Indonesia Civil Procedure Law

(Hukum Acara Perdata)

Samuel M.P. Hutabarat

Partner ARH Law Office, Lecture at Faculty of Law Atma
Jaya University, Jakarta
Scope of Court
(Ruang Lingkup Peradilan)

Law No. 48 of 2009 Concerning Judiciary

(Kekuasaan Kehakiman)

 Art. 1 Judicial Authority is an independent state authority

to organize judiciary to enforce law and justice on
Pancasila and the Constitution of the rublic of Indonesia
Year 1945, for the implementation of the state law of the
Republic Indonesia
(Kekuasaan kehakiman adalah kekuasaan negara yang merdeka untuk
menyelenggarakan hukum dan keadilan berdasarkan Pancasila dan
demi terselenggaranya Negara Hukum Republik Indonesia)
Scope of Court
(Ruang Lingkup Peradilan)

 Art.2 The Country’s Judiciary to Implement and enforce

the law and justice based on Pancasila

(Peradilan negara menerapkan dan menegakkan hukum dan keadilan

berdasarkan Pancasila).
Art. 18
 Judicial power shall be done by Supreme Court
and Judicial Bodies underneath it in the public
courts, religious courts, military courts,
administrative courts and by a constitutional
courts.

(Kekuasaan Kehakiman dilakukan oleh sebuah Mahkamah Agung dan

Badan Peradilan yang berada di bawah MA meliputi badan peradilan
dalam lingkungan Peradilan Umum, Peradilan Agama, Peradilan
Militer, Peradilan Tata Usaha Negara dan Mahakamah Konstitusi)
 This matter has been written down in
article 18 of Law No. 48 of 2009
Concerning Judiciary, which the article
stated that “Judicial power shall be done
by Supreme Court and Judicial Bodies
underneath it in the public courts, religious
courts, military courts, administrative
courts and by a constitutional courts.”
 Public Court, or District Court, is regulated in Law no. 2
of 1986 concerning General Court, and has the authority
to examine and decide on cases concerning Criminal
(General and Special) and Civil (General and
Commercial). From that definition as the basis, the
general court has the authority to settle disputes over
Civil and Criminal, settled in district court for the general
types of such disputes. Other courts that solve cases
regarding special matters related to Civil and Criminal
disputes are commercial court, industrial court,
corruption court, human rights court, and children court,
in which each court settle disputes based on the general
problem of what the cases are all about.
 For commercial court (pengadilan Niaga), according to
Article 280 paragraph (2) of Law no. 4 year 1998, the
Commercial Court functions to examine and decide on
bankruptcy and Suspension of Debt Payment
Obligations and the authorities also examine and decide
on other matters in the field of business which
determination is done by Government Regulation. Such
disputes that commercial court handled include matters
in regards to Bankruptcy and Intellectual Property
Rights. Commercial court only exists in 5 cities in
Indonesia, which are Jakarta, Medan, Makassar,
Surabaya, and Semarang, in which any commercial
court related disputes outside of the mentioned cities are
handled by the nearest of those five cities that has
commercial court (for example, commercial case in
Jambi are handled by commercial court in Medan).
 For Industrial relation court, it examines and decide upon
industrial relations disputes. According to Law No. 2 of
2004 concerning Industrial Relation Disputes Settlement,
an Industrial Relations Dispute is a difference of opinion
resulting in a dispute between employers or an
association of employers with workers/laborers or trade
unions due to a disagreement on rights, conflicting
interests, a dispute over termination of employment, or a
dispute among trade unions within one company (Article
1 paragraph (1)). Hence, it settles cases related to
employment matters.
 For corruption cases, the case has
authority to solve case related to criminal
acts of corruption; the crime of money
laundering whose original criminal offense
is a criminal act of corruption; and / or
criminal acts that are explicitly stated in
other laws are determined as criminal acts
of corruption (Art. 6 of Law no. 46 of 2009
regarding Corruption Court).
 The Human Rights Court has the duty and
authority to examine and decide cases of
serious violations of human rights (Art. 4 of
Law No. 26 of 2000 regarding Human
Rights Court), and serious human rights
abuses include crimes of genocide and
crimes against humanity (Art. 7 of Law No.
26 of 2000 regarding Human Rights
Court).
 Lastly, in general court there’s Children Court, in which
examine, decide and settle children case (done by child.
The system of Criminal Court of Children is the whole
process of settling the Child's case against the law, from
the investigation stage to the guidance stage after the
crime (Article 1 paragraph (1) of Law No. 11 of 2012
concerning Children Criminal Court System), and
Children in Conflict with the Law are children in conflict
with the law, children who are victims of criminal acts,
and children who witness crime (Article 1 paragraph (2)
of Law No. 11 of 2012 concerning Children Criminal
Court System).
 Outside of the General Court there’s Administrative
Court, Religion Court, Military Court. Administrative
Court, regulated in Law No. 51 of 2009, is the court to
settle administrative disputes, which the State
Administration Dispute is a dispute arising in the field of
state administration between a civilian person or legal
entity with a state administrative body or officer, either at
the center or in the region, as a result of the issuance of
a state administrative decision (KTUN), including a civil
service dispute based on legislation applicable (article 1
paragraph 10 of Law No. 51 of 2009).
 Meanwhile, the Religious Court is one of the judicial
authorities for the justice seekers who are Muslim about
certain matters as referred to Law No. 3 year 2006 (Art.
2 of Law No. 3 year 2006), in which Religious courts has
duty and authorized to examine, decide, and solve cases
at the first level between Muslims in regards to
marriages, inheritance, wills, grants, endowments, zakat,
infaq, shadaqah, and sharia economics (Art 49 of Law
No. 3 year 2006). As for the non-moslem, such disputes
are settled in the District Court.
 Next, there’s military court, regulated by Law No. 31 of
1997, in which it has the authority to examine and decide
the cases which the defendant is member of military,
without regarding whether or not the plaintiff is also
military member or citizen. In accordance with the
provisions of Article 40 of Law Number 31 of 1997 on
Military Courts, the Military Courts have the authority to
examine, adjudicate and decide upon the first level,
criminal cases committed by a person who, at the time of
committing a crime, is a Soldier of the rank of Captain;
 Those based on the Law are likened to
Soldiers; Member of a group, agency,
body of equalization and considered as a
Soldier under the Law; and Anyone on the
Decree of the Commander in conjunction
with the Minister of Justice's approval shall
be tried by a Court within the Military
Courts
 Lastly, there’s constitutional court, regulated by law no. 8
year 2011, in which has the authority to examine and
decide over matters such as judicial review of the 1945
Constitution of the State of the Republic of Indonesia; a
dispute over the authority of a state institution whose
authorities are granted by the 1945 Constitution of the
State of the Republic of Indonesia; dissolution of political
parties; disputes concerning election results; and the
opinion of the People's Legislative Assembly that the
President and / or Vice President are alleged to have
committed a violation of the law in the form of treason,
corruption, bribery, other serious criminal offenses, or
disgraceful acts, and / or no longer qualify as President
and / or Vice President as mentioned in Of the 1945
Constitution of the State of the Republic of Indonesia.
 Indonesia Civil Procedure Definition
(PENGERTIAN HUKUM ACARA PERDATA)
Laws that govern
how to ensure observance
civil law material with an intermediary
Judge (Prof. Sudikno Mertokusumo)

