Kamis, 20 Januari 2022

How to Execute Power of Attorney From Abroad to Indonesia Territory?

(iStockphoto)

By:
Mahmud Kusuma, S.H., M.H.
(Certified Attorneys at Law)

Previously, the Hukumindo.com platform has talk about "How To Re-obtain The Land Assets That We Bought In The Name of Someone Else In Indonesia?", "What Legal Ties Underlie The Relationship Between The Client and The Lawyer?" read also: "How To Check The Validity of Indonesian Advocates?" and on this occasion we will discuss about ''How to Execute Power of Attorney From Abroad to Indonesia Territory?"

Sir, I am an Indonesian migrant worker currently working in Hong Kong. I want to file a lawsuit against my spouse in Religious Court X and intend to use the services of an advocate, how do I give a power of attorney without having to go back to Indonesia first?

Requirements For a Valid Power of Attorney Signed Abroad

The decision of the Supreme Court of the Republic of Indonesia No.: 3038 K/Pdt/1981 dated September 18, 1986, gave the following decision: "The validity of a power of attorney made abroad in addition to meeting formal requirements must also be legalized first by the relevant Indonesian Embassy".[1]

Thus, there are two variables that are conditions for the validity of the said power of attorney. The first is according to the provisions of Article 123 paragraph (1) HIR and Circular Letter of the Supreme Court (SEMA) Number: 1 of 1971 Jo. Circular Letter of the Supreme Court (SEMA) Number: 6 of 1994, namely:[2]

  • In written form;
  • Mention relative competence;
  • State the identity and position of the litigants;
  • State the type of object and the disputed case.

The second requirement is to meet additional provisions in the form of legalization, by:[3] 

  • The relevant Indonesian Embassy.

Thus, the legal requirements for a power of attorney made abroad are the same as those made in Indonesia, and as an additional provision, is an obligation to legalize with the relevant Embassy of the Republic of Indonesia abroad. with the fulfillment of these two conditions, the power of attorney that you sign and send to Indonesia from abroad becomes valid for use in the jurisdiction of Indonesia.

So, a practical solution in handling cases like this, you as a client of an advocate in Indonesia submit your personal data and other documents to the advocate you have chosen to make a Power of Attorney. Then the advocate will draft a special power of attorney that will be sent to you, whether it's using e-mail, WhatsApp or Telegram. Then you print the power of attorney and sign it. The next thing you have to do is go to the Indonesian Consulate General (KJRI) in Hong Kong to ask for the legalization of the said power of attorney. After legalization, you can send the power of attorney to the lawyer's office you have chosen in Indonesia. Simply put, that's how to Execute Power of Attorney From Abroad to Indonesia Territory. Thus, you do not need to go back to Indonesia first to give authorized a power of attorney to the advocate you have chosen.

After your power of attorney is received in Indonesia by the advocate you have chosen, it is his duty to then carry out legalization in Indonesia. Legalization in Indonesia that needs to be done includes the Ministry of Law and Human Rights, and the Ministry of Foreign Affairs.[4] And according to the author source who works at one of the embassies of a friendly country in Jakarta, it is necessary also to legalize the above mentioned document to the State Representative where the power of attorney is made.

Stamp Duty on Documents From Abroad To Be Used In Indonesia Territory

How about the stamp duty provisions? To answer that, let's take a look at Article 9 Jo. Article 10 of Law Number 13 of 1985 concerning Stamp Duty (“Stamp Duty Law”) which reads:[5]

"Article 9 of the Stamp Duty Law: "Documents made abroad when used in Indonesia must have been paid for the Stamp Duty owed by means of subsequent sealing". 

Elucidation of Article 9 of the Stamp Duty Law: 'Documents made overseas are not subject to Stamp Duty as long as they are not used in Indonesia. If the document is to be used in Indonesia, it must first be affixed with a stamp duty, the amount of which is in accordance with the tariff as referred to in Article 2 by way of sealing later without fines. However, if the document has only been paid the Stamp Duty after it is used, then the sealing is then carried out along with a fine of 200% (two hundred percent)'.

"Article 10 of the Stamp Duty Law: "The subsequent sealing of the documents as referred to in Article 2 paragraph (3), Article 8, and Article 9 is carried out by the Postal Officer according to the procedure stipulated by the Minister of Finance".

Furthermore, in accordance with Article 1 of Government Regulation Number 24 of 2000 concerning Changes in Stamp Duty Rates and the Limit on Imposition of Nominal Prices Subject to Stamp Duty ("PP 24/2000") which reads: "Documents subject to Stamp Duty based on Law Number 13 of 1985 regarding Stamp Duty are documents in the form of:[6]
  1. Agreements and other documents made with the aim of being used as a means of proof regarding actions, facts or circumstances of a civil nature;
  2. ..."

Thus, Power of attorney is included in the provisions of Government Regulation Number 24 of 2000 concerning Changes in Stamp Duty Rates and the Limit on Imposition of Nominal Prices Subject to Stamp Duty (“PP 24/2000”), and regarding how to affix it, it is carried out by the Postal Officer according to the procedure stipulated by the Minister of Finance as stipulated in Article 10 of Law Number 13 of 1985 concerning Stamp Duty (“Stamp Duty Law”) as mentioned above. And if you have any issue with this topic, contact us, feel free in 24 hours, we will be glad to help you.


