Indonesia Law Indonesia Law SystemSystem

Introduction to Law – Part 3Introduction to Law – Part 3

(The Courts and ADR)(The Courts and ADR)

2

Civil Court SystemCivil Court System

• As you will remember, As you will remember, civil lawcivil law deals deals with the relationships between with the relationships between individualsindividuals

• The civil court system provides a place The civil court system provides a place for individuals to settle their for individuals to settle their argumentsarguments

• You can think of it like a boxing match You can think of it like a boxing match where the court is the boxing ring, the where the court is the boxing ring, the judge is the referee, and the judge is the referee, and the individuals are the fightersindividuals are the fighters

3

Civil Court System Civil Court System (cont.)(cont.)

• The civil courts are arranged in a The civil courts are arranged in a hierarchyhierarchy

• Court cases begin in the lower courtsCourt cases begin in the lower courts• If an individual loses, they can If an individual loses, they can appealappeal to a to a

higher courthigher court• They hope that the higher court will They hope that the higher court will

change the decision of the lower court in change the decision of the lower court in their favourtheir favour

4

Civil Court System Civil Court System (cont.)(cont.)

• For example, a dispute over a For example, a dispute over a contract would start in the City Courtcontract would start in the City Court

• If the person who loses launches an If the person who loses launches an appeal, the case would go to the appeal, the case would go to the High CourtHigh Court

• An appeal from the High Court would An appeal from the High Court would go to the Supreme Courtgo to the Supreme Court

5

Supreme Court

High Court (Province)

District Court(city)

Appeal ProcessAppeal Process

Civil Court System Civil Court System (cont.)(cont.)

• The Supreme Court The Supreme Court is the highest is the highest civil courtcivil court & Criminal Court in & Criminal Court in IndonesiaIndonesia

• However, not every case goes to appealHowever, not every case goes to appeal• Each time you appeal, you have to pay Each time you appeal, you have to pay

your lawyersyour lawyers• It is free to go all the way to the It is free to go all the way to the

Supreme Court. ( In Fact is very Supreme Court. ( In Fact is very Expensive )Expensive )

7

TerminologyTerminology

Some common legal words and Some common legal words and phrases used in English civil lawphrases used in English civil law

• civil proceedingscivil proceedings: a court action in : a court action in a civil matter such as contracta civil matter such as contract

• claimantclaimant: the person who starts the : the person who starts the civil proceedings in order to get civil proceedings in order to get some kind of remedy (eg money)some kind of remedy (eg money)

• defendantdefendant: the party whom the : the party whom the claimant seeks the remedy againstclaimant seeks the remedy against

8

Terminology (cont.)Terminology (cont.)

• to sueto sue: to bring civil proceedings : to bring civil proceedings against someone (ie the defendant)against someone (ie the defendant)

• The claimant sues the defendant to The claimant sues the defendant to try to get a try to get a remedyremedy (such as the (such as the payment of money)payment of money)

• If the court agrees with the If the court agrees with the claimant’s argument the claimant claimant’s argument the claimant will be successful and win his casewill be successful and win his case– (the court finds in his favour)(the court finds in his favour)

9

Terminology (cont.)Terminology (cont.)

• If the court thinks that the defendant If the court thinks that the defendant has a better argument than the has a better argument than the claimant then the defendant will winclaimant then the defendant will win– (the court finds in favour of the (the court finds in favour of the

defendant)defendant)

• Usually, the party who loses a civil Usually, the party who loses a civil court case has to pay their own legal court case has to pay their own legal costs costs andand the legal costs of the the legal costs of the winnerwinner

10

Terminology - ExampleTerminology - Example

• Wang enters into a contract with ZhangWang enters into a contract with Zhang• They agree that Zhang will pay Wang They agree that Zhang will pay Wang

£100 for some S.H.E DVDs£100 for some S.H.E DVDs• Wang delivers the DVDs to Zhang, but Wang delivers the DVDs to Zhang, but

Zhang refuses to pay him £100Zhang refuses to pay him £100• Therefore, Wang Therefore, Wang sues sues Zhang for £100Zhang for £100• That is, Wang brings civil proceeding That is, Wang brings civil proceeding

against Zhang to try to make him pay against Zhang to try to make him pay £100£100

11

Terminology – Example Terminology – Example (cont.)(cont.)

