Take Notes! These are 2 Types of Civil Law Legal Remedies

PERTANYAAN

What are the forms of civil law legal remedies, both ordinary and extraordinary legal remedies?

INTISARI JAWABAN

Just as in criminal procedure law, civil law legal remedies consist of ordinary legal remedies and extraordinary legal remedies. Resistance (verzet), appeal, and cassation are examples of ordinary legal remedies. Meanwhile, judicial review and third-party resistance (derden verzet) are examples of extraordinary legal remedies.

Please read the review below for a further explanation.

ULASAN LENGKAP

This article is an English translation of Catat! Ini 2 Macam Upaya Hukum Perdata which was written by Bernadetha Aurelia Oktavira, S.H., and was published on Wednesday, 22 February 2023.

All legal information available on Klinik hukumonline.com has been prepared for educational purposes only and is general in nature (read the complete Disclaimer). In order to obtain legal advice specific to your case, please consult with Justika Partner Consultant.

Definition of Civil Procedure Code

According to Wirjono Prodjodikoro, civil procedure code/private procedure code is a series of regulations that contain the way in which people should act toward and before the court and the manner in which the courts must act, with each other in order to implement the passage of civil law.[1]

Meanwhile, Soedikno Mertokusumo explains that a private procedure code is a legal regulation that regulates how to guarantee the compliance of material civil law through the medium of judges or a legal regulation that determines how to guarantee the implementation of material civil law. Concretely, the private procedure code regulates how to file rights claims, examine and decide and the implementation of its decisions.[2]

In Indonesia, the provisions of the private procedure code still use the Herzien Inlandsch Reglement ("HIR") or Reglement tot Regeling van Het Rechtswezen in de Gewesten Buiten Java en Madura ("Rbg"), which is complemented by various provisions which are spread out under Law 48/2009 and Law 14/1985 and its amendment. So that it can be said that private procedure code is regulated in various separate regulations.

Also read: Take notes! These are the 10 Principles of the Civil Procedure Code

Civil Law Legal Remedies

In a case that has been decided by a judge, there are times when the decision is not enough to satisfy the disputing parties, both the plaintiff and the defendant. Therefore, parties who reject a judge decision may submit or file a civil law legal remedy, in order to have their case re-examined.

In relation to your question, there are 2 types of civil law legal remedies, namely ordinary legal remedies and extraordinary legal remedies. In the following, we will describe each of these civil law legal remedies.[3]

1. Ordinary Legal Remedy

Ordinary remedies are in principle open to any decisions during the time period determined by law, the authority to use them is removed by accepting the decision. Ordinary legal remedies are to temporarily suspend the implementation of decisions.

1. Resistance (Verzet)

Verzet is a civil law legal remedy against a decision imposed by the court on a decision without the presence of the defendant (verstek decision). The legal basis for verzet is regulated in Article 125 section (3) jo. Article 129 HIR and Article 149 section (3) jo. Article 153 Rbg. This resistance is, in principle, provided for defeated defendants.

The time period for submitting a verzet in accordance with Article 129 section (2) HIR:

1. Resistance can be filed within 14 days from when the notification of the verstek decision is received by the defendant.
2. If the verstek decision is not notified to the defendant, a resistance may still be filed up to the 8th day after the reprimand in order to implement the verstek decision.
3. Or if the defendant does not show up when reprimanded, the defendant's resistance may be submitted until the 8th day after the execution of the second warrant decision in Article 197 HIR.

The resistance to a verstek decision is filed as if it was an ordinary lawsuit.[4] When a resistance has been submitted, the verstek decision will be postponed.[5]

Also read: Understand Deeply Civil Procedure Code

2. Appeal

An appeal is a remedy by one of the parties, either the plaintiff or the defendant, who does not accept a court decision because they feel that their rights are being attacked/harmed by the consequences of the decision.

The legal basis for a civil law appeal is regulated in Article 199 Rbg, Article 6 Law 20/1947 and Article 26 section (1) Law 48/2009, in which the relevant parties may file an appeal.

Appeals must be filed within 14 days of the promulgation of the decision, if the parties are present at the time when the decision is pronounced by the panel of judges, or 14 days after the notification of the decision if the parties are not present when the decision is read.[6]

However, it should be noted that if the defendant is not present while the decision is pronounced (verstek decision), then an appeal cannot be applied for, but a resistance (verzet).[7]

Then it should be noted, in an appeal petition, the drawing up of a memorandum of appeal is not necessary or mandatory. Jurisprudence on Decision of the Supreme Court 39K/Sip/1973 dated 11^th of September 1975 also stated that the rule of law of an appeal memorandum could be filed as long as the case had not yet been decided by the High Court. The law does not specify a time limit for this.

3. Cassation

Cassation is a legal remedy that is the authority of the Supreme Court to re-examine the decision of the court of appeal level or the final level of all judicial environments/courts.[8]

The task of the Supreme Court at the cassation level is to examine the decision of the previous court on whether or not the application of the law is appropriate to the case in question which has been settled/determined by the previous court.

The time period for filing a cassation is 14 days after the decision or stipulation of the High Court is delivered to the person concerned, as well as 14 days after declaring the cassation, the applicant must submit a memorandum of cassation.[9]

In contrast to an appeal, a memorandum of appeal is not an obligation for the appellant, however, in a cassation, a memorandum of cassation is an obligation for a cassation applicant to be submitted. This means that if the cassation memorandum is not drawn up, the cassation request will be rejected.

