Pemisahan Gugatan Wanprestasi dan Perbuatan Melawan Hukum dalam Perspektif Hukum Materiil dan Penerapan di Pengadilan (Studi Kasus 4 (Empat) Putusan Pengadilan Negeri Medan)

Abstract

In the combination of complaint about default with illegal offense in four verdicts of the Medan District Court, Two of them are accepted: the Verdict No. 728/Pdt.G/2016/PN.Mdn and the verdict No. 584/Pdt.G/2014/PN.Mdn while the other two verdicts No. 280/Pdt.G/2018/Pn.Mdn and No. 320/Pdt.G/2019/PN.Mdn are rejected. Consequently, the judge‟s decision causes uncertain perception. The research problems are as follows: hou about the complaint about default and PMH (illegal offense) in the material law perspective, how about the perception of the judge and the advocates, and how about the criteria of separating complaint about default from illegal PMH in the perspective of the judge on the Medan District Court and The advocates. The research employs juridical normative and descriptive analitic methods with statute, conceptual, and case approaches. The data consist of primary legal materials such as laws and the court verdictsof Medan District Court, secondary data comprise literature supported by data, interviews, and tertiary legal materials included dictionaries, KBBI, encyclopedia, and internet. The result of the research shows that complaint about default should be based on a contract as it is specified in Article 1234 of the Civill Code, and the right to file a complaint should principally need summons. Meanwhile, PMH is specified in Article 1365 of the Civil Code, illegal offense (laws) on doing harm to other people, and the right of non-summons. Therefore, the two articles above become the separator of complaint about default from PMH, so the in organizing a complaint, one should pay attention to its requirements (formal and material) according to Article 8 Number 3 Rv (reglement of de rechtsvordering) in order that the complaint can be accepted, and allegations should be balanced with relief sought. The Supreme Court Rulings No. 1875/K/Pdt/1984 and No. 879/K/Pdt/1997 state that the combination of complaint about defauld and PMH is an offense in doing litigation. Complaint about default should be based on agreement between a plaintiff and a defendant because it comes from a contract whereas illegal offense is concerned with law. From its elements, there is the difference in its elements in which the sanction for the compensation is specified in law while PMH is not specified