Peraturan hukum yang mengatur

bagaimana caranya menjamin ditaatinya
hukum perdata materiil dengan perantara
Hakim. (Prof. Sudikno Mertokusumo)
The provisions that regulating
how civil litigants in advance the
Court (K. Wantjik Saleh)
Ketentuan- ketentuan yang mengatur tentang
bagaimana caranya berperkara perdata di muka
pengadilan (K. Wantjik Saleh).
 Governing Law
Has not been codified, so that they spread
in some of the rules, among others:

o Renewed Indonesia Code (Reglemen Indonesia yang

Diperbaharui), Het Herziene Indonesich Reglement) (HIR) for
Java and Madura Stb. 1941 ;
o RBg (Reglement Buiten Gewesten) for outside Java dan
Madura Stb. 1927 ;
o Rv(Reglemen Rechtsvordering) European group and that is
equivalent to them Stb. 1847 ;
o Indonesia Civil Code & Indonesia Commercial Code and
related laws ;
o The jurisprudence of the Supreme Court (yuridprudensi) A
Circular Letter of the Supreme Court (SEMA) and the Supreme
Court Rules (PERMA).
 The Principle of Indonesia Civil Procedure

 The court prohibited from refusing to examine, hear and decide a

case that filed with the pretext that the law does not exist or is less
clear, but obliged to examine and hear.
Pengadilan dilarang menolak untuk memeriksa, mengadili, dan memutus suatu perkara
yang diajukan dengan dalih bahwa hukum tidak ada atau kurang jelas, melainkan wajib
untuk memeriksa dan mengadilinyabersifat menunggu (Pasal 10 ayat (1) UU no 48/2009).

 The provisions referred to in paragraph (1) does not cover the civil
case settlement efforts in peace.
Ketentuan sebagaimana dimaksud pada ayat (1) tidak menutup usaha penyelesaian
perkara perdata secara perdamaian. (Pasal 10 ayat (2) UU No. 48 tahun 2009
 The Principle of Indonesia Civil Procedure (2)

 The court adjudicate according to the law with no distinction

between people.
Pengadilan mengadili menurut hukum dengan tidak membeda-bedakan orang. (Pasal 4
ayat (1) UU No. 48/2009)

 The court assist the justice seekers and seeks to overcome all the
barriers and obstacles in order to achieve the justice that is simple,
fast, and low cost
Pengadilan membantu pencari keadilan dan berusaha mengatasi segala hambatan dan
rintangan untuk dapat tercapainya peradilan yang sederhana, cepat, dan biaya
ringan.(Pasal 4 ayat (2) UU no 48/2009).
 The Principle of Indonesia Civil Procedure (3)
 All court hearings are open to the public, unless the law otherwise
provides.
Semua sidang pemeriksaan pengadilan adalah terbuka untuk umum, kecuali undang-
undang menentukan lain. (pasal 13 ayat (1) UU No. 48/2009.

 Non-compliance with the provisions referred to in paragraph (1) and

(2) resulted in a decision null and void law.
Tidak dipenuhinya ketentuan sebagaimana dimaksud pada ayat (1) dan ayat (2)
mengakibatkan putusan batal demi hukum. (Pasal 13 ayat (3) UU No. 48/2009).

 In the trial of deliberation, every judge is obligated to submit the

consideration or the written opinion on the case that is being
examined and become an inseparable part of the the verdict
Dalam sidang permusyawaratan, setiap hakim wajib menyampaikan pertimbangan atau
pendapat tertulis terhadap perkara yang sedang diperiksa dan menjadi bagian yang tidak
terpisahkan dari putusan. (Pasal 14 ayat (2) UU No. 48/2009)
 The Authority of Courts
(kompetensi)

 Absolute Competence (kompetensi absolut)

 The courts authority to hear between the various judicial bodies
Kewenangan mengadili antara berbagai macam badan peradilan (Pasal 134 HIR /
Pasal 160 Rbg).

