The Meaning of Audi Et Alteram Partem Principle In Verstek Verdict Of Civil Law

Abstract

The purposes of this study are 1) To identify and analyze the philosophy of imposing verstek verdict in civil law case 2) To discover and analyze the meaning of audi et alteram partem principle in imposing verstek verdict in civil law case 3) To discover the ideal legal concept in imposing the verstek verdict by the Judge to provide legal protection especially for defendant under the national law framework which refer to the philosophy of Pancasila and base on the UUD 1945. This study is normative research as well as doctrinal by analyzing provisions in various law regulations that relate to the impose of verstek verdict such as HIR, RBg, Rv and the draft of Civil Law, analyzing legal principles, the meanings, and expert opinions which relate to the discussed topic, using the law approach, conceptual and historical approaches. The result of this study is showing that the nature of verstek is the statement of defendant is not present in the court. Other than the verstek verdict is imposed by the judge with condition that the defendant has been legitimately and properly called however the concerned person nor the legal counsel is not present without any proper reason, the other reason is the accusation of the litigant is not against the law/base on law. The aim of the impose of verstek verdict by the judge is to encourage all parties to obey the trial procedure, to be present in the trial to defend their interests and rights. The impose of verstek verdict is not violating audi et alteram partem principle because the Judge has given a chance to the defendant to be present in the trial to defend their interest however they failed, also has been given equaled opportunity to all parties to prove their propositions as well as the same rights to take legal actions. The audi et alteram partem principle has the meaning of the given of equaled opportunity (the principle of equilibrium) to the both side to defend and protect their right in front of the Judge, this principle is constituting the reflection of justice, as one of aspects of justice is equality before the law. The equality of rights can be seen from the same rights that given to both parties to be present at the trial, to prove their argument (principle of burden of proof), and to take a legal action on the judge verdict. The imposition of an ideal verstek verdict other than based on the applicable law, it also should require a prudence attitude of the judge in imposing verstek decision. Result of the verdict is not just formalistic, but also reflecting a certainty of law, justice and expediency. This can be achieved not only by relying on the ability of the judges themselves, but also by having legal certainty through a clear and firm legal regulations that adhered and applicable in the society. Judge's verdict should be able to provide a legal protection to everyone which eventually will provide the sense of Justice.