Civil Law in Indonesia

ADCO Law

Civil law is an indispensable part of our lives; almost every aspect of our daily activities falls under its purview. From even before a person is born, to their interpersonal relationships with other people or with their assets, until their death, civil law plays a crucial role in upholding balance and justice. This article will discuss the definition of civil law, the subjects and objects of civil law, the principles underpinning civil procedure, and the procedural flow in handling civil dispute.

What is Civil Law? 

Civil law comprises regulations governing interpersonal relationships within society aiming to protect the rights and interests of individuals. Unlike criminal law, which focuses on the relationships between individuals and the state, civil law is private, which concerns the rights, obligations and interests of individuals or other entities, e.g., organizations, in their interactions with one another. 

Based on legal knowledge, there are four main categories of the Indonesian civil law: 

1. Personal Rights Law (Personen recht); 
2. Family Law (Familierecht); 
3. Property Law (Vermogensrecht); and 
4. Inheritance Law (Erfrecht).

Meanwhile, based on the books of the Indonesian Civil Code or Kitab Undang-Undang Hukum Perdata (“KUHPerdata”), the following are the four main categories of the Indonesian Civil Law:

1. Book I of Persons (Orang);
2. Book II of Objects (Benda);
3. Book III of Obligations (Perikatan); and
4. Book IV of Proof and Expiration (Pembuktian dan Daluwarsa).

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Subjects of Civil Law 

In civil law, legal subjects consist of natural persons and legal entities. Natural persons are individuals on which civil law is binding even before their births, to their births, throughout their lives, until their deaths. Apart from individuals, legal entities are also subjects of civil law as they can hold rights similar to those of individuals, such as the rights to own properties, to participate in legal processes, and to sue or be sued against other subjects of civil law. Therefore, the legal subjects of civil law, which encompass both individuals and legal entities, have similar legal characteristics.

Objects of Civil Law

The objects of civil law are things regulated by the law that individuals can utilize in accordance with their rights and obligations over those objects. ¹ In civil law, objects are regulated by Book II KUHPer. It is important to note that the concept of objects in civil law is broader than mere physical objects like goods. In the KUHPerdata, an object is everything and every right that may be owned or possessed. Examples of objects in civil law include land, buildings, vehicles, copyrights, trademarks, patents, and financial instruments such as bonds, etc. All these objects can become the property of legal subjects in accordance with the law governing their rights and obligations.

Book II of the KUHPerdata, which concerns Objects, operates under a closed system, meaning that the rights over objects (hak kebendaan) under civil law can only be regulated by and must fully adhere to laws, without exception or alteration. 

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The Enforcement of Civil Law and the Principles of Civil Procedure Law 

Despite its nature as private law, civil law, like other laws, can be enforced. Book IV of Proof and Expiration in the KUHPerdata addresses the methods and procedures for proving obligations and resolving disputes, and includes provisions related to evidence, witnesses, and litigation processes, all of which are parts of the enforcement system of civil law. Notwithstanding the explanation above, the enforcement procedure of civil law is regulated in a separate branch of law, which is the Civil Procedure Law.

Principles in Civil Law serve as guidelines in the conduct of civil proceedings in the court. These principles play a crucial role in providing legal protection, ensuring transparency, and ensuring justice for all parties involved in a civil case. The following are the principles of Civil Procedure Law formulated based on the opinions of legal experts, which are used as the basis for the creation of the new Civil Procedure Law in Indonesia: ²

