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PERTANYAAN DAN JAWABAN UJIAN TENGAH SEMESTER (UTS) MATA KULIAH PRAKTEK PERADILAN PERDATA

PERTANYAAN DAN JAWABAN UJIAN TENGAH SEMESTER (UTS)

MATA KULIAH PRAKTEK PERADILAN PERDATA

 

UNIVERSITAS MPU TANTULAR
UJIAN TENGAH SEMESTER (UTS)  
Fakultas               : HUKUM
Jurusan                : Ilmu Hukum
Mata Kuliah            : PRAKTEK PERADILAN PERDATA
Hari, Tanggal          : Kamis, 11  Juni  2020
Waktu                  : 60 (enam puluh) menit.      
Dosen                  : APPE HUTAURUK, SH., MH.
NIDN                   : 0307036803

 

 

KETENTUAN UJIAN:
  1. Tidak dibenarkan membuka buku referensi atau catatan;
  2. Tidak dibenarkan membuka situs google atau yang lainnya melalui media elektronik;
  3. Tidak dibenarkan bekerja sama;
  4. Jawaban harus ditulis dengan huruf kapital dan jelas dibaca;
  5. Mematuhi tata tertib yang ditentukan oleh universitas dan/atau fakultas;
  6. Mahasiswa yang melanggar ketentuan ujian diatas, dikenakan sanksi yang tegas;

 

PERTANYAAN:

  1. Jelaskan secara komprehensif, apakah permohonan Conservatoir Beslag yang dicantumkan dalam posita gugatan, secara serta – merta dapat dikabulkan oleh Hakim? Bagaimana tata cara mengajukan Conservatoir Beslag dalam praktek peradilan? Jelaskan pula perbedaan antara Conservatoir Beslag dengan Revindicatoir Beslag.

Jawaban:

  • Tidak, tetapi harus diajukan/dimohonkan kembali berdasarkan Surat Permohonan tersendiri kepada Majelis Hakim selama proses perkara a quo sedang diperiksa dan diadili di persidangan Pengadilan;
  • Tata cara mengajukan permohonan Conservatoir Beslag yaitu harus disampaikan secara resmi berdasarkan Surat Permohonan dalam persidangan kepada Majelis Hakim dengan menyebutkan identitas harta kekayaan (assets) Tergugat yang akan diletakan/dimohonkan Sita Jaminan (Conservatoir Beslag) tersebut secara lengkap dan benar, untuk menghindari salah sita;
  • Perbedaan antara Conservatoir Beslag dengan Revindicatoir Beslag, adalah:
  1. Conservatoir Beslag adalah siita yang diletakkan atas harta kekayaan (assets) Tergugat/Para Tergugat;
  2. Revindicatoir Beslag adalah sita yang diletakkan atas harta kekayaan (assets) milik Penggugat sendiri yang berada dalam penguasaan Tergugat/Para Tergugat dan/atau Pihak Lain.

 

PERTANYAAN:

  1. Jelaskan tata cara mengajukan gugatan Harta Gono – Gini menurut prosedur dalam Praktek Peradilan di Pengadilan Negeri, dibandingkan dengan prosedur Praktek Peradilan di Pengadilan Agama.

Jawaban:

  • Pengajuan gugatan menurut prosedur dalam Praktek Peradilan di Pengadilan Negeri hanya dapat dilakukan apabila telah terdapat putusan perkara perceraian antara suami – isteri yang telah mempunyai kekuatan hukum tetap (inkracht van gewijsde), dan gugatan tersebut diajukan di Pengadilan Negeri yang meliputi wilayah yurisdiksi tempat tinggal Tergugat, sesuai dengan asas Actor Sequitur Forum Rei yang ditentukan dalam Pasal 118 ayat (1) Herzien Inlandsch Reglement (HIR)
  • Pengajuan gugatan mengenai pembagian harta gono – gini menurut prosedur Praktek Peradilan Agama dapat dilakukan dapat diajukan bersamaan dengan PERMOHONAN CERAI TALAK atau CERAI GUGAT, atau dapat dilakukan secara terpisah, sesuai ketentuan Pasal 39 UU No. 1 Tahun 1974 Tentang Perkawinan, Pasal 132 ayat (1) jo. Pasal 88 Kompilasi Hukum Islam (KHI).
  • Jadi, perbedaan prinsipnya adalah menurut prosedur  dalam Praktek Peradilan di Pengadilan Negeri maka secara imperatif gugatan harta gono – gini diajukan secara terpisah dengan gugatan perceraian, sedangkan  menurut prosedur Praktek Peradilan di Pengadilan Agama  maka terdapat opsi apakah gugatan pembagian harta gono – gini  digabung sekaligus bersamaan dengan   PERMOHONAN CERAI TALAK atau CERAI GUGAT atau diajukan secara terpisah (bersifat optional).

