Civil Law : Civil Lawsuit
Brain Ratur Tarigan, S.H.
• Criminal & Civil Litigation • 10 Sep 2021

Along with being able to meet requirements or interests fairly, humans need interaction with other parties (persons or legal entities). Due to there are various human’s interests and requirements, it is very possible that conflict between one and another occurs. This conflict of interest could lead to a dispute, which is known as civil case. Therefore, if the parties may not resolve an issue amicably, the last resort that could be taken is to request a settlement through the judge. To obtain a settlement through the judge, the plaintiff must submit a lawsuit to the District Court.


1.   What is a Lawsuit in Civil Law?

In the event of of civil cases, it is known what is meant by voluntair cases and contentiosa cases. In voluntair cases, usually what is submitted is in the form of an application. A voluntair application or lawsuit is a civil matter submitted in the form of an application signed by the applicant or his proxy addressed to the Head of the District Court.


Furthermore, contentiosa lawsuit is the lawsuit that contains a dispute between two or more parties. Issue that is submitted and requested to be resolved in a lawsuit is a dispute or dispute between the parties. In the past, this form was known as contentiosa rechtspraak. Thus, the settlement of disputes in court through a process of refutation in the form of response to defense statement and counter response by defense[1].


Therefore, what is meant by a lawsuit is a claim of rights submitted by the plaintiff to the defendant through the court. Lawsuit in civil procedural law generally have 2 (two) or more parties, namely between the plaintiff and the defendant, where the occurrence of a lawsuit is generally the defendant has violated the rights and obligations that harm the plaintiff.[2] In general, the occurrence of a lawsuit after the defendant violates the rights and obligations that harm the plaintiff does not want to voluntarily fulfill the rights and obligations requested by the plaintiff, in result, a dispute will arise between the plaintiff and the defendant. If the parties could not resolve the dispute that appear amicably outside the trial, generally the dispute will be resolved by the parties through court trials to obtain justice.


2.   Who has the right to file a Civil Lawsuit?

A lawsuit in Civil Law is a claim for the rights of any person or party (group) or legal entity who senses that their rights and interests have been harmed and caused a dispute, that is directed to another person or other party who caused the loss through the court, which is the object of this discussion. Therefore, the absolute requirement to be able to sue to the court must be on the basis of a dispute. As for what is meant by "other parties" it could consist of a person, several people, or a group of people, either on behalf of a legal entity or non-legal entity. The party who files a claim is referred to as "plaintiff" or if there is more than one plaintiff, they shall be referred to as "plaintiffs". Furthermore, the party who is being sued in court is referred to as “defendant” or if there is more than one defendant, they shall be referred to as “defendants”. In other words, a lawsuit is a claim of rights submitted by the plaintiff to the defendant through the court.


Moreover, M. Yahya Harahap, S.H., in his book which titled Civil Procedure Law (pp. 111-136), stated that the person who acts as the plaintiff must be a person who truly has the right position and capacity according to law. Error and false action as the plaintiff shall be resulted in the lawsuit containing formal defect. Formal defect that arise from error or false action as a plaintiff is stated to be error in persona.


From these opinions, we could conclude that what is meant by an incompetent plaintiff is a party that actually has nothing to do with the case which rights have been violated, or the party concerned has not suffered a loss due to the actions of the person who is being sued (the defendant). In other words, an incompetent plaintiff is a person who has no right to file a lawsuit. As for examples of conditions that cause a person to be classified as an incompetent plaintiff:

·           The person does not have the right to sue the disputed case because there is no legal relation with the disputed case;

·           The person is not capable of taking legal action;

·         A person representing a Limited Liability Company to act before the court as a plaintiff, even though that person is not one of the Directors of a Limited Liability Company (Article 98 paragraph (1) of Law No. 40 of 2007 concerning Limited Liability Company).[3]


 3.    Parties that involved in a Lawsuit?

As explained above, whereas in the Contentiosa Lawsuit or known as the Civil Lawsuit, which means a lawsuit that contains a dispute between the disputed parties. Currently, there are several terms for the parties involved in a dispute, especially in a Civil Lawsuit, namely:

·           Plaintiff

Quoting what Mrs. Retnowulan Sutantio, SH and Iskandar Oeripkartawinata, SH stated in their book entitled “Civil Procedure Law in Theory and Practice” (p. 3), in civil procedural law, the plaintiff is a person who “senses” that his rights have been violated and attracts people who are “sensed” to have violated their rights as a defendant in a case before a judge. The words "sense" and "sensed" in quotation marks are intentionally used here, in result of it is not certain that the person concerned has actually violated the rights of the plaintiff.


·           Defendant

The Defendant is the person who is brought before the Court because he is deemed to have violated the rights of the Plaintiff. In the event that there is more than one Defendant, to determine who Defendant I, Defendant II and so forth, it is required to look at the level of action and responsibility of each Defendant. However, the level of action and responsibility between the Defendants is not too different. The most different part is when determining between the Defendants and Co-Defendants.