In order to file a cassation, there must be reasons which are used as the basis for the cassation, namely the decision or court order:[10]

1. do not have competence or exceed its competence;
2. incorrectly implement or violate the prevailing laws;
3. negligently fail to fulfill the obliged requirements as ordered by laws and regulations, which may lead to the annulment of the relevant decision.

From the abovementioned reasons, it can be understood that at the cassation level, the matter is no longer examined, but the law, so that whether or not events/incidents are proven will not be examined. Cassation hearings/examinations at the cassation level are not generally considered to be third-level hearings.

2. Extraordinary Legal Remedy

1. Judicial Review

A judicial review is an attempt to examine and counteract a legally binding court decision, in order to annul it. The petition for judicial review shall not hinder the execution of the final and binding decision.

Application for judicial review may only be submitted 1 (one) time, and may be revoked insofar it has not been decided, and in the event of it has been revoked, such application for judicial review is unable to be submitted again.[11]

Application for judicial review of civil case which has obtained permanent legal force may still be submitted only based on the following reasons:[12]

1. If decision is based on lies and craftiness of the opponent party which is known after the case is decided or based on evidence which later is declared false by criminal judge;
2. If after the case has been decided, it is found evidence which is decisive at the time when case is being examined is unable to be found;
3. If it has been granted a thing which is not being charged or more than what is charged;
4. if on a part of a lawsuit has not been decided without considering its reasons;
5. if between the same parties on the same matters, based on the same basis by the same Court which same level has been provided decision which is contradictive with one another;
6. if in a decision there is oversight or mistake of Judge.

Period for submission of judicial review which is based on the reasons as referred to in Article 67 is 180 (one hundred and eighty) days for:[13]

1. Which are as referred to in letter a since it is known that there is a lie or craftiness proven in writing or since decision from criminal judge has obtained permanent legal force, and has been notified to the litigants;
2. Which are as referred to in letter b since it is known that there is evidence, which the date of discovery shall be declared under oath and authorized by the authorized official;
3. Which are as referred to in letter c, d, and f since the decision has obtained permanent legal force and has been notified to the litigants;
4. Which are as referred to in letter e since the last and contradictive decision has obtained permanent legal force and has been notified to the litigants.

 

2. Third-Party Resistance (Derden Verzet)

The last type of civil law legal remedy is third-party resistance or derden verzet, which is a resistance carried out by a third party that previously had nothing to do with the case, but the decision has harmed the third party.

The derden verzet of collateral confiscation may be submitted by the owner as long as the case does not yet have a final and binding decision. In addition, in order to grant the resistance of third parties, it is necessary to have the interests of third parties and the rights of third parties have been harmed.[14]

These are the answers we can provide, we hope you will find them useful.

Legal Basis:

1. Herzien Inlandsch Reglement (HIR);
2. Reglement Tot Regeling Van Het Rechtswezen In De Gewesten Buiten Java En Madura (RBG);
3. Law Number 20 of 1947 on Appeal Court Regulation;
4. Law Number 14 of 1985 on Supreme Court as amended by Law Number 5 of 2004 on Amendment to the Law Number 14 of 1985 on Supreme Court as secondly amended by Law Number 3 of 2009 on Second Amendment to Law Number 14 of 1985 on Supreme Court;
5. Law Number 48 of 2009 on Judicial Authority.

Court Decision:

Decision of the Supreme Court Number 39K/Sip/1973.

Reference:

1. Laila M. Rasyid dan Herinawati. Modul Pengantar Hukum Acara Perdata. Aceh: Unimal Press;
2. Yulia. Hukum Acara Perdata. Aceh: Unimal Press.

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[1] Laila M. Rasyid dan Herinawati. Modul Pengantar Hukum Acara Perdata. Aceh: Unimal Press, p. 10.

[2] Laila M. Rasyid dan Herinawati. Modul Pengantar Hukum Acara Perdata. Aceh: Unimal Press, p. 11.

[3] Laila M. Rasyid dan Herinawati. Modul Pengantar Hukum Acara Perdata. Aceh: Unimal Press, pp. 123-131.

[4] Article 129 section (3) Herzien Inlandsch Reglement (“HIR”) jo. Article 153 section (4) Reglement tot Regeling van Het Rechtswezen in de Gewesten Buiten Java en Madura (“Rbg”).

[5] Article 129 section (4) HIR jo. Article 153 section (5) Rbg.

[6] Article 199 section (1) Rbg jo. Article 7 section (1)  Law Number 20 of 1947 on Appeal Court Regulation (“Law 20/1947”).

[7] Article 200 Rbg jo. Article 8 section (1) Law 20/1947.

[8] Article 29 Law Number 14 of 1985 on Supreme Court (“Law 14/1985”).

[9] Article 46 section (1) jo. Article 47 section (1) and its Elucidation Law 14/1985.

[10] Article 30 section (1) Law Number 5 of 2004 on Amendment to the Law Number 14 of 1985 on Supreme Court (“Law 5/2004”).

[11] Article 66 section (1) and (3) Law 14/1985.

[12] Article 67 Law 14/1985.

[13] Article 69 and its elucidation Law 14/1985.

[14] Yulia. Hukum Acara Perdata. Aceh: Unimal Press, pp. 105-106