This article will explain the civil procedural law in practice based on the writer’s experience and observation. As we know that there are some steps or periods, those are pre-trial, trial and post-trial. Therefore, we will explain what is needed to be prepared in each of the steps.
I. PRE TRIAL
Preparation for the Plaintiff and/or its Attorney:
a. Completeness and accuracy of information and documents
This is intended for the arguments and decisions that will be taken by the plaintiff and/or its attorney are based on complete and accurate information and document. (need to be noted: in civil procedural law, formal evidence are preferred, while in criminal procedural law, material evidence)
b. Confidence on the strong basis of the claim
In general, the basis of the claim is:
1. Breach of Contract, that is:
- Not performing the obligation as agreed;
- Performing the obligation but not equivalent to what is agreed on the agreement;
- Performing the obligation but late; and
- Performing something that according to the agreement is prohibited or contravention to the agreement;
(Vide: Prof. Subekti in his book Hukum Perjanjian, Published by PT Intermasa, Jakarta, year 1979, page 45)
2. Unlawful Act/Tort (Vide: Article 1365 Indonesian Civil Code) that states:
“Every unlawful act that causes damage onto another person obliges the wrongdoer to compensate such damage.”
From this provision, it can be seen that to fulfill the article 1365 ICC these elements must be fulfilled:
b.2.1 An Unlawful Act
According to the Lindenbaum-Cohen case decision (HR-1919) an action may constitute an unlawful act if such action:
- contravene the legal obligation of the wrongdoing/plaintiff;
- contravene the subjective right of the plaintiff;
- contravene the moral decency;
- contravene with the principles of appropriateness, precision, and prudence that is supposed to be possessed by a person in its association with the members of the society.
The occurrence of the fault should be able to be measured objectively and subjectively. Objectively, it must be proven that an ordinary person may expect the consequences and this probability should prevent the person to do or not doing the action. While by subjectively, it must be proven that the doer possesses the ability to do and may expect the consequence of his/her action.
b.2.3. loss incurred
the loss incurred due to the unlawful act may be in the form of material loss and immaterial loss. A material loss shall include the loss that is obviously incurred and the profit that might be obtained. An immaterial loss shall be a loss that is physically in nature, such as excessive fear, illness or the loss of life pleasure.
b.2.4. A causal relationship between the action and the loss
In this relation, there is a theory that teaches that a person who commits an unlawful act shall always be held responsible if the action results in a loss. It means that the consequence of loss suffered by the plaintiff is the result of or caused by the plaintiff.
c. An understanding of the character of the defendant and/or its attorney
This is intended so that the plaintiff is able to take proper action against the defendant. For example by filing a lawsuit or just engage in negotiation through another approach.
d. a comprehensive study to the type and nature of the relationship with the defendant
This is intended so that the plaintiff is able to take any proper legal measures or actions against the defendant. For example, by filing an unlawful act claim or breach of contract claim or class action claim or “legal standing” claim or citizen lawsuit (actio popularis).
e. Valid and proper Power of Attorney.
This is intended so that the defendant is unable to annul the power of attorney and/or the statement of claim due to the technical reason on the granting of the power of attorney. Therefore, it must be certain regarding:
- Who has the authority to sign the Power of Attorney (if a company, it can be checked in the Articles of Association)
- The power of attorney must be specific in nature
- Dully stamped
- The signature must cross or touch the stamp
- The date above the stamp.
If the grantor is a foreigner or foreign legal entity and located out of Indonesia, it is suggested that the power of attorney be made bilingual and signed by the appropriate person, notarized by a public notary, and consularized in the Indonesian embassy in that country. If the defendant is a foreign individual or entity, it is suggested that the statement of claim is officially translated into the language of the defendant’s country, and the translation is attached at the time of registering it. If you want it expedited, the Plaintiff is able to assist the court and the Foreign Ministry by couriering the statement of claim and the summon. (Vide: Letter of the Directorate General of General Court No. D-AT.02.01-21-88, dated 17 March 1988).
f. The importance of summation before filing a lawsuit
This is intended to make the process of legal measure or action and the cost and expenses incurred by the plaintiff to be more efficient.
g. Anticipation for any demurrer that may be argued by the defendant. (the discussion regarding types of demurrer will be on separate discussion)
h. study of any possibility of undue influence by the defendant.
i. Anticipation for any third party that may intervene in the trial.
