Exception of Competence to Judge

Exception, in Civil Procedural Law context, has the meaning as an objection. Exception can also be defined as a defense (plea) proposed by the defendant against the plaintiff’s claim. However, the objection which is proposed in the form of exception is aimed on the formality requirement of a claim and is not aimed and does not offend the main dispute (verweer ten principale). One of the exceptions in the civil procedural law context is an exception regarding the competence to judge. Exception of competence to judge can be proposed if the court is not competent to examine the related case. Exception of competence to judge is divided into:

1. Exception of Absolute Competence (Exceptio Declinatoir)

Absolute competence is related to the absolute competence of four categories of courts (General Court, State Administrative Court, Religion Court, Military Court), and Special Court (Arbitration, Commercial Court, others). Each court has certain jurisdictions. The jurisdiction of one court cannot be violated by other court’s jurisdiction.

 

Submission of the exception of absolute competence (exception declinatoir) is regulated under Article 134 Herziene Inlandsch Reglement (“HIR”) and Article 132 Reglement op de Rechsvordering (“Rv”). Exception of absolute competence can be proposed by the defendant at any time. Article 134 of HIR and Article 132 of Rv regulate that the exception of absolute competence can be proposed by the defendant at any time during the process of examination is held at the first degree of trial until before the decision is made (District Court).

2. Exception of Relative Competence (Relative Comprtitie)

Relative competence is related to the jurisdiction of the court in the same category, as it is regulated under Article 118 HIR.

Article 125 paragraph (2) and Article 133 of HIR regulate that the exception of relative competence must be proposed in the first day of trial and together with the answer of the claims against the main dispute. An exception of relative competence can only be proposed together with the submission of first answer. If that condition is not fulfilled, the defendant’s right to propose the exception of relative competence becomes aborted.

Exception of relative competence can be proposed orally or in writing. Article 133 of HIR gives the rights to the defendant to propose an exception of relative competence orally. Judge who refuses and does not take into consideration the oral exception, is considered as violating the proceeding’s regulation and such action can be qualified as an abuse of power. Besides orally, the exception of relative competence may be proposed in writing as set forth under Article 125 paragraph (2) Rv jo. Article 121 of HIR.

Exception related to the absolute competence, which is proposed together with the submission of answer after the reading of claim / request of the main dispute, must be decided before the decision for the main dispute is made. However, for an exception related to relative competence, judge can give decision before or together with the decision on the main dispute.

Amanda Widhi

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