Systematics of Commercial Law
The commercial law system in broad terms can be divided into 2, namely:
Written commercial law, is a law that is written or stated in the legislation. Example: criminal law is written on the Criminal Code, civil law written on the Civil Code.
Written commercial law, is a law that is not written down or not listed in the legislation. Example: customary law is not written down or not listed in the legislation but obeyed by certain regions.
Initially, the KUHD consisted of 3 books, then it was separated and now only two books remained. Book I KUHD regulates "trade in general" including bookkeeping, types of companies and business entities, trading exchanges, brokers, and cashiers; commissioners, senders , pedati, boat owners in river waters, securities, checks, promissory notes and receipts, billboards or retribution in bankruptcy; liability in general, as well as various kinds of coverage.
Book II of the KUHD regulates "rights and obligations resulting from shipping or shipping". Regulated in Book II of the Indonesian Criminal Code include ships and their cargo; ship businessmen; ship captains, crew members, ship passengers; sea work agreements, ship charter, transportation of goods, transportation of people, and others.
Relationship of Civil Law with KUHD
Prof. Subekti, S. H. is of the opinion that the existence of the KUHD besides the Civil Code is currently considered out of place, because actually the Commercial Law is nothing other than the Civil Law, and the word "trade" is not a legal sense, but an economic sense.
As we have seen, the division of Civil Law into KUH Per and KUHD is only based on history, that is because in Roman Law (which is the most important source of Western European Civil Law) regulations are not yet well known as currently contained in the KUHD, because trade between countries just started developing in the middle ages. In the Netherlands there is now a flow that aims to eliminate the separation of Civil Law in the two books of the law (aiming to unite Civil Law and Commercial Law in a single statute book).
In several other countries, such as the United States and Switzerland, there is no Book of Commercial Law separate from the KUH Perd. Previously, the regulations contained in the Criminal Code were intended only for traders, for example:
Only merchants are allowed to make money orders
Only traders can be declared bankrupt, but currently the KUHD applies to everyone, also non-traders as well as the KUH Per applies to everyone including a trader. In fact it can be said that the most important source of commercial law is the KUH Per. This is indeed stated in Article 1 of the KUHD, which reads: "Per KUH can also apply in matters stipulated in the KUHD only that the KUHD does not specifically deviate from Kuh Per".
This means that for matters regulated in the Criminal Procedure Code as long as there are no specific rules that are different, the rules in the Criminal Procedure Code also apply. According to Prof. Subekti, it has thus been acknowledged that the position of the KUHD against KUH Per is as a special law against general law. In other words according to Prof. Sudiman Kartohadiprojo, KUHD is a lex specialis to KUH Per as a lex generalis, then as lex specialis if if there is a provision in the KUHD there are provisions on the KUHD, then the provisions in the KUHD apply.