Legal Remedies (Upaya Hukum) in Private law Field

Paper of T2 Procedural in Private law subject

Arranged by:

Ridwan Bashori

(0910113224)

MINISTRY OF NATIONAL EDUCATION UNIVERSITY OF BRAWIJAYA FACULTY OF LAW MALANG 2011

A. Definition of legal remedies Remedy is an effort that is given by law to a person or legal entity for certain things to fight the judge's decision as a place for those who are dissatisfied with the decision of the judges who considered incompatible with what is desired, no sense of fairness, because the judge also a man who can do kesalaha / oversight so that one end or side with either party. B. The Form of Legal Remedies Efforts to distinguish between legal remedies against the usual remedies with extraordinary remedy. 1. Ordinary remedies Is a remedy which is used for decisions that have not binding. These efforts include: a. Resistance / verzet b. appeal c. cassation Basically suspend execution. With the exception of when the verdict was handed down by the provisions be implemented in advance or uitboverbaar bij voorraad in Article 180 paragraph (1) HIR done so despite legal efforts, it still continues execution. 2. Extraordinary remedy Made to the decision which has had permanent legal force, and in principle this remedy does not suspend the execution. include: a. Reconsideration (request civil) b. Resistance third party (denderverzet) against confiscation eksekutorial
A. Ordinary Remedies: Resistance / verzet A legal action against the decision outside the presence of the defendant (the verdict verstek). Verzet legal basis can be seen in article 129 HIR. Verzet can be done in tempo / period of 14 days (including holidays) after the decision of the decision verstek notified or communicated to the defendant because the defendant was not present.Terms verzet is (Article 129 paragraph (1)HIR): 1.discharge decision verstek 2. period of time to file the resistance is not later than 14 days and if no execution should not be more than 8 days; and 3. verzet entered and submitted to the Chief District Court in the jurisdiction where the plaintiff filed his complaint.

In a lawsuit in court, if the defendant after the called according to provisions not present until the verdict, the verdict handed down by judges decision is a decision verstek or without the presence of the defendant. Well, if the defendant who has been sentenced verstek objected to the verdict, then the remedy can be done is to ask resistance (verzet). So unlike the usual decision to do an appeal. Because it is an appeal against the decision verstek a formal defect that is not acceptable. In the Supreme Court decision no. K/Pdt/1984 1936, among others, asserted that the appeal lodged against decision verstek unacceptable because

the legal remedies against verstek is verzet. Resistance (verzet) against the decision verstek implies that the defendant tried to fight the decision verstek / Defendant filed opposition to the decision verstek. The goal, so the decision was in doing a thorough re-examination in accordance with the inspection process with a request that the verdict kontradiktor verstek are canceled, as well as a lawsuit that the plaintiff was rejected. In the inspection process or verzet resistance, there is some legal basis to be met, among others: Resistance (verzet) must be submitted to the District Court verdict verstek; Asked by defendants themselves or their proxies; Submitted to PN verstek verdict in the limit of tolerance time specified Article 129 paragraph (2) HIR; Addressed to decision verstek without attracting other parties, other than the original plaintiffs. Resistance to verstek, not a new case. Resistance is a unity that does not separate the original lawsuit. Thus, the resistance is directed against untruth rebuttal argument of the original lawsuit, arguing that the verdict handed down verstek false and untrue. No. Based on the Supreme Court decision. 307K/Sip/1975 mentioned that verzet against verstek not be heard and ruled as a new case. While the Supreme Court decision affirmed that in the process 494K/Pdt/1983 verzet or verstek, pelawannya located as unchallenged as the defendant and plaintiff. While examination of the resistance (verzet) is based on the original lawsuit. This refers to the Supreme Court decision No. 938K/Pdt/1986. In a decision contained among other considerations that the substance of the decision verzet verstek consideration should be directed to the contents of the lawsuit challenged the decision and the arguments / plaintiff origin. Thus the only question the reasons verzet absence of contrarian / defendant from attending the trial as irrelevant. Therefore, the decision verzet which only consider the problem of unauthorized or absence of the defendant or a court summons is wrong. Regarding the decision or verdict verzet resistance, if in one case applied peyelesaian verstek followed the verdict verstek verzet event, then the PN will issue a decision two forms: First, the decision in accordance with the decision verstek verstek that the rules outlined on civil procedural law, Article 125 (1) HIR; Second, the ruling verzet verzet events regulated by Article 129 (1) HIR. Both decisions are interrelated because both starts from the same case. Verdict resistance (verzet), among others: Verzet unacceptable, Reject verzet or resistance, grant the resistance (verzet) C. Ordinary Remedies: Appeal Is a remedy which is made where one party is not satisfied with the decision of the District Court. Its legal basis is Law No. 4 / 2004 concerning Amendment to Basic Law of Power and Law No. 20/1947 on Judicial Dt. Appeals must be filed with the clerk of the District Court passed a decision (article 7 of Law No. 20/1947). The order of appeal under article 21 of Law No. 4 / 2004 jo. Article 9 of Law No. 20/1947 repeal provisions of Articles 188-194 HIR, namely: 1. there is a statement to appeal 2. clerks make a deed of appeal

3. recorded in the register the parent case 4. statement of appeal must be received by no later than 14 days terbanding statement after the appeal was made. 5. comparators can make the memory of appeal, may submit a counter memory terbanding appeal. D. Ordinary Remedies: Final Appeal According to article 29 and 30 of Law No. 14/1985 jo. Law No. 5 / 2004 is the cancellation of the decision on the cassation court of all courts in the judicial end. Decisions are made in the decision is the decision of the appeal. Reasons used in cassation specified in article 30 of Law No. 14/1985 jo. Law No. 5 / 2004 are: 1. is not authorized (either absolute or relative authority) to exceed the limits of authority; 2. misapplied / violate applicable law; 3. failure to fulfill the conditions required by laws and regulations that threaten the negligence of the cancellation of the decision in question. E. Extraordinary Remedies: Review If there are things or circumstances prescribed by law, against court decisions that have been powered huikum can still be requested reconsideration to the Supreme Court in civil and criminal cases by the parties berkempentingan. [Articles 66-77 of Law No. 14/1985 jo. Law No. 5 / 2004] Reasons for reconsideration under article 67 of Law No. 14/1985 jo. Law No. 5 / 2004, namely: a. There Novum or new evidence which is known after his case decided upon based on the evidence and then by a criminal judge who declared false; b. if after the case verdicts, found the letters evidence is decisive that at the time the case can not be checked; c. if it has been granted a thing that is not required / required more than; d. if on any part of the claim has not been disconnected without considering its causes; e. if in a decision there is an oversight judge / an obvious mistake. The grace period for 180 days after the verdict is final and binding. (Article 69 of Law 14/1985). The Supreme Court decided an application for review at the first and last (article 70 of Law No. 14/1985). F. Extraordinary Remedies: Denderverzet Occurs when a court decision against the interests of third parties, then the third party may file opposition to the decision. Its legal basis is 378-384 Rv and Article 195 (6) HIR. Said to be extraordinary remedies because it is basically a decision only binds the litigants alone (the plaintiff and defendant) and not binding third parties (but in this case, the decision shall be binding on other people / third party, by was extraordinary to say ). Denderverzet submitted to the District Court decided the case on the first level.