 Relative Competence (kompetensi relatif)

 The courts authority to hear the court at the same level and similar
Kewenangan mengadili antara pengadilan yang setingkat dan sejenis (Pasal 118 ayat
(1) HIR)
 Asas : Actor Sequitur Forum Rei.
 Absolute Competence is the courts authority to hear
between the various judicial bodies, in which in Article
134 HIR/ Art. 160 RBG stated, “If the dispute is a matter
that does not enter the jurisdiction of the district court,
then at any time in the examination of the case, it can be
requested that the judge declare himself not in power
and the judge must also recognize it because of his
position.” What is meant by the article is that it concerns
the authority of the judiciary to examine, hear, and
decide a case; as known under Article 10 of Law
35/1999, we recognize 4 (four) judicial environments,
namely general courts, religious courts, military courts
and state administrative courts. Each mentioned court
shall settle disputes related to their specified field and
the jurisdiction of one court must not be violated by other
court.
 Meanwhile, Relative Competence is the courts authority
to hear the court at the same level and similar. As written
in Art. 118 paragraph (1) HIR “A civil suit, at the first
entry of a court of law of the State, shall be submitted by
a letter of request signed by the plaintiff or by his deputy
under section 123, to the head of the district court of the
jurisdiction in which the defendant at rest or if his or her
place of residence is not known, the real domicile.” That
article also explain about Actor Sequitur Forum Rei
principle, in which it explains about the principle to
prioritize in file lawsuit to the district court in the area of
residence of the defendant.
 There’s four category (or paragraph) to determine where
to file the lawsuit, which are a lawsuit filed with the
District Court in the area of residence of the Defendant; if
the defendant is more than one person, or if there is a
relationship between the Defendants as principal debtor
and the insurer or guarantor; if the defendant is not
known, then the lawsuit filed with the District Court
where the plaintiff resides or if the lawsuit regarding fixed
objects, a lawsuit filed to the District Court where the
goods are to be fixed ; and a lawsuit can be filed to the
District Court selected the parties (in the contract).
 Article 118 paragraph (1) HIR

 Relative Competence (Kompetensi Relatif)

 Paragraph 1 : a lawsuit filed with the District Court in the area of

residence of the Defendant ;
 Paragraph 2 : if the defendant is more than one person, or if there
is a relationship between the Defendants as principal debtor and
the insurer or guarantor ;
 Paragraph 3 : if the defendant is not known, then the lawsuit filed
with the District Court where the plaintiff resides or if the lawsuit
regarding fixed objects, a lawsuit filed to the District Court where
the goods are to be fixed ;
 Paragraph 4 : a lawsuit can be filed to the District Court selected
the parties (in the contract).
 How to file a lawsuit

 The lawsuit may be made Orally for illiterate (Art.

120 HIR) ;

 The lawsuit may be filed in writing signed by the

plaintiff or their attorneys ;

 The lawsuit filed with the chairman of the district

court in accordance with the defendant's
residence.
The way facing the civil lawsuits in court

 The process material (without power attorney): the

plaintiff and the defendant himself ;

 The formal process (with special power attorney) Article

123 paragraph (1) :

• Based On the court where the lawsuit is intended

• What is the problem: Request or lawsuits (tort / breach of
contract) ;
• The legal counsel (power attorney).
Petition and Lawsuit
 Petition (Permohonan)

 1 party
 No dispute
 The result is a determination
 No appeal
 Constitutive nature (creating new things) or declarative
(recognition)
 Submitted to the district Court where the Applicant resides
 Example: adoption, Change of name
Petition and Lawsuit

 Lawsuit (Gugatan):

 At least two parties

 In dispute
 The result is a the verdict
 Nature condemnatoir (punish)
 Submitted to the district courts where the
Defendant resides
 Example: Breach of contract / tort
The Mechanisms of Court Proceedings
 Administrative Process
 Plaintiff
 Civil claims in first instance are filed by submission of letter of claim signed
by plaintiff or his/her legal counsel to chairman of District Court in jurisdiction
of defendant domicile ;
 If there are multi defendants who are not same domicile of District Courts
jurisdiction, then venue is proper in jurisdiction of at least one of defendant
which may be chosen by plaintiff ;
 Pay the registration lawsuit fee through the bank.
 Court
 Clerk of court received the case filed and provide registration number ;
 Clerk of court communicate to the chairman of District Court related to
the lawsuit ;
 Chairman of District Court determine the judges who will examine and
decided the case ;
 The judges determine the first day of trial ;
 Bailiff of District Court is viewed as official responsible to providing
summons to the parties includes copy of lawsuit ;
The Terms for Summons Trial
 Delivered directly ;
 At least 3 working days;
 Foreign defendant should be provided with minimum of
two months ;
 District Court notice defendant through submission of
request for service of process through Indonesia ministry
of Foreign affairs. Ministry of Foreign Affairs then
forwards summons and the lawsuit to Indonesia
embassy or consulate with jurisdictional territory
covering country of domicile of each defendant ;
 Delegation of authority if different from residence.
(Articles 388, 389, 390 HIR).
Civil Law Proceedings
 First Session :
 Plaintiff and Defendant was present at the first session hearing ;
 The judge will recommend that the plaintiff and the defendant to
mediate for reconciliation in ex officio (Article 130 HIR) ;
 If an agreement to be reconciled between the plaintiff and the
defendant, will be made deed of reconciliation final and binding ;
 If reconciliation is not achieved, then the hearing will proceed.
 If the Defendant or defendant attorney fails to present at first
session hearing, then the court will be postponed the first
session hearing by sending a summons to the defendant for
second session hearing ;
 If defendant fail to present at the session hearing after properly
noticed court session, the lawsuit may be examined without
present of defendant. This may lead to default judgment.
(verstek) ;
 Verstek legal remedy is Verzet. (Article 129 Jo. Art. 125 (3) HIR)
In a certain situation, when the Plaintiff is not
present, the Defendant was present :
 The Judges have to check if the summons is already
worth (Article 122 HIR).
 Plaintiffs will re-summoned one more time (Article 126
HIR).
 If Plaintiffs in second times is not attended for hearing
then the lawsuit is considered void and the plaintiff must
pay court costs (Article 124 HIR).
 If The Plaintiff and Defendant are equally not present.
The hearing was adjourned and the parties are legally
summoned again and worth.
The Requisite of Verstek Verdict in Favor of the
Plaintiff (Putusan yang Mengabulkan Gugatan)

 Both Defendant(s) and/or their proxy has never been

come during the process of the trial.
 This kind of Verdict can be done when the lawsuit is not
against the rights (any rights).
 And the lawsuit is basing on reasonable ground (Article
125 paragraph (1) HIR.
 Period of time to file a Verzet is within 14 days from the
day of the Verdict (Article 129 paragraph (1) HIR
Court Proceedings of Civil Disputes

