CRIMINAL LEGAL REMEDIES AND BANKRUPTCY LEGAL REMEDIES AGAINST DEFAULT

Extraordinary legal remedies consist of: Cassation in the public interest, and Judicial Review.

CASSATION IN THE PUBLIC INTEREST

1. In the public interest, a cassation request can be filed by the Attorney General for any decision that has become legally binding from courts other than the Supreme Court.
2. A cassation decision in the public interest must not harm the parties involved (Article 259 of the Criminal Procedure Code).

JUDICIAL REVIEW

A convicted person or their heirs may file a request for judicial review to the Supreme Court for a decision that has become legally binding, except for acquittal or release from all legal charges. A judicial review request can be filed based on the following reasons:

• If new facts arise that strongly suggest that, had these facts been known during the trial, the decision would have been acquittal, or release from all legal charges, or the prosecutor’s charge could not be accepted, or a more lenient penalty would have been applied.
• If various decisions have statements that something has been proven, but the facts or circumstances as the basis for the decision are proven to be false or contradictory, revealing a clear error or substantial mistake by the judge.

LEGAL REMEDIES IN BANKRUPTCY AGAINST DEFAULT

The voting process for a peace plan is regulated under Article 281 of Law No. 37 of 2004 concerning Bankruptcy and Suspension of Debt Payment Obligations (Bankruptcy Law). The peace agreement becomes valid and binding once approved by the court (Article 286 of the Bankruptcy Law), and no cassation can be filed against this approval, or if cassation is filed, it is rejected (Article 288 in conjunction with Article 285 paragraph (4)).

Once the peace agreement is approved and becomes legally binding, the debtor is obliged to fulfill the agreement. If the debtor fails to fulfill or does not comply with the terms of the agreement (e.g., paying only certain creditors), creditors who are not paid according to the agreed schedule may file for cancellation of the peace agreement. This is regulated under Article 291 in conjunction with Articles 170 and 171 of the Bankruptcy Law.

Article 170 paragraph (1) states, “A creditor may demand the cancellation of an approved peace agreement if the debtor fails to fulfill the agreement.” Paragraph (2) states that the debtor must prove that the agreement has been fulfilled.

Bankruptcy, as reflected in Article 2 paragraph (1) of Law No. 37 of 2004, is a situation where the debtor fails to pay at least one debt that has fallen due and can be claimed, and the debtor is declared bankrupt by a court decision. In such a court decision, some parties may be dissatisfied, especially the losing party, and thus the possibility of legal remedies arises. The Bankruptcy Law provides two legal remedies that can be taken by the dissatisfied parties against the bankruptcy declaration decision: Cassation or Judicial Review to the Supreme Court (Article 11 paragraph (1), Article 14, Article 295 paragraph (1) of Law No. 37/2004).

LEGAL REMEDIES

Legal remedies are avenues provided by the court for parties dissatisfied with a court decision in a bankruptcy case.

In bankruptcy law, two types of legal remedies are recognized. However, with the enactment of Law No. 4 of 1998, the appeal mechanism was abolished. Therefore, in the Bankruptcy Law, there is only one level of legal remedy: cassation to the Supreme Court (Article 11 paragraph (1) of Law No. 37 of 2004).

The abolition of the appeal process was due to the need for a fast legal process in bankruptcy cases concerning assets.

Creditors may file for cassation if the debtor fails to pay at least one debt that has fallen due.

For peace agreements, the Bankruptcy Law also provides an opportunity for parties to file legal remedies. This legal remedy is cassation, which can be filed if the court rejects the peace agreement. Creditors who approve the peace plan and the bankrupt debtor may file for cassation to the Supreme Court within 8 days after the court’s decision (Article 160 of Law No. 37 of 2004).

Cassation is conducted in accordance with Articles 11 to 13 of Law No. 37/2004. The cassation petition must be submitted no later than 8 days after the court decision date, through the clerk of the court.

• The clerk registers the cassation petition on the day it is submitted, and on that date, the cassation petitioner must submit the cassation memorandum.
• The petition and the cassation memorandum are sent to the respondent within 2 days after the petition is registered.
• The respondent must submit a counter-memorandum within 7 days after receiving the cassation memorandum.
• The clerk sends the counter-memorandum to the petitioner within 2 days of receiving it.
• The clerk must send the case file, cassation petition, cassation memorandum, and counter-memorandum to the Supreme Court no later than 14 days after the petition is registered.

The review of the cassation petition in the Supreme Court is carried out by a special panel of judges appointed to examine and decide on bankruptcy-related matters. Therefore, a distinct panel is formed within the Supreme Court to handle such cases.

Cassation can be filed not only by the parties involved but also by creditors who were not part of the initial trial and are dissatisfied with the court’s bankruptcy decision (Article 11 paragraph (3) of Law No. 37 of 2004).

Thus, cassation is a legal remedy that must be pursued if the debtor fails to fulfill the debt obligations that have fallen due.