The discovery of the law by the judge as a basis for decision making in a suing action for compensation is a system that consists of a series of activities in the process of litigants. This legal discovery system is heteronomy in which there are autonomous legal discovery. In this case it means that judges are not free to judge in the court, but are influenced by legislation (Law). "However, in its attachment to the law, there is freedom to carry out justice outside the law," said Elisabeth Nurhaini Butarbutar, S.H, M. Hum., on Tuesday (7/6), in an open examination of the doctoral program in the UGM Faculty of Law.
According to the lecturer at Faculty of Law, the Unika St. Thomas Medan, this can be seen in a number of things. Some of them are civil legal responsibility in claims for compensation, either because the act is against the law according to Article 1365 Civil Code or breach of contract under Article 1239 Civil Code. This is based on the freedom of judges to interpret the provisions specified in Civil Code as a main source of law. Furthermore, the judge’s way of thinking in discovering the law put the interests of the parties as a starting point to solve all problems, but remaining bound to the limits prescribed by law.
In her dissertation entitled The discovery of Law by the Judge as the Base to Take a Decision on Claim for Compensation in the District Court, Elisabeth mentions the application of procedural law principles in the legal discovery activities by civil judges are conducted with due regard to good faith, in the sense of honesty and obedience in every stage of legal discovery. In addition, the application of procedural law principles serves as guidelines for judges in finding and implementing laws relating to concrete events.
Furthermore, said Elisabeth, legal discovery process that is not accurate can cause deterioration of the judiciary institution as the last bastion for justice. Therefore, it should be a concern for judges in the legal discovery process. "Thus, in dealing with vagueness and incompleteness of laws, judges can apply the principles of civil procedural law that are available in the legal system itself as a guide to carrying out their duties properly," she explained.