*) For further information please contact:
Mahmud Kusuma Advocate
Law Office
Tokopedia Care Tower, 17th Floor, Unit 2&5,
Outer West Ring Road, 101, Rawa Buaya,
Cengkareng Subdistrict, West Jakarta,
Jakarta - Indonesia.
E-mail: mahmudkusuma6@gmail.com
_________________

Reference:

1. "Syarat Sahnya Surat Kuasa Dibuat Diluar Negeri", www.advokatmedan.com., diakses pada tanggal 20 Januari 2022, https://www.advokatmedan.com/2021/05/syarat-sahnya-surat-kuasa-dibuat-diluar-negeri.html
2. Ibid.
3. Ibid.
4. "Surat Kuasa Dibuat di Luar Negeri, Haruskah Dibubuhi Meterai Indonesia?", www.hukumonline.com., Diakses pada tanggal 20 Januari 2022, https://www.hukumonline.com/klinik/a/perlukah-dokumen-asing-dilegalisasi-di-kbri--lt60053590761ab
5. "Pembubuhan Meterai Indonesia pada Surat Kuasa yang Dibuat di Luar Negeri", asosiasiadvokatindonesia.id., Diakses pada tanggal 20 Januari 2022, http://asosiasiadvokatindonesia.id/pembubuhan-meterai-indonesia-pada-surat-kuasa-yang-dibuat-di-luar-negeri/
6. Ibid.

Rabu, 19 Januari 2022

How To Re-obtain The Land Assets That We Bought In The Name of Someone Else In Indonesia?

(iStock)

By:
Mahmud Kusuma, S.H., M.H.
(Certified Attorneys at Law)

Previously, the Hukumindo.com platform has discussed about "What Is the Difference Between Fraud and Embezzlement Under Indonesian Law?", "What Types of Land Ownership May Company Obtain In Indonesia?", read also: "How To Married Indonesian Women Legally?", and on this occasion will be discussed about 'How To Re-obtain The Land Assets That We Bought In The Name of Someone Else In Indonesia?'

Sir, my father lived long enough and married one of the natives in Bali. Then he returned to Europe and died here. My mother is the second marriage to him. Before he died, my father told me that he had fairly large of land assets in Bali, only that the land he bought was in the name of someone else. Is it possible for me to obtain the land as his heir?

From the e-mail we received above, there are some aspect that are not quite clear. Was your father's first marriage to a Balinese woman above legally-valid? Do they have children from this marriage? Was the land purchased by your father in the name of his wife or descendants from the first marriage? Due to the limited information we received, the answer we will provide will focus on the law for foreign citizens in relation with rights of ownership on land in Indonesia, and is there a legal possibility for you to acquire the said land as one of their descendants? 

Governing Law On Rights Of Land Ownership In Indonesia

We assume that your beloved father is a foreign national in a European country. We assume that you are a foreign national also. Based on the information above, there is a fact that your father bought a plot of land in the Bali area using his money. In relation to the sub-questions referred above, the following provisions apply:
  • Article 20 paragraph (1) of the Law of the Republic of Indonesia Number: 5 of 1960 concerning Basic Regulations on Agrarian Principles regulates as follows: "Ownership rights are hereditary, strongest and most complete rights that people can have on land, in view of the provisions in Article 6".
  • Article 21 paragraph (1) of the Law of the Republic of Indonesia Number: 5 of 1960 concerning Basic Regulations on Agrarian Principles regulates as follows: "Only Indonesian citizens can have rights of land ownership".
As quoted from Article 20 paragraph (1) and Article 21 paragraph (1) of the Law of the Republic of Indonesia Number: 5 of 1960 concerning Basic Regulations on Agrarian Principles above, It has been explained about the ownership rights of land, and it is regulated that only Indonesian citizens can own it. If your father is a foreign citizen and in relation to that point is the provisions regarding Law of the Republic of Indonesia Number: 5 of 1960 concerning Basic Regulations on Agrarian Principles as we mention above, then as a conclution, your father as a foreign citizen does not have the right to own a plot of land in Indonesia. 

Thus, according to Indonesian law, your father has never owned the said land. This is also consistent with the fact that your father bought the land under someone else name, or some kind of legal nominee ("Pinjam Nama"). According to Indonesian law, this case of borrowing names ("pinjam nama") is prohibited, even if the money is belong to your father.    

How To Re-obtain The Land Assets That We Bought In The Name of Someone Else In Indonesia?

To answer your second question regarding how to re-obtain the land assets that we bought in the name of someone else in Indonesia, we can simply answer the question that it's prohibited by law. As stipulated by the Law of the Republic of Indonesia Number: 5 of 1960 concerning Basic Regulations on Agrarian Principles above, the practice of 'borrowing names' in buying and selling land in Indonesia is prohibited.

In relation to the case you are facing for, we request that it will be better if it's accompanied by other relevant documents. With additional documents that may be available, of course we will offer other legal solutions that you might be able to take. And if you have any issue with this topic, contact us, feel free in 24 hours, we will be glad to help you.


*) For further information please contact:
Mahmud Kusuma Advocate
Law Office
Tokopedia Care Tower, 17th Floor, Unit 2&5,
Outer West Ring Road, 101, Rawa Buaya,
Cengkareng Subdistrict, West Jakarta,
Jakarta - Indonesia.
E-mail: mahmudkusuma6@gmail.com

________________
Reference:

1. Law of the Republic of Indonesia Number: 5 of 1960 concerning Basic Regulations on Agrarian Principles

Selasa, 18 Januari 2022

What Is the Difference Between Fraud and Embezzlement Under Indonesian Law?

(iStock)

By:
Mahmud Kusuma, S.H., M.H.
(Certified Attorneys at Law)

Previously, the Hukumindo.com platform has discussed about "What's The Difference Between Police Report and Public Complaint?", read also "How to Open a Police Report in Indonesia?", "How To Report Online Scammer Or Fraud To The Police In Indonesia", "Who Has the Authority to Report a Crime If the Victim Is a Company?". And on this occasion we will discuss about 'What Is the Difference Between Fraud and Embezzlement Under Indonesian Law?'

