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

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By:

Team of Hukumindo

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 specific 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

Jakarta - Indonesia.

E-mail: mahmudkusuma22@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.

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

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By:

Team of Hukumindo

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

Jakarta - Indonesia.

E-mail: mahmudkusuma22@gmail.com

________________

Reference:

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

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

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By:

Team of Hukumindo

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

Jakarta - Indonesia.

E-mail: mahmudkusuma22@gmail.com

________________

References:

1. Criminal Code

2. Ibid.

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

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By:

Team of Hukumindo

Previously, the Hukumindo.com platform has talk about "Who Has the Authority to Report a Crime If the Victim Is a Company?", "The Example of Official Police Report Receipt in Indonesia", 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.

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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

Jakarta - Indonesia.

E-mail: mahmudkusuma22@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

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

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By:

Team of Hukumindo

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

Jakarta - Indonesia.

E-mail: mahmudkusuma22@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.