Drafting a Civil Lawsuit

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Filing a civil lawsuit (gugatan perdata) is a fundamental step in seeking legal remedies for disputes arising from contractual breaches, torts, land ownership, family matters, and other civil issues. In Indonesia, drafting a civil lawsuit demands not only a solid grasp of the dispute’s substance but also strict compliance with formal requirements under the Indonesian Civil Procedure Law (Hukum Acara Perdata).

This ARMA Litigation Series provides a practical guide on the key elements, structure, and strategic considerations involved in preparing for a civil lawsuit proceeding in Indonesia adhering to the provisions set forth in the Indonesian Civil Code (“ICC”) and Herzien Inlandsch Reglement (“HIR”) to ensure that the lawsuit meets both formal and material elements and therefore is legally enforceable.

1. Material Requirement of the Civil Lawsuit

   The material requirements of a civil lawsuit refer to the substantive elements or content that must be included in the statement of claim. In other words, material requirements constitute the essential substance of the claim document. According to Article 8 paragraph (3) of the Indonesian Civil Procedural Law (Reglement op de Burgerlijke Rechtsvordering - Rv), the material requirement of the civil lawsuit shall contain:
   1. Identification of the Parties – The plaintiff must provide a complete and detailed information about the parties involved in the dispute, including full name, place and date of birth, occupation, religion, and domicile. This may also include, as relevant, age, marital status, and nationality. If the party is a company, it is sufficient to state the company’s name and registered address. If multiple defendants are involved, each must be clearly identified, for example: defendant I, defendant II, defendant III, etc.
   2. The Legal Grounds of the Claim (Fundamentum Petendi or Posita) - The legal grounds of the claim, or posita, refer to set of factual and legal arguments that form the basis of the plaintiff’s lawsuit. This section is critical, as it explains why the plaintiff believes they have a legal right or entitlement that has been violated or unfulfilled by the defendant. ¹

      The posita present the existence of a legal relationship between the parties and the specific facts that gave rise to the dispute. ² These allegations should be framed in a clear and concrete manner, supported by relevant documents, witness statements, or other preliminary evidence.

      Structurally, the posita consists of two essential parts:

      1. Factual Grounds (Feitelijke Gronden): This part sets out the chronological and substantive facts of the case. It describes the events, actions, or omissions that led to the dispute and defining the context in which the legal relationship between the parties was formed and its subsequent alleged breach.
      2. Legal Grounds (Rechtsgronden): This section outlines the legal principles, statutes, and jurisprudence that justify the plaintiff’s claim, explaining the legal relevance of the facts and the basis upon which the court is requested to grant relief. This may include references to laws, contracts, customary practices, or general legal doctrines that support the plaintiff’s position.
   3. Petitum or Claims – The petitum refers to the specific claim or remedies the plaintiff formally requests the court to grant in its judgement. The petitum is directly addressed the court ruling (amar putusan).

      In practice, in addition to the primary claim (tuntutan pokok or tuntutan primer), a plaintiff may also include accessory (accessoir) and substitute (subsidair) claims, each serving distinct legal functions:

      1. Primary Claim: The main claim sought by the plaintiff, which directly relates to the core issue of the dispute as set out in the posita. For example, in a case where the defendant owes a debt to the plaintiff, the principal claim would be for the court to order the defendant to repay the outstanding debt.
      2. Accessory Claims: Claims that complement or support the primary claim. Their validity and enforceability are dependent on the acceptance of the primary claim. If the primary claim is dismissed, the additional claims fall away accordingly. Common examples include:
         1. A request that the defendant be ordered to pay court fees;
         2. A request that the decision be declared provisionally enforceable, notwithstanding any opposition, appeal, or cassation (uitvoerbaar bij voorraad);
         3. A request for the defendant to pay interest (moratoir) on a monetary claim;
         4. A request for the imposition of a coercive monetary penalty (dwangsom or astreinte) for non-compliance with a non-monetary judgment;
         5. A request for spousal support or division of marital property in divorce proceedings.
      3. Substitute Claims: These are alternative claims submitted in case the principal claim is rejected by the court. The subsidair claim acts as a fallback position to increase the likelihood of the plaintiff receiving some form of relief. Typically, this includes a request for the court to issue a fair and equitable judgment based on principles of justice (ex aequo et bono).