One of the most common criminal acts is fraud and embezzlement, Its happen also in Indonesia. This criminal act often occurs within the scope of commerce or the business world in general. When you feel that you are a victim of this criminal act, its better to know the difference between the two before you intend to report it to the authorities.

Fraud

Article 378 of the Criminal Code ("KUHP") regulates the crime of fraud as follows: "Anyone with the intention of unlawfully benefiting himself or another person by using a false name or false dignity (hoedaningheid); by deceit, or a series of lies, inducing another person to hand over something to him, or to give a debt or write off a debt, is threatened, for fraud, with a maximum imprisonment of four years".[1]

Embezzlement

Article 372 of the Criminal Code ("KUHP") regulates the crime of embezzlement as follows: "Anyone who knowingly owns against the rights of an item which wholly or partly belongs to another person and the item is in his hands not because of a crime, shall be punished for embezzlement, with a maximum imprisonment of four years or a maximum fine of Rp. 900,-".[2]

The Difference Between Fraud and Embezzlement Under Indonesian Law

The most effective way to know the difference between the two is to know the elements contain in. Because this is the object of legal study, of course it is not easy for the general public to know the difference between the two, but it is not impossible to learn. This article does not intend to examine this matter in depth, only to discuss these differences in general terms.

In the author's opinion, the most basic thing to know the difference between fraud and embezzlement is the transfer of the goods. Let's see the difference between the two:
  1. Fraud: In the crime of fraud, transfer of goods is against the law. The illegal transfer of goods is carried out in ways such as manipulate other people, using all kind of deception, using false identities, and so on. For example, Person A claimed to be a prince from Saudi Arabia who has billions of assets but still has little trouble with the bank, and is looking for a life partner, then asks for a transfer of some money for accommodation to move to Bali for good.
  2. Embezzlement: In the crime of  embezzlement, the transfer of goods is not against the law. The goods are already in the control of another person that is not against the law. Mastery of this item usually occurs because of his work, or because of an agreement. For example, Person A owns a motorcycle and rents it to Person B, then Person B sells it to Person C.

If examined more deeply, then the difference between fraud and embezzlement is real. In legal practice, there are often wrong habits by reporting a legal event that has not been investigated more deeply but is reported to the authorities as a criminal act of fraud and/or embezzlement. And if you have any issue with reporting the crime in territory of Indonesia to the relevant Police station, contact us, feel free in 24 hours, we will be glad to help you.


*) For further information please contact:
Mahmud Kusuma Advocate
Law Office
Tokopedia Care Tower, 17th Floor, Unit 2&5,
Outer West Ring Road, 101, Rawa Buaya,
Cengkareng Subdistrict, West Jakarta,
Jakarta - Indonesia.
E-mail: mahmudkusuma6@gmail.com

________________
References:

1. Criminal Code
2. Ibid.

Senin, 17 Januari 2022

What's The Difference Between Police Report and Public Complaint?

(iStock)

By:
Mahmud Kusuma, S.H., M.H.
(Certified Attorneys at Law)

Previously, the Hukumindo.com platform has talk about "Who Has the Authority to Report a Crime If the Victim Is a Company?", read also "How to Open a Police Report in Indonesia?". And on this valuable occasion will be discussed about 'What's The Difference Between Police Report And Public Complaint?'.

For information only, the platform Hukumindo.com has received many e-mails from abroad regarding alleged criminal acts experienced by readers, mostly regarding online scams or fraud. Many of them asked for help to take legal action in the form of opening a Police Report to the relevant Police station. However, many readers do not really understand about this Police Report, and indirectly interpret it as a "public complaint". On this occasion we will explain the difference between the two, especially from a legal perspective.

Police Report According To Criminal Procedure Code ("KUHAP")

As previously discussed in the article entitled: "How to Open a Police Report in Indonesia?", what is meant by a Police Report (Police Report aka "LP"). Article 1 Law Number: 8 of 1981 concerning Criminal Procedure Code ("KUHAP") provides a definition of the Report as follows: "Report is a notification submitted by a person who, because of his rights or obligations under the law, to an authorized official regarding, has or is currently or is suspected of having a criminal event." Those who have the right to submit reports are people who have experienced, seen, witnessed or become victims of events that constitute criminal acts, either orally or in writing.[1]

In relation to this article, then your position as a foreigner who is in Indonesia is as a victim of a crime committed by someone else against you. Procedural law (Law Number: 8 of 1981 concerning Criminal Procedure Code ("KUHAP")) in Indonesia protects you by providing you with the right to report a crime you have experienced to the relevant Police institution.[2]

How to Open a Police Report ("LP") in Indonesia? As a guide, here's how to open a criminal report according to the author's practical experience:
  1. Come to the relevant Police Station;
  2. Come to the Integrated Police Service Center (SPKT);
  3. Tell the chronology of the crime that you experienced to the Police officers;
  4. If the incident you experience is a criminal act, the Police officer will give you a report sign, if it is not a criminal act, the Police officer will not give you a report sign.
Complete your report with your self identity, witnesses and supporting evidence related to the crime you experienced.[3] Thus, it must be understood that the Police Report here is a legal action as regulated in the Criminal Procedure Code. As a legal action regulated in the Criminal Procedure Code ("KUHAP"), it is official and has legal consequences to the Police regarding Criminal Procedure Code.

(iStock)

Public Complaint

Within the scope of government, 'public complaints' are: "Reports from the public regarding indications of...".[4] Thus, public complaints are a kind of report regarding allegations that occur in the community. But of course, public complaints are not classified as Police Reports. Public complaints are not regulated in the Criminal Procedure Code ("KUHAP").

