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All Journal Yuridika Journal of Law and Legal Reform
Moh. Ali
Faculty Of Law Jember University
Law, Crime, Criminology & Criminal Justice

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Characteristics of Party autonomy in a Transnational Electronic Consumer Contract Moh. Ali; Agus Yudha Hernoko
Yuridika Vol. 35 No. 1 (2020): Volume 35 No 1 January 2020
Publisher : Universitas Airlangga

Show Abstract | Download Original | Original Source | Check in Google Scholar | Full PDF (274.183 KB) | DOI: 10.20473/ydk.v35i1.15105

Abstract

International contracts involving legal subjects between countries will affect the law chosen by the parties. Electronic contracts are different than conventional contracts in general. Prominent characteristics includevirtual, paperless and borderless. Determination of legal choices cannot be made with a link-point approach that is generally applicable to conventional transactions. The typical e-commerce characteristics should be special treatment for special contracts. The virtual nature that knows no national borders is difficult to determine in which country the legal event takes place. Paperless nature often overrides accuracy in transactions, especially with regard to legal choice clauses and forum choices.In addition, another character is that electronic transactions are made in standard form and are arranged for the purpose of take or leave it. Generally, business actors have determined the choice of law and the choice of the forum. Electronic contracts place consumers in a weak bargaining position (the weaker party). There are active limitations in determining the legal choice clause, causing consumers not to have an unequal bargaining power, giving rise to a fundamental paradigm shift in the principle of freedom of contract from "party autonomy" to "one-sided autonomy". On this basis, the need for state intervention to provide legal protection in the form of mandatory regulations as an exception to the contractual principle that is absolute becomes relative, namely that the applicable law is not mutatis mutandis law that is chosen by the parties but the law where habitual residence is.
Measuring Ex Officio Judge Rights and Application of the Ultra Petitum Partium Principle in Deciding Cases in Religious Courts Moh Ali
Journal of Law and Legal Reform Vol. 5 No. 1 (2024): Contemporary Global Issues on Law Reform, Legal Certainty, and Justice
Publisher : Faculty of Law, Universitas Negeri Semarang, Indonesia

Show Abstract | Download Original | Original Source | Check in Google Scholar | DOI: 10.15294/jllr.vol5i1.2314

Abstract

The judge carries out the authority to try based on independent judicial power. Judges in examining cases are guided by, among other things, two things: making decisions based on applicable laws and regulations and being obliged to explore the values that live in society. The procedural law of the religious courts also originates from the civil procedural law, which applies to general courts. One of the distinctive characteristics of civil cases is the judge's restriction not to grant the petitum of a lawsuit that was not requested by the plaintiff (ultra petitum partium). The threat to the ban on the use of the ultra petitum partium principle is that the decision is declared null and void. On the other hand, in practice, judges at religious courts often use ex officio rights to decide something that was not requested by the plaintiff, not even limited to that; instead, the judge adds a ruling that benefits the defendant. This often occurs in examinations of cases of marital dissolution filed by the husband (cerai talak) or by the wife (cerai gugat), and in some cases, it also occurs in claims for the division of joint assets in a marriage. The judge's consideration of using ex officio rights and going beyond ultra petitum partium is to provide balance in court decisions. In addition, it is also based on the concepts of justice and benefit. The application of ex officio rights by judges needs to be explained in laws and regulations. This is to guarantee legal certainty and the understanding of judges and justice seekers so that limiting the use of rights officio, does not conflict with the principle of ultra petitum partium.
Co-Authors Agus Yudha Hernoko