• Wang is the Wang is the claimantclaimant• Zhang is the Zhang is the defendantdefendant• The court decides that Wang has a The court decides that Wang has a

better argument than Zhangbetter argument than Zhang• The court The court finds in favourfinds in favour of Wang of Wang• Wang winsWang wins• Zhang must pay Wang £100 Zhang must pay Wang £100 plus plus

Wang’s legal costs Wang’s legal costs plusplus his own his own legal costslegal costs

12

Alternative Dispute Alternative Dispute ResolutionResolution

• The civil court system is The civil court system is adversarialadversarial

• One person “fights” anotherOne person “fights” another• Like in a boxing match, they are Like in a boxing match, they are

opponentsopponents• There is a winner and a loser at There is a winner and a loser at

the end of the casethe end of the case• There is no attempt to reach a There is no attempt to reach a

compromisecompromise

13

Alternative Dispute Alternative Dispute Resolution (cont.)Resolution (cont.)

• This may not be in the best interests This may not be in the best interests of the claimant and the defendant – of the claimant and the defendant – especially if they had a close especially if they had a close relationship before the court actionrelationship before the court action

• Because of this, there are some Because of this, there are some procedures which can be used procedures which can be used instead of court actioninstead of court action

• These are known as These are known as Alternative Alternative Dispute Resolution (ADR)Dispute Resolution (ADR)

14

Forms of ADRForms of ADR

• ArbitrationArbitration• Administrative TribunalsAdministrative Tribunals• OmbudsmanOmbudsman• Mediation and ConciliationMediation and Conciliation

15

ArbitrationArbitration

• In this procedure, the two parties In this procedure, the two parties ask an independent third party (an ask an independent third party (an arbitrator) to settle their argument arbitrator) to settle their argument instead of going to courtinstead of going to court

• This might be part of the contract This might be part of the contract or something which they agree to or something which they agree to laterlater

• The arbitrator is often an expert in The arbitrator is often an expert in a relevant areaa relevant area

16

Arbitration (cont.)Arbitration (cont.)

• In our earlier example, instead of In our earlier example, instead of a court action, Wang and Zhang a court action, Wang and Zhang could have asked Zhuge Liang to could have asked Zhuge Liang to act as their arbitrator to settle the act as their arbitrator to settle the dispute over the £100 paymentdispute over the £100 payment

17

Advantages of Advantages of ArbitrationArbitration

Compared to a court action, Compared to a court action, arbitration is:arbitration is:

• More privateMore private– courts are public placescourts are public places– court actions are often reported in the court actions are often reported in the

mediamedia

• More informalMore informal• Usually fasterUsually faster

– do not have to follow court proceduresdo not have to follow court procedures

18

Advantages of Advantages of Arbitration (cont.)Arbitration (cont.)

• Less expensiveLess expensive• Gives access to an expertGives access to an expert

– judges are not experts in every area judges are not experts in every area of businessof business

• Less antagonisticLess antagonistic

19

Administrative TribunalsAdministrative Tribunals

• Administrative tribunals deal with Administrative tribunals deal with arguments between individuals arguments between individuals and government institutionsand government institutions

• They are created by legislationThey are created by legislation• ExamplesExamples

– Employment TribunalsEmployment Tribunals– Social Security TribunalsSocial Security Tribunals– Immigration Appeal TribunalImmigration Appeal Tribunal

20

Advantages of TribunalsAdvantages of Tribunals

Compared to court action, tribunals are:Compared to court action, tribunals are:• Usually fasterUsually faster• Less expensiveLess expensive• More informalMore informal• More flexibleMore flexible

– not so many rules to follownot so many rules to follow• Consist of experts in appropriate Consist of experts in appropriate

areasareas• More privateMore private

21

Disadvantages of Disadvantages of TribunalsTribunals

• Appeals procedure not as good as Appeals procedure not as good as the court systemthe court system

• Some poor people are entitled to Some poor people are entitled to legal aid (ie financial support) in legal aid (ie financial support) in court actions but not in tribunalscourt actions but not in tribunals

22

OmbudsmanOmbudsman

• An ombudsman (or woman) is an An ombudsman (or woman) is an official who investigates complaints official who investigates complaints from individuals about government from individuals about government departmentsdepartments

• The person complains that the The person complains that the administration of the department is administration of the department is below acceptable standards below acceptable standards (maladministration)(maladministration)

23

Disadvantages of the Disadvantages of the Ombudsman SystemOmbudsman System

• A person must first complain to their A person must first complain to their MP (Member of Parliament), who MP (Member of Parliament), who passes the complaint to the passes the complaint to the OmbudsmanOmbudsman

• Ombudsman has a much narrow area Ombudsman has a much narrow area to operate in than a court or tribunalto operate in than a court or tribunal

24

Mediation and Mediation and ConciliationConciliation

• These are the most informal of all These are the most informal of all ADR proceduresADR procedures

• In In mediationmediation, a third party (a , a third party (a mediator) helps the two people to mediator) helps the two people to communicate, but the mediator communicate, but the mediator does not try to solve the disputedoes not try to solve the dispute

• In In conciliationconciliation, the third party , the third party may suggest ways of solving the may suggest ways of solving the argumentargument