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LEGAL REMEDIES

CIVIL
PROCEDURE LAW
Group 9
Annisa Lintang Jantera 1406640266
Alexander Andree 1406640240
Ghali Fairuzy Windiansyah 1406640291
Nabila Radityanti 1406640322
Ghosa Anggakara 1406640303

FACULTY OF LAW
UNIVERSITAS INDONESIA
2016

TABLE OF CONTENTS:
1. Introduction
2. General knowledge of Legal Remedies
Ordinary legal remedies:
3. Verzet
4. Appeal (Banding)
5. Cassation
Extraordinary legal remedies:
6. Derdenverzet
7. Judicial Review (Peninjauan Kembali)
Bibliography

1. Introduction

In discussing about legal remedies, the first thing that needs to be discussed is the
definition of legal remedies itself. According to the book Hukum Acara Perdata by Retno Wulan
Sutantio, legal remedies or upaya hukum can be defined the effort given by the law to a person or
a legal entity in certain matters against a court verdict or in Indonesian, Upaya hukum adalah
upaya yang diberikan oleh undang-undang kepada seseorang atau badan hukum untuk dalam
hal tertentu melawan putusan hakim. According to her, there are two kinds of legal remedies
that are known in the scope of Civil Procedure Law, which are: ordinary legal remedies and
extraordinary legal remedies. She then further explained that ordinary legal remedies consist of
verzet, appeal (banding) and cassation (kasasi). On its nature, the ordinary legal remedies
adjourn the execution of the verdict, except if the verdict has been given to the convicted with
the condition that the verdict can be executed before the result of the legal remedies, even though
the ordinary legal remedies has been filed, execution of the verdict will be continued. This
procedure is according to article 118 (1) of HIR.
On the other hand, extraordinary legal remedies consist of: derden verzet (perlawanan
pihak ketiga (third party) terhadap sita eksekutorial) and peninjauan kembali. On its nature,
extraordinary legal remedies will not suspend the execution of the court verdict. What is meant
by third-party is a person who previously was not one of the parties in the dispute, but because
he/she thinks they may concerned in the dispute, for example if he/ she thinks that the goods in
the dispute is his/hers, not the defendants.
Thus, it can be concluded that legal remedies are basically an effort for every individuals
that have their rights been violated or their interest to obtain justice and legal certainty/
protection, in accordance to the procedures that are stipulated in the law.
2. General Knowledge of Legal Remedies
Legal remedies is divided into 2 types which are the ordinary and the extraordinary legal
remedies.
Ordinary legal remedies consists of:
Appeal
Verzet
Cassation
While, Extraordinary legal remedies consists of:
Derdenverzet

Judicial Review (Peninjauan Kembali)


The difference between the ordinary legal remedies and the extraordinary legal remedies
is that in ordinary, the execution of the previous judges decision can be adjourned while in
extraordinary, the execution of the previous judges decision can not be adjourned.
Regarding the notice if we do not know the domicile of either defendant or the plaintiff, in
practice we follow the actions done in the divorce, where based on Article 27 PP No.9/1975 it is
stated that the judges decision must be given a notice to the husband/wife but if we do not know
their domicile, we must announce it through the mass media that is decided by the judge (usually
a newspaper) where it is done twice, in between the 1st and 2nd announcement there must be a
time span of 1 month, the announcement must be done within 3 months after the decision is
made. Thus in practice, it is also done to the decisions made by the judge whether in appeal level,
or cassation level or etc.

3. Verzet
Legal basis: Article 129 HIR
Is the counter legal remedy for the verstek decision, verstek decision is a decision where the
defendant of the case does not come after the clerk of a court had given a notice for as many as
3x times.
The one who is able to file verzet is the defendant.
Requirements of Verzet:
If it is properly notified to the defendant:
Within 14 days after the verstek decision has been notified to the defendant
If the verstek decision has not been properly notified to the defendant:
Within 8 days after the notice given in Article 196 HIR
Within 8 days after the execution of the verstek decision
Verzet only can be done once by the defendant, if the verzet is refused by the judge then the
defendant must file for an appeal to the High Court.

