1. The Notary Deed Deems as Conclusive Evidence
Law No. 30 of the year 2004 concerning Notary Title ("UUJN") states that the notary can draw up an authentic deed, as stipulated in article 15 paragraph (1) UUJN :
"Notary is authorized
to draw up an authentic deed regarding all actions, agreements and provisions
required by legislation and or desired by stakeholders to be declared in the
authentic deed, guarantees a certainty for drawing up the date of deed, the
deed’s custody, gives Grosse, minutes and excerpts, all of that insofar the
drawing up of the deed was not also assigned or exempted to the other official
or other person stipulated by the Law "
The notary deed is conclusive evidence of what stipulated within it (see Article 1870 of the Indonesian Civil Code). According to Prof. Sudikno Mertokusumo, legal force of conclusive evidence on an authentic deed is an integration of some of the legal force of shreds of evidence. The absence of one of the legal force of evidence or the requirements would result in the authentic act does not have a legal force of conclusive evidence (volledig) and binding (bindende), therefore, the deed will lose its authenticity and no longer be the authentic deed.
2. Degradation of the Authentic Deed
In spite of the notarial deed is conclusive evidence, as aforementioned; however, in practice, the notarial deed may degrade the legal force of the evidence. Degradation of the notarial deed is defined as a notarial deed which cannot be treated as an authentic deed but considered as a private deed, due to infringement of the following provisions:
a. Article 1869 of the Indonesian Civil Code
A deed which, due to the incompetence or incapability of the official
or due to the absence of format, cannot be regarded as authentic, may be
enforced as a private document, if this document has been executed by the
parties
This article contains a provision, that a certificate does not have the strength of the evidence is authentic and only under the weight of the evidence at hand in terms of:
1) The public official is not authorized to draw up the deed;
2) The public official is incompetent to draw up the deed;
3) Defects in the form.
b. UUJN Article 84, which reads:
"The infringement actions committed by
a notary to the provisions as referred to in Article 16 paragraph (1) letter i,
Article 16 paragraph (1) letter k, Article 41, Article 44, Article 48, Article
49, Article 50, Article 51, or Article 52, which caused a deed only has the legal
force as a private deed or a deed becomes null and void may be the reason for
the party that suffered the loss to claim reimbursement, compensation and
interest to the notary. "
In that clause stipulated that the actions which are infringed the certain clauses under UUJN will take effect to the deed fulfilled by such actions as the private deed. The infringement actions, among others :
1. Formalities form of the deed (vide section 38 UUJN);
2. The requirements of the appearers (vide Article 39 UUJN);
3. The requirements of the witness (vide section 40 UUJN);
4. The requirements of recitation the deed (vide Article 44 UUJN);
5. The requirements of the amendment/correction of the deed (vide article 48,49,50 UUJN);
Thus, the deed deemed to be made as a private deed if:
a. In the case of a legal action are not required by law to set forth in an authentic deed; and
b. If the deed expunges the authenticity due to the formal requirements referred to in Article 1869 of the Civil Code and UUJN does not comply
However, the private deed must be signed by the parties. Insofar the change or the degradation of the authentic deed to be the private deed does not cause harm, the notary cannot be charged the responsibilities under a Tort (article 1365 Civil Code).
3. Reflections
a. Degradation means, simply, the deed which can no longer meet the requirements of an “authentic” according to the law. The legal consequence when it does not meet such requirements is the authentic deed can no longer have the legal force as conclusive evidence.
b. Furthermore, in the evidence practices in court, if authentic deed loses its authentic nature, then according to interviews conducted by the author with one former high court judges of Jakarta, the parties still have to prove the date of the deed, the identity of the parties and the signature of the parties to the deed.
c. The difference between degradation and nullification of the deed is if declared nullify by the judge, then the deed is declared never existed.
d. Commonly, the injured party due to the issuance of an authentic deed requests the court to nullify the authentic deed. However, it may be considered too, requested for a deed declared degraded (declared no longer as an authentic deed) if the content of the authentic deed is perceived not substantively/ material detrimental to the other party and only concerned subject to formality defect
e. The rationale to request the deed declared degraded is the matters on the deed will still prevail.
f. Supposedly, if the authentic deed has been declared is degraded, if it is used as evidence in other cases, it cannot be treated as the authentic deed.
g. Contra arguments to the above are that the deed has been degraded, if used in another case should not be declared (permanently) is degraded, because the judge’s decision in Indonesia is not bound by the earlier one.
Bibliography :
- Congress XX of Indonesian Notary Association in Surabaya, January 28, 2009, in the paper of Pieter Latumeten, Nullification, and Degradation of Notary Deed Legal Force as well as The Deed Model
- Sudikno Mertokusumo, Indonesian Civil Procedural Law, Fourth Edition, Yogyakarta, Liberty: 1993, page 121