Maslikha, Siti (2023) Perlindungan Hukum Terhadap Hak Anak Dalam Sengketa Harta Bersama (analisis Putusan Nomor: 159 K/ag/2018 Jo. Putusan Nomor: 6 Pk/ag/2019). Masters thesis, Universitas Islam Riau.

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Abstract

Context of the relationship between legal norms and a case being tried, judges have to judge based on legal norms. However, if the application of legal norms will harm the purpose of the law, judges may exercise discretion through legal discovery. One of the consequences of a country that adheres to the supremacy of law and civil law, every judge's decision in Indonesia must be based on written law. However, if the application of statutory provisions will harm the purpose of the law, judges may exercise ijtihad through legal discovery. The purpose of this study is to find out how judges understand these legal norms by analyzing the judge's opinion about the protection of children's rights in joint property disputes in Decision Number 159K/AG/2018 Jo. Decision Number 6 PK/Ag/2019 from the perspective of legal discovery and what legal objectives the decision wants to achieve from the perspective of legal protection. This thesis is library research originating from the cassation decision Number 159K/AG/2018 which is supported by books relating to joint property law, children's rights, legal discovery, legal protection, and others. In analyzing, researchers use the theory of legal discovery and legal purposes. The results of this study indicate that the Panel of Judges at the Cassation level in Decision Number: 159 K/Ag/2018 Jo. Decision Number: 6 PK/Ag/2019 has carried out progressive ijtihad by conducting legal discovery (rechtsvinding) using the interpretation/interpretation method by expanding the meaning of the substance of the legal norms of joint assets which are essentially based on considerations of aspects of the timing of the acquisition of assets, the origin of acquisition of assets, and whether the assets have been stipulated in the marriage agreement (separation of assets) or not, as well as the distribution of joint assets, but adding other aspects beyond that which must be considered, namely related to the best interests of the children, so decided to postpone the distribution of joint assets until there is an appropriate change home or until the children are grown. The discovery of this law is by the principles of progressive law and the maslahah mursalah theory. The legal purpose of the decision is to realize benefits by providing legal protection as an effort to guarantee that every child gets real justice to ensure that children's rights are always properly fulfilled, provide real justice even though the child does not seek it, and provide legal certainty in the form of legal rules. which can be used by other judges in examining similar cases.

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