 The Formulation of the Lawsuit

 when the plaintiffs are illiterate, then the civil claim may be
submitted orally to the Chairman of the District Court noted that
the lawsuit or asked for noted ;
 The lawsuit must be dated and signed by the plaintiffs
themselves or their attorneys ;
 The lawsuit also must include the identity and complete address
of the parties either as plaintiff or as a defendant or co-defendant
 The lawsuit must have the basis of the claim being the
foundation of examine and decide a case ;
 A lawsuit must have the basis of the claim being the foundation
of to examine and decide a case. including the legal basis and
the basic a fact. (Posita/Fundamentum Petendi)
Court Proceedings of Civil Disputes (2)

 The Formulation of the Lawsuit

 The Lawsuit must include the petitum that submitted clearly one
by one the things that are the subject of the plaintiffs and the
things that have to be borne by the defendant (petitum) ;
 Petitum that does not qualify is a demand that is not stated
clearly and demanding something of a general nature ;
 Petitum for damages but could not specify the losses in the
lawsuit and could not prove the losses before the court.
 A lawsuit must have the basis of the claim being the foundation
of to examine and decide a case. including the legal basis and
the basic a fact. (Posita/Fundamentum Petendi)
Court Proceedings of Civil Disputes (3)
 Defendant’s Response consist of :
o Attacking competence of district Court based upon lack of
subject matter jurisdiction (absolute) ;
o Defendant has rights to object to and obtain decision concerning
substantive defenses. Defendant may also submit absolute
competence objection at any time during proceeding or on
appeal and court is required to dismiss action event without
submission of argument concerning lack of absolute competence
where courts lack jurisdiction ;
o Attacking competence of courts based upon lack of personal
jurisdiction (relative) ;
o In the certain case the exception is accepted by the court, then
the court decision stating that the lawsuit will not be accepted.
Court Proceedings of Civil Disputes (4)
 Certain other procedural exception ;
 all exceptions to be raised must be filed at the same time, so that
if an exception that was not presented all at once with the first
answer be disqualified ;
 Case concerned has already been decided by court and that
decision has obtained permanent legal effect (ne bis in idem);
 The case is currently being examine by District Court, High Court
or supreme court ;
 Plaintiff has no capacity/power to act ;
 Plaintiff has failed to join necessary parties to action ;
 Plaintiff complain is obscure ;
Court Proceedings of Civil Disputes (4)
 Attacking substance (pokok perkara) of Plaintiff’s case
through The Defendant Response. ;
 Defenses and counter claims (rekonvensi) ;
 Defendant is also entitled to raise counter claims against plaintiff
at time of submission of defendant’s answer ;
 Plaintiff’s reply (replik) : Plaintiff is provided opportunity
to file response to defendant’s relative competence
exceptions, substantive answer and counter claims ;
 Defendant’s rejoinder (duplik) : District court may provide
defendant with opportunity to file rejoinder to plaintiff’s
reply ;
 Proof (pembuktian) :
Court Proceedings of Civil Disputes (5)
 Proof (pembuktian) : The proof system in civil procedure
law prioritizes formal of truth ;
 The evidence in civil procedure: written evidence,
witness statements, conjecture, confession and oath ;
 The truth is realized in accordance with the grounds and
the facts presented by the parties during the trial ;
 The recognition is perfect evidence and the judge should
accept it as a fact and the truth ;
 Positive law is still valid does not need to be proven
(curia novit jus)
Power of Attorney (POA)

 Definition :
 The granting of power of attorney is an
agreement by which a persons gives power to
another person, who accepts it, to perform on
his behalf. (Art. 1792 ICC)

 “Pemberian kuasa adalah suatu persetujuan dengan mana seorang

memberikan kekuasaan kepada seorang lain, yang menerimanya,
untuk dan atas namanya menyelenggarakan suatu urusan.” (Pasal
1792 KUHPerdata)
POA (2)
 The meaning of the words "for and on its behalf",
meaning that duly authorized to act for and on
behalf of the authority, so that all the causes and
consequences of this agreement is the
responsibility of the authorizing entirely within
the limits of powers conferred (Art. 1807 ICC).

 Makna kata-kata “untuk dan atas namanya”, berarti bahwa yang

diberi kuasa bertindak untuk dan atas nama pemberi kuasa,
sehingga segala sebab dan akibat dari perjanjian ini menjadi
tanggung jawab sepenuhnya dari pemberi kuasa dalam batas-batas
kuasa yang diberikan (Pasal 1807 KUHPerdata)
POA (3)
Things that should be considered in making
Power of attorney :

oThe identity and address of the Authorized and The Authorizer ;

oThe authorizing authority.
oThe power of attorney must be made in particular in terms of:
a. specifically to handle a case.
b. on what authority is given.
c. Specifically about a judiciary level and which type of court
d. Specifically about the parties being sued.
POA (4)
 Supreme Court Circular No. 6 years 1994 dated October
14, 1994 concerning Power of Attorney : “ The power of
attorney must be specific and according to the laws of
emotion imprinted clearly that the power of attorney was
only used for specific purposes.
 Termination of Power of Attorney : The granting of power
is terminated ; by revocation of the power by the
authorizer, by notification to discontinue the power by the
authorizer, by the death of the authorizer, by the
marriage of the woman who grants or receives the power
(Art. 1813 ICC)
POA (5)
 The authorizer can repeal his power whenever he
prefers and if there is any grounds for such, that compels
the attorney in fact to return the power that he holds.
(Art. 1814 ICC) ;
 The appointment of new attorney in fact, to perform of
former the same affair, shall cause the revocation of the
former power of attorney, commencing from the day the
later persons is notified regarding such appointment.
(Art. 1816 ICC) ;

 Pencabutan Kuasa dapat dilakukan tanpa memerlukan persetujuan dari

penerima kuasa, dilakukan secara tegas dengan cara mencabut secara
tegas dengan tertulis, meminta kembali surat kuasa dari penerima kuasa
atau pencabutan secara diam-diam (Pasal 1814 -1816 KUHPerdata).
POA (6)

 The attorney in fact may release himself from his power

by notification of the discontinue to the authorizer (Art.
1817 ICC) ;
 The granting of power of attorney is an agreement by
which a persons gives power to another person, who
accept it to perform on his behalf. (Art. 1792 ICC) ;
 The powers can be given and accepted by a general
instrument, by a written form by private contract, even by
letter or verbally. (Art. 1793 ICC).
Absolute Power of Attorney
 Based on the principle of freedom of contract Article
1338 of the Indonesia Civil Code, the judicial practice in
Indonesia allow an agreement absolute power.

