In the Implementation of Auctions, especially the Execution Auction

The existence of auctions as a public or private function is very much needed. The implementation of the auction itself based on the Regulation of the Minister of Finance Number 93/PMK.06/2010 as amended by the Regulation of the Minister of Finance Number 106/PMK.06/2013 has given the KPKNL the authority to carry out a very wide range including execution auctions. In the implementation of the auction, especially the execution auction, the potential for lawsuits is very high. The total number of lawsuits filed with the DJKN/KPKNL (based on the State Wealth Media Bulletin Edition No.14 Year IV/2013) is 2,458 and more than 1,500 are claims from the auction for the execution of Article 6 Mortgage. The lawsuit/rebuttal shall be submitted before the auction and after the auction. The claim before the auction was intended by the plaintiff to delay the auction. And the post-auction lawsuits/rebuttals have various motives behind them. A lawsuit generally arises when someone is dissatisfied. As a state of law/rechtstaat, every citizen who feels that their rights have been violated has the right to file a lawsuit/rebuttal to the court as a channel for their rights which have been violated. The lawsuits against the implementation of the auction are mostly due to unlawful acts (PMH). 4. The lawsuit on the basis of error/negligence in connection with the implementation of the auction and the consequences of the auction include the act of auction, unreasonable price, emptying. 5. Claims on the basis of other errors/omissions. 5. The auction buyer is related to the right of the auction buyer to be able to control the goods that have been purchased/emptied. 6. The defendants include creditor banks, PUPN, Auction Offices, auction buyers, debtors who pledge goods, and other parties related to legal actions contained in the legal requirements for the auction, among others, the land office that issues certificates, notaries who make a guarantee agreement. In many cases of lawsuits against the implementation of the auction, the petition for the plaintiff is against the law (PMH).

Lawsuits are mostly based on PMH for violating a rule of law.

The claim/petitum submitted by the plaintiff in his lawsuit is essentially a lawsuit against the law (PMH). 4. Between the act and the resulting loss there must be a causal relationship. The act in question is active, namely doing something or passive, namely not doing something even though he has a legal obligation to do it, which obligations arise from applicable law (because there are also obligations arising from the implementation of a contract),11 so that against acts against the law, there is no there is an element of "agreement or agreement" or there is no element of "allowed cause" as contained in the contract. Acts that are carried out solely on the personal will of the person concerned and against the law, violate decency, decency, religion that result in harm to other parties and on a wide scale cause shock to individuals/societies. This act must be against the law. Since 1919,12 elements against the law have been interpreted as broadly as possible, namely related to the implementation of an unlawful act (PMH) auction in an auction which includes the definition of an unlawful act in a broad and narrow sense. Lawsuits are mostly based on PMH for violating a rule of law. Every activity in the auction procedure has rules that become the legal basis, therefore unlawful acts related to the tender requirements document, can be interpreted as unlawful acts in a narrow sense, because they directly violate a written legal regulation, as a result of legal defects in making the legal requirements for the auction. stipulated in the legislation. The lawsuit in the auction, which is based on PMH in a broad sense, for example, the price formed according to the plaintiff is too low/unrealistic so that it is contrary to propriety and violates the rights of the owner of the goods and is contrary to the seller's legal obligation to optimize the auction selling price, which ultimately contradicts propriety. in society.

