Traditional Village as the Legal Subject of Agreement in Tourism Object Management in BaliJournal: Academic Research International (Vol.5, No. 3)
Publication Date: 2014-05-15
Authors : I Wayan Arka; Isrok; Moh. Ridwan; Ida Bagus Wyasa Putra;
Page : 355-361
Keywords : Traditional village; agreement; management; bali;
The tourism object based on its management is afforded by local government and traditional village. If its management is executed by local government and the traditional village, the form of management is executed through cooperative agreement. The parties of the agreement referred to as the legal subjects are individual person and legal entity. As a legal subject of an agreement, is a traditional village a legal subject or not? According to the Civil Code (KUHPerdata), the legal subject of an agreement is only individual and legal entity, however in practice of tourism object management in Bali, traditional village is accepted as a legal subject of an agreement by regional government. Article 18B paragraph (2) of the Constitution of RI 1945, setting out: “The State recognizes and respects traditional communities along with their traditional customary rights as long as these remain in existence and are in accordance with social development and the principles of the Unitary State of the Republic of Indonesia and shall be regulated by law.” And similar as the Decision of Constitutional Court Number 31/PUU-V/2007, admitted the traditional village as the Unity of Customary Law Community (KHMA). The decision of the Constitutional Court is based on the criteria or parameter on the fulfilment of Article 18B paragraph (2) of the Constitution of RI 1945, namely: (a) a Unity of Customary Law Community (KHMA) in de facto nature is still alive (actual existence) containing at least the following elements: 1) the existence of society of which its members have equal groups; 2) the presence of customary governance institutions; 3) the existence of the norms of customary law; and 4) have a particular territory; 5) its existence has been recognized by the law; 6) the substance of its traditional rights is recognized and respected by the members of KMHA; 7) the substance of its customary legal norms complies with and does not contrary to the legislations.
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