1. The Principle of the Indonesian Rule of Law (Asas Negara Hukum Indonesia): This principle is of utmost importance and closely correlates with the Indonesian judiciary. It is also related to other principles such as the principle of democracy, family values, balance, independent judiciary, deliberation, and equality before the law.
2. The Principle of Familyhood (Asas Kekeluargaan): This principle is reflected in the efforts for reconciliation undertaken as an integral part of the civil procedure law system. Reconciliation efforts play a role in maintaining the balance of relationships between the government and the public, with deliberation (musyawarah) as its main guiding principle.
3. The Principle of Harmony, Balance, and Alignment (Asas Serasi, Seimbang dan Selaras): Harmony, balance, and alignment are at the core of Pancasila. The primary goal of this Indonesian Rule of Law is to create a prosperous society while maintaining equilibrium between individual rights and public interests.
4. The Principle of Equality Before the Law: This principle asserts that those, including the government, committing action harming others can be held accountable in court.
5. The Principle of Neutral Judiciary: An independent and impartial judiciary is essential for safeguarding human rights and upholding the law. This is guaranteed by Article 24 of the 1945 Indonesian Constitution, which states that the judicial power is independent and not influenced by external parties, including the government.
6. The Principle of Uniform Legal Procedure (Asas Kesatuan Beracara): Uniform legal procedure is necessary in general courts throughout the Republic of Indonesia to maintain legal certainty and justice.
7. The Principle of Deliberation and Peace: Deliberation must be conducted in a spirit of brotherhood, without favoring any party. The principle of peace must be upheld in the relationships between the government and its citizens, with litigation only as a last resort.
8. The Judge’s Passive Role: Civil procedure law requires interested parties to assert their rights, while judges maintain a passive role. The initiative to assert rights lies with the interested parties.
9. The Judge’s Neutral Stance: In Civil Procedure Law, judges adopt a neutral stance and only examine events presented by the parties. Judges must not make decisions beyond what is requested.
10. The Open Court Principle: Court hearings must be open to the public, except when stipulated otherwise by the law. This principle aims to prevent unjust decisions and ensure transparent judicial processes.
11. Simple, Swift, and Affordable Legal Proceedings: civil procedure law emphasizes the importance of conducting legal proceedings that are simple, swift, and affordable, without compromising the pursuit of truth and justice.
12. Timely Case Resolution: Court decisions must be reached within a reasonable time frame. The Supreme Court has set a maximum case resolution period of 6 months.
13. Impartial Judging of Both Parties: Judges must treat both parties in a case fairly and listen to their statements.
14. Two-Tiered Judicial Review: Judicial review takes place in two instances, by the District Court and the High Court. Both the District Court and the High Court conduct the assessment of evidence, evaluation of witness testimony, and both also make findings of fact based on the presented information. Meanwhile, the Supreme Court serves as the final court of appeal.
15. Supervision of Court Decisions Through Appeal: The Supreme Court plays a critical role in ensuring the proper implementation of the law. It is responsible for supervising court decisions through cassation based on criteria such as excess of jurisdiction, errors of law, or negligence of the examining court.
16. Imposition of Litigation Costs (Asas Berperkara Dikenakan Biaya): Engaging in civil proceedings incurs litigation costs, but there is an option for free proceedings for those who cannot afford them.
17. The Right to Self-Representation: Litigants are not required to be represented by attorneys in the court. However, they are allowed to be assisted or represented by attorneys.
18. Adequate Reasoning: Court decisions must be accompanied by sufficient reasoning to explain the basis for the judge’s decision.
19. Pursuit of Justice Based on Belief in the One Almighty God: Legal proceedings must be conducted in the pursuit of justice based on belief in the one Almighty God, following the principles outlined in Law Number 48 of 2009.

Dispute Settlement Process based on Civil Procedure Law

When a civil dispute is settled through the civil court, the dispute settlement process will be based on the civil procedure law, as explained in the flowchart below.

Dispute Settlement Process

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About ADCO Law:

ADCO Law is a firm that offers clients a wide range of integrated legal services, including in commercial transactions and corporate disputes in a variety of industry sectors. Over the course of more than a decade, we have grown to understand our client’s industry and business as well as the regulatory aspect. In dealing with business dynamics, we provide comprehensive solid legal advice and solutions to minimize legal and business risks.

ADCO Law is a Proud Member of the Alliott Global Alliance (AGA) in Indonesia. Founded in 1979, AGA is one of the largest and fastest-growing global multidisciplinary alliances, with 215 member firms in 95 countries.

As a law firm, we also believe in regeneration. To stay abreast of business changes and stay relevant, our formation of lawyers is comprised of the top graduates from Indonesian and international law schools.

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Disclaimer: This article has been prepared for scientific reading and marketing purposes only from ADCO Law. Accordingly, all the writings contained herein do not constitute the formal legal opinion of ADCO Law. Therefore, ADCO Law should be held harmless of and/or cannot be held responsible for anything performed by entities who use this writing outside the purposes of ADCO Law.