STUDI KOMPARATIF STATUS HUKUM ANAK TEMUAN PERSPEKTIF HUKUM ISLAM DAN HUKUM POSITIF

Abstract

Abstract

This article tries to compare Islamic law and positive law regarding the status of found children. This type of research is a literature review (Library Research) using a comparative approach between Islamic Law and Positive Law. The primary sources in this research are the 1945 Constitution of the Republic of Indonesia, Article 34 paragraph (1), Law no. 1 of 1974 concerning Marriage, Article 55 paragraph 1, Law of the Republic of Indonesia no. 35 of 2014 concerning Child Protection, Civil Code, Article 280. This research concludes that First, the Legal Status of Found Children According to Islamic Law is that found children are called Al-Laqith, and the law for caring for them can be Sunnah, Fardhu kifayah, and You can also Fardhu a'in. This depends on the condition of the child found. As for the issue of child guardianship, the finding is that if the child is a girl and is an adult, her adoptive parents cannot be guardianship but must be a judge. Meanwhile, the problem of inheritance is that children are found to be not getting inheritance rights from their adoptive parents but instead getting a mandatory will. Second, the legal status of found children according to positive law is that found children or children whose fate is unknown are called abandoned children. The status or position of the found child is determined by the existence of a birth certificate. Information on the birth certificate of the found child is based on the person caring for him. The legal status of children's findings is also explained in Law No. 35 of 2014 concerning Child Protection in Article 39 paragraph 5 guarantees that abandoned children have the right to have their living and education costs borne by the state. It is explained in the Civil Code Article 319e Release and Dismissal and Parental Power and third, Comparative Legal Status of Children Findings According to Islamic Law and Positive Law. In matters of birth, guardianship, and inheritance, each of them has differences in Islamic law and positive law. The similarities are in terms of providing life to children, such as caring for, educating, and looking after children like children in general.

Keywords:            Found Children, Islamic Law, and Positive Law.