 In absolute power, contained the clause:

o The Authorizer can not revoked the power that granted
to the authorized person;
o The Death of authorizing (pemberi kuasa) does not
terminate the power of attorney agreement .
o The permissibility of absolute power is confirmed by the
Supreme Court Decision No. 3604 K / pdt / 1995 and
Supreme Court Decision MA No. 731 K / Sip / 1975
(Jurisprudence)
Prohibited :
 Instruksi Menteri Dalam Negeri No. 14 year 1982, PPAT
or Notary prohibited from creating absolute power of
attorney in land transactions. The land owner is
prohibited gives absolute power to the power to sell his
land.

 Absolute power restrictions on the buying and selling of

land:
Letter of absolute power in the sale and purchase of land
can not be justified, because in practice is often use to
smuggle land purchase (MA Decision No. 2584 K / Pdt /
1986)
The type of Power Attorney:
 Article 1793 :
The power can be given and accepted by a general
instrument, by a written form by private contract, even by
letter or verbally.

 General Power of Attorney

Article 1795 of the Civil Code : the granting of power of
attorney may be done specially, namely concerning only
one specific interest or more or generally, namely covering
all interest of the authorizer
 Special Power of attorney
Special power of attorney is the authorization regarding
the interest or more. This is kind of power of attorney that
usually used in court under the terms set forth in Article 123
HIR (147RBg), SEMA No. 01 year 1971 and SEMA No. 06
year 1994.
 Supreme Court outlined a legitimate power requirement
as follows:
o Mention the clear and specific power of attorney, to act
on the Court;
o Mention the relative competence;
o Mention the identity and position of the parties, and
o And concrete mention briefly the subject and object of
the dispute is sued.
 Special power of attorney that does not mention the
litigant parties and the object of the case resulted in a
special power of attorney is not valid. (Supreme Court
Decision No. 1912 K / Pdt / 1984) ;
 Special Power of Attorney does not stamp, causing a
power of attorney is not valid ;
 Special power of attorney that refers to the register
number legal case (The Supreme Court Decision No.
115 K / Sip / 1973) ;
 Special power of attorney made in overseas must fulfill
the additional requirements, namely the legalization of
the local Embassy or Consulate General of the locals.
(Supreme Court Decision No. 3038 K / Pdt / 1981) ;
 Power of attorney should be made specific to each level
of the judiciary
 Substitution Power of Attorney :
A power of attorney may be delegated (substitution) by the authorized
person to another party. In general, the power of attorney is always
given with the clause "power of attorney is granted with the right of
substitution". If the authorized person is not given authority to it, then
the endorsee is prohibited to delegate authority to the other party.

 Retention Rights:
Retention rights is the right to hold an object to a receivable relating to
the object was an unpaid. In connection with the authorization
agreement, Retention Rights under Article 1812 of the Civil Code,
which reads as follows:
"Recipients are entitled to hold power belongs to the authorizing in her hand up
to her paid off everything that can be sued as a result of the authorization."
 The Lawsuit Submission Procedure

The Lawsuit and PoA Courts Clerk Registered Case number and
The Lawsuit Stamp

Determination:
The date of hearing
Clerk of substitutes Judges The Chairman of
Summoning District Court Bailiff
the parties

The Hearing The Verdict

The Lawsuit Hearing Procedure

Recon Hearing II
Hearing III
Hearing I ciliation Lawsuit
Defendant’s Responses
(mediasi) Reading

Hearing VI Hearing V
Hearing VII
Defendant’s Hearing IV
Defendant’s Proof (Pembuktian)
Rejoinder Plaintiff Reply (Replik)
Evidence Plaintiff
(Duplik)

Hearing IX
Hearing VIII
Decision
Conclusion
The Procedure for Adding or Amendment The
Lawsuit

 HIR does not regulate additions / amendment to

the lawsuit.
 The authority of the judge.
 In practice can be made based on article 393 HIR
 As long the addition and amendment does not to
change the principal of the lawsuit, while not
harming the Defendant, and not for adding to the
petitum.
Amendment The Lawsuit can be Implemented in
Two Phases:

 The stage before the defendant filed an responses

 The stage after the defendant filed an responses >> with
the consent of the Defendants.

The amendment can be made if:

 The amendment does not harm the interests of both
parties, especially the Defendant.
 The amendment does not offend the principal case.
 Amendment should not lead to new circumstances.
The Revocation of The Lawsuit

 It can be done before the Defendant filed the

Responses.
 If carried out after the Defendant's response, it must be
with the permission of the Defendants.
 Stated in a Stipulation, when responses from the
Defendant.
 Stated in the Minutes of hearing and recorded in a Civil
Case Register, if that is happened before response from
the Defendant.
Reconciliation

 Article 130 HIR/154 Rbg ;

 Supreme Court Regulation No. 1 year 2016 ;
 Article 1851 ICC :
Amicable Settlement is an agreement by which the two
parties by surrendering, promising, or holding a certain
property to terminate a pending case or prevent a case
from arising out.
Reconciliation (2)

Reconciliation is made in front of a judge

have binding force as a The judges' verdict in the final
level.

To the reconciliation decision punish the parties to abide by

the contents of the reconciliation settlement may not be
filed an appeal, but it is still possible to be aborted in the
event of the following matters:
Reconciliation (3)

 Made by wrong person or they have not the

authority.
 A mistake about the object of the dispute.
 Performed of fraud or duress.
 Made by fake letters or document.
Defendant Response Regarding the
Principal Case

Defendant Responses.
 Contains recognition, denial and counter claim.