As an example is the page of the "Cyber ​​Patrol" launched by the Directorate of Cyber-crime, Bareskrim Polri.[5] On the page it is written:

Apa itu “Laporkan!” ?
Laporkan! adalah portal laporan daring yang dibuat oleh Dittipidsiber Bareskrim Polri untuk mengumpulkan berbagai informasi tentang kejahatan siber.
(What is “Report!” ?
Report! is an online reporting portal created by the Dittipidsiber Bareskrim Polri to collect various information about cyber crimes.)

Siapa yang boleh membuat laporan?
Siapa saja yang mengetahui tentang adanya indikasi kejahatan siber.
(Who can make reports?
Anyone who knows about any indications of cyber crime.)

Apa fungsi dari portal “Laporkan!” ?
Portal ini dibuat untuk mengumpulkan informasi tentang pelaku kejahatan siber, seperti nama, nomor telepon, nomor rekening, akun media sosial, e-mail dan lain sebagainya. Informasi tersebut juga dapat diakses oleh pengunjung laman patrolisiber.id fitur “cari” sebelum bertransaksi atau berkomunikasi dengan orang yang mencurigakan.
(What is the function of the “Report!” ?
This portal was created to collect information about cyber-criminals, such as names, phone numbers, account numbers, social media accounts, e-mails and so on. This information can also be accessed by visitors to the patrolsiber.id page with the "search" feature before making transactions or communicating with suspicious people.)

Mengapa kita harus melapor?
Semakin banyak informasi yang kami terima, maka akan semakin banyak informasi yang dapat diakses pengunjung patrolisiber.id. Harapan kami, informasi itu dapat digunakan agar kita terhindar dari kejahatan siber.
(Why should we report?
The more information we receive, the more information that can be accessed by patrolisiber.id visitors. We hope that this information can be used to prevent cyber-crime.)

Apakah laporan yang dibuat melalui portal “Laporkan!” akan otomatis menjadi laporan polisi?
Tidak
(Is the report made through the portal “Report!” will automatically become a Police Report?
No)

Apa bedanya laporan melalui platform ‘Laporkan!” dengan laporan polisi?
Laporan yang disampaikan melalui portal “Laporkan!” hanya berisi sebagian kecil dari informasi tentang kejahatan siber.
(How is it different to report via the 'Report!” platform with a Police Report?
Reports submitted through the portal “Report!” contains only a small part of the information about cyber-crime.)

The page above clearly explains that the information obtained through "Laporkan!/Report!" is not a Police Report, it is only a platform to collect information regarding indications of criminal acts occurring in society through cyber-space.

Several conclusions can be drawn here, that there are fundamental differences between Public Complaints and Police Reports:
  1. Police reports are regulated in the Criminal Procedure Code, while Public Complaints are not;
  2. Public complaints are information that comes from the public to related state institutions with certain indications;
  3. Public complaints are not Police Reports.
If you are abroad and the unfortunate fate befalls you because you are a victim of a crime whose criminals are in the jurisdiction of Indonesia, then the legal action you have to take is to make a Police Report, not a 'public complaint'. If you want to file a complaint to the state institution in Indonesia, you don't need to hire an advocate. You can do it by yourself. The author suggests, hire an advocate in Indonesia to open the Police Report in relevant Police station, and of course it will incur costs, and this is totally reasonable. And if you have any difficulties to open a Police Report in Indonesia, contact us, feel free in 24 hours, we will be glad to help you.


*) For further information please contact:
Mahmud Kusuma Advocate
Law Office
Tokopedia Care Tower, 17th Floor, Unit 2&5,
Outer West Ring Road, 101, Rawa Buaya,
Cengkareng Subdistrict, West Jakarta,
Jakarta - Indonesia.
E-mail: mahmudkusuma6@gmail.com

________________
References:

1. "How to Open a Police Report in Indonesia?", www.hukumindo.com., Diakses pada tanggal 15 Januari 2022, https://www.hukumindo.com/2021/10/how-to-open-police-report-in-indonesia.html
2. Ibid.
3. Ibid.
4. "Pengaduan Masyarakat", inspektorat.tegalkab.go.id., Diakses pada tanggal 15 Januari 2022, https://inspektorat.tegalkab.go.id/pengaduan-masyarakat/
5. "LAPORKAN!", patrolisiber.id., Diakses pada tanggal 15 Januari 2022, https://patrolisiber.id/report/my-account

Selasa, 11 Januari 2022

Who Has the Authority to Report a Crime If the Victim Is a Company?

(iStock)

By:
Mahmud Kusuma, S.H., M.H.
(Certified Attorneys at Law)

Previously, the Hukumindo.com platform has talk about "How to Obtain Child Custody in Indonesia", "How to Open a Police Report in Indonesia?", read also: "Who's Legally Represents The Company In Indonesia?" and on this occasion we will discuss about 'Who Has the Authority to Report a Crime If the Victim Is a Company?'

Reporting a Crime To The Police 

As we know, crime can happen to anyone, including the Company. Basically, all criminal acts that occur in Indonesia are reported in the same way to the Police. It's just that if the victim is a company, then there are specific provisions. 

