American International Journal of Social Science

Antinomy of Judge’s Free Evaluation of Evidence Principle Application in Civil Law Finding in Indonesia
Dedy Muchti Nugroho, Setiono, Adi Sulistiyono

Abstract
Law finding (rechtsvinding) and law creation (rechtsschepping) activities by judge is the part of duty, authority, and obligation the judge assumes as the state official accepting, examining, and deciding (Article 1 clause 9 of KUHAP) any criminal and civil case as the real manifestation of the judicial power implementation that is independent and free of extra judicial intervention as governed in Article 24 of 1945 Constitution jo Article 5 clause (1) jo Article 10 clause (1) of Law Number 49 of 2009 about Judicial Power basically mandating the judge to explore, to follow and to understand the legal values and the feeling of justice living within society. The application of judge’s free evaluation of evidence principle is conducted in every stage of law finding and is manifested into the judge’s free evaluation to determine the concrete actual event. In this principle application, there is antinomy with other civil law principle, but all of those principles could run simultaneously. The difference of positivism thought from legal historical thought in fact affected the judge in Indonesia so that progressive and conservative thoughts were known. This research was conducted based on the author’s experience and daily work as the judge in District Court for 12 (twenty years) hearing and trialing many cases. This research focused on the attempt the judge took in undertaking his/her duty to solve the civil dispute in the case of imperfect law by means of finding the law (rechtsvinding).

Full Text: PDF