| dc.description.abstract | Islamic Bank in Indonesia that supported by Act. No. 10 of 1998 was based on free interest rate principal was alternative solution for Islamic society in Indonesia who would like to avoid interest rate in any banking transaction. And in this case each transaction in Islamic Bank was based on Islamic contract principal.
In reality, until today, all the akad that was made by the Islamic Bank was based on the regulation of the civil code. This also happens on the decision of the National Syariah Arbitration body (BASYARNAS), as a body that was pointed by the parties. The decision of this arbitration body was consist of national regulation along the Islamic law.
This thesis try to know the caused of the civil code regulation was implemented in the akad of the Islamic Bank and their client, though the contract was based on islamic law, and also to know why for the decision of the Syariah arbitration body was based on the civil code and as well as the Islamic law. This thesis also would like to know weather the application of both the Islamic law and the national law in an arbitration contract was accepted.
To answer the above questions, this thesis used the normative yuridis method. Law comparison method was also being used. Data was collected by through library study and field research with an interview guide. The data was being analyzed by using kualitatif approach.
The result of the research shown:
The usage of other legal system regulation has been going from time to time. In the past, the situation was being used through colonialism. After the countries independence, the usage of other law was done in a peaceful manner. The problem was, how far the law from a foreign law system could be accepted in the original law system, so there will be no conflict or rejection. A certain factors could make a new law system could be accepted in other law system.
The researched of the implementation of civil code statute alongside the Islamic law in financial akad between a Islamic Bank and their client conclude:
First, the usage of Islamic law along with the civil law was caused by the regulation for Islamic Bank has not complete, so that the usage of other law in the Islamic contract was necessary. This situation was accepted if the implementation of civil code did not contradict what was written in al-Qur'an and as-Sunnah.
Secondly, based on comparison study, there are some similarity between Islamic contract law and civil contract law. The study shows that the implementation of the civil code in the Islamic contract did not contradict what was written in the al- Qur'an and as-Sunnah. Some expert stated that the contract law in the civil code that was based on the Napoleon Code was influent by the Islamic contract law of the Maliki Madzab that was spread out in Andalusia, during the Islamic occupation in Spain. Afterwards, the France took over the Spain. Encauragement for further research of this matter need to be made since some western scientist stated that what was written in the contract law of the Napoleon Code was adopted from the Rhome and the Canonic law.
Third, since there were some simmiliarity between the two laws, the islamic and civil contract law could be together harmonically in the reality. If in the future the Islamic contract law could be codify in Islamic fiqh, than the Syariah financial will no longer need the civil code law.
Fourth, the usage of the civil law was also made in the arbitration decision. Though arbitration was also known in the Islamic law, the arbitration body decision still need other law as stated in the Law Act. No.30 of 1999 of Arbitration and Alternative Dispute Resolution.
This research also recommend that:
For the Indonesian government to form a Islamic Bank law. Recently, the Syariah shows a good development and in need for a strong and comprehensive law, so that there will be no excused on lack of law that regulate it. For now, the Islamic expert and the Indonesia Chambers of Ulama should be more proactive to form fatwa for the Islamic Bank to perform its daily routine.
Secondly, until today, the knowledge of Islamic contract law in the society was still minimum, so that it was hard to implement it, it was necessary for the faculty of law to insert Islamic contract law as one of the curriculum.
Thirdly, the National Syariah Arbitration Body (BASYARNAS) as a one of the alternative despute settlement body need to be used optimally by the business society. Therefore the Syariah Arbitration Body need to make socialization of their existence and need also to open its branch in each province so that the society could used this body to solve their dispute. This body also need to include mediation and consolidation in their process. Arbitration process will be implement after the mediation or consolidation process failed. The next important thing that this body could do is to increased training of mediator, consolidator, and arbiter and to develop their knowledge and ability.
Fourtly, the Islamic court jurisdiction need to be increased also, to include civil case, along the marital, inheritance, testament and grant. | en_US |
