NAME:MUHAMMAD BIMA ARSYANTO

NIM:18410675

GOVERNMENT ACTION

1. The definition of government action

The government or state administration is considered as a legal subject, with rights and
obligations, and is capable of performing both factual actions and legal actions. Factual actions
have no legal relevance and do not create legal consequences, while legal actions are intended to
create specific legal consequences. In the context of administrative law, legal actions are referred
to as "administrative legal acts" and are defined as statements of will by an administrative body
that are intended to create legal consequences in the field of administrative law. The legal
consequences of administrative legal acts include the creation, modification, or termination of
existing legal relationships.The passage discusses the concept of "rechtshandeling" or legal act in
both civil law and administrative law. A legal act is a unilateral declaration of will by a
government body that has legal consequences for existing legal relationships or legal status. The
legal consequences may include changes in rights, obligations, or authority, as well as the
establishment of binding rights, obligations, or status.It is emphasized that a government body's
legal act must not contain any defects, such as mistake, fraud, or coercion, that would render the
legal consequences invalid. Additionally, a legal act must be based on applicable laws and
regulations to avoid conflicts with them that could lead to nullity or cancellation of the legal
consequences.The term "rechtshandeling" originates from civil law but is also used in
administrative law, with some differences in nature. Administrative legal acts can bind citizens
without their contribution or agreement, whereas civil legal acts require the mutual agreement of
both parties. This is due to the subordinative nature of public law, in which the government
possesses public power, whereas citizens do not have the same power.

2.Elements, Kinds and Characteristics of government legal actions

A. .Elements of government legal action
According to Muchsan, the elements of government legal action include:The act is carried out by
government officials in their capacity as rulers or as part of government administration with their
own initiative and responsibility;The act is carried out in the context of performing government
functions;The act is intended as a means of creating legal consequences in the field of
administrative law;The act is carried out in order to protect the interests of the state and the
people.In relation to the principle of legality or "wetmatigheid van bestuur" which emphasizes
that administrative legal actions must be based on existing laws and regulations, it is necessary to
add some elements. According to this principle, administrative legal actions can only be carried
out if they are regulated and permitted by laws and regulations.Without a legal basis, government
legal actions will be categorized as actions beyond authority ("onbevoegd"). There are three
possibilities of "onbevoegd": first, the lack of authority in terms of territory ("onbevoegdheid
ratione loci" or "onbevoegdheid naar plaats"); second, the lack of authority in terms of time
("onbevoegdheid ratione temporis" or "onbevoegdheid naar tijd"); and third, the lack of authority
in terms of substance ("onbevoegdheid ratione materie" or "onbevoegdheid naar materie").
According to P. de Haan and colleagues, incompetence includes absolute incompetence, which
relates to the substance of authority or a matter, and relative incompetence, which relates to time
and place.

Incompetence relating to the substance of authority or a matter is related to issues of attribution,

delegation, and mandate. Incompetence related to place is related to territorial decentralization
(for example, when authority is with District B instead of District A) or to deconcentration of
central government officials (for example, when an inspection is conducted by official B instead
of official A). Incompetence related to time is when the decision-making process or formation of
a decision does not comply with the time specified in laws and regulations.

