LAW O F PRIVATE P RO C E D U R E

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A CO LLE C T I O N O F L E C T U R E MATERIALS

(Court mediation; Lawsuit; Responses; Proofing

and evidences; Court verdict; Legal remedy;
Judgement enforcement)

BY :
RIZKY R . BARIED, S . H . , M . H .

INTERNATIONAL P RO G R A M ON
LAW FACULTY O F UII
YOGYAKARTA
Consiliation/ mediation is an agreement by
both sides which contain that by submitting,
promising/ holding a goods, to end a case
are examining by court or prevent
emergence of lawsuit if it made letterally.
(Article 1851 Private Law
Code)

Technically, mediation in court helped by

mediator (judge or someone who has
a certificate of mediators).
 THE POSITION OF
MEDIATION IN COURT
• When the day that has been set, all parties
who enter the judgment present at the
trial, judges are obliged to affording
conciliation among them.
(article 130 par. (1) HIR or article 154 RBg)
• If judges negligent not held mediation in
the court, it can cause the examination
being deformed judiciary and the verdict
becomes null and void.
 LEGAL BASIS
OF MEDIATION IN COURT
• The regulations of supreme court number 1
year 2016 about procedure of mediation in
court.
• Before the enactment of regulations of
supreme court number 1 year 2016 about
procedure of mediation in court, legal basis of
mediation in court was regulated by article
130 par. (1) HIR or article 154 RBg – form
letter of supreme court number 1 year 2002 -
regulations of supreme court number 1 year
2008 about procedure of mediation in court.
 THE IMPORTANT THINGS THAT ARRANGED
BY THE REGULATIONS OF SUPREME COURT
NUMBER 1 YEAR 2016

1. The time limitation of doing mediation

comes shorter, from 40 days to 30 days
calculated from a decision order to do
mediation;
2. There is an obligation to all parties
(inpersoon) to present for each
meetings by themself with or without their
lawyer, except there is a legitimate
reason (article 6 par. (4));
3. Good faith rules in mediation process
and its legal consequences (article 7 jo.
article 22 jo. article 23);
4. Plaintiff or defendant was declared did
not do his/ her good faith, must pay the
cost of mediation;
5. In the divorce matter that submitted to
religion court, defendant must pay the
cost of mediation, while plaintiff must pay
the cost of case/ matter.
 POSSIBILITY RESULT
OF MEDIATION IN COURT
• FAIL. The mediator write a report to judges in
order to continue the case examination.
• SUCCESSFUL. The mediator will help all
parties to formulate the agreement letterally
which called conciliation agreement.
The conciliation agreement can be
encouraged as official document by the
judges who examine the case, which called
peace verdict/ conciliation document.
 THE STRENGTH OF PEACE VERDICT/
CONCILIATION AGREEMENT
• It is equalized with a court verdict that all
parties do not appeal anymore.
Article 130 par. (2) HIR : peace verdict/ conciliation
document has same strength with a court verdict
that has permanent strength.
• Has the power of verdict/ judgement
enforcement.
In part of decision, judges will stitch one of
characteristic decision, which as condemnatoir/
punish to all parties to submit and obey against
peace verdict/ conciliation agreement.
• Peace verdict/ conciliation agreement can
not be appealed.
The certainty of article 130 par. (2) HIR is
parallel with supreme court verdict number
1083K/Sip/1973, truly to peace verdict/
conciliation agreement was impossible to
be appealed.
Likewise supreme court verdict number
975K/Sip/1973 stated, based on article 130
HIR/ 154 RBg, peace verdict/ conciliation
agreement or acte van vergelijk, was a
highest verdict, and it was closed to all kind
of legal efforts (appeal and supreme
appeal).
 SUIT REVOCATION
• In HIR both RBg did not regulate it.

• According to article 271 Rv, suit revocation is

plaintiff’s absolute right if defendant do not
submit their response yet toward suit.

• But if defendant has submit the response,

then the suit can not be revoked unless
defendant agree with it.
 THE LEGAL CONSEQUENCES
OF SUIT REVOCATION
• Suit revocation ends case;
• Closed off to all kind of legal efforts;
• The condition is return from the beginning
or restitutio in integrum. It is means as if
it never happens a dispute among all
parties;
• Plaintiff must pay the cost of case/ matter.
(article 272 Rv).
• A suit which revoked by plaintiff before
the responses, it can be re submitted
as a new case.
• But it different, if a suit which revoked by
plaintiff as approval by defendant, the
dispute which contained in that suit, it can
not be re submitted by all parties (plaintiff
nor defendant).
The suit revocation with defendant
approval as equal as plaintiff has
delivered his/ her right to sue
somebody.
 SUIT ALTERATION
• Article 127 Rv : plaintiff are entitled to alter/
change or reduce its sue until the case has a
verdict, without alter/ change or reduce or
add the basic suit.
• There are contradiction between article 127
Rv with supreme court guidance that said
if alteration can only be done on the first day
(the day when plaintiff read his/ her suit).
• In practice, alteration/ change suit may
submitted until replik-duplik phase (supreme
court verdict number 564K/Sep/1970).
 SUIT ALTERATION REQUIREMENT

According supreme court guidance :

