scholarly journals Consumer Protection in the Banking Credit Agreement in Accordance with the Principle of Proportionality under Indonesian Laws

FIAT JUSTISIA ◽  
2020 ◽  
Vol 14 (4) ◽  
pp. 337
Author(s):  
Dwi Ratna Indri Hapsari ◽  
Kukuh Dwi Kurniawan
Keyword(s):  
Consumer Protection ◽  
Financial Services ◽  
Civil Code ◽  
Freedom Of Contract ◽  
Standard Contract ◽  
Consumer Protection Act ◽  
The Law ◽  
Principle Of Proportionality ◽  
Credit Agreement ◽  
Banking Credit

The implementation of the principle of freedom of contract gives rise to the types of agreements not regulated in the law or The Indonesian Civil Code (ICC). We are familiar with the term Standard contract or standard agreement. Standard agreements are often used in the banking world, one of which is in banking credit agreements, as we all understand that the position of the customer is weaker than the bank, so it must be protected by law. In order to protect these interests, the customer is given protection contained in the Banking Act regulations as well as the Consumer Protection Act and its derivative regulations. Specifically, the credit agreement format as the standard agreement set out in Financial Services Authority Circular Number 13 / SEOJK.07 / 2014 Concerning Standard Agreements is that credit agreements that contain rights, obligations and requirements that are legally binding on customers, are required to use letters, writing, symbols, diagrams, signs, terms, readable phrases, and / or sentences simple ones in Indonesian that are easily understood by customers. This is in an effort to provide protection to customers and the regulatory and supervisory functions of the Financial Services Authority.

scholarly journals KLAUSULA EKSONERASI DALAM PERJANJIAN KREDIT ANTARA PT. MANDIRI PERSERO (TBK) SEMARANG DENGAN WIBOWO S.E. DAN SITI AISYAH (Studi Kasus Putusan No. 8 K/Pdt/2013)

2019 ◽  
Vol 1 (2) ◽  
pp. 595
Author(s):  
Hellen Rumiris ◽  
Stanislaus Atalim
Keyword(s):  
Consumer Protection ◽  
Risk Sharing ◽  
The Other ◽  
Bank Credit ◽  
Standard Contract ◽  
Consumer Protection Act ◽  
The Republic ◽  
The Government ◽  
Credit Agreement ◽  
Banking Credit

Granting credit by the bank to the society greatly helps to develop a business that is run by community both individuals and legal entities. The government of the Republic of Indonesia has intructed banking to provide credit facilities especially for the middle and lower businesses. Banking credit agreement is a standard contract made by the bank by almost not giving freedom at all to the other parties to do negotiation for the requirements offered. This type of research using a normative juridicial research. This research aims to analyze the exoneration clauses in a credit agreement between PT. Bank Mandiri Persero (Tbk) Semarang with Wibowo, S.E. and Siti Aisyah. The bank credit agreement is the legal agreement to the Article 1320 of Indonesian Civil Code. However, the exoneration clauses listed on it contradicts some basis in the law agreement and also violates the provisions of Article 18 of The Consumer Protection Act. Clauses in a credit agreement are made to regulate the rights and the obligatons of the parties so that reasonable risk sharing occures between the bank and the customer. In fact, exoneration clauses are often abused by businessman attempting to diminish, divert and even refuse responsibility. The result of this research concludes that: First, the Government must provide more limits on the using of exoneration clauses through revision of The Consumer Protection Act. Second, PT. Bank Mandiri (Tbk) Semarang must be more meticulous and careful to determine contents of credit agreement.

scholarly journals Kajian Yuridis Pengesampingan Pasal 1266 dan Pasal 1267 Kitab Undang-Undang Hukum Perdata Sebagai Syarat Batal Dalam Perjanjian Kredit Perbankan

2018 ◽  
Vol 3 (1) ◽  
pp. 70
Author(s):  
Rocky Marciano Ambar ◽  
Budi Santoso ◽  
Hanif Nur Widhiyanti
Keyword(s):  
Banking System ◽  
Civil Code ◽  
Legal Rights ◽  
Economic Gain ◽  
Dominant Position ◽  
Freedom Of Contract ◽  
Principle Of Justice ◽  
Credit Agreement ◽  
The Right ◽  
Banking Credit