·           Co-Defendant

Party who is declared as Co-Defendant is used for people who do not posses the disputed goods or are not obliged to do something. The difference between a Defendant and a Co-Defendant is that the Co-Defendant only subject to the content of the judges’ decision in court in result of the Co-Defendant did not conduct anything (an action). For instance, in the case of an unlawful act (“PMH”), the Defendant committed an act that resulted in being sued of PMH, however this Co-Defendant is only a related party who did not commit an act. Nonetheless, that party is also sued by the Plaintiff as a Co-Defendant in order that the defendant also subject to the contents of the court's decision in the end.


·           Plaintiff/Defendant Intervention

Party who senses that they have an interest in an existing civil case could submit an application to be withdrawn to the civil case examination process which is commonly referred to as an intervention. Intervention is a legal action by a third party who has an interest in the lawsuit by involving themselves or involved by one of the parties in an ongoing civil case. The Intervention Party could act as an Intervention Plaintiff or as an Intervention Defendant.


Therefore in a civil lawsuit, the person who acts as the Plaintiff must be a person who has the right capacity according to law. This also shall be applied in determining the Defendant, which Defendant must have a legal relation with the Plaintiff in the case of a filed civil lawsuit. False action as a Plaintiff or a Defendant could be resulted in the lawsuit containing formal defect. The formal defect in determining the Plaintiff and the Defendant is referred to as an Error in Persona.


4.    Where is Civil Lawsuit filed?

There is an important thing that must be considered if you want to file a lawsuit to the court, namely by taking into account that the lawsuit which will be filed by the Plaintiff is properly addressed to the authorized judicial institution to adjudicate the dispute. Thus, a new court could decide a case if it is in accordance with its competence or authority. Therefore, it is important for the parties to look at the extent of the competence or authority of a court before deciding to submit the dispute to the court. Because, if the parties continue to file their dispute to the court, while the court does not have the competence or authority to adjudicate it, therefore the dispute is declared "unacceptable". Specifically for civil cases, court competences could be divided into 2 (two) types, namely relative competence and absolute competence which will be explained as follows:


·           Relative Authority/Competence

The relative authority/competence regulates the distribution of powers to adjudicate between the same judicial institutions, depending on the domicile or residence of the parties (distributie van rechtsmacht), mainly the Defendants. The regulation regarding this relative authority is regulated in Article 118 of the HIR. This relative authority uses the principle of actor sequitor forum rei which means that the authorized party is the District Court where the Defendant lives. Upon the relative authority/competence, if the Defendant does not submit an answer containing an exception regarding the relative authority/competence of the dispute which is being adjudicated, the dispute may continue to be examined until the panel of judges issue a final decision.


·           Absolute Authority/Competence

Absolute competence is defined as the court's authority to adjudicate a dispute based on the "object or the main materials of the dispute". To look further regarding the absolute competence, it could be seen in the explanation of Article 10 paragraph (1) of Law no. 14 of 1970 (currently, it has been changed to Law No. 48 of 2009 concerning Judicial Power) as follows:

1.      Based on the environment of authority;

2.      Each environment has a certain jurisdiction (diversity jurisdiction);

3.      The particular authority concerned becomes absolute jurisdiction in each judicial environment in accordance with the subject/material; and

4.      Therefore, each court environment is only authorized to adjudicate dispute which is provided by law to it.


 There are at least 4 (four) types of courts from the aspect of absolute competence, namely:

1.      General Court, namely the court authorized to examine, adjudicate and decide on criminal cases (general and particular) and civil cases (general and particular);

2.      State Administrative Court, namely the court that has the authority to examine, adjudicate and decide disputes which object is a decision (beschikking) that is contrary to the laws and general principles of good governance (AAUB);

3.      Religious Court, namely the court that has the authority to examine, adjudicate and decide disputes related to: marriage, inheritance, grants, waqf, alms, shadaqah, and sharia economics;

4.    Military Court, namely the court that has the authority to examine, adjudicate, and decide on criminal cases committed by Indonesian National Armed Forces.


 

[1]Yahya Harahap. 2005 , Civil Procedure Code Regarding Lawsuits, Trials, Confiscations, Evidence, and Court Decisions. Graphic Ray. Jakarta.

[2] Sarwono, 2011, p.31, Civil Procedure Law, Sinar Grafika

[3] https://m. Hukumonline.com/klinik/detail/ulasan/lt50c75564d7f81/ktriteria-kapasitas-pengjuang


This Article is generally made for the purpose of ANR Law Firm publication only and should not be treated as legal advice for your legal problem. Shall you have any further questions regarding this topic, you may contact the Advocate who authored this article at anrlawfirm@anr-lawfirm.com.

 

Author: Brian Tarigan, S.H.