PENYELESAIAN SENGKETA WAKAF DALAM HUKUM POSITIF

Abstract

Waqf property in principle are the property of the people, as such
benefits must also be felt by the people and therefore at the level of the waqf
property is ideally collective responsibility to maintain it’s exist.
Indonesian state has a Muslim majority society. This condition
certainly makes the problem of managing endowments, become a very urgent
problem and very vulnerable. In addition, problems sometimes arise seizure
of waqf land ownership rights between the heirs wakif nadzir even there is a
person who has dared to be against the law to transfer or assign ownership to
another party. Those problems need to be addressed as well as law enforcement
both litigation and non-litigation order berkepastian law, justice and legal
expediency. Indonesia is a country of law as in Article 1 (3) of the Constitution
of the Republic of Indonesia (UUDNRI) 1945, so that all activities in our
country governed by law.
Dispute resolution based on traditional endowment Indonesian
positive law is: Non-Litigation. (A). Peace and Alternative Dispute Resolution
(ADR). The legal basis of dispute resolution outside of court can be delivered
as follows: Article 3, paragraph (1) of Law No. 14 of 1970, Article 1851 of
the Civil Code, Article 1855 of the Civil Code, Article 1858 of the Civil Code,
alternative dispute resolution is only regulated in one article, namely Article
6 of Law No. 30 of 1999 on Arbitration and Alternative Dispute Resolution.
(B). Procedures and dispute settlement procedures of Article 62 of Law No.
perwakafan 41/2004 explains: perwakafan dispute settlement be reached
through negotiation to reach an agreement, if the dispute resolution referred
to in subsection (1) does not succeed, the dispute can be resolved through
mediation, arbitration, or court. Article 62 of Law No. 41/2004 explains that
in solving the problems of the waqf property to first prioritize the attitude of
deliberations to reach a consensus. Litigation: In the context of endowments,
the Institute for Religious Courts through Article 49 of Law No. 7 of 1989
as amended by Act Number 3 of 2006 on the Religious Courts. Endowments
Act No. 41 of 2004, there are criminal provisions, which is still limited target
Nazdhir and Officer Deed of Pledge Waqf. This is explained in Article 67
paragraph (1) and paragraph (3).