Banks in the redit agreement use more standardized credit agreements, the use of standard contracts in the banking credit agreement is based on 2 (two) things, (1) The existence of unbalanced position (berganing position) between banks and the debtor, the bank has a more dominant position than the debtor. (2) There is an understanding of the principle of freedom of contract absolutely and indefinitely so that the bank has absolute freedom to determine the form and content of the agreement. So banks can freely to determine the form and contents of the agreement included in the clause of the terms of void wanprestasi arranged to include mengesaampinkan Article 1266 and Article 1267 Civil Code in the agreement. Whereas the provision of Article 1266 of the Civil Code provides that in the event that the revocation of the treaty must be requested by the court and the judge through the decision of the court may determine the types of compensation for the parties. Based on the background, then as for the formulation of the problem of writing is (1). Whether the inclusion of clause 1266 and Article 1267 of the Civil Code in the credit agreement of the banking system has fulfilled the principle of equilibrium and justice. (2) What is the juridical implication of the inclusion of clauses which exclude Article 1266 and Article 1267 of the Civil Code in the credit agreement pertaining to the debtor's right in the process of settling the interpretation as a condition of cancellation of the agreement. The research method used is normative juridical research. The result of this research is the waiver of Article 1266 and Article 1267 of the Civil Code which regulates the waiprestasi void in the agreement and the types of indemnity is contrary to the principle of fairness and the principle of equilibrium. The principle of justice according to Rawls is that it is unfair to sacrifice the right of one or more persons only for the sake of greater economic gain and even justice must be understood as fairness, in the sense of "equality of positions and rights" not in the sense of "commonality of results" people, in other words justice as intended is justice that provides a guarantee of equality and rights between the bank as a creditor with the customer as a debtor in the credit agreement of the bank. As for the juridical implication of the inclusion of clauses that exclude Article 1266 and Article 1267 of the Civil Code of credit agreement relating to the debtor's right in the process of settling the interpretation as a condition is to remove the legal rights as well as the debtor's legal efforts in seeking justice and the equilibrium position which is not dominant by the decision maker due to the unbounded imbalance of the parties to the agreement. The act of wanprestation brings consequences to the adversity of the disadvantaged party to prosecute the defendant to indemnify, so that by law it is expected that none of the parties will be harmed by the default.

scholarly journals Juridical Review The Implementation of Oral Agreement is associated with the Law of Treaties and Law Number 8 Year 1999 concerning Consumer Protection

2018 ◽  
Vol 1 (1) ◽  
pp. 56
Author(s):  
Dian Eka Pusvita Azis ◽  
Nurhaedah Nurhaedah
Keyword(s):  
Consumer Protection ◽  
Social Life ◽  
Legal Protection ◽  
Civil Code ◽  
Legal Principles ◽  
Consumer Law ◽  
Consumer Protection Act ◽  
Legal Power ◽  
Material Sources ◽  
The Law