Vrijwaring (Vide: Article 70-76 RV)
For example, A (Plaintiff) purchases a vehicle from B (Defendant). It turned out that there is a hidden defect in the vehicle and B at the beginning does not have any knowledge about the defect because B just purchased the vehicle from C and further C has guaranteed that the vehicle is free from defect. Thus, B dragged C to bear or to guarantee B
Tussenkomst (Intervention) (Vide: Article 279-282 RV)
For Example, A (Plaintiff) purchases a house from B (defendant). before the handover, B sells the house to C. hearing that A sues B for the sale and purchase matter then C file an application to intervene in the case
Voeging (Vide: Article 279-282 RV)
For Example, A sues B for the repayment of a loan. C heard the lawsuit and becomes involved because on C’s knowledge the alleged loan is not a loan at all but capital for joint business between A, B and C. Therefore, C has involved into the lawsuit by supporting or joining themselves with B
Preparation for the Defendant and/or its attorney:
a. completeness and accuracy of information and documents
This is intended for the arguments and decisions that will be taken by the defendant and/or its attorney are based on complete and accurate information and document.
b. An understanding of the character of the plaintiff and/or its attorney
This is intended so that the defendant is able to take proper action to face the plaintiff’s summation or lawsuit. For Example by agreeing with the plaintiff’s summation (efficient lawyer fee) or decided to face the trial with the risk of expensive lawyers fee.
c. A valid and proper Power of Attorney
(please see the explanation above)
d. A comprehensive study and response to the summation (if any)
this is intended to make the legal process and the incurred expenses by the defendant become efficient. In concrete, if the defendant is in fact at fault, the defendant is suggested to admit and show best effort to fulfill its obligation.
e. A comprehensive study and response to the lawsuit.
This is intended to prepare ‘ammunition’ in facing the lawsuit. in concrete:
(i) examine the validity and accuracy of the power of attorney, such as the person who has the authority to sign the power of attorney, either it is specific in nature or not, duly stamped or not, the place of the signature, whether the signature crosses the stamp or not.
- Whether the court has the jurisdiction, either absolute or relative, to examine and adjudicate the plaintiff’s lawsuit
- Whether there is a pending obligation from the plaintiff to the defendant (exceptio non ad impletio contractus);
- Whether there is another party that should be brought as a defendant but not brought (lack of parties demurrer);
- Whether there is any inconsistency between the factual ground and the prayer (demurrer of vague and unclear/obscuur libel);
- Whether the plaintiff possesses the legal standing to file the lawsuit (disqualification demurrer);
- Whether the plaintiff’s conduct in filing the lawsuit is crafty or not (exceptio doli prea sintis);
- Whether the lawsuit is made prematurely or not (premature demurrer)
- Whether the Plaintiff is just making up their statement of claim in order to make disruption and/or to cause loss to the defendant (vexation litigation);
f. A comprehensive study on the type and nature of the legal relationship or the transaction with the Plaintiff
this is intended so that the defendant may argue on the correct demurrer or response against the lawsuit, for example by stating that the lawsuit is supposed to be tried in the Industrial Relation Court, and not in the District Court, or the lawsuit is supposed to be tried in the commercial court, and not in the district court or administrative court.
g. Anticipate any thirst parties that may involve or may be involved in the trial (please see the above explanation)
i. Study of any possible undue influence made by the plaintiff
Characters of undue influence:
At the making of an agreement, one of the parties is in an unfavorable condition, either due to:
- Existence of pressuring economic condition, bad financial condition, or
- Existence of subordination relationship;
- The economic advantage of one party;
- employee and labor relations;
- parent/guardian – and minors, or
- Existence other condition that is unfavorable such as a patient that in need of a doctor;
- The agreement contains an unequal relationship in terms of mutual obligation between the parties (unequal obligation), such as to free the employer from bearing any risk and shift the risk to the labor
- Huge loss to one party.
Case example of Undue Influence
Mozes hand over his vehicle to be repaired at Uiting & Smits, a vehicle repair shop that is a member of Bovag (a union of company in the field of vehicle reparation). In one of the test drive processes conducted by the mechanic of Uiting & Smits, an incident occurred, Uiting & Smits was sued by the insurance companies who have made an agreement with the victim (the person who was crashed by the mechanic). Then Uiting & Smits asked that Mozes was summoned in Vrijwaring, under what is called the “Bovag Clause“, which is part of the reparation agreement. The clause, among others, contains a provision that “our partner (Mozes) shall guarantee in vrijwaring every loss and indemnify to third parties“. Mozes questions the applicability of the Bovag Clause because the clause was never stated in clear at the time Mozes handed over his vehicle for reparation.