Article 1 Law Number: 8 of 1981 concerning Criminal Procedure Code ("KUHAP") provides a definition of the Report as follows: "Report is a notification submitted by a person who, because of his rights or obligations under the law, to an authorized official regarding, has or is currently or is suspected of having a criminal event." Those who have the right to submit reports are people who have experienced, seen, witnessed or become victims of events that constitute criminal acts, either orally or in writing.[1]

How to Open a Police Report ("LP") in Indonesia? As a guide, here's how to open a criminal report according to the author's practical experience:[2]
  1. Come to the relevant Police Station;
  2. Come to the Integrated Police Service Center (SPKT);
  3. Tell the chronology of the crime that you experienced to the Police officers;
  4. If the incident you experience is a criminal act, the Police officer will give you a report sign, if it is not a criminal act, the Police officer will not give you a report sign.
Complete your report with your self identity, witnesses and supporting evidence related to the crime you experienced.

Specific Provision If the Victim Is Company

If the victim is Company, who has the authority to report a crime? To answer this question we must refer to the company Law. The main sources of law governing limited liability companies in Indonesia are Law Number: 40 of 2007 Concerning Limited Liability Company. In addition, other laws are also regulated, including Law Number: 3 of 1982 concerning Compulsory Company Registration, also various implementing regulations under it.

Then, if the victim is Company, who has the authority to report a crime? To answer this question, we must still refer to Law Number: 40 of 2007 Concerning Limited Liability Company, especially Article 1 point 5, where the board of directors is the one who legally represents the company in Indonesia, both inside and outside the court.[3]

What is a the Board of Director? As stipulated in Article 1 point 5, what is meant by the board of director is a company organ that is authorized and fully responsible for the management of the Company for the benefit of the Company, in accordance with the purposes and objectives of the Company and represents the Company, both inside and outside the court in accordance with the provisions of the articles of association.[4] And if you have any issue with this topic, contact us, feel free in 24 hours, we will be glad to help you.


*) For further information please contact:
Mahmud Kusuma Advocate
Law Office
Tokopedia Care Tower, 17th Floor, Unit 2&5,
Outer West Ring Road, 101, Rawa Buaya,
Cengkareng Subdistrict, West Jakarta,
Jakarta - Indonesia.
E-mail: mahmudkusuma6@gmail.com
_________________

References:

1. Kitab Undang-undang Hukum Acara Pidana (KUHAP);
2. "How to Open a Police Report in Indonesia?", Hukumindo.com., Diakses pada tanggal 11 Januari 2022, https://www.hukumindo.com/2021/10/how-to-open-police-report-in-indonesia.html
3. "Who's Legally Represents The Company In Indonesia?", Hukumindo.com., Diakses pada tanggal 11 Januari 2022., https://www.hukumindo.com/2021/11/who-legally-represents-company-in.html
4. Ibid.

Sabtu, 08 Januari 2022

How to Obtain Child Custody in Indonesia

(iStock)

By:
Mahmud Kusuma, S.H., M.H.
(Certified Attorneys at Law)

Previously, the Hukumindo.com platform has talk about "What Legal Ties Underlie The Relationship Between The Client and The Lawyer?", read also: "How To Legally Adopt a Child in Indonesia?" and on this occasion we will discuss about 'How to Obtain Child Custody in Indonesia'.

Sir, I am a father of two cute children. My wife is an Indonesian citizen, while I am an 'A' citizen. Since the pandemic hit, our domestic life has become more difficult, and I have rarely visited Indonesia. My relationship with my wife seems to be irreversible, but I still have the desire to take care of my children. I need your advice to obtain custody of my child.

Governing Law

Dear Mr. X, we are saddened to hear about your legal concerns. With the limited data you provide, we will try to help solve this problem. You did not mention which country you got married in, so we assume that you are married in Indonesia according to Indonesian law. This is based on your words which write that: "My wife is an Indonesian citizen...I have rarely visited Indonesia". Thus, the applicable law is Indonesian law, that is based on Law Number: 1 of 1974 concerning Marriage.[1]

How to Obtain Child Custody?

From the information we received, you did not mention what religion you married. Because you must first file a divorce before taking care of child custody issues. Under Indonesian law, child custody is one of the consequences of breaking up a marriage. In this regard, the following provisions of Law Number: 1 of 1974 concerning Marriage apply. 

Article 41:

The consequences of breaking up a marriage due to divorce are:
  1. Both mothers and fathers are still obliged to care for and educate their children, solely based on the interests of the child; if there is a dispute regarding the child custody, the Court gives its decision;
  2. The father who is responsible for all the care and education costs needed by the child; if the father is in fact unable to fulfill these obligations, the Court may determine that the mother will share the costs;
  3. The court may require the ex-husband to provide living expenses and/or determine an obligation for the ex-wife.

We assume that because your relationship with your wife is not harmonious, it is very likely that later it will be difficult to find a peaceful way regarding child custody. As stipulated in Article 41 of Law Number: 1 of 1974 Paragraph 1 concerning Marriage, then "...if there is a dispute regarding the child custody, the Court gives its decision;" apply.

Suggestion

Thus, we recommend that you file a divorce lawsuit against your wife at the relevant court in the jurisdiction of Indonesia. And according to civil procedural law in Indonesia, it is possible to merge a divorce lawsuit with child custody. This will certainly save your time and energy. 

And if you have any issue with this topic, contact us, feel free in 24 hours, we will be glad to help you.


*) For further information please contact:
Mahmud Kusuma Advocate
Law Office
Tokopedia Care Tower, 17th Floor, Unit 2&5,
Outer West Ring Road, 101, Rawa Buaya,
Cengkareng Subdistrict, West Jakarta,
Jakarta - Indonesia.
E-mail: mahmudkusuma6@gmail.com
_________________

Reference:

1. Law Number: 1 of 1974 concerning Marriage.

Kamis, 06 Januari 2022

What Legal Ties Underlie The Relationship Between The Client and The Lawyer?