• The submission of alter/ change done at

first session of trial that presented by
defendant as well;
• The alteration can be done beforehand
provided opportunity for defendant to put
his/ her opinions and agreement.
 REACHING OF
SUIT ALTERATION
• Unless regarding of main sue (posita) or main
demand (petitum), or actual occurance in its
suit.
• Changing about cognation between plaintiff
with defendant in the matter of inheritance.
• Changing/ adding/ perfecting the number of
decree.
• Date changing is not considered harming
defendant’s interests.
• Not change posita.
– Supreme court verdict number 1043K/Sip/1971
stated jurisprudence allow suit alteration if it not
change posita, and defendant is not harmed his/
her right to defend theirself;
– Supreme court verdict number 943K/Pdt/1985
stressed that appropriate the jurisprudence,
suit alteration can be done as long as not
deviating from posita, and hinder examination
in court.
• The reduction of suit may not harm the
defendant.
For example : amount of damage that
reduced.
 LEARNING A LAWSUIT
• A lawsuit delivered to defendants through
court’s bailiff, and at the same time
defendants also receive summonses or
relaas;
• In the period before first trial, defendants
have enough time to learn suit’s content and
intent, then they can decide their stance :
– Accepting
– Refuse Definition the responses based on
article 141 RR/ Regeringsreglemen
– Referte
 EXCEPTION
• It is a rebuttal/ pleadings/ refuse by the
defendants which not directly to main
case/ matter, and its purposes are in
order to rejected or unacceptable (the
plaintiff’s lawsuit);
• Through theory and court practice, there
are any kinds and types of exception,
namely :
EXCEPTION ABOUT JURISDICTION
(COURT) COMPETENCE

• Absolute competence, it is relating to

which jurisdiction bodies are authorized
(seen from the subject of parties, dispute
objects, and the regulations);

• Relative competence, it is relating to which

jurisdiction area that has authority (based
on article 118 HIR).
 PROCESSUEEL EXCEPTION
• This kind of exception is based on
regulation on law of procedure (HIR, etc).
• Processueel exception has 2 types :
1. Declinatoir exception, its purpose to denying
from lawsuits/ claims.
Example : nebis in idem, obscuur liebel, etc.
2. Disqualificatoir exception, if the related party do
not have qualification to act in a court session
Example : persona standi in judicio, legal
standing, etc.
 MATERIAL EXCEPTION
• This kind of exception is based on
regulation on private law.
• Material exception has 2 types :
1. Dilatoir exception, it wishes postpone/
suspension of examination.
Example : premature.
2. Peremtoir exception, it will invalidate accustion
because it may be expired, or the case (debt)
that become the main sue has been paid off or
finished.
example : expiration.
ARTICLE 135 HIR/ ARTICLE 162 RBg

• All kinds of exception unless regarding

jurisdiction competence exception, it must
examined and decided together with
main case/ matter at the reading final
verdict;

• Then, if there is a jurisdiction

competence exception, judges must
read the interim decision/ verdict first.
RESPONSES ON MAIN CASE
• Generally, content of responses on main
case by plaintiff can be :
1. Refuse (verweerten);
2. Accepting;
3. Explaining another things or another facts.
• Formulating responses, principally is same
with making a lawsuit, which clearly and
firmly (in what poin or what posita that
denied/ refuse, or accept it).
 REKONPENSI LAWSUIT
(REVERSE SUIT)
• It is a lawsuit that made by the defendants in the
one running case examination (in a single case/
matter register number);
• The purpose is stands quick – simple – and the
cost of light principle, moreover it is for avoid
contradictory verdict each other;
• Rekonpensi lawsuit makes the changing position
between plaintiff and defendant :
– First is plaintiff konpensi --- defendant rekonpensi;
– First is defendant konpensi --- plaintiff rekonpensi.
SUBSTANSIAL REQUIREMENTS
OF REVERSE SUIT
• There are law of interest by plaintiff on
rekonpensi;
• There are law connectivity on lawsuit
(konpensi) with reverse suit;
• The using of procedure law has
same;
• A reverse suit can be used by
defendants only.
 REPLIK AND
•
DUPLIK
Plaintiff’s reactions above defendant’s
responses, called replik;
• The reaction of replik is duplik (by the
defendants).

• The substance of replik an duplik is same, in

one side (replik) is strengthen and defense
lawsuit to be granted. In another side
(duplik) wants to rejected or unacceptable
On the court process, all parties are
free to explain their proposition, to keep
based on article 163 HIR (article 283
RBg, article 1865 code civil) :
“whoever claims that they have a right, or
states an event (circumstances) to
strengthen their right, or denies somebody’s
right, then he/ she must proves the
existence of that right or that event
(circumstances).”
 DEFINITION OF PROOF
• M. Yahya Harahap :
Proofing was provision which basically stated as
a tool for all parties to have their rights or not.

• Abdul Kadir Muhammad :

Juridical proofing was presenting quite facts to
the law to give certainty for judges regarding the
happening of events or relation.
• Eggens :
Proofing means applying legal events and in wide
term is set the legal relation.

• Anema :
Proofing is give certainty to judges about legal events
with certain instruments to get legal consequences that
related with events by the law.