2. Formal Requirement of the Civil Lawsuit

   The formal requirements of a lawsuit refer to the procedural conditions that must be fulfilled in accordance with the rules of court procedure as stipulated by applicable laws and regulations. Failure to meet these formal requirements may result in the lawsuit being declared inadmissible (niet ontvankelijk verklaard) or the court being deemed to lack jurisdiction to examine and adjudicate the case. The formal requirements include:

   1. Court Jurisdiction – Under the Indonesian civil procedural law, the submission of a civil lawsuit must not violate the court’s jurisdiction, whether with respect to absolute competence or relative competence.
      1. Absolute competence refers to a court's authority based on the type of case. For example, a dispute concerning breach of contract must be filed with the District Court and not with the Religious Court.
      2. Relative competence refers to a court's authority based on the territorial jurisdiction, meaning the lawsuit is generally filed at the court where the defendant is domiciled. ³
      In cases involving multiple defendants, the plaintiff may choose the court jurisdiction of any one of the defendants. However, in addition to domicile, relative competence may also be determined by an agreement between the parties. Such agreements may contain a jurisdiction clause specifying which District Court shall serve as the legal forum in the event of a dispute. In such cases, the lawsuit may be filed at the court designated in the agreement. ⁴
   2. Parties involved in a lawsuit – In filing a civil lawsuit, the plaintiff must exercise due care in determining the proper defendant(s), as parties cannot be arbitrarily included in the claim. An error in identifying the proper parties may result in a submission of objection (Eksepsi error in persona) being raised. Furthermore, if a party lacks legal standing or capacity to file the claim, such as not having a legitimate interest or being legally incompetent, it may lead to a disqualification in person (persona standi in judicio). In addition, Indonesian law requires all direct or indirect related parties to be addressed in the lawsuit. Failure to do so may leads to the annulment of the lawsuit by the panel of judges by the submissions of objection due to the lack of parties (plurium litis consortium) by the defendant.
   3. Clarity of the Lawsuit - The lawsuit must be clearly and explicitly stated. If the claims are vague or ambiguous (obscuur libel), the court may declare the lawsuit inadmissible. For instance, if the posita contradicts the petitum, this may render the claim unclear.
   4. Compliance to the Principle of Ne Bis In Idem - A lawsuit may not be filed more than once if it involves the same parties, the same object, and the same cause of action, where the previous case has already been decided with a legally binding (inkracht) judgment, either by granting or rejecting the claim.
   5. Proper Timing of the Lawsuit – A lawsuit should be filed only after the defendant is declared in default to avoid dismissal for being premature (premature exception or also known as premature motion to dismiss). In that regard, the plaintiff must first issue the warning letter (as required by the ICC) ⁵ to demonstrate that the plaintiff has acted in good faith in attempting to resolve the dispute out of court, the plaintiff should first issue a warning letter 2-3 times. ⁶
   Note: while there is no specific requirement for the number of warning letters, in practice, 2-3 warning letters are typically issued to strengthen the principle of good faith.

