Trial mechanism in Indonesia has changed through the enactment of Supreme Court Regulations in 2018 and 2019, including electronic trial and evidence. However, it was problematic because the change was partial. Although Indonesia has started to implement the electronic trial, the legal principle of evidence is using conventional procedural law, including the settlement of contract disputes. This article aims to analyze and find the mechanism of examining the evidence of contract dispute resolution in electronic courts in Indonesia in the ius constitutum and ius constituendum. This article suggests a comprehensive construction ius constituendum of contract dispute settlement evidence in Indonesia electronic trials.

Introduction

Evidence plays an important role in the trial process (Rozi, 2018). If an event cannot be proven, even though the incident happened de facto, but the incident was de jure still considered not to have happened (Butarbutar, 2010). Moreover, in the matter of contract dispute resolution in civil law, which prioritizes the evidence, it seeks formal truth, or the truth is based on formal evidence (such as deeds, written agreements, etc.). The importance of evidence in contract disputes is also regulated in Article 1865 of the Indonesian Civil Code jo. Article 163 of the Indonesian Civil Procedure Code and also following the principle of actori incumbit onus probandi, actore non probante, reus absolvitur (the burden of evidence is on the plaintiff and if the plaintiff cannot prove, the defendant must be released from all such claims) (Roy, 2019). As time goes by, the trial mechanism in Indonesia has changed from conventional to modern. By 2018, there are several changes to the enactment of Supreme Court Regulation Number 3 Year 2018 about Administration of Cases in Court and revised by Supreme Court Regulation Number 1 Year 2019 (Djatmiko, 2019). One of the changes from a conventional trial to an electronic trial is related to evidence, however it was a partial change only, hence it causes problems. For example, regarding documentary evidence, there is no verification mechanism and no mechanism for adding evidence when the parties want to add letter evidence after uploading the lawsuit and answers. Then related to the mechanism when there is a signal disturbance during an online trial of evidence by examining the testimony of witnesses and/or experts there is a signal disturbance or other technical disturbance.

Discussion

Letter

The letter evidence in Article 1866 Indonesian Civil Code is placed as the first order of the evidence acknowledged by the law. Since letter is usually used in civil affairs or in the case of conducting a contract such as buying and selling, renting, exchanging; hence there will always be a form of evidence in written form of contract letter, which contract can be used later when there is a dispute against the will of the parties. Mertokusumo argues that the evidence of letters is everything that contains reading signs intended to pour out the contents of one’s heart or to convey the fruit of one’s thoughts and it is used as evidence (Mertokusumo, 2002). Letters as a means of written evidence can be divided into two types, deeds and non-deeds letters. In this case, the deed is divided into two, the authentic deed and the non-authentic deed written under the hand. As the times progressed, photocopies of a letter or deed were also accepted as a means of evidence, but it must be accompanied by the original letter/ document and it without being corroborated by witness statements and other evidence as it can be seen in the Supreme Court Decision date April 14, 1976 Number 71 K/Sip/1974 (Mertokusumo, 2002). In the trial of civil cases electronically, especially at the evidence stage, based on Article 22 of Supreme Court Regulation No.1 in 2019, it is regulated that letter evidence is done online by uploading documents or evidence in the form of letters on the E-Court application. Related to other arrangements regarding the evidence of letters at this electronic trial is not regulated in more detail, even though the position of the letter on the evidence of civil cases that prioritize the formal truth (truth based on documents) is certainly very essential.

Conclusion & Recommendations

In  Indonesia,  although  it  has  begun  to  implement  electronic  trials,  it  turns  out  that  in  principle  the  evidence  is  still  using  conventional procedural  law,  including  those  related  to  contract  dispute  resolution.  Although  there  are  several  arrangements  related  to  electronic evidence, such as electronic submission of evidence, it is possible to examine witness statements and/or expert knowledge canbe carried out remotely through audio-visual communication media, but there are no detailed technical arrangements regarding this matter, and there is no electronic mechanism for other evidence, such as suspicions, confessions, oaths, and other electronic evidence. Hence, in the future, there needs to be regulation for updated Indonesian civil procedural law that can ensure the validity and legal certainty of evidence used in electronic court, especially in the case of contractual dispute. It is noteworthy that this research is limited to a normative legal research, hence it needs an empirical approach to complement it in future research.

Author : Faizal Kurniawan

Kurniawan, F. ., Agustin, E. ., Nugraha, X. ., Ikbar, R. D. ., & Felicia, S. A. . (2022). Evidence of Contract Dispute Settlement in Electronic Trials in Indonesia in the Construction of the Ius Constitutum and Ius Constituendum. Environment-Behaviour Proceedings Journal, 7(SI11), 21-27. https://doi.org/10.21834/ebpj.v7iSI11.4168