Wahab, Aab Abdul (2023) Penjatuhan Dwangsom Secara Ex Officio Pada Pemeriksaan Perkara Sengketa Pengasuhan Anak Dalam Mewujudkan Asas Kepentingan Terbaik Untuk Anak (analisis Putusan Kasasi Nomor 578 K/ag/2022 Tanggal 08 Juli 2022). Masters thesis, Universitas Islam Riau.

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Abstract

Ex officio imposition of dwangsom in child custody has two (two) competing interests: interests in guaranteeing children's rights and interests in law enforcement. (juridical). As a nation that believes in the supremacy of the rule of law, every judge's decision must be founded on written law. However, if the application of the written law would be detrimental to the law's purpose, the court may make legal discoveries, one of which is contra legem. The problems that will be answered in this research are legal considerations in Cassation Decision Number 578 K/Ag/2022 dated 08 July 2022 from the perspective of Child Protection and regarding legal objectives for imposing dwangsom ex officio in Cassation Decision Number 578 K/Ag/2022 Date July 08, 2022 from the perspective of Law discovery. This study uses a normative juridical approach. The normative juridical approach is a legal research method that involves analyzing secondary data or literature as the primary material to be researched and traced in the form of regulations and literature related to the issue under study. According to the findings of this study, the considerations contained in Cassation Decision 578 K/Ag/2022 have met the guarantee aspects of fulfilling children's rights. In this instance, the Panel of Cassation Judges made every attempt to protect the child's interests using existing tools, precisely the imposition of dwangsom on the Defendant. The imposition of this dwangsom can ensure at least two types of children's rights: protection rights and development rights. The goal of imposing an ex officio dwangsom in Cassation Decision Number 578 K/Ag/2022 is to achieve integrative justice or justice, legal certainty, and legal advantages simultaneously. From the standpoint of legal discovery, the cassation decision satisfies the requirements of a progressive decision requiring a legal advance. In this case, the Cassation Panel was successful in demonstrating their efforts to make discoveries by breaking down legal absolutism, specifically by conducting a contra legem against the provisions contained in Supreme Court Circular Letter Number 3 of 2018, which essentially requires the inclusion of an amar dwangsom preceded by request by the Plaintiff. (the parties). The Cassation Panel's decision-making is based on legal, philosophical, and social principles. Furthermore, because the decision is a final and binding cassation decision, the judge's decision must be deemed correct under the principle of Res Judicata Pro Veritate Habetur.

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