• Suyling :
Proof is not only giving a certainly to judges but also
means proofing the events was happened, which not
depend on the parties’s act (example is suspicion) and
not depend on judge’s conviction (example on
confession and vow/ oath/ swear).
 “From the definitions above, it can be
concluded that proofing is an activity by all
parties that give for judges to defend their
rights, and at the same time also deny/
refuse the statement or fact that submitted/
delivered by his/ her opponents,
for the judge to give certainty about
the truth
of events in a verdict.”
 THE FUNCTION OF PROOF
• To strenghten or sustain the proposition,
fact, or something else that becomes basic
of law suit or responses/ replik (in
plaintiff’s perspective)
• Refuse/ deny the proposition, fact, or
something else that becomes basic of law
suit (in defendant’s perspective)
• Maintaining the existence of its material
law.
 THE PURPOSES OF PROOF
• To give a certainty to judges regarding
existence of certain events or explain to
judges about the dispute among both
parties.
• To decide which party that will have their
rights/ win the case.
• Then for judges, they can arrange a
verdict that has legal consequences to all
parties.
On private trial, it is looking for the
formal truth/ correctness. This means,
that :

– The judges bound to the informations or

evidences that submitted by all parties;

– the judges also bound to an events

that recognized or not disputed by all
parties.
POSITIVE LAW OF EVIDENCE
• Law of evidence that include in procedural
law, consist of : 1.) formal element, it is
about how to conduct evidentiary; and 2.)
material element, it regulates whether the
evidence can be received or not, and its
strength.
• Positive law of evidence was regulated on
HIR and RBg also code civil especially
forth book/ part.
 JUDICIARY DUTY ON
VINDICATION/ PROOF
• Roles and duties of judge in vindication
phase are look for and find formal
truth/ correctness based on the
evidences.

• When judges have a belief whether the

plaintiff is in right position, but plaintiff can
not proofs his rights, then judges must
get rid of that belief by reject plaitiff’s law
suit.
 WHEN THE DEFENDANTS ADMIT
THE TRUTH OF LAWSUIT

• Then judges freed from their obligation to

proof facts that admitted by the defendants.

• So what was the backgrounds of defendant’s

recognition is not a problem for judges when
they make a verdict.
 WHEN THE DEFENDANTS
DO NOT DENY THE LAWSUIT
• Private procedural law in Indonesia follow the
formal truth/ correctness principle, if the
defendants do not deny the lawsuit or its
proposition, it means the defendants considered
to have been admitting the truth of lawsuit.

• And it is same when the defendants state deny/

refuse the proposition of lawsuit in their
responses or duplik, but they never proof it.
 VINDICATION/ PROOF PRINCIPLES
1. AUDI ET ALTERAM PARTEM principle. This
principle command to hearing both parties
(non discrimination). Based on this principle,
the judges must give proportional chance to
both parties to explain and proof.

2. IUS CURIA NOVIT principle. This principle

assume that every judges know the law, and
they absolutely do not refuse a case just
because there are no legal basis to examine
and make a verdict.
3. NEMO TESTIS INDONEUS IN PROPRIA
CAUSA PRINCIPLE. This principle forbids for all
parties that enter into judgment as a witness to
their own case.

4. NE ULTRA PETITA principle. This principle

commands to judges that they can grant what the
party wants/ demand only. It is restricted when
judges grant more than the demand.

5. RES JUDICATA PRO VERITATE HABETUR

principle. This principle means all verdicts that
have made by judges is counted as correct one,
except there is a verdict that made by judges in
appeal stage said the opposite.
WHO HAS AN OBLIGATION TO PROOF?

• Based on article 163 HIR/ 283 Rbg/ 1865

code civil.
• Principally all parties have an obligation to
proof each proposition with bring the
evidences to the court (burden of proof).
• Plaintiff concerned to prove their lawsuit,
while defendants who refuse the
lawsuit, must prove their rebuttal as
well.
 THE BURDEN OF PROOF THEORY

1. To strenghten theory (bloot affirmatief)

– This theory has similar concept with article
163 HIR;
– Legal basis of this theory is NEGATIVA
NON SUNT PROBANDA, means something
are negative impossible to be prove. The
negative one can not charged to someone.
– This theory now has abandoned.
2. Subjective law theory
– this theory says that in case of private case is
always the implementation of subjective law,
or contain purpose to defend subjective law.
Someone who bring up the case is the one
who must prove it.
– Both parties must prove their rights for each
others.

Example : the defendants state that he/ she can

not pay the debt because force majeure
reason.
3. Objective law theory
– This theory grounded on the existence of
positive law/ regulations that rule/ arrange
real events.
– If someone will sue another, he/ she must
find the articles on positive law/ regulations.
– This theory is too formalistis, it can not
answer an incident that there is no regulation
yet.
– Law (regulations) was always left behind with
social dynamic (Bagir Manan, former
chairman of Indonesian supreme court).
4. Public law theory
– This theory minded in finding truth of an event
on court is a public interest/ importance.
– For example is about environmental dispute.
5. Procedure law theory
– The basic of this theory is audi et alteram
partem principle, that judges must give a fair
chance to all parties to prove their proposition
and rights.
– The things that have to be prove are positive
things and it can be proven, not the
negative one.
 THE THINGS THAT HAVE TO BE PROVE

If the dispute regarding If the dispute regarding

tort, then based on breach of contract :
article 1365 civil code :
1. Is there any contract
1. There is an action;
among parties;
2. The action is breaking
the law; 2. How the event
3. There is a fault by occured after a
defendant; signment of contract
4. There is a loss on (not done at all, done
victim’s side; but too late, done
5. There is causal but not perfect)
relation between the
action with loss.
• The judges must be able to separate which
important events (relevant, material) for law,
and which one not important events
(irrelevant, immaterial).
• When regarding tort dispute, the plaintiff have
to submit their evidences that explain
whether the plaintiff’s loss was caused by
defendant’s act assessed blamable.
• In another hand, when regarding breach of
contract dispute, beside the plaintiff must
submit the contract as basis dispute, they
also have to submit evidences that the
defendants have break their obligation in their
contract, or regulation on positive law.
 THE ASSESSMENT OF PROOF
BY JUDGES
• Commonly the judges have a freedom to asses
the way all parties prove and its substance, as
long as the regulation not set the opposite.

