THE VAN DADING ACT AS A RESULT OF MEDIATION WHICH WAS NOT ACCOMPANIED BY A COURT RULING IN RELATION TO THE EXECUTORIAL VALUE

Abstract

Efforts to resolve a legal case can be done by means of peace. Peace through the mediation process is a concept of social harmony without hostility and can be used as an option for the parties in resolving disputes. This research discusses the legal provisions that regulate the process or mechanism for resolving disputes by means of mediation according to positive law provisions and how van Dading deeds resulting from mediation which are not accompanied by court decisions relate to executorial value according to applicable legal provisions.

This research is descriptive in nature with a normative juridical type of research on secondary data in the form of primary, secondary and tertiary legal materials obtained through library research and document study. Primary data through interviews was conducted to strengthen secondary data. The approach uses a statutory approach, while the analysis used is qualitative analysis.

The process of resolving disputes through mediation is in accordance with the sociological basis applied by Indonesian society and is also in accordance with the philosophical basis as intended in the 4th principle of Pancasila. Juridically, dispute resolution by means of mediation has also been regulated in positive law, as stipulated in Article 130 HIR/154 Rbg., Civil Code, Law Number 30 of 1999, Law Number 48 of 2009, Perma Number 1 of 2018 and other related laws and regulations. The result of the dispute resolution process by means of mediation, whether carried out in court or outside court, is the existence of an agreement or peace agreement which both have evidentiary value and are binding for the parties. However, both do not have definite legal force as befits a court decision which has permanent legal force. The peace agreement resulting from mediation in court can be immediately upgraded to a deed of peace through the panel of judges examining the case at the time of the trial and finalized into a court decision. Meanwhile, a peace agreement or agreement resulting from mediation outside of court only obtains status as a peace deed after the parties, with the help of the mediator, submit a peace lawsuit through the District Court, vide. Article 36 PERMA Number 1 of 2016. So, the peace deed in question has legal certainty and has permanent legal force (incracht van gewijsde).