KH friends are certainly familiar with what a subpoena is? This is because the term subpoena is quite common in the legal world. Often heard in the news, it is not uncommon for people to issue subpoenas to other parties to deter them.
Then, do you understand what exactly is meant by a subpoena, its function, and even how to make it? Well, so you don’t get the wrong idea, let’s see the explanation first in the following article!
What is Somasi?
A subpoena literally means a reprimand or warning. According to the Big Indonesian Dictionary (KBBI), a summons is a warning to pay and so on. This term is used to give a warning or warning to the prospective defendant (debtor) who is in the path or legal process.
The regulation on subpoenas itself is contained in the Civil Code (KUH Perdata) precisely in Article 1238. Somasi may arise as a result of a potential defendant or debtor not fulfilling its obligations as promised.
In addition, there are three ways for a subpoena to occur, namely:
- The debtor performs a wrong obligation, for example, the creditor who should get a sack of gold is instead given a sack of sand by the debtor;
- The debtor does not fulfill its obligations at the promised time. Not fulfilling obligations here can be late or not fulfilling them at all;
- The obligations or promises made by the debtor are no longer useful to the creditor because they have passed the promised time.
Because a summons is a warning, it is given with the aim of giving the prospective defendant or debtor the opportunity to stop his actions or perform obligations as demanded by the plaintiff or creditor.
Somasi is usually issued three times within a span of seven days each. If the summons issued is not heeded by the potential defendant or debtor, the creditor has the right to demand compensation, cancel the reciprocal agreement, and take the matter to court.
Function and Purpose of Somasi
Somasi is done with the aim to:
- Giving the prospective defendant or debtor the opportunity to do something or stop an action as demanded by the plaintiff or creditor.
- Give the potential defendant or debtor the opportunity to find a solution and continue to carry out their promises or obligations.
Somasi also serves to resolve a dispute before the case is formally filed in court.
Parties Eligible to Conduct Somasi
In the rules of civil procedure law, a subpoena can be made by anyone, as long as the plaintiff or creditor has the capacity to carry out legal actions against potential defendants or debtors who are negligent in carrying out their obligations.
Article 118 HIR also states that the rule of subpoena is not required to be represented by a legal representative. Which means it can be concluded that representation in a subpoena is not a requirement.
However, if the subpoena is made by a company that is a legal entity, it needs to be represented by the company’s Board of Directors as stipulated in Article 1 of Law No. 40/2007 on Company Law.
Form of Somasi
Somasi has several different forms of negligent statements, including:
Warrant
This warrant is also known as an exploit, which is an order made orally and delivered to the prospective defendant or debtor.
Deeds and the like
What is meant by deed is an authentic or original deed which is similar in nature to a warrant or exploit.
Self-engagement
An engagement usually occurs when the parties have previously determined in advance what agreement must be made in the event of negligence by the debtor.
Things to Consider in Making Somasi
To declare the prospective defendant or debtor in a state of negligence, of course, it must be examined first so that the party given the summons can understand what problems are happening.
The following are things that must be considered by the plaintiff or creditor in making a summons:
Background of the Problem
In sending a subpoena, the statement submitted must be in accordance with the facts that occurred, because here facts are important things that determine the purpose of the subpoena issued, so that the subpoena is not easily broken by the prospective defendant or debtor.
Expressing a Reprimand or Order
As explained, a subpoena is an order or warning to perform an agreement, request compensation, or terminate an agreement. If there is no warning or order, then it cannot be called a subpoena.
Clear Demand
In sending a summons, the plaintiff or creditor has the right to request several things such as paying a loss, carrying out the agreement and/or terminating the agreement. All such requests must be clearly written so as to no longer disadvantage any party.
Opening up Negotiation Space
Basically, a subpoena is made to reprimand or remind the negligent party to fulfill the agreement and carry out its obligations. Therefore, a space for negotiation is needed in order to solve problems in a cool-headed and efficient manner.
Procedure for Making a Somasi
Basically, there are no official rules for making a subpoena. This means that the subpoena plaintiff can determine the content of the letter freely. However, the plaintiff must clearly state the following:
- Agency letterhead (if from an agency),
- The identity of the intended defendant or debtor (can be an individual or an institution),
- The points and issues at issue, as well as what is being demanded,
- A period of time for a potential defendant or debtor to fulfill its promise or obligation,
- Further legal efforts that will be taken against the prospective defendant or debtor if it cannot fulfill the promise or obligation demanded,
- Signature and clear name.
KH Contact
This is a review of the subpoena, from the definition, function, form, to the procedure for making it. From the explanation above, it can be concluded that negligence is an event that can bring a person to a legal case.
However, to say if someone is negligent or not also definitely needs to be examined carefully. Before issuing a subpoena, the plaintiff needs to study the agreement and various documents to understand the process and the root of the problem.
That way, the defendant can understand the problem and find the best solution together. Do not let the subpoena letter only be an opinion or opinion so that it becomes very easy to break or even cause slander and misunderstanding.
Yes, subpoenas are done to solve problems, not to create new ones. Therefore, it is better for the plaintiff who feels aggrieved to authorize the management of the subpoena to a legal consultant.
There are various legal services in Indonesia that can help you take care of subpoenas, one of which is at Kontrak Hukum. We have been trusted by more than a dozen partners of large companies in Indonesia in resolving their legal issues.
Well, similarly for KH Pals who are facing legal problems and are still confused about the process or what steps to take, it is better to consult with legal professionals at Kontrak Hukum.
There is no need to worry because all data and information of KH Friend is guaranteed to be safe and protected. What are you waiting for, simplify all your legal needs by visiting the page https://kontrakhukum.com/semua-layanan/ or contact us via the following link Tanya KH and via Direct Message (DM) to Instagram @kontrakhukum.