• Based on article 165 HIR, article 285 Rbg, article

1870 code civil, towards the deed which as written
evidence, the judge tied within their assessment.
Otherwise, the judges do not obliged to trust a
witness, which means the judges has a freedom to
asses (based on article 172 HIR, article 309 Rbg,
article 1908 code civil).
 THE POWER OF PROOF
THAT DETERMINING

• If the evidence has a perfect power, it is

impossible for the opponent to prove the
opposite, so if the evidence has submitted,
the events that disputed should
considered proven.
• It regulated on article 177 HIR, article 314
Rbg, article 1936 code civil about oath
breakers.
 THE POWER OF PROOF
THAT COMPLETE OR PERFECT
• There is evidences that give enough certainty
to judge, so based on that evidences, its
contain or event must considered proven,
otherwise the opponent submit same
evidences.
• On article 165 HIR/ article 285 Rbg/ article
1870 code civil regarding authentic deed,
there is possibility to opponent to prove the
opposite. Example : there is a double land
certificate on one object.
 DEFINITION OF EVIDENCE
• Principally kind of goods, some things or
conditions that submit in front of court and it
may supports the proposition of lawsuit (or
the opposite if defendant’s responses), it can
catagorize as an evidence.

• It means, an evidence may in form of

something that tangible and also intangible.
 EVIDENCE ACCORDING TO PATON
1. Oral, are words that spoken by somebody in
front of court (eyewitness, expertise);
2. Documentary, are letters or another letteraly
that submit by somebody in front of court
(trade certificate, lease/ rent certificate);
3. Material, are another tangible evidence
besides letters that submit by somebody in
front of court (photographs, posters, etc.).
 EVIDENCE ACCORDING TO ARTICLE
164 HIR/ 284 RBg/ 1866 CODE CIVIL
1. Letters or written documents,
2. Witness;
3. Suspicions/ presumption;
4. Confessions;
5. Oath/ vow.

Kinds of evidence that unregulated by article

164 HIR, are :
1. On the spot examination (descente);
2. Expertise.
 CHARACTERISTIC OF EVIDENCE
ACCORDING TO ARTICLE 164 HIR
• DIRECT EVIDENCE
– Are called direct, because phisically it presented/
submitted in front of court.
– Example : letter, witness.
• INDIRECT EVIDENCE
– This evidence obtained as conclusion from things
or events that happened in court.
– Example : suspicion/ assumption, confession,
oath/ vow.
 WRITTEN DOCUMENT OR
LETTER
Kinds of written document/ letter :
1. Authentic : it made by and in front of the
authorized official, that form and its
composition under the provisions of
regulation.
2. Private : it is opposite of authentic letter.
3. Common : it is not mean as an evidence, but
its existence is quite deciding, somehow.
 AUTHENTIC DEEDS
Based on article 1868 civil code, an authentic deeds
is written document which made in form under the
provisions of regulation BY or IN FRONT of the
authorized official.
• The meaning of the word “BY” : it made by
the authorized official;
• The meaning of the word “IN FRONT OF” : the
initiatives of make deeds was on both parties,
while the authorized official just listen, watch the
deeds (usually it called acte partij).
 THE STRENGTH OF
AN AUTHENTIC DEEDS
• It has perfect and binding power; perfect
means it proofs rights or events, while binding
means it has to believed to be true unless
evidenced on the contrary.

• The form of perfection is only apply to both

parties (article 165 HIR, article 285 RBg/
article 1870 civil code).
 PRIVATE DEEDS

• It made by both parties when they look, it is

necessary, and usually they just need an
assignment of witness.

• Just look like authentic deeds, the purpose

(making) of this deeds deliberate by both
parties to be used an evidence in future, if
dispute comes.
 COMMON LETTER
• The making of this kind evidence was not to be
used as evidence (if dispute comes). But, if in
one day this evidence submit as an evidence in
front of court, judges must approve it still.
Even it looks like incidentally.
• On verdict of Mataram state court number
073/PN.MTR/Pdt/1983, plaintiff submitted a
photocopy of notes of spending money
(January 25th 1982) → divorce case.
 ARTICLE 1 PAR. 1 STAMP ACT
NUMBER 13 YEARS 1985 (BEA MATERAI)
• All letter intended to be a proof must have stamp;
• It functions as seal to indicate payment;
• It can be used as valid evidence in court;
• The verdict of supreme court March 13 1977
(jurisprudence), stated that letter without stamp
cannot be used as legal document for evidence;
• If stamp was not given beforehand, it can be
requested from post officers.
 RULES OF WITNESS EXPLANATION
(PROF. R. SUBEKTI, S.H.)
• Witness explains what he/ she saw – listened –
experienced by themself followed with logical
reasons.
• Opinions and also estimates are not
witnesseth/ testimony as an evidence
(according to article 1907 code civil).
• A witness should not tell of conclusion,
because it is judge’s duty.
 THE PROOF PRINCIPLES
THROUGH A WITNESS

• Unus testis nullus testis : one witness is not a

witness or not an evidence.

