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 the location, size and boundaries and quality of the object of the case (which is requested to be placed under guarantee confiscation) with certainty and definitively, 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.
So, if the panel of judges decides to grant the lawsuit in full, with party B legally declared to have violated the contract and agreement on asset confiscation is approved, then the assets cannot be transferred by anyone until party B fulfills its obligations to party A. This can happen if party B voluntarily pays all of party A's rights based on the decision, including sending an official order to the court handling the case. After the obligations are fulfilled, the asset confiscation 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 ask the court to execute the assets, led by the Head of the District Court and carried out by the registrar.
Guarantee Confiscation Execution Procedure
The execution procedure is as follows:
- The applicant submits an execution request and the mechanism as regulated in the bindalmin pattern and related regulations.
- The head of the district court issues a determination for aanmaning containing an order to the bailiff to summon the execution respondent to attend the aanmaning hearing.
- Bailiff/substitute bailiff summons the execution respondent.
- The head of the district court carries out aanmaning with an incidental hearing attended by the head, registrar and execution respondent. In the aanmaning hearing:
- The execution applicant should be summoned to attend.
- The head of the district court issues a warning that within 8 (eight) days from the day after the warning the execution respondent must carry out the contents of the decision.
- The registrar makes the minutes of the aanmaning hearing and is signed by the head and registrar.
- If within 8 (eight) days after the warning, the execution applicant reports that the execution respondent has not implemented the contents of the decision, the head of the district court issues a determination of the execution order.
Or by conducting an auction (KPKNL) it can be done as early as eight days from the date of the execution confiscation or as early as 8 (eight) days from the warning if the goods to be auctioned have been placed under collateral confiscation (conservatoir belag) previously. It's a different story if the losing party is unwilling to implement the decision and still insists on taking legal action. Then, according to the provisions, the losing party can take legal action to resist the decision/Determination of collateral confiscation, but the assets that have been placed under collateral confiscation by the court are still legally under the supervision of the court so that they cannot be transferred by anyone.
As we know in practice when there are parties A and B, we often see decisions issued by the court in cases of unlawful acts/breach of contract where there are rights that have not been resolved only "Winning on Paper" but does not have the legal force to carry out execution/guarantee of payment, For this reason, the importance of an Advocate/Lawyer's acumen to see the situation seems.
This is our explanation. Hopefully it can help and continue to share knowledge.
Legal basis :
- XIII Book II of the Civil Code (Burgerlijk Wetboek);
- Article 1243 of the Civil Code;
- 1365 of the Civil Code;
- Book II Guidelines for the implementation of court administration in 4 court environments 2007 Edition MA RI 2009
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