Karya Ilmiah

DISERTASI (326) - Hak Mewaris Anak Luar Kawin Warga Negara Indonesia Keturunan Tionghoa Dalam Perspektif Waris Burgerlijk Wetboek

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Legal pluralism in Indonesia begins with the enactment of Article 163 I.S. jo. 131
I.S. Where the provisions govern the classification of the population and the laws

that apply to each of the population in Indonesia, including the Chinese-
Indonesia. The law applies to the Chinese-Indonesia group based on the

provisions on BW. This thing affects various aspects of civil law that apply to the
Chinese-Indonesia group, particularly regarding the legal arrangements for

inheritance and out of wedlock children. It becomes a problem, when a Chinese-
Indonesia out-of-wedlock child, based on BW regulations, only has a civil

relationship with his biological mother or can have inheritance rights with his
father if the children are recognized, while there are conditions that limit the
subject of an out-of-wedlock child that can be recognized and closed to get
recognition. This thing certainly does not provide justice for out-of-wedlock
children which cannot be recognized according to BW, especially from the
Chinese-Indonesian people. However, after the Constitutional Court Decision
No.46 / PUU-VIII / 2010, there was a change in regulations that had implications
for the status of out-of-wedlock children in Indonesia. The ruling stated the
existence of civil relations between children outside marriage with his father as
long as it can be proven by science and technology. The legal issues in this study
are regarding the ratio legis of arrangement regarding out-of-wedlock children in

BW and its legal protection to protect the inheritance rights for Chinese-
Indonesia born out-of-marriage children, especially related to the right of

alimony. This research will use a normative method using the statutory approach,
conceptual approach, case approach, and comparison approach. From this
research, it was found that the application of the Constitutional Court Decision
No.46 / PUU-VII / 2010 for out-of-wedlock children to have a civil relationship
with their father was still hampered by BW provisions which limited the
recognition of out-wedlock children under certain conditions, as heirs. One of the
limitation in BW is article 283, where a child born of adultery cannot be
recognized by his biological father, so even though there is Constitutional Court
Decision No.46 / PUU-VII / 2010, but a child born of adultery cannot be
recognized. This makes, even though the Constitutional Court Decision No. 46 /
PUU-VII / 2010, provides an inheritance space for children outside marriage who
can prove based on science and technology and/or other evidence according to
the law to have blood relations with the father, but because of the decision does
not change the provisions in Article 283 BW, the recognition cannot be
implemented. Meanwhile, in several countries, such as England, America,
Netherlands, and China have regulated the legal protection to all of the children,
either child in marriage, and children outside marriage, where this is based on
the principle the best interest for the child as a whole which refers to the principle
of the Best Interest of the Child.

Keywords: Out of Wedlock Children of Chinese-Indonesian, Division of
Inheritance, Civil Relationship.

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Ketersediaan

031227017342

326

Ruang Disertasi

Tersedia

Informasi Detail

Judul Seri

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No. Panggil

326

Penerbit

Surabaya : Fakultas Hukum Unair., 2020

Deskripsi Fisik

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Bahasa

Indonesia

ISBN/ISSN

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Klasifikasi

NONE

Tipe Isi

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Tipe Media

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Tipe Pembawa

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Edisi

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Subjek

HAK MEWARIS ANAK

Info Detail Spesifik

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Pernyataan Tanggungjawab

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Versi lain/terkait

Lampiran Berkas

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