• Testimonium de auditu : testimony that stated

by witness, are not based on what he/ she saw
– listened – experienced.
 THOSE WHO PROHIBITED BE A WITNESS
OR ATAU UNABLE TO TESTIFY
• ABSOLUTELY :
– Having family relation according straight
generations from one of party;
– Husband or wife from one of party, even they have
divorced.
• RELATIVELY :
– Immature; This kind person
– Less sane. can heared
only
 PEOPLE WHO CAN BEG RELEASED
OR CAN REFUSE AS A WITNESS
• Brothers and sisters, brother-in-law and sister-
in-law from one of party;
• Someone who has family relation according
straight generation and also brothers and
sisters from one of party;
• People according their position, employed,
service required to keep secrets, and another
has put trust on them.
THE WAY OF WITNESS EXAMINATION
• They examined one by one (if they examined
simultaneously/ at the same time, it breaks
article 144 HIR);
• Jurisprudence number 731K/Sip/1975 said, just
because two witnesses examined simultaneously/
at the same time cause ratio article 144 par. (1)
HIR unattainable;
• Then judges will ask their identity, and whether
there was a relationship with parties;
• An obligation to utter an oath or promise
according to their religion or beliefs (article 147
HIR/ article 175 RBg).
 THE ASSESSMENT OF TESTIFY
BY JUDGES (ARTICLE 172
HIR) there is explanation rapprocehement
• Whether
between witness and another one;
• Whether there is explanation rapprocehement
by witness with another evidence, for
example are letters;
• The argument that used by witness to explain
something;
• The way of life and witness’s decency and also
anything that could affect whether their testify
can be trusted or not.
 DEFINITION OF SUSPICION/
ASSUMPTION
• Article 1915 code civil explain, suspicion/
assumption is a conclusion that made by act
or by judges from a well-known events toward
an unidentified events.
• Based on that article, there are two kinds of
suspicion/ assumption :
1. Suspicion/ assumption by act;
2. Suspicion/ assumption by judges.
SUSPICION/ ASSUMPTION BY ACT
• According to article 1916 code civil, suspicion/
assumption by act is anything that regulated in
positive law (regulation) connected with real
actions or real events.
• In short, there is correlation between positive law
(regulation) with fact that examined by court.
• For example : article 633 code civil about wall as
boundary, articel 1977 par. 1 code civil about
mastery a moving object.
SUSPICION/ ASSUMPTION BY JUDGES
• As suspicion/ assumption by act, it comes up
when judges examine – analyze and make a
conclusion from what happened on
proofing phase in front of court.
• For example is divorce suit just because one of
party sued has fornicate. In fact, it quite difficult
to prove it when defendant deny, then practically
judges can proof it with suspicion/ assumptiion by
judges (it is in tune with jurisprudence).
 BEKENTENIS CONFESSION
• Confession is a statement from one of party
either letteraly or verbaly which contained
accept/ confirm opponent’s proposition
partially or wholly.
• That statement is unilateral explanation/
information which do not needs approval from
opponents.
• Confession according to article 1923 code civil,
can be divided into two types, namely :
1. CONFESSION IN FRONT OF COURT
(GERECHTELIJKE BEKENTENIS)
• It has perfect proofing strength (volledig
bewijs) and bond to person that state it or
their lawyer.
• It consider perfect, just because the confession
is no longer needed the existence of another
kind of evidence. It consider bond, which
means the proposition that confirmed, are
judged as a truth.
2. CONFESSION OUTSIDE OF COURT

• Confession outside of court can inform

either letteraly or verbaly (article 175
HIR, article 312 RBg).
• If it inform verbally, it can not use as
evidence, except there is witness who
explain it, but it does not bond all parties.
• Principally, it retractable.
 VOW/ OATH
• The essential meaning of oath breakers is to
finish dispute (litis decisoir), it charged by
judges to one party as the opponent’s request
because that party does not have any
evidence.
• The complement vow/ oath. When judges
consider plaintiff does not have enough
evidences, then judges command to plaintiff to
make it.
 ON THE SPOT EXAMINATION
(DESCENTE)

• It does by judges and both parties outside

court, and the examination performed at
objects of dispute.

• The examination related with broad/ wide,

limit/ boundary and other things from the
ground as objects of dispute.
 AN EXPERT EXPLANATIONS
• Principally, expert is giving his/ her
opinion based on their
knowledge.
• Expert can be presented by both
parties, or by command of judges.
• Before explain their opinion, expert
also required to utter an oath or
promise according to their religion or
beliefs.
 JUDGES’S
VERDICT
Is a statement by judges as state
officials are authorized to it, after
through a process of law, spoken in a
trial which open for public and the
purpose is to finish or to solve a dispute
among parties. Not only which is spoken
by judges, but also statement that
poured in the form written.

(Wahyu Mulyono, Teori dan Praktik

Peradilan Perdata di Indonesia. –
edited)
• Ius curia novit principle (assume that
every judges know the law) – res
judicata pro veritate habetur principle
(all verdicts that have made by judges
is counted as correct one).

