Types of Exception - Indonesia
Exception, in Civil Procedural Law context, is defined as objection. Exception can also be defined as defense (plea) proposed by the defendant against the plaintiff’s lawsuits material. However, the objection which is proposed in the form of exception is aimed on the formality requirement of a lawsuit, for example, if the lawsuit has a defect or formal violation which can cause the lawsuits tobe unlawful.
The consequence if the lawsuit is unlawful is that the lawsuits cannot be accepted (inadmissible). Thus,the objection which is proposed in the form of exception is not aimed and not to offend the objection of the main dispute (verweer ten principale).
Exception can be grouped as:
1. Exception of competence
a. Not authorized to prosecute in absolute term
Absolute competence is related to the absolute competence of four categories of courts (General Court, State Administrative Court, Religion Court, Military Court), and Special Court (Arbitration, Commercial Court, others)
b. Not authorized to prosecute in relative term
Relative competence is related to the jurisd iction of the court in the same category, as it is regulated in Herziene Inlandsch Reglement (“HIR”) in Article 118.
Under Article 134 HIR and Article 132 Reglement op de Rechsvordering(“Rv”), exception of absolute competence can be proposed by the defendant at any time during the process of examination is held at the first degree of trial until before the decision is made. Whereas, under Article 125 paragraph (2) and Article 133 HIR, exception of relative competence has to be proposed together with the answer of the claims against the main dispute.If that condition is not fulfilled, it can cause the defendant’s right to propose the exception of relative competence becomes aborted. Under Article 136 of HIR, a judge has to examine and decide the exception of competence first before examining the main dispute. The refusal of the exception of competence is poured in the form of an interim decision (Interlocutory), whereas the fulfillment of the exception of competence is poured in a final decision (Eind Vonnis).
2. Exception of formal requirement
a. Special power of attorney is not valid
Power of attorney can be stated invalid for certain reasons, for example a general power of attorney (Supreme Court Decision Number 531 K/SIP/1973), the power of attorney does not fulfill the formal conditions as regulated in Article 123 of HIR, or the power of attorney was made by an incompetent person (Supreme Court Decisions Number 10.K/N/1999).
b. Error in Persona
A lawsuit/ request can be considered as error in persona if it is submitted by underage children (Article 1330 Civil Code (“Civil Code”)), by those who is under guardianship/curatele (Article 446 and Article 452 Civil Code), by someone that has no legal standing to submit the lawsuits (persona standi in judicio).
c. Nebis in Idem
Nebis in Idem is a case that has the same parties, the same object, and the same material matter so that the case cannot be reexamined again.
d. The lawsuits is premature
A lawsuit is called premature if there is a legal factor that can suspend the lawsuits, for example an inheritance lawsuit is called premature if the ancestor is not dead.
e. Obscuur Libel
Obscuur Libel is simply referred as “obscurity”. The obscurity condition is in the:
1. Legal basis of the lawsuits;
2. The obscurity in the object of the lawsuits, for example in the land case, there is no information on the size of the land, the location of the land, or the border of the land.
3. Obscurity on the petitum, or
4. There is a contradiction between the posita and petitum.
Under Article 125 paragraph (2) Article 133 and Article 136of HIR, other exception and exception of relative competence can only be proposed in a certain time, at the time of answer of a claim of the main dispute. If that condition is not fulfilled, it can cause the defendant’s right to propose the exception to become aborted. Under Article 136 of HIR the settlement of exception except for the exception of competence should be examined and be decided together with the main dispute. Accordingly, considerations and decisions regarding the exception and main dispute, are poured together entirely in the final decision.If the exception is granted then the decision is a negative decision, whereas if the exception is rejected then the decision is a positive decision based on main dispute.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.