(Offset.com)

By:
Mahmud Kusuma, S.H., M.H.
(Certified Attorneys at Law)

Previously, the Hukumindo.com platform has talk about "How To Report Online Scammer Or Fraud To The Police In Indonesia", read also "How to Open a Police Report in Indonesia?", and "How To Check The Validity of Indonesian Advocates?". And on this occasion we will discuss about 'What Legal Ties Underlie The Relationship Between The Client and The Lawyer?'

When you have legal needs in the territory of Indonesia and hire the services of an advocate, then your choice is right. Advocate services will make it easier for you from the legal matters you face. You will save time and energy in resolving a legal issue. When you hire the services of an advocate, there will be a legal relationship between the client and the advocate. Do you know what legal ties underlie the relationship between the Client and the Lawyer?

Check the Validity of Your Advocate

As the author has stated in a previous article entitled: "How To Check The Validity of Indonesian Advocates?", The first step you must take before hiring an advocate is to check the validity of the practice permit. Based on the provisions of Articles 2 and 3 of Law Number: 18 of 2003 concerning Advocates, there are several legal products related to proving someone as an advocate:[1]
  1. Letter of Appointment as an Advocate (Issued by advocate organization); and
  2. Certificate of Oath as an Advocate (Issued by Head of the relevant Provincial High Court);
  3. Advocate membership card (Issued by advocate organization).
When you are in Indonesia and have the intention to use legal services through an advocate, it is very important to choose a legally-valid lawyer. Checking the advocate validity you will choose becomes a necessary so that there will be no losses occur in the future. So, its alright to ask your advocate about their validity such as: (a). Letter of Appointment as an Advocate, (b). Certificate of Oath as an Advocate and (c). Advocate membership card, for your safety.[2]

Be smart that civil servants, state apparatus or law graduates who do not qualify as advocates cannot be your attorney and therefore cannot represent your legal interests in Indonesia. For anyone who claims to be an advocate but can't prove his legitimacy, perhaps that you're out of luck and maybe a fraud is going on.[3]

Legal Ties Underlie The Relationship Between The Client and The Lawyer

When you have chosen an advocate who in your opinion is good, then there will be a legal bond that must be resolved first between you and the lawyer. This legal bond between a client and an advocate is what is meant by legal ties underlie the relationship between the client and the lawyer. After the agreement is reached, then the lawyer can work to resolve your legal problem. Generally, there are two legal documents that underlie the client's relationship with an advocate, namely power of attorney and legal services agreement.

1. Power of Attorney, let us know first the definition of the word "power". According to Frans Satriyo Wicaksono, "Power" is power, strength, or authority. In English, it is called power and in Dutch it is called gezag or macht. Meanwhile, the Big Indonesian Dictionary (KBBI) states the definition of power as "which contains power of attorney to someone to take care of something".[4]

So, a power of attorney is a document that authorizes another party to carry out legal actions on behalf of the authorizing party, because the authorizing party is unable to do it himself. These authorized party includes lawyers.[5]

The legal basis for a power of attorney is regulated in Article 1792 of the Civil Code: "The grant of power of attorney is an agreement by which one person gives power to another person, who accepts it for and on his behalf to carry out a legal matter".[6] 

2. Legal Services Agreement, the relationship between a client and an advocate is usually stated in the form of a legal service agreement. Or whatever the name is but still the same. This agreement regulates the rights and obligations of both parties as well as the scope of work that must be carried out by the advocate. In the agreement, it can also be regulated regarding the settlement of disputes that may arise in the future between the client and an advocate, regarding fees and other matters that want to be arranged between the two.

The legal basis for a power of attorney is regulated in Article 1320 of the Civil Code concerning Terms of the validity of the agreement. As a logical consequence, the provisions of Article 1338 paragraph (1) of the Civil Procedure Code which stipulate that all agreements made legally apply as law for those who make them.[7]
 
In general, the legal relationship between an advocate and a client in Indonesia is regulated by two legal documents as mentioned above. And if you have any issue with this topic, contact us, feel free in 24 hours, we will be glad to help you.


*) For further information please contact:
Mahmud Kusuma Advocate
Law Office
Tokopedia Care Tower, 17th Floor, Unit 2&5,
Outer West Ring Road, 101, Rawa Buaya,
Cengkareng Subdistrict, West Jakarta,
Jakarta - Indonesia.
E-mail: mahmudkusuma6@gmail.com
_________________

References:

1. "How To Check The Validity of Indonesian Advocates?", www.hukumindo.com., Diakses pada tanggal 06 Januari 2022, https://www.hukumindo.com/2021/10/how-to-check-validity-of-indonesian.html
2. Ibid.
3. Ibid.
4. "Surat Kuasa: Pengertian, Ciri-Ciri, Jenis, dan Contohnya", www.detik.com., diakses pada tanggal 06 Januari 2022, https://www.detik.com/edu/detikpedia/d-5523325/surat-kuasa-pengertian-ciri-ciri-jenis-dan-contohnya
5. Ibid.
6. Civil Code (KUHPerdata)
7. Ibid.

Rabu, 05 Januari 2022

How To Report Online Scammer Or Fraud To The Police In Indonesia

(iStock)

By:
Mahmud Kusuma, S.H., M.H.
(Certified Attorneys at Law)

Previously, the Hukumindo.com platform has talk about "I Have a Contract Whose Goods Have Not Been Delivered, How Do I Sue Under Indonesian Law?", read also "How to Open a Police Report in Indonesia?", "What's The Difference Between Police Report and Public Complaint?". And on this precious occasion we will talk about 'How To Report Online Scammer Or Fraud To The Police In Indonesia'.