• Justification : supreme c ourt circular

number 9 year 1976 date December
16th 1976 jo. jurisprudence HR date
Desember 3rd 1971 essentially towards
court’s verdict, law just providing all
regulations that must considered
already arrange to all parties.
 JUDICIARY DUTIES
1. Mengonstantir (konstantasi).
It means set or formulate concrete events
with proofing an event really happened
from the dispute or consider an event
has been proven.

Example : assignment an agreement

event.
2. Mengualifisir (kualifikasi).
It means set, formulate the law against
real event by applying regulation toward
the real event.

Example : If judges use article 1365 code

civil to formulate real event.
3. Mengonstituir (konstitusi).
It means judges set law and make a
verdict to all parties.

Contoh : court verdict.

 DISCOVERY OF LAW
• Unwritten law that live in society was a source
to judges to discover law. According article 27
par. 1 judicial power act, judges must dig –
follow value of law that live at society.
• So then, Indonesia was not knowing “the
binding force of precedent” or “stare decisis”
principle. Based on article 1917 code civil, a
verdict only bound the parties, not for judges.
 THE METHODS OF INTERPRETATION
1. Gramatical interpretation;
2. Systematical interpretation;
3. Historical interpretation;
4. Sociological interpretation;
5. Authentical interpretation;
6. Extensive interpretation;
7. Restrictive interpretation;
8. Analogic interpretation;
9. A contrario interpretation; etc.
 CONTENT OF VERDICT
• Head of verdict.
It includes word PUTUSAN, register
number
of case, and words “DEMI KEADILAN
BERDASARKAN KETUHANAN YANG MAHA
ESA” .
• The name/ location of court.
• The parties’s identity.
It contain full name of plaintiff and
defendant, where they live, occupation,
and also religion.
• Consideration/ considerant.
– Are the basis of verdict. It contains two,
about the matter and about the law.
– About the matter, it contains summary
of lawsuit and responses, also summary
of proofing by all parties.
– While about the law, it contains judge’s
conclusion toward dispute among all
parties. Conclusion comes from assessment
of evidence and law fact (events that
proven in court). In this phase, judges must
hear all
parties’s proposition and their evidence.
• Amar/ dictum.
It is the essence of a verdict, looks like answer
by court.

• The date of deliberation and when verdict

spoken. Procedures of deliberation :
– Started by judge number 2 give his/ her opinion,
then judge number 1 and it ends by the chief
one;
– If there is no dissenting opinion among
judges, then it continue to making draft of
verdict;
– But, if there is a dissenting opinion from one
of
them, the he/ she has to write the opinion
which
contained in that verdict. The dissenting opinion
will be read on the agenda of verdict reading.
 CHARACTERISTIC OF
•
VERDICT
Declaratoir.
Decision are it content declaring/ explaining
something that legal. It uses “MENYATAKAN”.
• Constitutif.
Decision are it content elaminating or creating,
defining a legal circumstance. It uses
“MENETAPKAN”.
• Condemnatoir.
decision are it content to punish one of party to do
ora to pay or another. It uses “MENGHUKUM”.
 KINDS OF
1.
VERDICT
Interim verdict/ tussen vonnis/ interlocutoir
vonis is a verdict before judge exam the main
case. There are four types of interim verdict:
a. Preparator verdict. It contains to make an official
summons to party who not present.
b. Interlokutor verdict. It is command to do proof,
such as on the spot examination, etc.
c. Provisionil verdict. It is command to make
temporary action for one of party. Example :
stopage of building.
d. Insidentil verdict. It comes because there is an
event that can postpone the way of examination.
2. End verdict/ eind vonnis is a decision by
judges to finish or solve a case.
Principally, judges use redactional of
characteristic of verdict (declaratoir,
constitutif, or condemnatoir).
Practically, to end or solve a private case,
then judges can make a decision to :
– Grant/ accept lawsuit (entirely or partially);
– State that lawsuit can not be accepted;
– Reject lawsuit.
 THE POWER OF
•
VERDICT
Bond power;
Court verdict has a power to bond all
parties who mentioned in a verdict;
It may also bond another or third party
who join in one case between plaintiff and
defendant as vrijwaring/ voeging/
tussenkomst.
• Proof power;
A verdict has made by judges, one of
authorized official, so that document
was counted as authentic deeds that
has proofing value.
• Enforceability power;
If one of party has lose, and he/ she
punished to do something or to pay
according to verdict. Its implementation
could be voluntarily or forced by
official’s help.
 NECESSARILY/ REFLEXING
VERDICT
• Principally, a verdict can be
implemented/ enforce, when it has
inkracht van gewijsde zaak;

• But there is necessarily verdict that

known by private procedural law,
which is a verdict that can be
implemented first, and not wait until
has fixed.
 THE SUBSTANCE OF
• In terms of material, it means that
verdict can instantaneously
implemented; and it does not need
to wait for the fixed one.
• In terms of formal, it means that
verdict can implemented in temporary;
because if higher court voids that
necessarily verdicr, even it already
implemented/ executed, so that party
must pay restitution or restore on
beginning condition.
LEGAL REMEDY ON PRIVATE CASE

• Generally, legal remedy is an action from

one of party or all parties who demur or
objection (do not satisfy) toward court’s
verdict, in order to ask the higher court to
fix or cancel previous verdict.

• On private case, there are two kinds of

it :
1. Ordinary legal remedy;
2. Extra ordinary legal remedy.
Ordinary legal remedy :
1. Resistance toward verstek verdict (verzet);
2. Appeal;
3. Cassation or highest appeal.

