Yonatan Iskandar Chandra, Elwi Danil, Aria Zurnetti
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摘要

《国家刑法典》颁布后,关于国家刑法的讨论又重新受到关注。这是因为关于Adat刑法的规定不为人所知,也没有载于以前在印度尼西亚生效的《刑法》中。以成文法的形式对Adat刑法进行规制,导致Adat刑法本身的形式发生变化,由以前的不成文法转变为成文法。这种形式的变化也与《国家刑法》中仍然保留的合法性原则有关。基于此,可以说,本研究的问题提法:(1)《国家刑法》中Adat刑法的概念是如何规制的?(2)《阿达特刑法》作为不成文法的性质与《国家刑法》的规定有何关系?(3)从合法性原则的角度看,《国家刑法》对非法性刑法的规制是怎样的?在本研究中使用的方法是规范性法律研究与成文法和概念的方法。探索性研究的性质使用了一级、二级和三级法律资源。根据研究结果,可以得出结论,国家刑法典中关于Adat Criminal Law的规定是国家刑法典第2条所规定的,其中Adat Crimes是以不成文法的形式存在于社会中的法律,在印度尼西亚人民的生活中仍然有效和发展。然而,从合法性原则的角度来看,国家刑法对非法性刑法的规制存在问题。通过地方法律将刑法法律化的提法违背了刑法本身的本质,是合法性原则。
本文章由计算机程序翻译,如有差异,请以英文原文为准。
The discussion on Adat Criminal Law has returned to attention after promulgating the National Criminal Code. This is because the provisions regarding Adat Criminal Law are unknown and are not contained in the Criminal Code, which was previously in effect in Indonesia. The regulation of Adat Criminal Law in the form of positive law resulted in a change in the form of Adat Criminal Law itself, which was previously unwritten law to become written law. The change in form is also related to the Legality Principle, which is still maintained in the National Criminal Code. Based on this, it can be stated that the formulation of the problem in this study: (1) How is the concept of Adat criminal law regulation in the National Criminal Code? (2) What is the relationship between the nature of the Adat Criminal Law as unwritten law and its provisions in the National Criminal Code?; and (3) How is the regulation of Adat Criminal Law in the National Criminal Code according to the perspective of the Legality Principle? The method used in this research is normative legal research with statutory and conceptual approaches. The nature of the exploratory research uses primary, secondary, and tertiary legal sources. Based on the results of the study, it can be concluded that regulations regarding Adat Criminal Law in the National Criminal Code are as stipulated in Article 2 of the National Criminal Code, where Adat Crimes are laws that live in society in the form of unwritten law, and are still valid and developing in people's lives in Indonesia. However, the regulation of Adat Criminal Law in the National Criminal Code will cause problems when viewed from the perspective of the Legality Principle. The formulation that the Adat Criminal Law should be legalized through local law contradicts the essence of Adat Law itself and is the legality principle.
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