Defendant in Counter Claim (rekonvensi),

governed by Article 132a HIR.
 In counter claim, The original plaintiff became
Defendants and Defendants in the original be
plaintiff in Rekonvensi.
The Provision Related to The Counter Claim
(rekonvensi) :
 Counter claim is a lawsuit filed by the Defendant as a
counterclaim to a lawsuit filed by the Plaintiff to him ;
 Counter claim lawsuit filed by the Defendant to the
district court during the on going process of a lawsuit
filed by the plaintiff ;
 Counter claim filed to the district court by the same
judges who hear convention (konvensi) lawsuit ;
 Counter claim lawsuit can not be separated with a
lawsuit convention and registered in the same case
number as well as the convention lawsuit and decided in
the same case with the convention lawsuit.
The Provision Related to The Counter Claim
(rekonvensi) (2) :
 Counter claim lawsuit can not be separated with a
lawsuit convention and registered in the same case
number as well as the convention lawsuit and decided in
the same case with the convention lawsuit ;
 There is a connection factor of the legal basis and
relevant fact between the conventions lawsuit and
counter claims lawsuit.
 It should be very close connection, so that the
examination and dispute settlement process can be
carried out effectively and the process of decision
The Provision Related to The Counter Claim
(rekonvensi) (3) :

 The parties being sued in a counter claim lawsuit is

limited to the plaintiff of convention;

 It does not need have to pull out all the plaintiff

convention ;

 It is prohibited to the defendant pull out all conventions

defendants in counter claim lawsuit ;
The Provision Related to The Counter Claim
(rekonvensi) (4) :
 Counter claim lawsuit filed together with the responses
of the defendant ;
 It is prohibition to filed counter claims outside the
jurisdiction of the district court who examine the
convention lawsuit.
 It is not allowed to file a lawsuit on high courts appeal
supreme court appeal.
The Objectives and Benefits of The Counter Claim
Lawsuit (rekonvensi)

 Enforcing the principle of simple justice ;

 Saving costs and time ;
 Simplify examination procedures ;
 Accelerate the settlement of disputes ;
 Avoiding conflicting decisions ;
The Laws of Evidence in Civil Procedure Law
 The laws of evidence in civil procedure law is the formal
correctness (formil waarheid) ;
 The duties and role of judges are passive ;
a. The judge are not allowed taking active roles require
the parties either submit or add to the evidence
required ;
b. The judges have to receive confessions and denial
that filed by the parties in a court to further assess
the validity
c. The examination and the judge's decision is limited to
lawsuit filed (petitum) by the plaintiff in the lawsuit.
The Laws of Evidence in Civil Procedure Law (2)

 The truth is realized in accordance with the basic

arguments and the facts that presented by the parties
during the trial process took place ;

 In principle, the confessions of the parties terminate to

the case examine except :
a. do not deny in the silence way ;
b. opposition without basic reasons ;
The Laws of Evidence in Civil Procedure Law (3)

 The facts do not need to be :

a. Positive law does not need to be proved ;
b. A public fact known does not need to be proved ;
c. A fact that is not denied by the parties do not need to
be proved
 The judge must make a decision based on the evidence
and facts;
The Evidence in Civil Law Procedure

Written Evidence (bukti tertulis) (Art. 165-167 HIR) ;

Witnesses (bukti saksi) (Art. 168 – 172 HIR).;
Suspicions (persangkaan) (Art. 173 – 174 HIR). ;
Confessions (pengakuan) (Art. 175 – 176 HIR). ;
Statement made under oath (sumpah). (Art. 175 -176 HIR).
Expert Witness (Art. 154 HIR)

Additional : local examination

Electronic evidence (documents) and or print out constitute
as a valid legal evidence (art. 5 (1) of law No. 11 year 2008
concerning electronic Information and Electronic
transaction)
The Burden of Proof
 Article 163 HIR
Any person who states he has the right or he mentioned an
act to strengthen that right or to deny the right of another
person, then that person have to prove the existence of
such rights or the existence of the incident.
 Article 1865 ICC
Everyone who claims to have rights or in order to confirm
his own right or to deny someone else tight, referring to
an event, is obliged to proof the existence of such event.

“ Anyone Who Argues, He is Obliged to Prove “.

Evidence Letter
 Deed
Authentic deed: Deed made in the form of legislation by or
before a competent public officer and the place where the
deed was made.
Article 165 HIR - legally enforceable authentic act is a
perfect (volledig bewijskracht) and binding (bindende
bewijskracht) proof for the parties and third party.
 Not authentic Deed (private subscribed deed)
Deed made and signed by the parties with a view as
evidence of a legal act but not made before a public officer.
Not authentic Deed have the strength of evidence is perfect
when it is recognized by the parties.
Confession
 a confessions given by one party litigants do in front of
the court.
 Confession in front of the court to have the strength of
evidence was perfect (Article 174 HIR, Article 1925 ICC).
 Perfect (volledig bewijskracht) and binding (bindende
bewijskracht) proof for the parties and third party
 The confessions given in court can not be revoked.
 Every confession should be considered correct.
Witnesses
 Article 1909 & 1910 : all persons being capable to act as
witnesses, shall be obliged to give witness legally,
nevertheless the following can excuse themselves from
giving witness :
a) Those who are on the sideline of a blood relationship or
relation by marriage in second degree of one the parties
b) The spouse of one of the parties, even after a divorce
that has taken place;
c) There is still a working relationship with one of the
parties
Witnesses (2)
 Article 1912 : those who have not reached the age of
fully 15 year, under guardianship due to silliness
(pengampuan) insane or madness ;
 they are not allowed to be a witness's brother and sister,
brother-in-law and sister in law of one of the litigants ;
 Before the court, the witness should be examined one by
one ;
 The oath is an obligation for witnesses (legal obligation) ;
 The oath or promise according to the religion professed ;
 a single witness is not a witness (Unus testis nullus
testis) ;
Witnesses (3)
 Someone to be a witness based on his own experience
or that happened ;
 someone to be a witness based on what the witness
see.
 Someone to be a witness based on what witnesses hear;
 Someone can not be a witness based on the statement
that he had heard from others (Testimonium De Auditu),
in common law that called as hearsay evidence;
 Witness statements submitted by the Indonesian
language, if needed interpreters;
Local Examination