B. Various kinds of government legal action

The government or state administration is a legal subject representing two institutions, namely
the administrative office and the legal entity. As a representative of two institutions, there are two
types of legal actions, namely public law actions (publiekrechtshandelingen) and private law
actions (privaatrechtshandelingen). In ABAR, government legal actions are explained as follows:
"De rechtshandelingen door de overheid in haar bestuurs/unctie, kunnen worden onderscheiden
in privaatrechteiike en publickrechtelijke rechtshandelingen. Onder publiekrechtelijke
rechtshandelingen worden hier verstaan de rechtshandelingen die verricht worden op de
grandslag van het publickrecht; onder privaatrechtelijke rechtshandelingen; rechtshandelinger die
verricht sworden op grandslag van het privaatrecht" (The legal actions by the government in its
administrative function can be distinguished into private law and public law actions. Public law
actions mean legal actions carried out based on public law, while private law actions are legal
actions based on civil law).The legal position of the government, representing two institutions,
appearing with "twee petten" and regulated by two different fields of law, namely public law and
private law, will result in legal actions with different legal consequences. In practice, it is
somewhat difficult to distinguish when government legal actions are governed by public law and
when they are subject to civil law, especially with the fact that government actions are not
always carried out by government organs but also by individuals or legal entities subject to
certain requirements. In addition, there are also other difficulties in determining the boundary
line (scheidingslijn) of government actions, whether they are public or private, especially related
to the existence of two types of public law actions, namely pure (de puur publiekrechtelijke)
actions, as legal actions carried out based on public authority, and mixed between public and
private law (de gemengd publiek-en privaatrechtelijke). Therefore, clarification is needed
regarding when government or administration legal actions are subject to civil law and when
they are subject to public law.Theoretically, the way to determine whether government actions
are governed by private law or public law is by looking at the position of the government in
carrying out those actions. If the government acts in its capacity as a government, only public
law applies, and if the government acts not in its capacity as a government, civil law applies. In
other words, when the government is involved in civil affairs and not in its position as a party
that upholds public interests, it is no different from a private party, that is subject to civil law.
Another way is to differentiate between overheid as a holder of government authority and
lichaam as a legal entity. In relation to the region, it is known that the region is a public legal
entity, which on the one hand is an overheid and on the other hand is a lichaam. As an overheid,
the region carries out the authority or tasks of the government given and regulated by public law
provisions. As a lichaam, the region is a representative of a legal entity, which can act in the civil
field and is subject to civil law provisions. As an example, when a district buys several new
buses for its company's needs, the district carries out a purchase agreement based on civil law. It
is also stated that "Als zodanig is de gemente dragster van privaatrechtelijke rechten en plichten."
(As such, the municipality carries civil law rights and obligations).

C. Characteristics of government legal actions

There are differences of opinion among scholars regarding the nature of legal actions taken by
the government. Some argue that legal actions that occur within the scope of public law are
always unilateral or one-sided legal relationships. They argue that there are no two-sided legal
actions in public law and no agreements are regulated by public law. If an agreement is made
between the government and a private individual, then the law that regulates that agreement is
always private law. This is because an agreement is a two-sided legal action that involves the
voluntary consent of two parties.
Others argue that there are two-sided legal actions in government. They recognize that there are
agreements that are regulated by public law, such as short-term contracts or work agreements.
Although two-sided government actions are known, the arguments of these scholars suggest that
in principle, all government actions in carrying out public duties are mostly unilateral or
one-sided.Indroharto even states that government legal actions are always unilateral.
Government legal actions are considered one-sided because whether a legal action is taken or
not, and whether it has legal force or not, ultimately depends on the unilateral will of the
government agency or office that has the authority to do so.In the case of short-term work
contracts, which are given as an example of a two-sided legal relationship in public law, it should
be considered as a way of implementing government actions, not as a type of government legal
action itself. In other words, as W.F. Prins stated, "what is more common is that the government's
statement of intent becomes the focus of its implementation, while the activities of the relevant
party, which gave rise to its inception, are pushed back, even though it is later determined that
the party concerned must accept the offer made by the government to them." Similarly, in mining
business licenses and mining concessions, it cannot be said that the party concerned has the
opportunity to first give their approval. This is because the issuance of mining business permits
and mining concessions is the result of a unilateral decision by the government that applies
immediately.In a rule of law state, every legal action taken by the government must always be
based on the principle of legality or based on applicable laws and regulations. This means that
government legal actions are fundamentally actions carried out in order to implement the
provisions contained in applicable laws and regulations or to regulate and serve the public
interest crystallized in the relevant laws. The provisions of the law give the government certain
powers to take certain legal actions. Because these powers are only given to certain government
organs and not to others, government legal actions are fundamentally one-sided, not the result of
an agreement with the party subject to the legal action. In Administrative Law, the legal
relationship between the government, in its capacity as a representative of government positions
rather than as a representative of government bodies, and an individual or legal entity does not
hold an equal position. The government has a special position