Execution against Residential Immovable Property in terms of High Court Rule 46A

This article provides an overview of and commentary on High Court Rule 46A, which deals with the procedural rules for executing a judgment debt against residential immovable property. Rule 46A focusses on two main aspects: determining if it is justified to sell the debtor’s home in execution and, if a sale is ordered, setting a reserve price at which the property is to be auctioned. Therefore, this article analyses the provisions of rule 46A that pertain to these two components, which also serve as two layers of protection for a debtor facing the loss of his or her home.

ANALISIS MASLAHAH TERHADAP PERMA NOMOR 3 TAHUN 2017 TENTANG PEDOMAN MENGADILI PERKARA PEREMPUAN BERHADAPAN DENGAN HUKUM

This Supreme Court regulation was formed because there is still widespread discrimination and gender stereotypes in the courts in Indonesia. This regulation is a maslahah hajiyah because this benefit is needed by humans, especially women who are faced the law for the convenience of their lives. If this regulation is not implemented, it will cause difficulties and negative impacts on women, both psychologically and physically. However, these difficulties do not damage the order of human life. The issuance of the Supreme Court regulation, it is expected that gender stereotypes will no longer occur in examinations in courts that can have a negative impact on women dealing with the law, both psychologically and physically, and the issuance of decisions that are gender biased. Supreme Court Rule Number 3 of 2017 concerning Guidelines for Judging the Case of Women Facing the Law, hoped that it can become a standard for judges and all judicial apparatus, in the process of examination in the courts in handling cases involving women, both as perpetrators, victims, witnesses and parties, so that the goal of eliminating all potential discrimination against women facing the law can be achieved.

Rule 105 Holding the interim conference

The judge rapporteur may order on a request by a party or ex officio to hold the interim conference in open Court (→ Rule 334(d) UPCARoP) which will then be audio-recorded and made available at the Court to the parties and their counsel. There is no need to take minutes at the interim conference due to audio-recording. The public may be excluded for reasons of confidentiality (→ see Rule 115 UPCARoP, mn 4 ff).

Confirmation by the Court of a settlement

Where the parties have concluded their action by way of settlement, they shall inform the judge-rapporteur. The Court shall confirm the settlement by decision of the Court [Rule 11.2], if requested by the parties, and the decision may be enforced as a final decision of the Court.

Powers of the Court

Rules 331–337 give the Court extensive powers for active case management. This includes communication with the parties to inform them of the requests and requirements of the Court (Rule 334(c)) or through Rule 334(j) the right to request the parties to provide clarification on certain points, answer specific questions, or produce evidence or lodge documents (Rule 103).

Rule 238A Decision to refer

Art 21(2) UPC Statute provides that cases of exceptional importance in which the decision is of possible relevance for maintaining the unity and consistency of the Court’s practice may be referred to a plenary panel of the Court. Rule 238A UPCARoP provides for the procedural details for such referral.

Duties of a court expert

The court expert shall present an expert report in writing within the time period specified by the Court [Rule 185.4(f)]. The court expert shall be under the supervision of the Court and shall inform the Court of his progress in carrying out his task.

Duration and effects of a stay of proceedings

Pursuant to para 1, a stay of proceedings will take effect on the date indicated in the order to stay or, in the absence of such an indication, on the date of that order. Therefore, it is subject to the discretion of the Court to determine on what date the stay of proceedings will take effect. This is true for orders to stay which are themselves subject to the discretion of the Court (→ Rule 295 UPCARoP).