4. Appeal
Appeal or banding is one of the ordinary legal remedies. By definition, according to
Mukti Arto in his book, Praktek Perkara Perdata pada Peradilan Agama, appeal is a request

from the parties in dispute to the higher court to revoke the verdict that has been decided by the
first-degree court. Appeal is regulated under article 188-194 of HIR and UU No. 20/ 1947.
In order to filed the appeal, there are some requirements that must be fulfilled by the
parties, namely:
1. Submitted by the parties in dispute (diajukan oleh pihak-pihak yang berperkara)
2. Submitted within 14 days from the day when the decision was read (masa tenggang waktu
banding). But, if the parties who submitted the appeal was not present on the day when the
decision was read, therefore the 14 days will be counted from the day when the parties
received the verdict notice (pemberitahuan amar putusan), according to article 199 (1) of
RBg and article 46 of Law No. 14/ 1985. If the time period of the submission of the appeal
is already passed, therefore the request for the appeal will be rejected by the High Court
(Pengadilan Tinggi), because it will be assumed that the related District Court has the
permanent legal force and the verdict can be executed. This statement is supported by the
Supreme Court Decision No. 391 k/ Sip/ 1969 on October 25 th 1969. But, if there are more
than one person who submitted the appeal in the civil dispute and in an appeal theres only
one request that can be accepted, therefore the case will be re-examined entirely, including
the interests of parties that requested for the appeal but cannot be accepted. It is according
to the Supreme Court Decision No. 46/ Sip/ 1969 on June 5th 1971.
Besides the requirements that must be fulfilled by the parties who want to submit the
appeal, there are also some procedures of the appeal that must be followed. There procedures are,
as follows:
1. Stated in front of the registrar of the District Court where the decision was made, and paid
the appeal fees;
2.

The request of the appeal can be submitted in written or orally (according to article 7 of
Law No. 20/ 1947) by the parties in dispute or their representatives;

3. The registrar will make the Appeal Deed or akte banding that will consist of the day and
date of when did the request for the appeal was received and signed by the registrar and
the party who submitted the request for the appeal. The request of the appeal will be
registered in Register Induk Perkara Perdata and Register Banding Perkara Perdata.

4. The request for the appeal must be informed to the other parties in dispute, no later than 14
days after the request for the appeal was received.
5. The parties in dispute have the opportunity to see the dossier of the case in the District
Court within 14 days.
6. Despite it is not necessary, the party who request for the appeal has the right to submit the
memori banding, while the party whos the object of the appeal (terbanding) has the right
to submit the kontra memori banding. For both of the documents, there is no time limit for
the submission, as long as it is before the case is decided by the High Court. (Supreme
Court Decision No. 39 k/ Sip/ 1973 on September 11th 1975)
7. The revocation of the request for the appeal is not regulated under the law. As long as it has
not been decided by the High Court, the revocation is allowed.

5. Cassation
Legal basis: Law No.14 Year 1985 regarding the Supreme Court
The word cassation derived from the French word Casser which is to cancel, so in law it is
called cassation. Cassation is one of the legal remedies, where it is done after release of the
verdict to the applicant given by the High Court because one of the disputants is not satisfied
with the decision given by the High Court. In applying for the cassation, the verdict given by the
High Court is considered to be not final and binding.
The purpose of an applicant applying cassation is so that the previous decision can be cancelled
and the Supreme Court will make a new decision regarding that case and the new decision is
final and binding.
Requirements of Cassation:

Article 46 of the Law on Supreme Court stated that the application for cassation can be

done in writing or orally through the help of the clerk of the court in the court that is trialing and
given the decision of appeal within 14 days after the decision of the appeal had been informed to
the applicant, where if no one submits an application for cassation within the 14 days, thus the
appeal decision is considered to be final and binding where this means that both parties are
presumed to have accepted the appeal decision.

The application for cassation must be registered in the book of registry and in the same

day of the registration, the applicant must make a deed of the application of cassation that is
included within the documents of the dispute. (Article 46 Paragraph 3 Law No.14 year 1985)
After 7 days of the registration for cassation:

the court clerk must notify the application of the cassation done by a party, to the party

that has interest with that party that submits the application for cassation. (Article 46 Paragraph
4 Law No.14 year 1985)

The applicant must submits his/her memorandum of cassation where it contains why

he/she objects the previous decision or we can call the decision of Judex Facti.

Elucidation: the applicant must state in the memorandum of cassation whether Decision

given by Judex Facti is (based on Article 30 Law No.14 year 1985):


o that the decision is beyond the authority (related to the relative and absolute competence of
courts jurisdiction)
o the decision contains negligence which it fails to comply with the compulsory requirements to
define it as a judges decision, for example: the judge forgot to put Demi Keadilan Berdasarkan
Ketuhanan Yang Maha Esa.
o the decision has failed to comply with the prevailing rules.
After the applicant had given the memory of cassation to the clerk of a court, the clerk must
make a receipt of acceptance and give it to the applicant. Then the clerk must make a copy of the
memory of cassation and give it to the opposing party of the applicant. After giving the copy of
memory of cassation, the opposing party of the applicant must submit a contra-memorandum of
cassation within 14 days after the opposing party received the copy of memory of cassation
(Article 47 Paragraph 3 Law No.14/1985)
Within 30 days after receiving both applicants memorandum of cassation as well as the contramemorandum of cassation, the clerk of a court must give all of the documents related to the case
that wants to be processed to the Supreme Court (Article 48 Paragraph 1 Law No.14/1985)
The application for cassation can be revoked before the cassation is processed, where the legal
consequence of the revocation is that the party can not apply for cassation anymore thus the
previous decision that he/she wants to apply the cassation is considered as final and binding.
Types of judges decision in cassation level:

Accepted

This means that the previous decision will be cancelled and the Supreme Court will make a new
decision according the the Supreme Court judges where it has the power of final and binding.