In order to be subject to Article 1365 of the Civil Code regarding unlawful acts, the law and jurisprudence require that the perpetrator must contain an element of error (sculdelement) in carrying out the act. Therefore, strict liability does not include responsibility based on Article 1365 of the Civil Code. Even if in certain cases strict liability is imposed, it is not based on 1365 of the Civil Code, but is based on other laws. There is no justification or excuse for forgiveness (rechtvaardiging-grond), such as overmacht, self-defense, insane, and others. As a consequence of the elements of error and against the law mentioned above, should it be cumulative or just one? The flow that states that accumulation is needed, both elements against the law and errors. In a lawsuit against the law in an auction, the plaintiff always argues that there was an error in the preparation of the tender document requirements or in the conduct of the auction, either due to negligence or intentional, which resulted in the loss of the plaintiff. The defendant is blamed for the losses he incurs, therefore the defendant must be responsible for it. The existence of a loss (schade) for the victim is also a condition for a lawsuit based on article 1365 of the Civil Code to be used. In contrast to losses due to default which only concern material losses, losses due to unlawful acts in addition to material losses, jurisprudence also recognizes the concept of immaterial losses, which will also be valued in money. Whereas in the auction the form of compensation due to unlawful acts is prioritized in the petitum asking for a judge's decision that the auction act is an unlawful act (PMH), then restoration to its original state (can be with forced money) and money.

5. There is a clause relationship between the act and the loss.

The PMH lawsuit in the auction is more dominant in emphasizing the mention of the auction act as PMH, not on the provision of compensation. Claims for compensation in the form of money include material and immaterial (moral) compensation. Material compensation includes, among others, the loss incurred in the amount of the difference between the reasonable price of the goods and the price of the goods at the time the goods are sold, the costs incurred by the plaintiff in managing the case. Immaterial (moral) losses include losses that arise because the announcement of the auction has lowered self-esteem, losses that arise because the implementation of the auction has lowered self-esteem and defame. 5. There is a clause relationship between the act and the loss. The causal relationship between the act committed and the loss suffered is also a condition of an unlawful act. For causal relationships there are two kinds of theories, namely the factual theory and the theory of approximate causation.

The causal relationship in fact (caudation in fact) is only a matter of facts or what factually has happened. Every cause that causes a loss can be a factual cause, as long as the loss (result) will never exist without a cause and is often referred to as but for or sine qua non. The second theory is that the concept of "approximate cause" or proximate causa is the most confusing and most contradictory part of the law regarding unlawful acts and is often also referred to as legal causa. If the lawsuit against the law relates to an act that does not directly declare the auction as an unlawful act, then the petitum and ruling first declare the act, for example binding, confiscation, credit agreement, the amount of debt, as an unlawful act, then only declare the auction as an act against the law, because it is a follow-up to previous actions, which have been declared legally flawed. The need for auction institutions, one of which is to fulfill or implement judicial decisions or dispute resolution institutions based on law in the context of law enforcement. In the execution auction, the seller is not directly the owner of the goods, but is carried out by the presence of a statutory power in this case the District Court or the State Receivables Affairs Committee (PUPN) or creditor banks. The power of attorney is granted based on the law, not on the voluntary basis of the owner of the goods, therefore the sale of the auction is not voluntary by the owner of the goods, so that often a lawsuit arises from the owner of the goods, either by the debtor of the owner of the goods or by third parties who own the goods.

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The law only allows parties whose rights have been impaired by the act of buying and selling auctions carried out through the auction office, can defend their rights/interests by filing a lawsuit to the court,19 in the hope that the court will provide law for the dispute they face. Decisions issued by courts of first instance or appeal or cassation are mostly related to PMH in a broad sense. The judge's consideration regarding PMH in a broad sense is because it violates the rights of the auction respondent/goods owner and the price is not objective and unrealistic/too low so that it is contrary to the propriety and legal obligation of the seller to optimize the auction selling price, which ultimately contradicts propriety in society. In various decisions, with the granting of the plaintiff's petition related to PMH in a broad sense, namely the implementation of the auction violates the law, but the judiciary does not immediately declare the minutes of the auction null and void or even the auction itself is null and void. In one of the judge's decisions, the judge's consideration stated that the actions of the KPKNL defendant who had carried out the auction were against the law, namely that the price formed from the auction was too low/below the market price. 2. The creditor bank is not entitled to the fulfillment of the credit agreement or the obligations to execute the auction on the object of the auction, the goods are returned to the status of collateral goods.

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