As the number of netizens and cell phone owners continues to rise, online fraud and other kinds of cyber-crimes are becoming more common. The increasing number of social media networks and the emergence of online forums, chat and email groups may lead to cyber-crimes that trigger huge money losses.[1] Have you been a victim of an internet, business, or other Indonesia scams-Bali scams? Scammers and fraudsters are widespread in Indonesia such as in Bali, Greater Jakarta, Batam and Dumai.

Types of Indonesia Scams and Fraud

Scammers take advantage of people looking for romantic partners, often via dating websites, apps or social media by pretending to be prospective companions. They play on emotional triggers to get you to provide money, gifts or personal details. Dating and romance scams often take place through online dating websites, but scammers may also use social media or email to make contact. These scams are also known as ‘catfishing’.[2]

Scammers typically create fake online profiles designed to  lure you in. They may use a fictional name, or falsely take on the identities of real, trusted people such as government personnel, aid workers or professionals working abroad. Dating and romance scammers will express strong emotions for you in a relatively short period of time, and will suggest you move the relationship away from the website to a more private channel, such as phone, email or instant messaging. They often claim to be from a western country, but travelling or working overseas.[3]

Nigerian scams, African scams, online dating scams, infidelity, business, consumer, and marriage fraud remain at very high levels in Indonesia. Especially in Jakarta, Bali and Batam. The most common types of fraud are:[4]
  • Identity fraud;
  • Online dating scams;
  • Advance fee fraud;
  • Visa fee fraud;
  • Visa fraud;
  • Dating fraud;
  • Marriage-bride scams;
  • Online retail fraud;
  • Plus many more!

Prevention Is The Best Solution

So if you’re looking to buy an Apple MacBook Pro with Retina display and a powerful Haswell processor, don’t be lured by cheap prices on public marketplace sites such as kaskus.co.id and olx.co.id (formerly tokobagus.com). It makes little sense for a $1,500 laptop from 2014 to be offered for Rp.5.55 million ($427), even when it is listed as second-hand.[5]

You should buy only from online vendors with positive, established feedback, although beware of overly positive testimonials. Be on the lookout for erroneous product descriptions. Avoid vendors who ignore requests for new photos of the product. If a vendor refuses to meet in a safe public location to show you the advertised product—and instead insists on a bank transfer rather than a direct cash payment—it’s probably not worth pursuing the purchase.[6]

Yet online forums are full of tales of woe from people who transferred money for ‘bargain’ products, only for them to never arrive. Some victims say it is not worth reporting their loss because they would have to pay police for any investigation leading to a refund.[7]

If you are the victim of such fraud, the first thing to do is phone the vendor. If they refuse to take your calls, then send formal text messages, explaining you will report them to the police and to their bank if they fail to refund your money within 24 hours. You can also report them to the site on which they advertised, which will likely result only in their account being deactivated.[8]

In addition, dear readers, I have often received e-mails from netizens abroad regarding things such as: "Sir, I bought plants through an online application, after I paid for it, but the goods were not delivered; or Sir, I bought a reptile from Indonesia, after I paid, the goods were not sent; or Sir i am Mr. X from India, I bought a medical device from a city in Indonesia, after I paid for the item it was never delivered". The value of the loss is not that big, which is between 10 million Rupiah to 30 million Rupiah (1 US $ equal to 14.000,- Rupiah). I can tell you, it is very possible that you are one of the victims of online scams. When you intend to hire a lawyer in Indonesia to report the matter to the Police, the value of the loss is not comparable to the lawyer fee that you have to bear. You have to find another solution regarding this matter, as I suggested earlier, that "prevention is the best solution". The criminal reporting process in Indonesia takes time and needs a lot of energy. I hope all of you understand this situation.

Reporting Online Scammer Or Fraud To The Police 

The Hukumindo.com platform has previously discussed how to report criminal incidents in Indonesia as stated in the article entitled: "How to Open a Police Report in Indonesia?". Basically, all criminal acts that occur in Indonesia are reported in the same way to the Police. So now, how to open a Police Report ("LP") in Indonesia? As a guide, here's how to open a criminal report according to the author's practical experience:[9]
  • Come to the relevant Police Station;
  • Come to the Integrated Police Service Center (SPKT);
  • Tell the chronology of the crime that you experienced to the Police officers;
  • If the incident you experience is a criminal act, the Police officer will give you a report sign, if it is not a criminal act, the Police officer will not give you a report sign.
Complete your report with your self identity, witnesses and supporting evidence related to the crime you experienced.

Is Lawyer Needed To Reporting a Crime In Indonesia?

So why does you need a lawyer to report a crime in Indonesia, more specific such as online scammer or fraud? Fraud reports get complicated so the Police may be reluctant to talk to you unless you have a lawyer. Without clear physical evidence, fraud reports depend on probably complex tales of events and documents which are difficult to explain in broken English. Few Police speak English, so how are you going to make a report unless you have an interpreter?[10]

Further, Indonesian criminal law is very specific because the underlying law code or KUHP is brief but vague, and reports often quickly turn to discussions over which section of the KUHP might apply to the reported crime. Victims tend to feel violated and outraged over the crime, but under law only certain aspects of a series of events may be criminal. If both parties have engaged in confrontations, there may be potential crimes committed by both parties.[11]

But a bigger problem with fraud is that usually money is involved, maybe a lot of it, and it becomes difficult to know whose side anyone is on. Police may expect money to change hands, and for that they need to talk to your lawyer, not to you. In theory you doesn’t really need a lawyer to report a crime to the Police. In practice, you probably does. A lawyer knows the law and knows the Police, and of course a lawyer speaks Indonesian.[12] And if you have any issue with this topic, contact us, feel free in 24 hours, we will be glad to help you.