The covenant is one of the most common legal relationships in the community. The Covenant under Article 1313 of the Civil Code is an act by which a person or more binds himself to one or more persons. Unconsciously, oral agreements are often done in social life and often the parties who make the oral agreement deny the existence of the agreement. This research is descriptive normative juridical research. This study uses primary legal material sources consisting of laws and regulations bound by research. Sources of secondary legal materials in the form of materials or related materials and explain the problem, and the source of tertiary legal materials are materials that provide information about primary legal materials and secondary legal materials related to the research. Against the form of the exercise of the agreement in the oral form declared unilaterally by the party that offers the agreement inevitably the interested party in this case the second party is pressed with the interest of agreeing the contents of the agreement. Not to mention the possibilities that occur in the future that is wanprestasi with large losses so that the court to face, and what if the party who did the default is negligent, broken promise, do not acknowledge or deny having oral agreement Based on the background and problems that have been described above so it is necessary to examine the extent to which the legal protection of oral agreements, if one of the parties making the alleged infringement of the oral agreement is associated with the Law of Contract and the Consumer Protection Number Act. Based on this research it is concluded that the oral agreement is legal and has the legal power to declare a person to default, but if the oral agreement is denied / not recognized by the alleged defendant, the oral agreement has no legal power to declare a person to default, can be true and may not exist, depending on the proof of the parties. but verbal agreements that have been denied / unrecognized may regain their legal power if it can be proven that the oral agreement actually exists or has been made.Based on Law No. 8 Consumer Protection Consumer law is defined as the whole legal principles and rules governing relationships and problems between various parties or each other in relation to goods and / or services within the association of life. Based on Article 163 HIR and Article 1865 of the Civil Code, any party that argues for a right, then the party must prove it. So if the consumer demands his right to the business actor that harms him, then the consumer must prove. However, in Law Number 8 Year 1999 concerning Consumer Protection Article 22 and Article 28, the evidentiary obligation is "reversed" (reversed proof) to be the full responsibility and responsibility of the business actor. So the provisions on responsibility and redress in the Consumer Protection Act are lex specialists against the general provisions contained in the Civil Code.

scholarly journals New Clause in Bank Credit Agreement in Relation to Consumer Protection Act

2021 ◽  
Vol 6 (1) ◽  
pp. 1-7
Author(s):  
Yustika Dewi ◽  
Ngr. Tini Rusmini Gorda
Keyword(s):  
Consumer Protection ◽  
Standard Form ◽  
Problem Formulation ◽  
Bank Credit ◽  
Legal Issue ◽  
Standard Contract ◽  
Consumer Protection Act ◽  
Protection Theory ◽  
The Interest Rate ◽  
Credit Agreement

The importance of banking institutions’ existence in one side provide very high risk for banks and in the other side provide profit for public as fund user’s clients.  Standard contract circulating in public seen from viewpoint of many parties is still detrimental with clauses presence in the contract. The content of standard contract in general is biased because it tends to benefit the contract maker. The standard contract if seen from the legal side is still being debated in terms of principles and validity requirement of an agreement. The inclusion of this clause shows the strength of creditor’s position which actually already strong despite without the inclusion of this clause. In banking practice, it is found in credit granting by bank the inclusion of unilateral terms which states that “the bank at any time is allowed to change the interest rate beforehand” in the contract that has been standardized previously by the bank. Credit agreement in standard form which is being made unilaterally by the bank until present is still becoming a special legal issue in agreement field of civil law. In addition, viewed from the side of the agreement it is also against consumer protection law as set in Consumer Protection Act. Problem formulation of this thesis is divided into namely regarding the existence of standard clause in bank agreement if associated with Article 18 of Consumer Protection Act and legal consequence of standard clause in credit agreement associated with consumer protection. The research in this thesis is Juridical empirical. The author is guided by laws and regulations related with public fact, that is first problem formulation is analyzed from balancing principle and next the second problem formulation is from consumer protection theory.  

scholarly journals Une étude des tenants et aboutissants des articles 271 et 272 de la Loi sur la protection du consommateur

2005 ◽  
Vol 26 (3) ◽  
pp. 763-786
Author(s):  
Claude-René Dumais
Keyword(s):  
Consumer Protection ◽  
Case Law ◽  
Civil Code ◽  
Third Party ◽  
Unjust Enrichment ◽  
Consumer Protection Act ◽  
The Law ◽  
Reduction Of Costs

The new Consumer's Protection Act came wholly into force on April 30, 1981 under the title of Chapter P 41.1 of the Q.R.S., replacing and clarifying the former Consumer's Protection Act enacted in 1974 as Chapter 74. The new Act goes so far as to change some century-old rules of the Civil Code, including the law of proof, all in favour of a better deal for the consumer. In almost every case of abuse or violation of any section of the Act, the consumer must simply prove that the merchant violated one or more of its sections in order that penalties of sections 271 and 272 apply. The types of applicable penalties depend on the offence : Did the businessman simply overlook what the Act considers a mere formality ? Then the contract is voidable where a defence of lack of interest lies. Did the businessman contravene what the Act considers a fundamental right of the consumer? The consumer has a choice of remedies : — execution of the obligation by a third party ; — reduction of costs ; — annulment or resolution of the contract, the whole with a possible demand of damages, real and exemplary. The article explains the differences between form and substance as accepted by statute or case law, and the solutions applied. The correlation with other parts of the Civil Code, untouched by the Consumer Protection Act, is also studied, both in matters of proof, intent, and possible unjust enrichment of the consumer.