 Article 1886 ICC, Article 164 HIR and Article 284 Rbg.
 Local examination serves to prove the clarity and
certainty regarding the location, measurement and
boundaries of the object of dispute ;
 The court hearing process are supposed to do in a
courtroom of district court, moved or carried out in other
places, namely at the location where the goods object of
dispute ;
 Local examination can be ordered by a judge or at the
request of the parties
Expert Opinion (expert witness)

 Expert means : specialized are as of knowledge ;

 A witness who by virtue of special knowledge skill
training or experience is qualified to provide testimony to
aid the fact finder in matters that exceed the common
knowledge of ordinary people ;
 The judge may request presented by an expert ;
 Expert witnesses may also be requested by the parties ;
 The judges are not obliged to follow the opinion of the
experts, if the judge has another opinion or beliefs.
Decision
 Preliminary Decision (Putusan Sela) : The decision
before the principal case (pokok perkara) decision in
order to facilitate or expedite the hearing.
 Final decision : The decision relating to the subject
matter is usually in the form of:
 a. The decision was granted by the court (dikabulkan)
 b. The decision that rejected the lawsuit (ditolak)
 c. The decision that the lawsuit can not be accepted by
the court. (tidak dapat diterima) (niet ontvankelijke
verklaard (NO))
Decision (2)
a. The decision was granted by the court (dikabulkan) :
a decision which the plaintiff has successfully
proved the proposition or argument before the court

b. The decision that rejected the lawsuit (ditolak) :

a the decision which the plaintiff failed to prove the
proposition or argument before the court

c. The decision that the lawsuit can not be accepted by the

court. (tidak dapat diterima) (niet ontvankelijke verklaard
(NO)) :
a the decision which the lawsuit does not meet the
formal elements of the lawsuit
Decision (3)
The principles in the decision :

 The judges shall not grant beyond posita or petitum of

the plaintiff (ultra petitum partium). Beyond the powers of
his authority. The decision containing ultra petitum
partium of the resulted in the decision becomes invalid.
 Open justice principle or fair trial principle : The trial and
the decision pronounced in the trial open to the public.
the principle of open justice which is open to the public
starting from the beginning of the examination until the
court decision.
 Based on Article 20 Law No. 4 year 0f 2004 : All court
decision is valid and binding, when spoken in a hearing
open to the public.
Decision (4)
The principles in the decision :

 For the case that the examination conducted in a closed

hearing, the decision still had to be read and spoken in
open to public.

 Violation of the principle of fair trial principles resulted in

the decision becomes invalid and have no legal force.
Decision (5)
The Final decision :
 Declaratoir decision (statement (pernyataan)): decision
explicative and confirms a situation law. Example : As
the determination of heirs (ahli waris).

 Constitutive Decision (setting (pengaturan)): is assigned

a new existence or abolition of existing legal situation
examples: the decision of bankruptcy the decision,
divorce decision.

 Condemnatoir decision (judgment): Punitive the defeated

party to fulfill the particular achievement
Decision (6)
Decision of District Court must contain at minimum,
following :
 Brief description (ringkasan) of the lawsuit included
fundamentum petendi ;
 Brief description of includes respond of Defendant and -
answered between the parties (replik, duplik) and
conclusion (kesimpulan) ;
 A description of the facts and the evidence and the
witnesses proposed before the hearing.
 The Judges consideration in the form of analysis,
arguments, opinions and conclusions of judges to the
cases being examined.
Decision (7)
Decision of District Court must contain at minimum,
following :
 Legal basis. Any court decision aside must contain the
reasons and grounds of the decision, shall also contain
specific provisions in the legislation that the legal basis
of the decision, including the consideration of the judges.

 Amar decision or diktum: The decision is a statement

(declaratoir) relating to the status and legal relations
between the parties or punishment (comdemnatoir)
addressed to litigants (Plaintiff or Defendant) .
Seizure (penyitaan) (beslag)

 It is an action taken by the District Court through the

judges statement over Plaintiffs request to put property
(assets) of defendant (debtor) under court supervision
until definite court decision(Article 227 HIR & 720 RV) ;
 As guarantee for execution of court decision, if the
defendant (debtor) not obey the court decision
voluntarily.
 Any assets could be seized either movable or immovable
assets, even that are not in the possession of the
defendant (debtor).
Seizure (penyitaan) (2)

 The judge has the authority to grant the request of the

plaintiff to seizures the asset of defendant in the early
stages of the proceedings before the principal case
examination.
 Seizure means putting the assets of defendant under
custody of district court for the benefit of the Plaintiff.
 If the seizure is done before the decision of the principal
case examination, what is it means the defendant has
lost ? or guilty ?, fair ?.
Seizure (3)
 The Objectives of Seizure
o In order that lawsuit is not pointless
o The ownership of defendant assets is not transferred to others
parties ;
o The assets of defendant are not burdened by the lease or used
as collateral for third parties ;
o Kind of the plaintiffs legal actions to guarantee and protect his
interest related to the defendant's assets until permanent and
final decision of court ;
o Seizure of assets of the defendant was an effort of the Plaintiff
to avoid the bad faith of the defendant who did not want to be
responsible for the actions of a defendant who cause harm to
Plaintiff (civil liability).
Seizure (4)

 The legal effect of seizure

 The defendant should not be transferring ownership
of these assets in any form to anyone.
 If it is done by the defendant then there will be legal
consequences, both civil and criminal law;
 Even if the assets had been seized by the court, but it
does not mean that the defendant is not allowed to
use such assets.
Seizure (5)

Seizure Mechanism
 In oral form,
The request may be made orally seizure before trial.

