International Journal of Scientific and Research Publications

IJSRP, Volume 7, Issue 1, January 2017 Edition [ISSN 2250-3153]


Rechtsvinding by Judges in Judicial Process
      Andi Sofyan
Abstract: As the spearhead of law enforcement, the position of judge is very significant and prestigious, because based on the consideration and decision, the law is upheld and justice is given to the litigants. In his authority, the justice seekers entrust their fate to judge and therefore the quality of judges becomes crucial to their existence in shaping and enforcing the authority of law. One of judge assignments in performing his judicial function is to decide cases that have been filed upon him. Judge must not refuse to examine and hear as well decide the case presented to him with unclear law reasons or law provision has not been set. The limited scope possible to be accommodated by rule of written law against any concrete events encountered by society who then confronted the judge to examine, hear and decide, has given rise to consequences for the judge to perform rechtsvinding in spacious sense. There are three (3) stages must be conducted by judge in deciding a case, namely ascertain facts, qualify the incident and constituted legal events. Rechtsvinding is an obligation of judges, this is caused by several factors, as follows: First; as stated beforehand, that almost all of the events is not completely depicted within concrete law precisely in legislation. Second; provisions of a legislation, or sometimes conflict with other provisions, thus it requires clarity to be implemented appropriately, correctly and fairly; Third: due to the dynamics of society, there is a variety of new legal events that are not depicted in the legislation; Fourth obligation to rechtsvinding also arises because there is a variety of new law events that is not depicted in the legislation, there is a variety of events that has not depicted yet in the legislation; Fifth: obligation to rechtsvinding also arises due to provisions or the legal principle that prohibits judges to reject a case with unclear law reason or law provisions has not been set.

Reference this Research Paper (copy & paste below code):

Andi Sofyan (2017); Rechtsvinding by Judges in Judicial Process; Int J Sci Res Publ 7(1) (ISSN: 2250-3153). http://www.ijsrp.org/research-paper-0117.php?rp=P616156
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