Refused

because the memory of cassation contained an element which is not the authority of the Supreme
Court, in here refusal means the Supreme Court is supporting/endorsing the previous decision.

Can not be accepted

because the grace period of cassation has ended.

4. Derdenverzet
Legal Basis: Article 378-379 Rv
According to Yahya Harahap, Derden Verzet is one of the legal remedies because there is the
confiscation of third partys goods. It means that the goods must be owned by the third party. In
the practice, the defendant often ask for an objection of the confiscation that is put upon his
goods with the reason that that good is owned by the third party. That kind of objection is often
not accepted by the court because if that good actually belongs to the third party, then the third
party can file an objection through derden verzet. If after confiscation, there are no derden verzet
objection from the third party, then it is enough reason to consider it as the defendants goods.
If the good actually belongs to the third party, then the third party can file an objection through
derden verzet. This derden verzet will be filed against the conservatoire beslag or sita jaminan.
This is according to Supreme Court decision no. 3089 K/Pdt/1991 which states that conservatoire
beslag that is put upon third partys belonging gives right to the owner to file for derden verzet.
Derden verzet can be filed by the owner of the good as long as the dispute does not have a final
decision yet. If it already has a final decision, then the legal remedy that can be filed is not
derden verzet, but an ordinary civil lawsuit. This is according to Supreme Court decision no. 996
K/Pdt/1989, derden verzet is acceptable as long as the dispute havent been decided yet, and the
conservatoire beslag is not revoked.
In the consideration of Supreme Court decision no. 185/Pdt.Plw/2010/PN.Slmn, the supreme
court stated that according to Article 378 Rv and Article 379 Rv, for a third party claim to be
granted, two elements must be fulfilled which are:
1. Interest from the third party

2. The right of the third party is actually being violated


Article 378 Rv states that:
Indonesian:
Pihak-pihak ketiga berhak melakukan perlawanan terhadap suatu putusan yang merugikan hakhak mereka, jika mereka secara pribadi atau wakil mereka yang sah menurut hukum, atau pun
pihak yang mereka wakili tidak dipanggil di sidang pengadilan, atau karena penggabungan
perkara atau campur tangan dalam perkara pemah menjadi pihak
English:
Third parties may conduct a challenge to a decision that hurt their rights, if they personally or
through legal representation, ot the party that they represent is not called in the trial, or because
of joint case or involvement in case had been a party.
Article 379 Rv states that:
Indonesian:
Perlawanan ini diperiksa hakim yang menjatuhkan putusan itu. Perlawanan diajukan dengan
suatu pemanggilan untuk menghadap sidang terhadap semua pihak yang telah mendapat
keputusan dan peraturan umum mengenai cara berperkara berlaku dalam perlawanan ini
English:
this challenge is examined by the judge that give the decision. The challange is filed with a
calling to be present before the court against all the parties that have acquired the decision and
general regulation about dispute procedure that is applied in this challenge
The procedure to file for derden verzet is that the third party file a lawsuit against the disputing
parties (article 379 Rv). If it is granted, the decision that hurt the third partys interest must be
fixed (article 378 Rv). Against the decision of the claim that is imposed by the district court, a
legal remedy in the form of appeal, cassation, and review can be conducted.
The grace period to file a derdenverzet is the same as verzet, as stipulated in Article 129
HIR /153 RBg:

The person who does not accep the verstek decision can file a refusal to accept, with

their verzet rights


The refusal to accept/using the verzet rights can be within 14 days after the decision

has been given to the applicant.


If the decision has not been properly notified then the verzet can be used:

o Within 8 days after the notice given in Article 196 HIR


o Within 8 days after the execution of the verstek decision

5. Judicial Review (Peninjauan Kembali)


Definition:
The judicial review is an extraordinary legal remedy which is an attempt to check or ordered
back a court ruling, both the first level of appeal, Cassation, which had the final and binding
power of law. The judicial review is regulated under Article 66 s. d 77 of Law No. 14 of 1985 jo
Law No. 5 of 2004 regarding Supreme Court.
Scope:
In Article 11 paragraph (1) of Law No. 4 of 2004 about the Judiciary Power, mentioned that
when there are things or antecedent circumstances determined by law, against a court decision
which has final and binding legal power, may requested a judicial review to the Supreme Court
in civil and criminal matters by the parties concerned. But if the decision is a judicial review
decision, then according to Article 23 Paragraph (2) of Law No. 4 of 2004, it can't be done a
judicial review against the decision of a judicial review. The application for Judicial review may
be submitted only once.
The application is filed by the applicant of the judicial review to the Supreme Court through
the District Court who made decision in the first level by paying the cost of court. In the civil
procedure law according to Article 70 of Law No. 14 of 1985 jo Law No. 5 of 2004 Regarding
Supreme Court, Supreme Court made decision of the judicial review on the first and last level,
thus the decision resulted from the Judicial Review is final and binding in nature.
The Judicial review provided for in Article 66 of Law No. 14 of 1985 regarding the
Supreme Court, as:
(1) An application for judicial review is only done for once,
(2) The application for judicial review does not suspend or terminate the execution of the ruling
of the Court,
(3)The Application of judicial review can be revoked as long as the decision has not been made,
(4) And in case of already revoked petition for judicial review, the case can not be filed again for
judicial review.

Provision
The provisions of the judicial Review in the Court ruling which has acquired permanent legal
force according to Article 67 of Law No. 14 of 1985 as amended Law No. 5 of 2004 regarding
the Supreme Court stated as follows :
The application for a judicial review of civil lawsuit verdict which has acquired permanent
legal force may be submitted only based on reasons as follows:
a.

if the decision was based on a lie or based on fraud done by parties which was later

known after the decision or based on evidences which later declared counterfeit or fake by the
criminal court;
b.

If after the final decision, found the letters of evidence to determine something which

cannot be found at the time when the case is examined;


c.

If it granted something that was not claimed or more than the original claim (Ultra

Petita);
d.

if about a part of the claim have not been decided without considering their causes;

e.

If in between the same parties concerning a same matter, with the same basis by the same

court or the same level was given a verdict conflicting with one another;
f.

if there was an oversight or manifested an error in the judges ruling.

Period of Judicial Review


Grace period for judicial review provided in Article 69 of Law No. 14 of 1985 as amended in
Law No. 5 of 2004 regarding the Supreme Court, mentioned as follows:
"grace period for making petition for judicial review based upon reason as referred to in
Article 67 is 180 days to:
a. Which mentioned on the letter (a) since the lie or Guile/fraud is known or since the verdict of
criminal judge get a permanent legal force, and has been notified to the party concerned;
b. Which mentioned on the letter (b) since the letter of evidence found, the day and date of the
discovery should be stated under oath and confirmed by the competent authority;
c. Which mentioned on letters (c, d, and f) since the verdict acquire the permanent legal force
and has been notified to the party concerned;

d. Which mentioned on the letter (e) since the last verdict and opposed it gained permanent legal
force and has been notified to party concerned. "
Requirements of Legal Evidence for Judicial Review:
The requirements for evidence in the petition for judicial review consist of 4 sections
associated with article 67 letter b jo. Article 69 the letter b of Law No. 5 of 2004 which are :
a.

The application of reason of application for judicial review is limited only in the form of

written evidence.
b.

The written evidence, which meet the reason of application for judicial review (PK) must

be reasonable and determining.


c.

The day and date of the Written evidence was found, should be stated under oath and

confirmed by the competent authority.


d.

The letter evidence was already there before the process of case examination.

BIBLIOGRAPHY
Retno Wulan Sutantio.Hukum Acara Perdata. Bandung: CV. Mandar Maju, 2009.
Mardani. Hukum Acara Perdata Peradilan Agama & Mahkamah Syariyah. Jakarta: Sinar
Grafika, 2009.
Mukti Arto. Praktek Perkara Perdata Pada Pengadilan Agama, cetakan kedua, Yogjakarta:
Pustaka Pelajar, 1998.
http://jdih.kepriprov.go.id/index.php/informasi-kegiatan/tulisan-hukum/117-upaya-hukum-biasabanding-kasasi-dan-verzet accessed on April 2016
http://pn-tabanan.go.id/upaya-hukum-perkara-perdata/ accessed on April 2016
http://pta-manado.go.id/meja-informasi/info/upaya-hukum-terhadap-putusan-pengadilan/
accessed on April 2016
M. Yahya Harahap. Hukum Acara Perdata tentang Gugatan, Persidangan, Penyitaan,
Pembuktian dan Putusan pengadilan. Jakarta: Sinar Grafika, 2013.
Prof. Dr. Sudikno Mertokusumo. Hukum Acara Perdata Indonesia Edisi ke-8. Yogyakarta:
LIBERTY Yogyakarta, 2009
Prof. R. Subekti. Hukum Acara Perdata. Bandung: Bina Cipta, 1989

Lilik Mulyadi. Hukum Acara Perdata menurut teori dan praktik peradilan di Indonesia. Jakarta:
Djambatan, 2002.