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PENGERTIAN PERBUATAN MELAWAN HUKUM

PENGERTIAN PERBUATAN MELAWAN HUKUM

 

Meskipun pengaturan perbuatan melawan hukum dalam KUHPerdata hanya dalam beberapa pasal saja, sebagaimana juga yang terjadi di negara – negara yang menganut sistem Eropa Kontinental lainnya, tetapi kenyataannya di lapangan menunjukkan bahwa gugatan perdata yang diajukan ke pengadilan didominasi oleh gugagatan perbuatan melawan hukum, selain adanya gugatan wanprestasi atas suatu kontrak (perjanjian). Karena itu, dapat dimaklumi bahwa betapa pentingnya untuk mengetahui bagaimana pengaturan hukum dan teori – teori yuridis tentang perbuatan melawan hukum, serta prakteknya dalam kenyataan yang sebenarnya (in concreto), khususnya yang terjadi di pengadilan.

Perbuatan melawan hukum dalam bidang keperdataan (onrechtmatige daad)  atau dalam bahasa Inggris disebut “tort”  berbeda dengan perbuatan melawan hukum dalam aspek pidana. Sebab, untuk tindakan perbuatan melawan hukum pidana (delik) atau yang disebut dengan istilah “perbuatan pidana” mempunyai arti, konotasi dan pengaturan yang berbeda sama sekali. Demikian juga dengan perbuatan melawan hukum oleh penguasa negara (onrechtmatige overheidsdaad) juga memiliki arti, konotasi dan pengaturan hukum yang juga berbeda.

Kata “tort”  (dalam bahasa Inggris) sebenarnya hanya berati salah (wrong). Akan tetapi khususnya dalam bidang hukum, kata tort itu berkembang sedemikian rupa sehingga berarti “kesalahan perdata yang bukan berasal dari wanprestasi kontrak”. Jadi serupa dengan pengertian perbuatan melawan hukum (onrechtmatige daad) dalam sistem hukum Belanda atau di negara – negara Eropa Kontinental lainnya. Kata “tort”  berasal dari kata Latin “torquere”  atau “tortus”  dalam bahasa Perancis, seperti kata “wrong”  berasal dari kata Perancis “wrung”  yang berarti kesalahan atau kerugian (injury).

Pada prinsipnya, tujuan dari dibentuknya suatu sistem hukum  yang kemudian dikenal dengan perbuatan melawan hukum adalah untuk dapat tercapainya seperti yang disebut peribahasa Latin, yaitu: Juris praecepta sunt haec; honeste vivere, alterum non Iaedere, suum cuique tribuere (Semboyan hukum adalah hidup secara jujur, tidak merugikan orang lain; dan memberikan orang lain haknya).

Semula, banyak pihak meragukan apakah perbuatan melawan hukum memang suatu bidang hukum tersendiri atau hanya merupakan keranjang sampah, yakni merupakan kumpulan pengertian – pengertian hukum yang berserak – serakan dan tidak masuk ke salah satu bidang hukum yang sudah ada, yang berkenaan dengan kesalahan dalam bidang perdata. Baru pada pertengahan abad ke – 19, perbuatan melawan hukum mulai diperhitungkan sebagai sebuah bidang hukum tersendiri, baik di negara – negara Eropa Kontinental, misalnya Belanda dengan istilah Onrechtmatige daad, atau di negara – negara Anglo Saxon dengan istilah tort.

Menurut pasal 1365 KUHPerdata, maka yang dimaksud dengan perbuatan melanggar hukum adalah perbuatan yang melawan hukum yang dilakukan oleh seseorang yang karena salahnya telah menimbulkan kerugian bagi orang lain.

Dalam ilmu hukum dikenal 3 (tiga) kategori dari perbuatan melawan hukum, yaitu sebagai berikut:

  1. Perbuatan melawan hukum karena kesengajaan.
  2. Perbuatan melawan hukum tanpa kesalahan (tanpa unsur kesengajaan maupun kelalaian).
  3. Perbuatan melawan hukum karena kelalaian.

Jika ditilik dari model KUHPerdata Indonesia tentang perbuatan melawan hukum lainnya, sebagaimana juga dengan KUHPerdata di negara – negara lain dalam sistem hukum Eropa Kontinental, maka model tanggung jawab hukum adalah sebagai berikut:

–        Tanggung jawab dengan unsur kesalahan (kesengajaan dan kelalaian), sebagaimana terdapat dalam pasal 1365 KUHPerdata.

–        Tanggung jawab dengan unsur kesalahan, khususnya unsur kelalaian, sebagaimana terdapat dalam pasal 1366 KUHPerdata.

–        Tanggung jawab mutlak (tanpa kesalahan) dalam arti yang sangat terbatas, ditemukan dalam pasal 1367 KUHPerdata.

