Fictitious-Positive Decision Dispute Resolution at PTUN For the Achieving Unity of Proceedings and Legal Certainty

Abstract

The Administrative Court (PTUN) has the authority to adjudicate ordinary state administrative disputes, namely disputes resulting from the issuance of written decisions by government officials, these disputes are classified as "ordinary state administrative disputes". The Administrative Court is also authorized to adjudicate "fictitious-positive decision disputes", namely disputes caused by legal events in the form of silence by government officials not issuing the requested decision, then the application is considered legally granted. Plaintiff (person or civil legal entity), before filing a lawsuit to the Administrative Court, it must first take an " Administrative Appeal ", it is determined if the authorized official does not respond (acts in silence) to Administrative Appeal, then "Administrative Appeal are deemed granted". Then there will be a juridical problem: "whether the dispute will be tried by PTUN as" Ordinary State Administrative Dispute "or as" Fictitious-Positive Decision Dispute? ". The approach method used is Normative Juridical, qualitative normative analysis method, and grammatical and systematic interpretation method. Based on normative studies, it is not yet clear whether the legal event will become an "Ordinary TUN Dispute" or a "Fictitious-Positive Decision Dispute", because it cannot be classified into the two types of disputes. Certainty is needed, because the procedural law are very different between the two types of disputes. The Article 77 and Article 78 of the UU-AP need to be amended by adding the provisions in the next paragraph which stipulates: "if the applicant for an administrative objection or appeal wishes to submit to the Administrative Court, then the TUN dispute is resolved in the Ordinary Procedure or is resolved as a fictitious decision dispute- positive". It is very important to emphasize in the provisions of the article in order to realize the unity of the proceedings and legal certainty