Gugatan Kelompok (Class Actions) dalam Tata Hukum Indonesia (Studi tentang Transplantasi Gugatan kelompok dari Tradisi Common Law ke Suprasistem Budaya Masyarakat Indonesia)

Abstract

The objective of the study is to explain legal transplants, especially focussing in the transplantation of class actions from common law system (tradition) to Indonesian legal field. Even though Indonesia's legal system is mixed legal systems (one in which the law in force is derived from more than one legal tradition or legal family), the civil procedure rules in Indonesia have foundation in civil law system. The study is crucial in relation both difference legal system and socio-culture context of legal jurisdictions where law was transfered. Hence, methods used in this study are comparative legal research and case study. Class actions actually has been imposed upon substantive legal element. From proceeding perspective, it has not been ended. In sociological perspective, it has not concerned with culture's approach emphasises the mismatch of recipient and model. In view of comparative law, the transplant has not been corrected the mismatch between model and recipient. So, the important social objectives that are commonly attributed to class actions (major advantages suggested for class actions) have not been achieved at present. Both society and legal actors (judges, attorneys at law) failed to take legal actions (class actions) properly because they are still under the influenced model of litigation are based civil law. Beside that, the culture of the masses unrelated to the models. Further more, the development of class actions has been retarded by the courts' general inability. Having seen common law's encounter with civil law system, we have to reconstruct the model, namely "class actions hybrid". The design is intended to create greater "harmony" with the common law system and to this end propose (fundamental) change. Keywords : class actions, common law, civil law, mix legal system, class actions hybrid.