 In writing from,
Request for seizure in written form is the most
appropriate form in association with lawsuit or in the
separate petition letter
Seizure (6)
Seizure Mechanism
 The plaintiff must indicate the seized assets, so it is not
justified to provide information about the assets in general.
 The plaintiff must mention the details of identity inherent in the
assets.
 In type or form of asset, location or boundaries as well as its
size, if the land being enough to mention the certificate
number and the name of its owner.
 If the bank account, it is necessary to mention the account
number, the owner and the bank's name. If the shares, it
should be mentioned the name of shareholders, number of
shares and what kind shares.
Seizure (7)
Seizure Mechanism
 Seizure is the absolute authority of the district court.
 Prohibition to seize assets belonging to third parties, the third
party can take the fight on seizure committed against their
assets (derden verzet)
 If the dispute relating to ownership of the asset, then the
seized is only limited to the disputed assets should not be
another asset.
 In a dispute relating to the debt, which can be seized are
assets that become collateral or other items of value that will
be used to pay the debt.
 Eksekusi
 Asas : suatu putusan yang telah berkekuatan
hukum tetap dapat dilaksanakan kecuali asas
uitvoerbaar bij voorrad.
 Dasar hukum 195 – 208 HIR.
 Putusan dilaksanakan dibawah pimpinan ketua
PN yang memutus perkara. Pelaksanaan
putusan dilakukan atas dasar permohonan pihak
yang menang, kecuali pihak yang kalah mau
secara sukarela menjalankan putusan tersebut.
 Macam Eksekusi
 Eksekusi putusan yang menghukum pihak yang
kalah untuk membayar sejumlah uang. Diatur pasal
196 HIR/pasal 208 Rbg.
 Eksekusi putusan yang menghukum orang
melakukan suatu pembayaran. Diatur pasal 225
HIR/pasal 259 Rbg.
 Eksekusi riil yang merupakan pelaksanaan prestasi
yang dibebankan kepada debitur oleh putusan
hakim secara langsung. Diatur pasal 1033 Rv.
 Jenis lain Eksekusi
 Parate eksekutie : bila kreditur menjual
barang tertentu milik debitur tanpa
ada titel eksekutorial (pasal 115
KUHPerdata). Harus ada putusan
pengadilan.
 PENYITAAN

Merupakan suatu tindakan yang diambil oleh

pengadilan melalui penetapan hakim atas
permohonan Penggugat guna menempatkan
barang (milik penggugat atau tergugat)
berada dalam penguasaan/pengawasan
pengadilan sampai adanya suatu putusan
yang pasti tentang suatu perkara untuk
menjamin dapat dilaksanakannya suatu
putusan perdata.
 JENIS-JENIS PENYITAAN :

 Penyitaan terhadap barang milik sendiri

(kreditur/Penggugat) yang dikuasai orang lain
atau tergugat.
a. Sita Revindicatoir (revindicatoir beslag)
Psl 226 HIR
b. Sita harta bersama (marital beslag).
Psl 823-830 RV
 Sita Jaminan (conservatoir beslag) Pasal 227
HIR
 PROSEDUR PENGAJUAN SITA

o Permohonan diajukan secara terpisah dengan

gugatan kepada Ketua Pengadilan Negeri/Ketua
majelis dengan menguraikan secara jelas dan rinci
objek yang akan dimohonkan sita.
o Ketua Majelis mengeluarkan Surat Perintah sita.
o Surat Kuasa Untuk Membayar (SKUM) yang
besarnya tergantung objek sita.
o Penetapan juru sita
o Pelaksanaan sita dengan mendatangi tempat
objek sita dibuat berita acara dengan stu salinan
diserahkan kepada orang yang menjaga objek
sita.
 ...
 Juru sita mendaftarkan Berita Acara sita tersebut
kepada instansi terkait.
 Apabila gugatan dikabulkan dan didalam putusan
dinyatakan sah dan berharga sita jaminan yang
telah diletakkan, maka penggugat dapat
mengajukan eksekusi terhadap objek sita setelah
putusan in kracht.
 Jika gugatan ditolak dan penggugat tidak
mengajukan upaya hukum, maka peletakkan sita
tersebut dinyatakan tidak berharga dab harus
diajukan pengangkatan sita jaminan.
Pasal 186 HIR & pasal 207 Rbg
 Untuk dapat melaksanakan suatu putusan hakim
secara paksa oleh PN, pihak yang memenangkan
perkara mengajuka permohonan secara lisan atau
tertulis kepada Ketua PN agar putusan
dilaksanakan.
 Berdasarkan permohonan tersebut Ketua PN
memanggil pihak yang dikalahkan dan
memperingatkan (aanmaning) untuk memenuhi
keputusan tersebut dalam waktu 8 hari. Jika tidak
dilaksanakan dapat disita dan lelang sebanyak
jumlah uang dalam putusan ditambah biaya
menjalankan putusan (pasal 197 ayat 1 HIR).
 UPAYA HUKUM TERHADAP PUTUSAN

 Upaya hukum biasa : bersifat menghentikan

pelaksanaan putusan untuk sementara, seperti
perlawanan (verzet), banding dan kasasi.

 Upaya hukum luar biasa :

peninjauan kembali (request civil)
 PERLAWANAN (VERZET)

Verzet terhadap putusan verstek :

Bagi Tergugat yang merasakan dirinya
dirugikan karena adanya putusan verstek,
maka upaya yang dapat dilakukan adalah
melakukan Verzet yang merupakan
permohonan agar terhadap perkara yang
diputus verstek diadakan pemeriksaan
ulang, sehingga, tergugat dapat membela
diri dari gugatan penggugat.
 ...

Tenggang waktu mengajukan :

o Paling lambat 14 hari sejak pemberitahuan putusan

verstek diberitahukan kepada tergugat.
o Dalam waktu 8 hari sejak adanya teguran untuk
melaksanakan isi putusan verstek.
o Dalam waktu 14 hari sejak adanya penyitaan-
penyitaan.
 ...
 BANDING :
Pihak yang tidak puas terhadap putusan
Pengadilan Negeri dapat mengajukan Banding ke
Pengadilan Tinggi. Dalam tempo 14 hari setelah
putusan dijatuhkan atau 14 hari sejak diberitahukan
kepadanya.

 KASASI
pihak yang tidak puas dengan isi putusan
Pengadilan Tinggi, dapat mengajukan kasasi ke
Mahkamah Agung, dalam waktu 14 hari sejak
diberitahukan.
TERIMAKASIH