TEORI RENVOI dalam HUKUM PERDATA INTERNASIONAL

Summary

The video discusses the concept of 'personal status' in international private law, highlighting the differences between civil law and common law systems in handling issues like marriage, inheritance, and legal capacity. It explores how different countries apply either the principle of nationality (civil law) or domicile (common law) to determine which legal system governs personal matters. The concept of 'Renvoi,' or 'reference back,' is also explained, detailing the complex back-and-forth situation that can arise when one jurisdiction refers a case to another, potentially causing complications in legal proceedings across borders.

Takeaways

• 😀 Personal status law (Hukum orang) refers to family law matters such as marriage, inheritance, and legal capacity.
• 😀 Civil law countries use the principle of nationality (kewarganegaraan) to determine the applicable law in personal status matters.
• 😀 Common law countries use the principle of domicile (domisili) to determine the applicable law in personal status matters.
• 😀 Renvoi is a situation where one legal system refers the case to another country's law, potentially causing a back-and-forth process.
• 😀 Simple (or single) renvoi involves a two-way referral between the forum country’s law (Lex Fori) and another country’s law (Lex Causae).
• 😀 Transmission renvoi refers to a multi-step referral process, where one country’s law may refer to another, which in turn may refer to yet another jurisdiction’s law.
• 😀 In a simple renvoi, a German court may initially refer to English law for a case, but the English law could then refer back to German law.
• 😀 In a transmission renvoi, a case of marriage or divorce may first be subject to the law of the country where the marriage occurred, and then refer to another jurisdiction’s law for resolution.
• 😀 The principle of lex domicilii means that the applicable law is often based on the place where a person resides, as seen in civil law systems.
• 😀 Nationality-based systems, such as those in continental Europe, apply the law of the person’s nationality rather than the country of residence for issues like marriage or divorce.
• 😀 The complexity of renvoi highlights the challenges in resolving international legal conflicts, especially regarding personal status issues.

Q & A

What is the main focus of the lecture discussed in the script?

The main focus of the lecture is on international private law, specifically the concept of 'status personal' (personal status) and the theory of renvoi in conflict of laws, comparing how different legal systems (common law vs. civil law) handle issues like marriage, inheritance, and legal capacity.

What does 'status personal' refer to in international private law?

'Status personal' refers to legal issues concerning a person’s status, such as marriage, inheritance, and legal capacity. It is an important aspect of family law in both national and international legal contexts.

What are the two main legal systems mentioned in the lecture and how do they differ in handling personal status?

The two main legal systems mentioned are the Camelo system (common law) and the Civilo system (civil law). The Camelo system uses the domicile principle, where the law of the country where a person resides applies, while the Civilo system uses the nationality principle, where the law of a person’s nationality governs their personal status.

What is the 'domicile principle' and which legal system follows it?

The 'domicile principle' is followed by the Camelo system (common law), where the law of the country where an individual resides (their domicile) is applied to determine their personal status, regardless of their nationality.

What is the 'nationality principle' and which legal system adheres to it?

The 'nationality principle' is followed by the Civilo system (civil law), where the law of a person's nationality governs their personal status, even if they are residing in a different country.

What is renvoi in international private law?

Renvoi refers to the process of referring to another legal system’s law when there is a conflict of laws. It occurs when one jurisdiction points to another jurisdiction’s law to resolve a legal issue, which may result in further referrals back to the original jurisdiction.

What are the two types of renvoi discussed in the lecture?

The two types of renvoi discussed are 'simple (single) renvoi' and 'transmission renvoi.' Simple renvoi involves a two-way referral between legal systems, while transmission renvoi involves a referral from one legal system to another, which in turn refers to a third legal system.

Can you explain an example of 'single renvoi' as described in the lecture?

In the single renvoi example, a German citizen dies in Germany, leaving assets. The German court looks at the nationality of the deceased, which might point to English law. However, English law refers back to German law, leading to the application of German law to resolve the inheritance issue.

What is the concept of 'transmission renvoi' and how does it apply to marriage and divorce cases?

Transmission renvoi occurs when one legal system refers to another, which then refers to a third legal system. An example is when a couple from England marries in France, but later seeks a divorce in Germany. German law will first refer to English law (based on nationality), and English law will then refer to French law (based on the place of marriage), ultimately applying French law to resolve the divorce.

How does the renvoi process affect the application of laws in international legal cases?

Renvoi can complicate international legal cases by creating a cycle of legal referrals between different jurisdictions. Depending on the type of renvoi, a legal issue may be referred back and forth between legal systems, which could ultimately result in the application of the law of the original jurisdiction (lex fori). This process ensures that the most relevant and appropriate legal system is applied in cases with international elements.