II. TRIAL PERIOD
Things that should be brought into attention or do by the Plaintiff and/or its attorney:
In the District Court Level:
a. the statement of claim should be prepared systematically, mentioning or referring to the evidence which becomes the basis of arguments;
b. make certain is there any choice of law and/or choice of forum agreed by the parties;
c. submitting a complete and accurate statement of claim, paying attention to the formalities requirements of the statement of claim. This is to anticipate:
- Absolute or Relative Jurisdiction Demurrer
- Exceptio non ad impletio contractus;
- Lack of Parties Demurrer;
- Vague and Unclear Demurrer;
- Disqualification Demurrer;
- Exceptio doli prea sintis;
- Premature Demurrer; and
- Other demurrers that may be raised by the defendant. ;
d. submitting a complete and accurate statement of claim, paying attention to the material requirements of the statement of claim. this is to anticipate the counterclaim that may be raised by the defendant.
e. If there is a need to add or revise the statement of claim, make sure to do it before the defendant submits its response.
f. if there is a reasonable fear, makes sure that the judges to issue a security seizure over the defendant’s assets. If needed, use the investigative firm to track the defendant’s assets.
g. Make sure that the trial runs quickly. Ask postponement for 1 (one) or in a maximum of 2 (two) weeks.
h. If any, prepare witnesses and experts as soon as possible and do the try out few days before hearing. Regarding witness, pay attention to these issues:
h.1. witness evidence was regulated under Article 139-152, 168-172 HIR (Article 165-179 Rbg) and article 1895, 1902 – 1912 BW;
h.2. the statement given by the witness should be about the event or any occurrence that they experience. An Opinion or assumption that is a result of thinking is not a witness testimony (Article 1907 Civil Code and Article 171 paragraph 2 HIR: opinion or assumption made in combinations of words shall not be deemed as witness testimony).
h.3. the witness sill be summoned to appear before the judges to give an additional statement to explain the event or incident, while an expert was summoned before the judges to assist the judges to evaluate the event or incident;
h.4. the ones that may be heard as a witness are third parties and not a party to the dispute (Article 39 paragraph 1 HIR);
h.5. A witness is not only required to explain that he/she knows the event or incident, but he/she also needs to explain how he/she is able to know the matters. Therefore, the reason for how he/she becomes know or aware of the incident or event must also be explained. It is not sufficient for the witness to state that on a certain date A and B have entered into a sale and purchase agreement, the witness must also explain, for example, that he/she saw by himself the moment A and B enter into an agreement because the signing of the agreement happened in the witness’s house.
h.6. A witness testimony that is not accompanied by the reason on how he/she is able to know the event or incident that he/she states are unable to be used as perfect evidence (Vide Supreme Court Decision dated 27–10-71, No, 858 K/Sip/1971);
h.7. A witness testimony which states that the Plaintiff or the Defendant has good faith is unable to be accepted as evidence because such a statement is considered just as a conclusion or assumption;
h.8. in general, Testimonium de auditu or a witness which is obtained, or heard, from another person statement is not allowed, because the statement implies that the witness did not experience the event or incident by himself/herself. Thus, the witness shall not be considered as evidence and shall not be considered (Vide Supreme Court Decision dated 15-3-72, No. 574 K/Sip/1971 dan Supreme Court Decision dated 5 –5-71 No. 803 K/Sip/1970); h.9. A written statement under oath (affidavit) from a witness is not equal with witness testimony stated before the judges in a trial (Vide Supreme Court Decision Dated 10-1-57, No. 38K/Sip/1954)
In the High Court Level
The Preparation in the high court level is dependent on the district court’s decision that accepts or decides the case inadmissible (niet ontvankelijk verklaard) or rejects the plaintiff’s claim.
Base no the Law No 20 Year 1947 regarding Appeal Trial, we can know that the examination on the appeal level by the High Court shall cover a re-examination to the facts and legal aspects of a case, which has been examined and adjudicated in the district court level. Therefore, both District Court and High Court are considered to be Judex Facti, because in these two levels examine and adjudicate the same matter. Which is different with the examination in the Cassation level that only examines the application of the law to the judex factie decision, thus in the cassation level it is no longer examines the facts and further the cassation level was not considered as third-level examination in the same way as the appeal level is considered as re-examination or the second level examination. However, facts prove that the Supreme Court still acts as Judex Factie by examining the facts and evidence of the case.