*) For further information please contact:
Mahmud Kusuma Advocate
Law Office
Tokopedia Care Tower, 17th Floor, Unit 2&5,
Outer West Ring Road, 101, Rawa Buaya,
Cengkareng Subdistrict, West Jakarta,
Jakarta - Indonesia.
E-mail: mahmudkusuma6@gmail.com
_________________

References:

1. "Online Fraud Should Be Reported Quickly: Police", www.thejakartapost.com, Diakses pada tanggal 05 Januari 2022, https://www.thejakartapost.com/news/2014/08/22/online-fraud-should-be-reported-quickly-police.html
2. "Indonesia Scam-Fraud Investigations", www.indonesia-pi.com., Diakses pada tanggal 05 Januari 2022, https://www.indonesia-pi.com/indonesia-scams-bali-scams/
3. Ibid.
4. Ibid.
5. "Online Hazards", indonesiaexpat.id., by: Kenneth Yeung, April 6, 2015, Diakses pada tanggal 05 Januari 2022, https://indonesiaexpat.id/outreach/scams-in-the-city/online-hazards/
6. Ibid.
7. Ibid.
8. Ibid.
9. "How to Open a Police Report in Indonesia?", www.hukumindo.com., Kamis, 07 Oktober 2021, Diakses pada tanggal 05 Januari 2022, https://www.hukumindo.com/2021/10/how-to-open-police-report-in-indonesia.html
10. "Reporting a crime to the police", indonesianlawadvisory.com., Diakses pada tanggal 05 Januari 2022, http://indonesianlawadvisory.com/Police%20Reporting.aspx
11. Ibid.
12. Ibid.

Selasa, 04 Januari 2022

I Have a Contract Whose Goods Have Not Been Delivered, How Do I Sue Under Indonesian Law?

(iStock)

By:
Mahmud Kusuma, S.H., M.H.
(Certified Attorneys at Law)

Previously, the Hukumindo.com platform has talk about "Contoh Pledoi Pribadi (Karen Agustiawan)" you may read also "What Language Must Be Used In The Agreement In Indonesia?", "Procedure for Processing Lost Passport For Foreign Nationals In Indonesia" and on this occasion we will discuss about 'I have a contract whose goods have not been delivered, how do I sue under Indonesian law?'

Two years ago I entered into an agreement with a company in Indonesia in the footwear sector. At first the promised goods were delivered to our country smoothly, but after about 6 (six) months the company in Indonesia no longer sent the promised goods due to the Covid-19 pandemic. I suffered a loss because I am also bound by an agreement in my country with local distributors, how can I sue the company in Indonesia?

Agreement Document

We assume that you are bound by an agreement with a company in Indonesia in good faith. Therefore, the provisions of Article 1320 of the Civil Code concerning Terms of the validity of the agreement apply. As a logical consequence, the provisions of Article 1338 paragraph (1) of the Civil Procedure Code which stipulate that all agreements made legally apply as law for those who make them.[1]

Like a common business cooperation between countries, there is usually a written document between the Parties who make it. Since you did not clearly state which law governs in the event of a dispute as regulated in the agreement document, we assume that Indonesian law governs it. This is also supported by your statement that intends to sue the company in Indonesia.

Breach of Contract Lawsuit

If we analyze it in a simple way, then the legal remedy that you can take later is Breach of Contract lawsuit. Simply put, a breach of contract/default is breaking a promise or not keeping a promise. Breach of Contract can also be interpreted as an attitude in which a person does not fulfill or neglects to carry out obligations as specified in the agreement made between creditors and debtors. Breach of contract/default is regulated in Article 1243 of the Civil Code.[2] 

The elements of Breach of Contract/Default are:
  1. There is an agreement by the parties;
  2. There are parties who violate or do not carry out the contents of the agreement that have been agreed upon;
  3. It has been declared negligent but still does not want to carry out the contents of the agreement.
Based on the description above, it can be understood that a breach of contract/default is a condition in which the creditor or debtor does not/negligently implement the agreed agreement.

The 'Actor Sequitur Forum Rei' Principle Applies

In general, for civil lawsuits, the filing of a lawsuit is based on the principle of 'Actor Sequitur Forum Rei'. This principle is regulated in Article 118 paragraph (1) of the Herzien Inlandsch Reglement (“HIR”) which stipulates that the one authorized to adjudicate a case is the District Court where the defendant resides.[3] 

In practice, if it is related to the Limited Liability Company Law, the domicile of the company in Indonesia is in the Regency or City administrative area. Therefore, it is the relevant District Court that has the legal competence to adjudicate your lawsuit later. For example, if the company is legally domiciled in North Jakarta, then the North Jakarta District Court has the competence to adjudicate your lawsuit. If the company is legally domiciled in Tangerang Regency or Tangerang City, then the Tangerang District Court has the competence to adjudicate the case. If the company is domiciled in Bekasi Regency, then the Cikarang District Court has the competence to adjudicate your case, and so on.

And if you have any issue with this topic, contact us, feel free in 24 hours, we will be glad to help you.


*) For further information please contact:
Mahmud Kusuma Advocate
Law Office
Tokopedia Care Tower, 17th Floor, Unit 2&5,
Outer West Ring Road, 101, Rawa Buaya,
Cengkareng Subdistrict, West Jakarta,
Jakarta - Indonesia.
E-mail: mahmudkusuma6@gmail.com

________________
Reference:

1. Civil Code.
2. Ibid.
3. Herzien Inlandsch Reglement (“HIR”).

How to Execute Power of Attorney From Abroad to Indonesia Territory?

( iStockphoto ) By: Mahmud Kusuma, S.H., M.H. ( Certified Attorneys at Law ) Previously, the Hukumindo.com platform has talk about " Ho...