By : Indonesian Young Yuris Research Team

Recognizing Different Types of Confiscation in Civil Procedure Law

In civil cases, the term “confiscation” is often encountered. In simple terms, confiscation, which is known in civil procedural law, is a legal action to secure goods that are collateral or objects of dispute. According to Yahya Harahap (2006: 282), the definition of confiscation or slag is the act of placing the defendant’s assets in the form of disputed goods, or goods that will be used as payment forcibly into custody during the examination process which is carried out officially by order of a judge or court. , until there is a court decision that has permanent legal force.

M. Yahya Harahap elaborated further on the meaning of confiscation, namely as (p. 282):

The act of forcibly placing the defendant’s assets into a state of custody;
Coercive measures of security carried out officially based on court orders or judges;
The goods placed in the custody are in the form of disputed goods and may also be used as means of payment for the settlement of debts by the debtor or the defendant by selling the confiscated goods at auction;
The determination and custody of the confiscated goods will continue during the examination process until the issuance of a court decision with permanent legal force stating whether the confiscation action is legal or not.
In civil procedural law in Indonesia, there are several types of confiscation, including:

Seizure of Guarantee (Conservatoir Beslag)

Security confiscation is a confiscation placed on objects belonging to the defendant, both movable and immovable objects, which are used as collateral for debt repayment or fulfillment of achievements. The requirement for a security confiscation is that there is a reasonable suspicion that the defendant has the intention of embezzling or escaping his goods. Based on Article 227 HIR and Article 261 RBg, the confiscation of collateral can be carried out by order of the Head of the District Court based on the request of the plaintiff. The Head of the District Court can then give an order to place the confiscation of the goods in question to protect the rights of the parties in the event of a reasonable suspicion against the defendant before a decision has permanent legal force.
Sudikno Mertokusumo in the book Indonesian Civil Procedure Code (p. 93) states that the confiscation of collateral is a preparatory action from the plaintiff in the form of an application to the Head of the District Court to guarantee the implementation of a civil decision by cashing or selling the confiscated debtor’s goods to fulfill the plaintiff’s demands.
M. Yahya Harahap in the same book (p. 339) explains that basically, the confiscation of collateral aims to prevent the goods from being embezzled or sequestered during the trial process so that later the decision can be implemented.

Then the objects that can be applied for security confiscation include, among others (p. 341):

  1. Accounts payable that are not secured by certain collateral. Security confiscations can be placed on all of the defendant’s assets including movable and immovable goods;
  2. The object of confiscation of collateral in a compensation case can be placed on all the assets of the defendant. This claim for compensation arises from the default as referred to in Article 1243 – Article 1247 of the Civil Code or acts against the law in the form of material and immaterial compensation as referred to in Article 1365 of the Civil Code;
  3. Disputes on ownership rights over immovable objects which are only limited to the object being disputed/disputed;
  4. Can be placed on items that have been previously pledged

Sita Revindication (Revindicatoir Beslag)

A revindication confiscation is a confiscation that is requested by the owner of a movable object against the object which is in the control of the defendant or another party. Provisions related to confiscation of revindication are stated in Article 226 HIR and Article 714 Rv. An application for confiscation of revindication shall be submitted to the district court in the place where the person who controls the object is domiciled. In order to apply for this, the goods requested to be placed under confiscation must be in the possession of no rights. In addition, the application letter must explain in detail the identity of the goods, such as type, size, quantity, and so on.

M. Yahya Harahap (p. 326) explains that vindicator confiscation (revindicatoir beslag) includes a group of confiscations that have their own specificity, especially in the object of the confiscated goods and the position of the plaintiff on the goods:

  1. Only limited movable goods that are in the hands of another person (the defendant),
  2. That item, is in someone else’s hands without rights, and
  3. A request for confiscation is submitted by the owner of the goods themselves to be returned to him.

Because the person requesting and filing for confiscation is the owner of the goods themselves, it is commonly called confiscation at the request of the owner. So, revindication confiscation is an attempt by the legitimate owner of the goods to claim back his property from the holder who controls the goods without rights (p. 326).

Sita Marital (Maritaal Beslag)

Marital confiscation is confiscation requested by the wife against marital property, both in the form of movable and immovable objects, in order to ensure that the goods are not transferred or ostracized by the husband during the divorce process. Basically, marital confiscation aims to ensure that after the divorce process is complete, the wife will still receive the property that is her share. With the confiscation of marital property, neither the husband nor the wife is allowed to transfer it to another party in any form of transaction. There are several provisions governing marital confiscation in general, including Article 823 Rv and Article 190 of the Civil Code. However, the provisions for marital confiscation for Muslim husband and wife divorce refer to Article 78 letter c of Law no. 7 of 1989 concerning the Religious Courts jo. Article 95 and Article 136 paragraph (2) of the Compilation of Islamic Law.
According to M. Yahya Harahap (p. 369), the main purpose of marital confiscation is to freeze the joint property of husband and wife through confiscation, so that it does not transfer to third parties during the case process or the distribution of joint property.
It should be noted that Article 95 paragraph (1) KHI allows for marital confiscation by a husband/wife in a marriage without filing a divorce suit if one of them commits an act that harms and endangers joint assets such as gambling, drunkenness, wastefulness, and so on. Article 136 paragraph (2) of the KHI states that the implementation of marital confiscation can only be carried out by a husband/wife who is still bound in the marriage bond by submitting an application for marital confiscation to the Religious Court.

Confiscate Execution (Executoir Beslag)

Execution confiscation is confiscation carried out on goods that cannot be executed directly and are listed in a decision that has permanent legal force. Usually, execution confiscations only involve guarantees for repayment of debts or fulfillment of achievements. If previously a confiscation of an object has been placed, then the stage of confiscation of execution is automatically excluded and abolished according to law, because the confiscation of collateral automatically turns into the confiscation of execution when the case in question has been decided. The provisions regarding this confiscation of execution are regulated in Article 208 RBg. The applicant may submit a request for confiscation of execution to the Court after the final decision is not executed by the defendant voluntarily.

Sourced from M. Yahya Harahap’s book Scope of Civil Execution Issues, confiscation of execution or executoriale beslag is the next stage of warning in the execution process of paying a sum of money (p. 67). Execution confiscation means as a substitute and guarantee for the amount of money obtained after the confiscated goods are sold at auction. So it can be understood that the confiscation of execution is carried out at the process stage (pp. 68 – 69):

  1. The case in question already has a decision that has permanent legal force; and
  2. Confiscation is carried out at the stage of the execution process.

It should be underlined that with the confiscation of collateral that has been carried out beforehand, the stage of confiscation of execution according to law is automatically excluded and abolished (pp. 69 – 70). This is because when confiscation of collateral is placed, there is no need for an execution confiscation stage because the principle automatically switches to an execution confiscation when the case in question has a final and binding decision.