Extra ordinary legal remedy :

4. Resistance by third party (derden verzet)
toward : a.) execution/ enforcement; b.)
collateral seizure (conservatoir beslag as
well as revindicatoir beslag);
5. Reconsideration (request civil).
 RESISTANCE TOWARD
VERSTEK VERDICT (VERZET)
• Just only on verstek verdict, and after
defendant knows, they do objection on it.
• Regulated on article 123 par. (3) jo. article
129 HIR or article 149 par (3) jo. article 153
RBg.
• The time limit :
– 14 days after notification of verstek verdict;
– If the announcement can not be notified directly
to defendant, then it until eighth day since
annmaning.
 THE PROCEDURE OF
VERZET EXAMINATION
• Submitted to same court where verstek verdict
was read.
• The position will change. At the beginning
(at verstek examination) as plaintiff now as
a defendant, and its opposite.
• The main examination is regarding to unpresent
reasons by defendant (now as a plaintiff) on
previous court (at verstek examination);
• The decision may cancellation of verstek verdict,
and it cause the lawsuit can be rejected or can not
be accepted.
 APPEA
L
• It regulated in judicial power act, supreme
court act, and common court.
• Concerning private verdict that be judged by
the first level of court, on of or all parties who
demur or objection with it, can ask/ request
an appeal examination to higher court.
• The time limit of submit the request of appeal
is 14 (fourteen) days, counted from spoken
of or notification of verdict to unpresent party.
LEGAL REQUIREMENT ON
APPEAL
• If there is an interim verdict on one case, then it
want to be appealed, it must coincide with end
verdict – have to wait until at the end.
• Peace verdict/ conciliation deeds can not be
appealed (article130 par. (3) HIR./ article 154 par.
(3) Rbg.).
• The appeal request submitted to the chairman of
high court through the chairman of district court.
• Besides juridicial aspects, high court also examine
about legal fact aspects – then it called judex
factie.
 APPEAL MEMORY AND
CONTRA MEMORY
• Reasons that can be submitted on appeal memory, are :
there is not enough consideration regarding legal facts,
or another reason as long as relating to facts.
• Appeal memory is a document as a proposition-reason
to ask another decision from high court. It is not obliged
to delivered, but if it wants to be delivered – it is possible
whenever as long as high court does not make verdict/
decision (jurisprudence supreme court number :
39K/Sip/1973).
• Contrary to appeal memory, the substance of contra
memory of appeal looks like praise the district
court.
 JUDICIAL VERDICT ON
APPEALS LEVEL
It can be :
• The request of appeal can not be
accepted (because formal reason);
• The request of appeal can be accepted
(then high court examine the propostion
and its case) :
– Strengthen of district court verdict;
– Cancelling of district court verdict :
 Fix of district court verdict.
 CASSATION OR HIGHEST APPEAL

• It regulated in judicial power act, supreme

court act, and common court.
• The time limit of submit the request of highest
appeal is 14 (fourteen) days, counted from
notification of verdict to unpresent party.
• Different with appeal procedure, highest
appeal memory is obliged to submit. The time
limit is 14 (fourteen) days after request (14
days too), and similarly to contra memory of
highest appeal.
 ARGUMENTS/ REASONS OF
CASSATION REQUEST
The argument/ reason of it are definite
(based on article 30 supreme court act),
limited, among them :

1. Have no authority or overreached

authority.
Have no authority related with jurisdiction
or court competence. While overreached
authority related beyond regulation.
2. Fault in law applying or breaking the law.
The word law refers to legal substance
and/ or legal procedure. While breaking
the law happens whether there is not
in accordance or contradicatory with
regulation.

3. Neglect to fulfill the terms that required by

regulation.
For example : judges neglect to state that
court is open to public when the spoken
verdict agenda.
 JUDICIAL VERDICT ON
SUPREME COURT LEVEL
It can be :
• The request of highest appeal can not be
accepted (because formal reason);
• The request of highest appeal can be
accepted (then supreme court examine the
propostion and its case) :
– Reject the proposition;
– Strengthen of district and high court verdict;
– Cancelling of district and/ or high court
verdict :
 Fix of district court verdict.
 RESISTANCE BY THIRD PARTY
(DERDEN VERZET)
• Practically resistance by third party is
regarding to execution seizure or collateral
seizure was known as resistance above
execution/ enforcment.
• Resistance by third party can be
performed upon the base of property rights
(belonging), and also another rights such
as rent rights, use rights, right to cultivate,
right to build, etc.
• This kind of legal effort was one of extra
ordinary legal remedy, and principally is
not suspend the execution/ enforcment.
But in case the resitance assesed was
right and enough to suspend, then chief of
district court will do it – at least until
spoken verdict agenda.

