Legal Literacy - How is the legal certainty of conservatory attachment (conservatoir beslag) in default cases in Indonesia? Find a complete guide on your rights and how to protect your assets.

Question:

How is the legal certainty of Guarantee Seizure (conservatoir beslag) against the Defendant's assets in cases of unlawful acts or default in the application of law in Indonesia?

Explanation :

Before knowing how important it is to place a guarantee seizure (conservatoir beslag) against the Defendant's assets in civil cases, we must first know what Default means, namely: Default provisions 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 period of time that exceeds the specified time. Through the contents of the article, there are at least 3 elements of default, including:

  1. There is an agreement;
  2. There is a party who breaks the promise or violates the agreement; and
  3. It has been declared negligent, but still does not carry out the contents of the agreement.

Thus, the thing that causes default is because there is a breach of promise in the agreement which causes one of the parties to break their promise or violate the promise. Then, 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 compensate for the loss.

To make it easier to understand, let's take the illustration of examples A and B, A makes a money lending 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 handover of money and B, then as time goes by until 6 months in the future, A has not returned it, where B has made collections 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 carried out, in the end B takes legal action by registering/suing the district court to fight for his rights.

So in lawsuit A, B has defaulted as explained above for the party who has broken the promise is an act of default, so in lawsuit A against B, it must describe how the legal relationship between A and B began, where the Posita and Petitum in the lawsuit have a strong connection, in lawsuit A, it can be requested to place a guarantee confiscation on B's assets in order to obtain legal certainty over A's rights, so a guarantee confiscation must be placed on B's assets, What is the definition of a guarantee confiscation:

  • Guarantee confiscation 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 goods belonging to the debtor, both existing and future, become collateral for the debtor's personal obligations’
  • Guarantee confiscation can be filed in a debt dispute or claim for compensation

To grant a guarantee confiscation request, the Judge must pay attention to:

  1. The confiscation is only carried out on goods belonging to the defendant (or in the case of revindicatoir confiscation against certain movable goods belonging to the plaintiff that are in the hands of the defendant referred to in the lawsuit), after first hearing the statement of the defendant (see Article 227 paragraph (2) HIR/Article 261 paragraph (2) RBg.).
  2. If what is confiscated is a plot of land, with or without a house, then the minutes of confiscation 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.
  3. 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. The confiscated action that is contrary to the prohibition is null and void.
  4. The confiscated goods, even though they are clearly the property of the plaintiff that was confiscated with revindicatoir confiscation, must still be held / controlled by the confiscated party. The confiscated goods cannot be entrusted to the Lurah or to the Plaintiff or take the goods to be stored in the District Court building.
  5. If a guarantee confiscation has been carried out and then a peace agreement is reached between the two parties in the case, then the guarantee confiscation 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 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:

  1. The applicant submits an execution request and the mechanism as regulated in the bindalmin pattern and related regulations.
  2. 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.
  3. Bailiff/substitute bailiff summons the execution respondent.
  4. 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:
  5. The execution applicant should be summoned to attend.
  6. 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.
  7. The registrar makes the minutes of the aanmaning hearing and is signed by the head and registrar.
  8. 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 :

  1. XIII Book II of the Civil Code (Burgerlijk Wetboek);
  2. Article 1243 of the Civil Code;
  3. 1365 of the Civil Code;
  4. Book II Guidelines for the implementation of court administration in 4 court environments 2007 Edition MA RI 2009