 

PERTANYAAN:

  1. Jelaskan secara seksama dan konkrit bagaimana caranya dan prosedurnya dalam Praktek Peradilan apabila pemegang saham minoritas suatu perseroan bermaksud meminta dilakukan AUDIT atas harta kekayaan perseroan, apabila terdapat dugaan Direksi melakukan perbuatan melawan hukum yang merugikan para pesero (pemegang saham).

Jawaban:

  • Menurut Pasal 138 ayat (1) Undang – Undang Nomor 40 Tahun 2007 Tentang Perseroan Terbatas (UUPT), bahwa pemeriksaan (audit) terhadap perseroan dapat dilakukan dengan tujuan untuk mendapatkan data atau keterangan mengenai terdapatnya dugaan bahwa suatu perseroan telah melakukan perbuatan melawan hukum yang merugikan Para Pemegang Saham.
  • Permintaan pemeriksaan (audit) dapat dilakukan melalui Rapat Umum Pemegang Saham Luar Biasa (RUPS LB) berkaitan dengan permintaan agar dilakukan AUDIT INVESTIGASI terhadap perseroan.
  • Apabila dalam RUPS LB tersebut Pemegang Saham mayoritas tidak bersedia atau tidak setuju dilakukan AUDIT INVESTIGASI terhadap perseroan maka Pemegang Saham yang lain (minoritas) dapat mengajukan permohonan kepada Pengadilan Negeri dengan disertai dasar atau alasan yang wajar dan dimaksudkan dengan itikad baik (vide Pasal 139 UUPT).
  • Permohonan diajukan kepada Pengadilan Negeri yang memiliki wilayah yurisdiksi dimana perseroan tersebut berdomisili.
  • Apabila Pengadilan Negeri mengabulkan permohonan tersebut maka Pengadilan Negeri mengangkat paling banyak 3 (tiga) orang ahli untuk melakukan pemeriksaan dengan tujuan untuk mendapatkan data atau keterangan yang diperlukan.
  • Laporan hasil pemeriksaan (Audit) disampaikan oleh Ahli (Ahli dalam hal ini dapat merupakan Akuntan Publik) kepada Ketua Pengadilan Negeri dalam jangka waktu sebagaimana ditentukan dalam Penetapan Pengadilan untuk pemeriksaan paling lama 90 (Sembilan puluh) hari terhitung sejak tanggal pengangkatan ahli tersebut.
  • Selanjutnya Ketua Pengadilan Negeri memberikan salinan laporan hasil pemeriksaan kepada Pemohon dan Perseroan yang bersangkutan paling lambat 14 (empat belas) hari terhitung sejak tanggal laporan hasil pemeriksaan (Audit Investigasi) diterima.

 

PERTANYAAN:

  1. Jelaskan ketentuan – ketentuan yang principal (bukan pengertian/definisi) antara DERDEN VERZET dengan  INTERVENTIE dalam Praktek peradilan perdata.