• In practice, chief of court district definitely

suspend the realization of execution.
 PROCEDURE OF SUBMIT THE RESISTANCE
BY THIRD PARTY (DERDEN VERZET)

Legal basis : article 195 par. (6) and (7) HIR,

and also article 207 dan article 209 HIR.
The most important are :
1. Submitted by third party with the
legitimate property;
2. Resistance document submitted to court
which will execute;
3. Chief of district court has obligation to
examine that document.
 RECONSIDERATIO
N (REQUEST
CIVIL)
• It is a legal effort to re-examine court
verdict which has power law remains.
• This extraordinary legal remedy, is not
suspend or deny execution after the
document of it was submitted.
• Reconsideration or request civil submitted
only by : the party who has dispute,
heirs, and/ or their lawyers.
Reconsideration on private case can submitted
by the reason or arguments which :

• When verdict based on a lie or wile/ delusion

by opponents that was known after spoken
verdict agenda or it based on false evidence
through criminal verdict;
• Novum or new evidence that never shown on
previous examination;
• There is an ultra petita verdict by previous
court;
• If one of petitum or main claim were not
decided by judge without any reason
or consideration;
• When in one same case – same
problems
– same parties, there is a contradictory
verdict one each other by same court or in
one level;
• If there was an error or mistaken by judges
in their verdict.
 PROCEDURES OF REQUEST
CIVIL SUBMIT
• The request must submitted to chief of
supreme court through chief of district court
that have made the verdict;
• The request submitted by the party who has
dispute, heirs, and/ or their lawyers;
• Memory of request civil oblige submitted to
secretary of district court;
• The reason or arguments were not regulated,
but in practice it refers to article 30 supreme
court act.
TIME LIMITATION OF REQUEST
CIVIL SUBMIT
It is 180 (a hundred eighty) days for :
1. When knew a lie or wile/ delusion or after
criminal verdict has power law remains, and
it has notified to parties who has dispute;
2. Since found new evidence. Somone who
found new evidence has to express oath/
vow and get legally by authorized officers;
3. Since last verdict has power law remains,
and it has notified to all parties.
DEFINITION OF EXECUTION
• The tenth chapter section five H.I.R.:
“executing court verdict is enforce
its content, when the lose party
refuse to make it voluntarily.”

• Execution is a measure that done by

forcibly against the lose party to
fulfill plaintiff’s claim as granted by
judges (punishing decision).
 EXECUTION PRINCIPLE
1. Implementing a verdict that has power law
remains. The exception of this princple
are:
a. Necessarily verdict (uitvoerbaar bij
voorraad);
b. Postponement verdict (provision);
c. Peace verdict/ conciliation deeds.
2. A verdict that not implemented
voluntarily.
3. A verdict, especially in decision part, contain
a punishing decision/ condemnatoir.
 NECESSARILY VERDICT
(UITVOERBAAR BIJ VOORRAAD)
• Legal basis : article 180 par. 1
H.I.R.;
• Requirements :
– A lawsuit must submitted with legal
evidences;
– The decision of it, spoken at the same
time with final verdict that state : “This
verdict can be done necessarily even
though there is a legal remedy by
defendant.
 POSTPONEMENT VERDICT
(PROVISION)
• It is defining temporary measures for
one of party (their interest) before
end verdict.

• Example : verdict that contain a

command to one of party to stop
building something at temporary on
dispute objects.
 PEACE VERDICT/
CONCILIATION DEEDS
Article 130 par. (2) HIR : peace
verdict/ conciliation document has
same strength with a court verdict that
has permanent strength/ power law
remains.

Then if one of party refuse to oblige it,

so another can submit execution to
chief of district court.
 KINDS OF EXECUTION

1. Real execution (article 200 par. 1

H.I.R.) :
a. Delivery;
b. Discharge or demolition;
c. To do something;

2. Payment execution.
REAL EXECUTION (ARTICLE
225 H.I.R./ 259 RBG)
• This kind of execution can be
happened based on court verdict that
has power law remains/ permanent
strength only; or
• Necessarily verdict (uitvoerbaar bij
voorraad); or
• Postponement verdict (provision);
or
• Peace verdict/ conciliation deeds.
 DISCHARGE OR
DEMOLITION EXECUTION
• It was regulated by article 1033 Rv.
• It is related with unmoving object, if one
party lose at court – then they punished to
leave dispute object and they refuse it, so
another who won may submit an
execution to push it.
• The exception of it was the one who lease
that dispute object (article 1576 code civil).
It harmonious with KOOP BREEKST GEEN
NUUR principle, which means sale-purchase
principle did not eliminating relationship of
tenancy.
 TO DO SOMETHING
EXECUTION
• It regulated by article 225 HIR/ 259 RBg;
• Which means when somebody punished to
do something (such as : deliver goods, fix
broken house, etc), but they refuse or not
do it within time set, then the winner party
can submit to court to asses what
should be done by the lose party with
amount of money;
• In another words, chief of district court
CHANGE the main decision by asses with a
payment. If the lose one does not have
money, their goods will stipulated seizure.
 PAYMENT EXECUTION

• Generally it related with breach of

contract case, even tort.

• The execution does not have to

based on court verdict, but can be
based on : debt confession, fiduciary
security, etc.
 TO PAY AMOUNT OF MONEY
EXECUTION
• It is regulated in article 197 HIR/ 208
RBg.
• Beforehand, goods that owned by lose
party is stipulated execution seizure
(executoir beslag), then it will be
sold through auction procedure until
sufficed.
• It (the auction) starts from moving
objects, if not enough – then unmoving
objects.
 REAL EXECUTION
PROCEDURE
• The winner party submit an
execution to chief of district court.
• Then chief of district court take out
warning decree/ decision toward lose
party to implement/ perform
verdict’s content within eight days
after summon/ vacation (article 196
HIR/ 207 RBg).
• If warned party still do not want to
perform/ implement verdict, then
chief of district court take out
command execution decree/
decision.
• The implementation of real execution
is by clerk of court or bailiff of court
and practically may get help to state
instrument (such as : police man or
army).