Ada juga yang mengartikan perbuatan melawan hukum sebagai suatu kumpulan dari prinsip – prinsip hukum yang bertujuan untuk mengontrol atau mengatur perilaku berbahaya, untuk memberikan tanggung jawab atas suatu kerugian yang terbit dari interaksi sosial, dan untuk menyediakan ganti rugi terhadap korban dengan suatu gugatan yang tepat (Keeton, et al, 1983:1).

Beberapa definisi lain yang pernah diberikan terhadap perbuatan melawan hukum adalah sebagai berikut: (Keeton, et al, 1984:1 – 2):

  1. Tidak memenuhi sesuatu yang menjadi kewajibannya selain dari kewajiban kontraktual atau kewajiban quasi kontractual yang menerbitkan hak untuk meminta ganti rugi.
  2. Suatu perbuatan atau tidak berbuat sesuatu yang mengakibatkan timbulnya kerugian bagi orang lain tanpa sebelumnya ada suatu hubungan hukum, dimana perbuatan atau tidak berbuat tersebut, baik merupakan suatu perbuatan biasa maupun juga merupakan suatu kecelakaan.
  3. Tidak memenuhi suatu kewajiban yang dibebankan, kewajiban mana ditujukan terhadap setiap orang pada umumnya dan dengan tidak memenuhi kewajibannya tersebut dapat dimintakan suatu ganti rugi.
  4. Suatu kesalahan perdata (civil wrong) terhadap mana suatu ganti kerugian dapat dituntut yang bukan merupakan wanprestasi terhadap kontrak, atau atau wanprestasi terhadap kewajiban trust, ataupun wanprestasi terhadap kewajiban equity lainnya.
  5. Suatu kerugian yang tidak disebabkan oleh wanprestasi terhadap kontrak, atau lebih tepatnya, merupakan suatu perbuatan yang merugikan hak – hak orang lain yang dkiciptakan oleh hukum yang tidak terbit dari hubungan kontraktual.
  6. Sesuatu perbuatan atau tidak berbuat sesuatu yang secara bertentangan dengan hukum melanggar hak orang lain yang diciptakan oleh hukum, dan karenanya suatu ganti rugi dapat dituntut oleh pihak yang dirugikan.
  7. Perbuatan melawan hukum bukan suatu kontrak, seperti juga kimia bukan suatu fisika atau matematika.

Dapat dikatakan bahwa sesungguhnya hukum tentang perbuatan melawan hukum merupakan suatu mesin yang sangat rumit  yang memproses pemindahan beban resiko dari pundak korban ke pundak pelaku perbuatan tersebut. Namun demikian, dalam praktek ternyata mesin tersebut terlalu rumit sehingga seringkali terasa berada jauh dari jangkauan keadilan. Ketidaksenangan kepada hukum tentang perbuatan melawan hukum misalnya terlihat dalam sindiran yang mengatakan bahwa ungkapan “Sue Thy Neighbour” menjadi cara bagi orang hukum untuk menggantikan petuah lama berupa ungkapan “Love Thy Neighbour”. Bahkan karena begitu berkembangnya ajaran yuridis tentang perbuatan melawan hukum di Amerika Serikat, sehingga menurut suatu pengamatan disebutkan bahwa di Amerika Serikat orang saling gugat sebanyak rata – rata 20 (dua puluh) kali lebih sering daripada di Jepang (dikutip dari US News and World report, September 7, 1987). Disamping itu, rasa ketidakpuasan terhadap doktrin – doktrin hukum tentang perbuatan melawan hukum ini, telah mendorong masyarakat untuk mencari berbagai model alternatif yang dianggap lebih efektif, efisien, dan tidak berbelit – belit, antara lain:

  1. Sistem kompensasi dalam bentuk asuransi;
  2. Sistem kompensasi yang didasari pada pembiayaan lewat pembayaran pajak;
  3. Sistem sosial security;
  4. Sistem kompensasi pekerja.

About Author: Appe Hamonangan Hutauruk

Appe Hamonangan Hutauruk selaku Penulis tunggal pada Website: "Law Firm Appe Hamonangan Hutauruk & Associates" adalah seorang "Pegiat Penegakkan Hukum dan Hak Asasi Manusia" serta "Pemerhati Sosial Kemasyarakatan" yang berprofesi sebagai Advokat (Advocate), Konsultan Hukum (Legal Consultant) dan Dosen (lecturer) pada salah satu Universitas swasta di Jakarta, selain itu juga menduduki jabatan sebagai Ketua Umum pada Lembaga Swadaya Masyarakat (LSM) bernama "Komunitas Masyarakat Anti Korupsi dan Penggelapan Pajak (KOMAKOPEPA). youtube.com/c/BeritaHukumKebijakanPublik

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