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Civil Law Adjustment under the SEMA Number 10 of 2020

By March 29, 2022 No Comments

SEMA (Supreme Court Circular Letter) is a form of circular letter from the chiefs of the Supreme Court to all levels of the judiciary, which contains a guidance in the court administration. Therefore, the nature is administrative, but also contains announcement about certain matters that are considered important and urgent.1 SEMA is the embodiment of the Supreme Court’s authority to further regulate required matters, to reinforce the court administration, if there are matters that have not been sufficiently stipulated / regulated in the Law.2 This authority is based on the Supreme Court Rights, under the Law No. 14 of 1985 on Supreme Court. Through this law, the Supreme Court is authorized to make regulations as a complement if there is a legal deficiency / vacuum of law.3 Thus it can be concluded that the Supreme Court has regulatory power to make regulations, even though these regulations are only bound to the Judiciary level under the Supreme Court, considering that the Supreme Court is the Highest State Court of all levels of court.4

In 2020, the Supreme Court held a Plenary Chamber Meeting to discuss technical and non-technical judicial issues surfaced in each chamber, one of which was the formulation of the plenary session of the civil law chamber. Based on the results of the meeting, the Supreme Court issued SEMA No. 10 of 2020 concerning the Implementation of the Formulation of the Results of the Plenary Meeting of the Supreme Court Chamber of 2020 as a Guide to the Implementation of Duties for the Court.

The following are the legal formulation of the Civil Law Chamber:

  1. Lack of party claim in Land Dispute
    1. A claim against a certificated land ownership registered under the name of the seller, where the sale and purchase are carried out in front of PPAT, then the plaintiff who does not involve the seller as a party, is not considered as a lack of party claim (gugatan kurang pihak);
    2. If an exception is filed in regards to the claim of lack of parties, due to the plaintiff does not involve the seller as a party to the uncertificated sale and purchase object of the seller and / or the sale and purchase is carried out privately, then the exception is admissible;
    3. In a land ownership claim, the plaintiff who does not involve the party or parties based on the results of local examinations that actually possess the disputed object while the plaintiff recognizes or should have known that the party or parties actually control the object permanently or based on an underlying right, is considered as a lack of party claim;
    4. The criteria for the National Land Agency (BPN) must be involved as a party in the event that there are double certificates of part or all of the land area of the disputed object, including:
      1) If there is a demand asking the court to make a decision regarding certain legal actions on the certificate, then BPN must be involved as a party; or
      2) If in the demands, there are no claims regarding certain legal actions on certificates issued by BPN, then BPN does not need to be involved as a party;
      3) The authority to assess the strength of the certificates and receipt of sale and purchase of land:

      • Civil judge is only authorized to declare that the certificate has no legal binding force on the basis of not having underlying right (Alas hak). Cancellation of certificate is under the authority of the Administrative Court.
      • The deed of sale and purchase serves as a valid evidence of payment over a sale and purchase object as long as it is mentioned as a receipt of payment evidence.
  2. Land control by the Government
    For the control of uncertificated land by the government is not considered as unlawful act, as long it is performed with good faith, continuously, for the public interest, and has been registered as the state-owned asset.
  3. Nominee Arrangement
    The owner of a land is the party whose name is listed on the certificate, even though the land was purchased using money/property/assets belonging to foreign citizen/other parties.

With the issuance of SEMA Number 10 of 2020, it is hoped that it will become a referral for the judges within the Supreme Court to resolve various judicial problems, one of which is related to civil disputes, considering that the issuance of SEMA is to serve as a complement if there is any legal deficiency / vacuum of law.


Yusuf Arimatia Nainggolan

Sources

  1. Chief of Supreme Court Decision No: 57/KMA/SK/IV/2016
  2. Article 79 of Law No. 14 of 1985 regarding Supreme Court
  3. Elucidation on Article 79 of Law No. 14 of 1985 regarding Supreme Court
  4. Article 2 of Law No. 14 of 1985 regarding Supreme Court