If the claim is considered inadmissible or rejected, the plaintiff may file an appeal with the following arguments as a basis for consideration:
1. That the Judex Factie Decision, in this case, is not based on a sufficient and balanced legal consideration and clear reasons (Onvoeldoende Gemotiveerd) as it is required under the law, and therefore the decision, in this case, is considered as a procedural defect or Vormverzuim (Vide Supreme Court’s Circular dated 25 November 1974 No. M.A./Pemb.1154/74);
2. The Supreme Court’s Circular dated 25 November 1974 No. M.A./Pemb.1154/74, states:
“A decision that is not based on clear consideration or reason as it is required under the law, can result in a procedural defect (Vormverzuim)”
“by not/insufficiently giving considerations/reason, or more if the reason is unclear and unable to be understood or is contradict with one and the other, then this can be considered as a procedural defect (Vormverzuim) which may result in an annulment of the decision”
3. based on the incompleteness and vagueness (Onvoeldoende Gemotiveerd) of the Judex Facti decision in this case, then according to the Supreme Court’s Circular Dated 25 November 1974 No. M.A./Pemb.1154/74 in conjunction with Supreme Court Decision No. 638 K/Sip/1969, dated 22 July 1970, it is considered proper if the Judex Facti decision, in this case, is annulled or re-examined and re-adjudicated with a different decision by the high court;
Meanwhile, if the claim is accepted, in the counter memorandum of appeal, the plaintiff should support and further strengthen the district court’s consideration.
In the Supreme Court Level
The Preparation for the Supreme Court level is dependent on the High Court’s decision. According to the Article 30 of the Law Number 14 Year 1985 regarding the Supreme Court (“Supreme Court Law”), the Indonesian Supreme Court in the cassation level shall annul the court’s decision or order from all courts by reason of:
- The court has no authority of acting ultra vires;
- Misapplication or violates the prevailing law;
- In defect in fulfilling the conditions as required by the laws and regulation which threaten such defects with the annulment of the decision;
A few Supreme Court Decisions that need to be considered in the preparation of the Memorandum of Cassation:
1. Supreme Court Decision No 3648K/Pdt/10994, dated 27 March 1997:
“the Judex Facti Decision (the District Court and the High Court) that contains inconsistencies between the legal consideration and the decision or its decision is inconsistent with the legal consideration, then such decision shall be annulled by the Supreme Court in the Cassation Level”
2. Supreme Court Decision No. 9 K/Sip/1972, dated 19 August 1972:
“the High Court consideration that only agreeing with and taking the of the appellant’s arguments contained in its memorandum of appeal as it arguments, i.e the High Court agrees on the decision of the District Court, is deemed insufficient”
3. Supreme Court Decision No. 672 K/Sip/1972, dated 18 October 972:
“the High Court Decision should be annulled due to the lack of consideration (niet voldoende gemotiveerdd) and the existence of procedural defect (especially in relation to the documents evidence of No. P.3 s.d. 6 which is alleged to e fake or forged)”
Things that should be brought into attention or do by the Defendant and/or its Attorney:
In the District Court Level:
a. Check the Plaintiff’s Power of Attorney carefully at the beginning of the trial;
b. Demurrer and/or Response should be prepared systematically, mentioning or referring to the evidence which becomes the basis of arguments;
c. Learn about the possible submissions of:
- Absolute or Relative Jurisdiction Demurrer;
- Exceptio non ad impletio contractus;
- Lack of Parties Demurrer;
- Vague and Unclear Demurrer;
- Disqualification Demurrer;
- Exceptio doli prea sintis;
- Premature Demurrer; and
- Other Demurrer that may be raised by the Plaintiff.
d. It must be ascertained whether there are a choice of law and/or choice of forum agreed by the parties;
e. Learn the possibility of filing a counterclaim;
f. If security seizure is granted, submit a request to be appointed (Vide: Article 227 HIR);
g. Try to prepare witnesses or experts as early as possible and do try out a few days before the trial. Regarding witnesses, things need to be brought into attention are described above.
Further, for the High Court and the Supreme Court level, the Defendant’s preparation is more or less the same as the preparation that must be done by the Plaintiff.
Article 227 paragraph (1) HIR states that:
“If there is a reasonable presumption, that a debtor, while there’s not yet given a court decision or while the decision is not yet executable, looking for ways to embezzle or taking the assets, either the moveable and immovable, with the intention to keep the assets away from the debt collector, then on the request of the concerned person, the Head of District Court can order, to seize the properties for keeping the rights of people who submit the demand, and to requester must be notified that would face a trial, the first District Court thereafter to advance and confirm the statement of claim.”
