Execution of Administrative Decision

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EXECUTION OF

ADMINISTRATIVE COURT

DECISION

Article 115,116 and 117Law No. 9/2004

by Dewi Asimah

Presented as materials for discussion with The Chief Judge of Seoul

Administrative Court,Honourable SOHN YONG KEUN, LLD, who visited

to Denpasar on November 2007 for comparative study and discussed

about the Administrative Law and Court both in Indonesia and Korea


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Issues and Constraints in the

execution of AdministrativeDecision

Legal Culture Excess of the Corruption, Collusionand Nepotism Practices

Legal Awareness Law of Procedure Facility


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PUBLICATION ON MASS MEDIA

Article 116 (5) Law No. 9/2004

Court registar shall publish the non

compliant state officials who failsverdict as mentioned in paragraph

(4) on local printed mass media

following failure to observe theprovision articulated under

paragraph (3).


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PENALTY

In imposing penalty, it should be notice

that the penalty will only be imposedupon noncompliance of the responsible

official to the judge decision

WHO SHALL PAY THE PENALTY ?

The cost will be born by state finance, or

by the individual under discussion.


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1. DUTY FAULT(faute de serve) Theoretically,

a state official who is on duty is assuming

states role. Therefore, when during this time

he/she incurs damage on others/public, as

long as the tasks are within the legal corridor,

it will then justified that the lost of the

affected people born by the state.

2. INDIVIDUAL FAULT(fautepersonelle).Unlikely, when a state official is

noncompliance to the judges verdict whenhe/she is not assuming an official role, thecost of his/her noncompliance shall be bornindividually.


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This is in line with the theory of fault

developed from the Counseil dEtat

jurisprudence, with at the essence

distinguishes on duty fault (faute de serve)

and individual fault (faute personelle).

It is correct to charge the penalty toindividual/official in office, when an official is

noncompliance to the administrative court

decision.

The actions by the noncompliant officials

above is personal legal breach, when the

person is not on duty. As the consequence,

the penalty shall be born personally.


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PUBLICITY

The positive aspect of the publicity theory

indicates that publicity pressure could

motivate a person to act in compliant with theprevailing law, including court verdict, given

the inconvenience the person might bear

when his/her noncompliance is exposed to

public.

According to the theory, publication could

pressure the government to carry out whathas been decided under the law or by legal

institution


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Provisions on the execution of decision of

Law No. 5/1986 are still insufficient to

satisfy state administrative and publiclegal interests.

Therefore, significant changes need to be inplace, such as imposition of sanctions,penalties and/or administrative sanction,publication on mass media. These are

expected to promote better legal practicesamong state apparatuses so that decision canbe executed properly to satisfy public legal

interest.


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The Execution of Administrative Court Decision

(Rule No.9/2004 Article 116)

To Enact Decision

The Judgment has

final and binding

Compensation

Rehabilitation

To Revoke Decision

CHIEF OF THE

ADM. COURT

PLAINTIFF/

APPLICANT FOR

EXECUTION

DEFENDANT

ADM OFFICIAL

PENALTY

ADMINISTRATIVE SANCTION

BE PUBLISHED ON

MASS MEDIA

In 4 months, Adm

decision has no

longer legal force

The Judgement

is not executed

The Judgement

is executed

Execution of Administrative Decision

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