Legal Literacy - What is the legal certainty of conservatory attachment (conservatoir beslag) in default cases in Indonesia? Discover a complete guide to your rights and how to protect your assets.
Question:
What is the legal certainty regarding Conservatory Attachment (conservatoir beslag) against the Defendant's assets in cases of unlawful acts or Default in the application of law in Indonesia?
Explanation:
Before knowing the importance of placing a guarantee seizure (conservatoir beslag) on the Defendant's assets in a civil case, we must first understand what Default is: The provisions of default can be found in Article 1243 Civil Code reads as follows: Reimbursement of costs, losses and interest due to non-fulfillment of an agreement begins to be required, if the debtor, even though he has been declared negligent, remains negligent in fulfilling the agreement, or if something that must be given or done can only be given or done within a time that exceeds the time specified.. Through the contents of the article, there are at least 3 elements of default, including:
- There is an agreement;
- There is a party who breaks the promise or violates the agreement; and
- Has been declared negligent, but still does not carry out the contents of the agreement.
Thus, the thing that causes default is the existence of a breach of promise in the agreement that causes one of the parties to break their promise or violate the promise. Thus, the party who breaches the promise must be responsible to the injured party. Meanwhile, Unlawful Acts The provisions regarding unlawful acts are contained in Article 1365 of the Civil Code, which reads: Every act that violates the law and causes harm to another person, obliges the person who causes the harm due to his fault to replace the loss.
To make it easier to understand, let's take an illustration of an example of A and B, A makes a loan agreement with B for Rp. 1,000,000,000,- (one billion rupiah) where B will return it for 6 months from the date the agreement is signed and the money is handed over and B, then as time goes by until 6 months ahead, A has not returned it, where B has made a collection by meeting directly, etc., but has not received clarity, until one day B asks for 3 months back by trying to convince A by providing a photocopy of B's SHM, until 3 months pass the payment has not been made, in the end B makes legal efforts by registering/suing to the district court to fight for his rights.
Then in the lawsuit A is where B has committed a default as explained above for the party who has broken the promise is an act of default, then in the lawsuit A against B of course outlines how the beginning of the legal relationship between A and B where Posita and Petitum in the lawsuit have a strong relationship, in the lawsuit A can request to place a guarantee seizure on B's assets in order to obtain legal certainty over A's rights, then B's assets must be placed under guarantee seizure, What is the definition of a guarantee seizure is:
- Conservatory seizure is a coercive effort that is a formal manifestation of the application of Article 1131 of the Civil Code. Article 1131 of the Civil Code reads: All movable and immovable property belonging to the debtor, both existing and future, shall be a guarantee for the debtor's personal obligations.
- Conservatory seizure can be filed in debt disputes or claims for compensation.
To grant a conservatory seizure request, the Judge must pay attention to:
- The confiscation is only carried out on goods belonging to the defendant (or in the case of a revindicatory seizure against certain movable goods belonging to the plaintiff that are in the hands of the defendant referred to in the claim letter), after first hearing the statement from the defendant (see Article 227 paragraph (2) HIR/Article 261 paragraph (2) RBg.).
- If what is confiscated is a plot of land, with or without a house, the confiscation report must be registered in accordance with the provisions in Article 227 (3) jo Article 198 and Article 199 HIR or Article 261 jo Article 213 and Article 214.
- In the event that the confiscated land is already registered/certified, the confiscation must be registered at the National Land Agency. And in the event that the confiscated land is not yet registered/not yet certified, the confiscation must be registered at the Village Office. The confiscated party's actions that are contrary to the prohibition are null and void.
- The confiscated goods, even though it is clear that they belong to the plaintiff and are confiscated by revindicatory seizure, must still be held/controlled by the confiscated party. The confiscated goods cannot be entrusted to the Village Head or to the Plaintiff or brought to be stored in the District Court building.
- If a conservatory seizure has been carried out and a settlement is then reached between the two disputing parties, the conservatory seizure must be lifted.
In civil procedural law, there are 2 (two) legal actions or legal problems that are closely related to evidence. To strengthen or clarify the facts or object of the case, to ensure definitively the location, size and boundaries and quality of the object in dispute (for which a conservatory seizure is requested), the court will definitely apply Article 153 HIR, Article 180 RBG, Article 211 Rv, by obliging to carry out an on-site inspection (plaatsopneming) even though formally the on-site inspection is not included as part of the Evidence, and the results of the inspection will be used by the panel of judges who examine it as information for the Judge who will decide.
Therefore, if the panel of judges decides to grant the claim in full, with Party B legally declared to have breached the contract and the agreement to seize assets approved, then the assets cannot be transferred by anyone until Party B fulfills its obligations to Party A. This can occur if Party B voluntarily pays all of Party A's rights in full based on the decision, including sending an official order to the court handling the case. Once the obligations are fulfilled, the asset seizure can be revoked, allowing Party B to sell or transfer ownership. However, if Party B refuses to comply with the decision, the winning party can request the court to execute the assets, led by the Chief Justice of the District Court and carried out by the registrar.
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