect ) in condemnable tribunal to turn out the grounds wholly as the fact of a instance.
In contrast, civil tribunal must make up one’s mind instances based on grounds provided by both parties. It seems that both parties have duty to present grounds. “ Consequently, a party is obliged to bring forth merely those paperss which are referred to in its pleadings ” .[ 23 ]In add-on, “ … in civil jurisprudence the ailment really determines the parametric quantities of the instance ” .[ 24 ]It means that civil tribunals would merely concentrate on the ailment in the scrutiny procedure.
In condemnable test, lawyers must pull prejudgment in the beginning as a mention of scrutiny.[ 25 ]The prejudgement contains suspect ‘s Acts of the Apostless and regulations related with the Acts of the Apostless.[ 26 ]Therefore, the duty for turn outing the Acts of the Apostless is on the lawyers. This is because of the rule of “ given of artlessness ” .[ 27 ]The lawyers have more duty to do the Judgess believe that the suspect is guilty by demoing the cogent evidence.[ 28 ]Furthermore, Judgess must make up one’s mind instances based on prejudgement. If in the tribunal, prejudgement could non be proved because the lawyers make errors in using regulations, accordingly, Judgess will make up one’s mind to let go of the suspect.[ 29 ]Even though, suspect ‘s Acts of the Apostless were proved wholly.
The effect of stuff truth is Judgess must besides actively find facts of instances.[ 30 ]It is called “ inquisitorial ” .[ 31 ]Judges non merely analyze the grounds or informants showed by lawyers and suspects, but besides they could command lawyers and suspects to show others grounds and informants. “ The justice does non hold to wait for the advocates to present grounds, but he or she can actively originate introducing of relevant grounds and may order one of the parties to unwrap grounds in its ownership ” .[ 32 ]This is for the ground that Judgess want to do certain that the suspect is guilty or non. Even though, if suspects admit a offense, but there is no grounds, Judgess will make up one’s mind to let go of them.[ 33 ]This is because Judgess must run into with existent truth.
On the other manus, in civil tests, Judgess are instead inactive when analyzing grounds and informants. This inactive manner besides means that if the parties in difference agree to complete the struggle, the Judgess can non hinder the understanding.[ 34 ]In add-on “ Civil jurisprudence process is normally called “ inquisitorial ” , because the justice examines the informants, and the parties in difference practically have no right of cross-examination ” .[ 35 ]In Indonesian civil tests, load of cogent evidence is on a party that have the greater chance to turn out it.[ 36 ]Furthermore, there is a rule called audi et altera parte. It means that Judgess are non allowed to warrant a statement from a party, unless they clarify to the other party.[ 37 ]Finally, the Judgess decide that the party who could demo more solid grounds would be considered as “ the victor ” .
There are five sorts of grounds in Indonesian condemnable tribunals.[ 38 ]This grounds is stated in KUHAP from the strongest to the weakest. First place is informants ‘ accounts, so experts ‘ information. There are three standards of people who can be a informant. They are those who are or have sing, seeing and hearing something related straight to a instance.[ 39 ]Indonesia patterns “ unus testicle nullus testicle ” rule, which says Judgess ‘ determination can non be merely based on one informant, it must be based on at least two informants.[ 40 ]On the contrary, experts must show information that is merely related to their cognition.[ 41 ]Furthermore, the 3rd signifier of grounds is written paperss, and followed by hints. Documents are which is issued by the authorization.[ 42 ]Hints are information or Acts of the Apostless which can be linked logically one to another, and therefore they create a logical decision.[ 43 ]In add-on, suspects ‘ accounts take the last place. Defendants ‘ account can be withdrawn during the scrutiny procedure.[ 44 ]
In civil tribunal, there are five kinds of grounds. Similarly, the grounds is stated in HIR from the strongest to the weakest.[ 45 ]First grounds is paperss. Based on HIR article 165-167, paperss are signed letters incorporating incidents and constitute as footing of rights and understandings for doing grounds. Different with grounds in condemnable tribunal, informants take the 2nd place. The categorizations of informants in civil tribunals are rather similar with condemnable tribunals. Witnesss are people sing, seeing and hearing something related straight to a instance.[ 46 ]The rule of “ unus testicle nullus testicle ” is besides applicable in these tribunals. Furthermore, the 3rd place is presupposition. Presupposition means a decision which is created from information in paperss and informants.[ 47 ]The last two places are admittance and curse. Admission is a party ‘s statement warranting the opposite party ‘s rights or an event.[ 48 ]As a effect of this, the opposite party is non obligated to turn out its rights or event.[ 49 ]Additionally, based on 155, 156, 158,177 HIR curse in this footings does non intend how to do an curse, but information or statements which are given under curse.[ 50 ]
Indonesian felon tribunals pattern Negatief Wettelijk Stelsel as the ground for Judgess to do finding of fact. Negatief Wettelijk Stelsel means that determination of Judgess based on prejudgment must be based on two grounds.[ 51 ]First, Judgess strongly believe that a suspect is guilty. Second, the belief is supported by at least two pieces of grounds which have been determined by regulations.[ 52 ]Consequently, Judgess ‘ belief and proven grounds are united and can non be separated.
In Indonesian civil tribunals, a justice ‘s determination must dwell of equal and immaculate grounds and considerable.[ 53 ]Additionally, justice ‘s determination must demo articles from Acts of the Apostless and unwritten regulations as mention for judgment.[ 54 ]Furthermore, Judgess can non make up one’s mind something which is non requested or claimed by the parties. Therefore, the determination could allow or non allow all or some of the petitions or claims, but it can non add something which is non requested or claimed by the parties.[ 55 ]
There are wide differentiations between civil jurisprudence and condemnable jurisprudence, peculiarly in the cogent evidence procedure, in both the common jurisprudence and civil jurisprudence system. Based on the statements mentioned above, it can be concluded that the differentiations seem undistinguished. Basically, it can be seen that justness could still be reached, even though there is a difference in the mode of cogent evidence procedure. Furthermore, criterion of cogent evidence in civil jurisprudence and condemnable jurisprudence can be said to be similar. Beyond sensible uncertainty in common jurisprudence, and material truth in civil jurisprudence have the same intent to obtain certainty of facts. Similarly, the balance of chances in common jurisprudence and formal truth in civil jurisprudence have the same end. The of import thing is “ the differences which exist between civil jurisprudence and common jurisprudence should non be exaggerated ” .[ 56 ]