3. Civil Lawsuit proceeding through District Court Procedures

   Initiating a civil lawsuit in Indonesia involves a series of procedural steps that must be carefully followed to comply with the rules of civil procedure. Generally, the process involves several key stages from start to finish. The main steps in initiating a civil lawsuit are as follows:
   1. Issuance of warning letter (somasi) to the prospective defendant – Before filing a lawsuit, the plaintiff must issue a warning letter, which serves as a formal statement of default (pernyataan lalai) under Indonesian law, ⁷ reaffirming the dispute. The purpose of serving a warning letter is to demonstrate good faith and to provide the prospective defendant with an opportunity to perform a certain act or to cease a particular action, as demanded by the plaintiff. In principle, Indonesian law does not specifically regulate the preparation or formulation of a warning letter. Nevertheless, a warning letter should at the very least contain the following three key elements: ⁸
      1. The object or matter being demanded;
      2. The legal grounds for the demand; and
      3. A clear deadline for the defendant to comply.
   2. Lawsuit Submission to the District Court – Generally, after 2-3 warning letters, the plaintiff may file a lawsuit to the District Court where the defendant reside in accordance with the principle of Actor Sequitur Forum Rei ⁹ or alternatively, file the lawsuit with the District Court as outlined in point B sub-point (i). Subsequently, the plaintiff shall submit the statement of claim along with a power of attorney (if represented by legal counsel) to the relevant District Court and proceed with the payment of an advance on court fees (panjar biaya perkara).
   3. Court Summons - Once the case is registered, the District Court will summon the parties through a court bailiff (jurusita) to appear before the court, after the composition of the Panel of Judges and the hearing schedule have been determined. The summons will be delivered in the form of a written court summons (relaas panggilan sidang).
   4. Mediation Proceeding - After the initial hearing, the court will order the parties to undergo mandatory mediation. ¹⁰ The mediation proceeding must be conducted within 30 (thirty) days from the date of the issuance of the mediation order and may be extended for a maximum of an additional 30 (thirty) days from the expiry of the initial period. ¹¹
   5. Exchange of Arguments – Following mediation, the parties will engage in the exchange of arguments, which include a response to lawsuit (jawaban), reply (replik), and rejoinder (duplik). If a counterclaim (gugatan rekonvensi) is filled, it will be followed by the response to the counterclaim (jawaban rekonvensi), counter-reply (replik rekonvensi), and counter-rejoinder (duplik rekonvensi), if any.
   6. Evidence Submission - Once the exchange of arguments is completed, the parties are required to submit supporting evidence (both in original and copy) which they consider relevant and helpful in proving the claims or defenses presented. The copy of such evidence is then submitted to the Panel of Judges for assessment.
   7. Witness and Expert Examination - During this stage, the court proceeds with examining witnesses and experts. The Panel of Judges typically requires a minimum of two (2) witnesses from each party. These may include witnesses which are those who directly saw, heard, or experienced the events in question, or expert, who, based on their qualifications and experience, can assist in uncovering facts and establishing the truth of the matter. ¹²
   8. Conclusion - In this phase, both parties summarize and reiterate the key points from the previous stages, including the exchange of arguments, the evidence submitted, and the witness testimonies. This serves as the final submission before the court renders its decision.
   9. Court Decision - At this final stage, the court delivers its judgment, taking into consideration the entirety of the proceedings, including the exchange of arguments, the evidence presented, witness examinations, and the judges’ legal considerations. The final ruling may result in the plaintiff's claim being granted in full, granted in part, dismissed entirely or Inadmissible (niet ontvankelijk verklaard).

      References

      1. Article 1865 of the Indonesian Civil Code ↩
      2. Article 163 of the Herzien Inlandsch Reglement ↩
      3. Article 118(1) of the HIR ↩
      4. Article 118(4) HIR jo. Article 142(4) RBg ↩
      5. Article 1238 of the Indonesian Civil Code ↩
      6. Supreme Court Decision No. 852 K/Sip/1973 (default declaration requirements) ↩
      7. Article 1238 of the ICC (contractual obligations) ↩
      8. Effendi, J. (2016). Legal Terms Dictionary. Prenadamedia ↩
      9. Article 118 HIR jo. Article 142 RBg (procedural law) ↩
      10. SCR No. 1/2016 Art. 3(1) (mediation requirements) ↩
      11. SCR No. 1/2016 Art. 24(2) (mediation outcomes) ↩
      12. Article 154 jo. 164 HIR (court procedures) ↩

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Disclaimer:
This client update is the property of ARMA Law and intended for providing general information and should not be treated as legal advice, nor shall it be relied upon by any party for any circumstance. ARMA Law has no intention to provide a specific legal advice with regard to this client update.

Go to

1. 1. Material Requirement of the Civil Lawsuit
2. 2. Formal Requirement of the Civil Lawsuit
3. 3. Civil Lawsuit proceeding through District Court Procedures

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