LEGAL EFFECTS OF A FINAL AND BINDING JUDGMENT (INKRACHT VAN GEWIJSDE)
A court judgment that has become final and binding (inkracht van gewijsde) is a judgment that is no longer subject to ordinary legal remedies, such as appeal or cassation. This occurs where all available ordinary legal remedies have been exhausted or where the parties have failed to exercise such remedies within the prescribed time limit.
Under Indonesian civil procedural law, a final and binding judgment is of particular significance because, in principle, the dispute adjudicated therein has reached a final resolution that is binding upon the parties. Accordingly, the legal rights and obligations established by the judgment must be respected and performed by the parties in accordance with the operative provisions of the judgment.
A. Legal Force of a Final and Binding Judgment (Inkracht van Gewijsde)
A judgment that has become final and binding (inkracht van gewijsde) has binding force upon the parties to the proceedings. This means that the parties are required to respect and comply with the matters determined by the judgment.
Such binding force is related to the principle of res judicata, which, in Indonesian civil procedural practice, is also associated with the principle of ne bis in idem, under which a matter that has been adjudicated by a final and binding judgment may, in principle, not be re-examined and adjudicated in respect of the same dispute.
Pursuant to Article 1917 of the Indonesian Civil Code, a matter may, in principle, be considered the same matter (ne bis in idem) where the following elements are present:
a. the same subject matter or relief sought;
b. the same grounds or legal basis of the claim; and
c. the claim is brought by and against the same parties acting in the same legal capacities.
Accordingly, not every new claim relating to a previously adjudicated matter may automatically be deemed ne bis in idem. It must first be determined whether the foregoing elements are identical to those in the matter that has already been adjudicated by a final and binding judgment.
In addition to having binding force, a final and binding judgment (inkracht van gewijsde) also has evidentiary force (bewijzende kracht), in that the judgment constitutes an official document that may be used to establish the existence of judicial proceedings and the legal circumstances determined therein. Nevertheless, such evidentiary force must be assessed in light of the nature and substance of the judgment and its relevance to other proceedings or legal relationships.
A final and binding judgment may also have executorial force (executoriale kracht). However, not every final and binding judgment requires, or is capable of, compulsory enforcement through execution proceedings.
Under civil procedural law, judgments are generally classified as declaratoir, constitutief, or condemnatoir. A declaratoir judgment principally declares or confirms a particular legal status or legal relationship. A constitutief judgment creates, modifies, or terminates a particular legal status or legal relationship. A condemnatoir judgment imposes an obligation or orders one of the parties to perform a particular obligation, such as paying a sum of money, delivering property, vacating certain premises or property, performing a particular act, or refraining from performing a particular act.
Accordingly, the operative provisions of a condemnatoir judgment may be subject to compulsory enforcement through execution proceedings if the party against whom the judgment is rendered fails to comply with it voluntarily.
Therefore, in enforcing a final and binding judgment, due consideration must be given to the nature of its operative provisions.
B. Enforcement of a Final and Binding Judgment (Inkracht van Gewijsde)
In principle, a party upon whom an obligation is imposed by a court judgment must voluntarily perform such obligation in accordance with the operative provisions of the judgment.
However, where the judgment contains condemnatoir operative provisions, namely provisions ordering or requiring a party to perform a particular obligation, and such obligation is not voluntarily performed, the party entitled to relief under the judgment may file an application for execution with the competent court.
Accordingly, the executorial force of a judgment enables its operative provisions to be compulsorily enforced through the court where the obligated party fails to comply voluntarily.
C. Legal Remedies Following a Final and Binding Judgment (Inkracht van Gewijsde)
Although a judgment has become final and binding, Indonesian law provides, under certain circumstances, for extraordinary legal remedies, including judicial review (Peninjauan Kembali or “PK”).
Pursuant to Article 67 of Law No. 14 of 1985 concerning the Supreme Court, the provisions of which have not been amended by Law No. 5 of 2004 or Law No. 3 of 2009, an application for judicial review against a final and binding judgment in a civil case may only be filed on specific grounds exhaustively prescribed by law.
Such grounds include, among others, the discovery that the judgment was based on fraud or deceit, the discovery of decisive documentary evidence (novum), the granting of relief that was not sought or that exceeded the relief sought, the failure to adjudicate part of the relief sought, the existence of conflicting judgments, or an error or manifest mistake on the part of the judges.
Nevertheless, the filing of an application for judicial review does not, by itself, suspend or stay the enforcement of a court judgment. Article 66 paragraph (2) of Law No. 14 of 1985 concerning the Supreme Court, as amended by Law No. 5 of 2004 and most recently by Law No. 3 of 2009 (the “Supreme Court Law”), expressly provides that an application for judicial review does not suspend or stay the enforcement of a court judgment.
Accordingly, the purpose of judicial review is not to delay the enforcement of a judgment, but rather to serve as an extraordinary legal remedy through which a party may seek the re-examination and correction of a final and binding judgment where grounds recognized by law exist.
D. Legal Effects of a Final and Binding Judgment (Inkracht van Gewijsde) on the Parties
Based on the foregoing, a final and binding judgment gives rise to several legal consequences, including the following:
a. Finality as to ordinary legal remedies. The judgment becomes final insofar as ordinary legal remedies are concerned, and therefore may no longer be challenged by way of appeal or cassation.
b. Binding effect upon the parties. The judgment binds the parties to the proceedings, and the parties are therefore required to respect and perform the rights and obligations established in the operative provisions of the judgment.
c. Compulsory enforcement, where applicable. In particular, where a judgment contains condemnatoir operative provisions requiring the performance of a particular obligation, the prevailing party may apply for execution if the party against whom the judgment is rendered fails to comply voluntarily.
d. Application of the principle of ne bis in idem. The same matter may, in principle, not be re-examined and adjudicated where the requirements under Article 1917 of the Indonesian Civil Code are satisfied, namely where the claim concerns the same subject matter or relief sought, is based on the same grounds, and involves the same parties acting in the same legal capacities.
e. Availability of extraordinary legal remedies. The judgment may still be subject to an extraordinary legal remedy, such as judicial review (Peninjauan Kembali or “PK”), provided that the statutory grounds and requirements are satisfied. The filing of an application for judicial review does not deprive the judgment of its final and binding status and, in principle, does not suspend or stay its enforcement.
Accordingly, the principal legal effect of a final and binding judgment is to provide legal certainty and finality for the parties, accompanied by the obligation to respect and comply with the judgment in accordance with its operative provisions.
LEGAL BASIS
- Article 1917 of the Indonesian Civil Code (Kitab Undang-Undang Hukum Perdata or “KUHPerdata”), concerning the binding force of a judgment and the requirements for the application of the principle of res judicata or ne bis in idem, particularly where the claim concerns the same subject matter, is based on the same grounds, and is brought by and against the same parties acting in the same legal capacities.
- Law No. 14 of 1985 concerning the Supreme Court, as amended by Law No. 5 of 2004 and Law No. 3 of 2009 (“Supreme Court Law”), concerning judicial review (Peninjauan Kembali or “PK”) of final and binding court judgments.