Based on Article 227 paragraph (1) HIR, it can be clearly seen that the compulsory reasons in submitting Request for Security Seizure are:
- There must be a reasonable presumption;
- The Defendant looking for ways to either embezzled or flee his assets
- With the intention to keep the assets away from the Plaintiff’s interest;
- Before there is a permanent legal force;
- The goods placed on the Security Seizure are the Defendant’s goods, not other persons or third parties’ goods.
The elements of the reasons for submitting a Request for Security Seizure above are cumulative and inseparable from one element to the other.
The provisions of Article 227 paragraph (1) HIR have been strengthened and/or accommodated by in the Decision of Supreme Court No. 597K/Sip/1983 dated 8 May 1984, which states:
“Security Seizure that is not held for the reasons required in Article 227 paragraph (1) HIR is not justified”
M. Yahya Harahap, S.H., (former Supreme Court Judge) in his book titled “Permasalahan dan Penerapan Sita Jaminan – Problems and Implementation of Security Seizure”, Pustaka Publisher, Bandung, page 36 and 37 states that:
“The minimum limit of a condition that is considered valuable to validate the reason for the alleged assumption is:
- There are facts that support the allegation;
- Or at least there are evidences which justify the allegation;
- And the facts or evidences must make sense.
It is to these facts that the judge evaluates the truth of the allegation. The facts or evidences can be obtained by the judge both from the Plaintiff and the Defendant. Then the facts or evidences obtained by the judge were tested with the “reasonable” factor. Testing the factors makes sense or not is very important. Especially the evidences factor, it is possible that the Plaintiff’s evidences might not make sense. Let’s take an example. The Defendant has offered his property through advertising, in the form of one hectare of land. The suspicion about embezzlement that the Defendant intends to carry out has reached the minimum limit of the truth of the embezzlement allegation and has a quality value that validates the seizure action, because the allegation stated by the Plaintiff has been supported by evidence of the existence of advertisements in newspapers. The offer with the advertisement is reasonable because there are many buyers of that land. It is different if the allegation is only supported by evidences on the presence of several people who came to the Defendant, while the property requested by the Plaintiff to be seizured is large factory. Even though the bill filed in the lawsuit was only worth millions. Such evidences does not meet the minimum presumption limits. After all, it didn’t make sense for the Defendant to sell his factory for a bill only worth millions. If the Defendant sold the factory, the Plaintiff could not yet be said to be disadvantaged in the sale, because there were still other Defendants’ assets. Therefore, if the judge granted the seizure of the factory, the seizure would be unreasonable. Even the seizure is invalid because it is not supported by facts and evidences.”
Based on the point 7 of the Supreme Court Circular Letter Number 3 of 2000 (“SCCL 3/2000”), the Plaintiff is obliged to provide a security whose value is the same as the value of the goods/objects to be executed so as not to cause harm to other parties if it turns out that the provisional decision is canceled by a higher court.
Furthermore, point 7 of SCCL 3/2000 then by Supreme Court Circular Letter Number 4 of 2001 (“SCCL 4/2001”) used as an absolute requirement for the issuance of a Provisional Decision. On page 2 SCCL 4/2001 stated that:
“Every time an immediate executable judgment (uitvoerbaar bij vorraad) carried out, it must be accompanied by the stipulation as regulated in item 7 of Supreme Court Circular Letter No. 3 of 2000 which states:
“The existence of a security that has the same value as the value of the goods/object of execution so as not to cause a loss to another party if it turns out that in the future a decision is made that cancelled the First Court’s decision.”
Without this security, there cannot be an immediate executable judgment.”
III. POST-TRIAL PERIOD
If the decision has permanent legal force, the defendant must bear or pay the claims brought to him. If not, at the request of execution from the plaintiff (the winner) the district court will issue a warning letter (aanmaning) and call the defendant (the executed) to be given the opportunity for 8 (eight) days to carry out its obligations. (Vide: Article 196 HIR). If the defendant cannot fulfill the summon with the right reasons, it will be summoned again. However, if the defendant does not provide a reason, then the head of the district court ex officio (based on his position) can directly issue an execution order in real execution or an executorial beslag in order to execute the payment of a sum of money.
Deferral of Execution
Deferral of Execution is something casuistic and exceptional.
According to applicable general principles:
- each court decision which has legal force is still attached to the executorial power;
- executions of court decisions that have legal force must not be postponed;
- only settlement that can be postponed.
However, in practice, casually the deferral of execution could be due to:
- humanitarian reasons;
- derden verzet reason;
- the object of execution is still in the process of another case;
- there is Review to the Supreme Court.
Hope it is useful,
FREDRIK J. PINAKUNARY LAW OFFICES