Jawaban:

  • Derden Verzet merupakan upaya hukum berupa perlawanan dari pihak ketiga yang merasa dirugikan kepentingan hukumnya atas adanya suatu Putusan Pengadilan. Sedangkan INTERVENTIE adalah suatu upaya hukum yang dilakukan oleh pihak ketiga dengan cara melibatkan diri sendiri untuk masuk sebagai pihak atau ditarik/dilibatkan sebagai pihak oleh Hakim atau Pihak yang berperkara sebagai INTERVENIENT (Voeging/Menyertai atau Tussenkomst/Menengahi) sebagaimana diatur dalam Pasal 279 s/d Pasal 282 Rv, dalam suatu perkara a quo yang sedang berlangsung pemeriksaannya di Pengadilan Negeri.
  • Upaya Hukum Derden Verzet dilakukan setelah adanya putusan Pengadilan baik yang telah mempunyai kekuatan hukum tetap (inkracht van gewijsde) maupun atas putusan Pengadilan yang belum mempunyai kekuatan hukum tetap (inkracht van gewijsde).
  • Upaya INTERVENTIE dalam Praktek peradilan perdata adalah masuknya pihak ketiga dalam suatu perkara atau sengketa yang sedang diperiksa dan diadili oleh Pengadilan Negeri, jadi proses pemeriksaan perkara a quo  masih berlangsung di Pengadilan Negeri
  • Pihak yang mengajukan Derden Verzet adalah pihak yang merasa kepentingannya dirugikan atas adanya suatu Putusan Pengadilan, baik yang berkaitan karena diletakkan Conservatoir Beslag dengan Revindicatoir Beslag atas suatu barang tertentu, atau karena adanya kepentingan hukum lain yang mengakibatkan kerugian bagi pihak ketiga tersebut atas terbitnya suatu Putusan Pengadilan.
  • Derden Verzet harus diajukan oleh pihak yang mempunyai kepentingan hukum yang dirugikan, sedangkan INTERVENTIE dapat dilakukan oleh pihak yang mempunyai kepentingan hukum atau pihak lain yang tidak mempunyai kepentingan hukum tetapi bermaksud menengahi sengketa yang sedang diperiksa dan diadili oleh Pengadilan Negeri.

 

PERTANYAAN:

  1. Dalam Praktek Peradilan Perdata, berkaitan dengan apa saja lazimnya permohonan DESCENTE diajukan dalam perkara a quo? Pihak – pihak mana saja yang dapat mengajukan permohonan DESCENTE? Jelaskan relevansi dan kekuatan pembuktian DESCENTE dikaitkan dengan ketentuan Pasal 1866 KUHPerdata.

Jawaban:

  • Permohonan Descente atau Permohonan Pemeriksaan setempat lazim diajukan dalam sengketa yang berkaitan dengan kepemilikan tanah dan pembangunan suatu proyek tertentu atau pengadaan suatu barang tertentu.
  • Permohonan Descente atau Permohonan Pemeriksaan setempat dapat diajukan oleh Pihak Penggugat atau Pihak Tergugat kepada Majelis Hakim yang memeriksa dan mengadili perkara yang disengketakan (perkara a quo).
  • Relevansi kekuatan pembuktian DESCENTE dikaitkan dengan ketentuan Pasal 1866 KUHPerdata dapat digunakan oleh Majelis Hakim sebagai BUKTI PERSANGKAAN dalam memutus perkara a quo yang sedang diperiksa dan diadilinya.

 

“Gagal dalam kemuliaan adalah lebih baik, daripada menang dalam kehinaan dan kecurangan” 

LORD EFEBRY 

About Author: Appe Hamonangan Hutauruk

Appe Hamonangan Hutauruk selaku Penulis tunggal pada Website: "Law Firm Appe Hamonangan Hutauruk & Associates" adalah seorang "Pegiat Penegakkan Hukum dan Hak Asasi Manusia" serta "Pemerhati Sosial Kemasyarakatan" yang berprofesi sebagai Advokat (Advocate), Konsultan Hukum (Legal Consultant) dan Dosen (lecturer) pada salah satu Universitas swasta di Jakarta, selain itu juga menduduki jabatan sebagai Ketua Umum pada Lembaga Swadaya Masyarakat (LSM) bernama "Komunitas Masyarakat Anti Korupsi dan Penggelapan Pajak (KOMAKOPEPA). youtube.com/c/BeritaHukumKebijakanPublik

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