Civil lawsuits in Indonesia, especially for commercial dispute, (generally) are regulated under Civil Code. In this matter, namely Breach of Contract and Tort Lawsuit that has different ground and mechanism.
Apart from these, actually there are many other types of lawsuits in Indonesia which more specific for certain cases, such as divorce, employment dispute. However, this article will only elaborate two types of lawsuits that the most common in Indonesia, as follows:
1. Breach of Contract Lawsuit
Business contract oftentimes caused dispute between the parties who bind the agreement, then finally the dispute ended to the court. Therefore, the injured party may file the lawsuit on the ground of Breach of Contract to ask compensation.
Furthermore, Breach of Contract (BC) Lawsuits in Indonesia is regulated in Article 1243 of Civil Code, which states as follows:
Compensation for costs, damages and interests for the breach of an obligation only becomes obligatory, if the debtor, after having been declared to be in default, remains in default, or in case of obligations where he must give or produce something, is only given after the lapse of a period of time.
BC lawsuits has basis on agreement which binds the parties and one of parties violates provisions as stated in agreement. Therefore, if a dispute occurs because one of parties cannot fulfill the agreement, then the injured party may submit lawsuit to court.
Furthermore, as stated in Article 1234 Civil Code, an agreement has purpose to give something, to do something, or not to do something. Then, if one of parties does not implement these provisions, then it can be classified as breach of contract.
Moreover, the creditor (injured party) must declared default statement to the debtor with a warrant or similar deed. In practice, (the warrant) may be stipulated in a subpoena or summon letter. Therefore, Article 1238 of Civil Code strictly regulated the warrant to the debtor, as follows:
The default statement to debtor shall be stated, either by an order or other similar deed, or pursuant to obligation itself, where such obligation stipulates that debtor shall be in default, upon failure to deliver within agreed period.
Nevertheless, there are several cases regarding Breach of Contract lead into criminal law. As explained in business contract ended to jail, many commercial cases in Indonesia, become criminal case. Moreover, most of legal basis for criminals are cheat, fraud, embezzlement as regulated under Indonesia Criminal Code.
2. Tort Lawsuit
Different with Breach of Contract, tort lawsuit arise due to an act from anybody that caused damage to other person. Furthermore, this act must be classified violates against the law or common code of conduct.
Tort Lawsuit is regulated under Article 1365 Civil Code, which is stated as follows:
Every unlawful act that causes damage onto another person obliges the wrongdoer to compensate such damage.
Therefore, it is very clear that tort lawsuit must be based on act violates law and causes damages to others. Then, the injured party can ask compensation by filing tort lawsuit to relevant district court.
In line with this, referring to Hoge Raad Decision on January 31, 1919, case between Lindebaum and Cohen, an act can be qualified as violates the law if meets following criteria:
- The act is contrary to the legal obligations of the person
- The act violates the subjective rights of others, or
- Violates the code of ethics, or
- The actions are contrary to the principles of propriety, carefully, and caution that anybody should have, in his interactions with fellow citizens or others property.
Based on that, it can be concluded tort lawsuit has broad scope, included for act violates against propriety, carefully, and prudence. So tort lawsuit not only refer to prevailing law and regulation, but more than that.
Tort cases are not only in commercial case, but there are interesting cases for tort lawsuit, such as marriage promises. The lawsuit for this case, has detail explanation in article: Janji Pernikahan Berujung Gugatan.
author: wilopo husodo