Legal Literacy - Understand the steps and legal basis for third-party resistance efforts (derden verzet) against disputed land. Learn how to protect your land rights with complete information here.

Understanding, Types, and Submission Requirements Derden Verzet

Derden Verzet is a resistance effort from a third party against the execution of a judge's decision. Derden verzet is not a legal remedy by a third party against a decision verstek, and if this is done by a third party who is not a party to the verstek decision, then this resistance should be rejected by the judge and is not a derden verzet.

According to Yahya Harahap, a third party can file a resistance in the form ofderden verzetor third-party resistance toConservatoir Beslag (precautionary seizure). As for derden verzet on precautionary seizures, the owner can submit it as long as the case being opposed does not yet have a legally binding decision. If the case being opposed has obtained a legally binding decision, the legal remedy that a third party can take against the confiscation is to file an ordinary civil lawsuit.

In addition, there are basically two types of third-party resistance, namely third-party resistance to precautionary seizures and third-party resistance to execution seizures. A third party can also resist an execution seizure filed after the decision has obtained permanent legal force and before the execution is carried out, if the execution of the object of the case has been carried out, then it is no longer possible to file a resistance but must be done by filing a lawsuit. In this case, the third party has the right to resist if it is considered that the implementation of the contents of the judge's decision ordering the execution seizure of the object belonging to the third party has harmed or violated their rights and interests.

Furthermore, the provisions regarding the regulation of third-party resistance are regulated in civil law regulations, namely Pasal 195 ayat (6) HIR (Herzien Inlandsch Reglement), Pasal 378 s/d Pasal 382 Rv ("Reglement op de Rechtsvordering"")" some of them state the following:

Pasal 195 ayat (6) HIR":"

"Objections to decisions, also from other people who state that the confiscated goods are theirs, are confronted and tried like all disputes about coercive measures ordered by the district court, in whose jurisdiction the decision is spread"

Article 378 Rv

"Third parties have the right to object to a decision that harms their rights, if they personally or their legal representatives, or the party they represent, were not summoned to the court hearing, or because the joinder of cases or intervention in the case ever became a party."

Article 379 Rv

"This resistance is examined by the judge who handed down the decision. The objection is submitted with a summons to appear in court against all parties who have received the Decision and general regulations regarding how to proceed apply in this objection."

In essence, based on the civil law regulations above, a third party who wishes to file a third party objection must fulfill two (2) main elements, namely that the third party has an interest and that the third party's rights are clearly harmed. As for based on Article 208 HIR ("Herzien Inlandsch Reglement"")" the submission of third party objections can only be done because of the reason "ownership" (Ownership Rights, Building Use Rights, Cultivation Use Rights, Use Rights and Pawn). In addition, Mortgage Holders do not need to file a third party objection because the Mortgage object cannot be subject to Execution Seizure except for Joint Seizure, therefore it is impossible to carry out an execution auction.

According to R. Subekti in his book Civil Procedure Law 2nd Printing Pages 241-243 explains the procedures or procedures for submitting third party objections, including the following:

  1. Filed in writing or orally.
  2. Addressed to the relevant District Court.
  3. The resistance must be filed within 8 days after notification of the confiscation.
  4. The resistance will be examined by the relevant Court. However, it does not prevent the auction of confiscated goods, unless the Chairman of the relevant District Court orders the auction to be postponed until a decision is made.
  5. If the resistance is accepted and justified by the court so that it is not carried out, all costs of losses and interest arising will be borne by the party requesting the confiscation.
  6. If the resistance is rejected or there is no resistance, in order for the resistance to be valid, the person requesting the confiscation must file a claim within 1 month from the date the resistance decision is read out.

In Technical Guidelines for General Civil and Special Civil Judicial Administration and Technology of the Supreme Court of the Republic of Indonesia explains that a third party, when filing a resistance, must be able to prove that they do have a right of claim based on the reason "ownership" on the confiscated goods and if they succeed in proving it, the third party will be declared a true resister and the confiscation will be ordered to be lifted. However, if the third party cannot prove that they are the owner of the confiscated goods, the third party will be declared a false resister or a dishonest resister, and the confiscation will be maintained.

Analysis of Third Party Resistance in Civil Cases

In the Third Party Resistance Lawsuit case (Derden Verzet) based on Decision Number 1170 K/Pdt/2019, the Panel of Judges granted the third party's resistance (derden verzet) as the plaintiff in the case a quo which was carried out against the Civil Case Decision Number 98/Pdt/2016/PT.Yyk. Jo. Number 62/Pdt.G/2015/PN.Btl. The Third Parties are legal heirs according to law as owners of the land which is the object of the dispute which is in the process of execution application in case Number 98/Pdt/2016/PT.Yyk. Jo. Number 62/Pdt.G/2015/PN.Btl, where the third parties did not know that their land was the object of the dispute and were not involved as parties in the case. So this causes losses for them and becomes the basis or legal standing to file a third party resistance lawsuit.

In the process, the third party in the case a quo as the plaintiff can prove based on the evidence presented in court regarding the ownership of the disputed inheritance land, so that the ownership of the inheritance land claimed by the opposing party which is the object of the dispute in the Civil Case Decision Number 98/Pdt/2016/PT.Yyk. Jo. Number 62/Pdt.G/2015/PN.Btl based on the Panel of Judges' consideration is legally flawed and has no binding legal force.

The Panel of Judges in its decision decided that the third party's heir certificate in the Third Party Resistance Lawsuit (derden verzet) is legal and binding according to law. Other documents related to the third party's heir status as the plaintiff are also considered legal and binding, so that the third party's legal standing as the injured party is accepted. The Panel of Judges also stipulated that the land which is the object of the case is the plaintiff's inheritance. The land certificate of ownership in the name of the defendant was declared legally flawed, and part of the land which is the object of the dispute in the Civil Case Decision Number 98/Pdt/2016/PT.Yyk. Jo. Number 62/Pdt.G/2015/PN.Btl is the property of the plaintiff which must be protected from execution confiscation.