scholarly journals KLAUSULA BAKU DALAM PERJANJIAN ENDORSEMENT DIKAITKAN DENGAN ASAS KEBEBASAN BERKONTRAK

2020 ◽  
Vol 8 (2) ◽  
pp. 165
Author(s):  
Alya Yudityastri ◽  
, Suraji
Keyword(s):  
Consumer Protection ◽  
Research Result ◽  
Electronic System ◽  
Civil Code ◽  
Conceptual Approach ◽  
Freedom Of Contract ◽  
Standard Contract ◽  
Electronic Transactions ◽  
Bargaining Position ◽  
Legal Writing

Abstract<br />This article aims to find out the validity of standard agreements in general and specially on endorsement  agreement. Validity of the endorsement agreement is reviewed from the Civil Code, Law Number 19 of 2016 concerning Amendments to Law No. 11 of 2008 concerning Information and Electronic Transactions, Law Number 8 of 1999 concerning Consumer Protection. In addition to knowing the suitability of the endorsement agreement that contains a standard contract clause with the principle of freedom of contract. Legal writing in this study uses research normative law with the statutory approach and conceptual approach. Research result it is known that the endorsement agreement is an example of a standard agreement with through the electronic system is in accordance with the provisions of the validity of the agreement according to the Civil Code, Law Number 19 of 2016 concerning Amendments to Law No. 11 of 2008 concerning Information and Electronic Transactions, Law Number 8 of 1999 concerning Protection Consumer. Standard agreement if it is related to the principle of freedom of contract is still being the debate over the suitability. Some are of the view that standard agreements are included in the terms of the endorsement agreement, are not in accordance with the principle of freedom of contract because of intermediaries the parties do not have a balanced bargaining position. Others argue that the agreement is in accordance with the principle of freedom of contract provided there is no clause exoneration in it.<br />Keywords: Endorsement; Endorsement Contract; Standard Contract Clauses; Principle of Contract Freedom <br /><br />Abstrak<br />Artikel ini bertujuan untuk mengetahui keabsahan perjanjian baku secara umum dan khususnya pada  perjanjian endorsement. Keabsahan perjanjian endorsement ditinjau dari KUHPerdata, Undang-Undang Nomor 19 Tahun 2016 Tentang Perubahan Atas Undang-Undang No. 11 Tahun 2008 tentang Informasi dan Transaksi Elektronik, Undang-Undang Nomor 8 Tahun 1999 tentang Perlindungan Konsumen. Selain itu untuk mengetahui kesesuaian perjanjian endorsement yang memuat klausula kontrak baku dengan asas kebebasan berkontrak. Penulisan hukum dalam penelitian ini menggunakan penelitian hukum normatif dengan pendekatan perundang-undangan dan pendekatan konseptual. Hasil penelitian diketahui bahwa perjanjian endorsement yang merupakan salah satu contoh perjanjian baku dengan melalui sistem elektronik telah sesuai dengan ketentuan keabsahan perjanjian menurut KUHPerdata, Undang-Undang Nomor 19 Tahun 2016 Tentang Perubahan Atas Undang-Undang No. 11 Tahun 2008 tentang Informasi dan Transaksi Elektronik, Undang-Undang Nomor 8 Tahun 1999 tentang Perlindungan Konsumen. Kesesuaian perjanjian baku dengan asas kebebasan berkontrak masih menjadi perdebatan. Beberapa berpandangan bahwa perjanjian baku termasuk di dalamnya perjanjian endorsement, tidak sesuai dengan asas kebebasan berkontrak karena di antara para pihaknya tidak memiliki posisi tawar yang seimbang. Sebagian lainnya berpendapat bahwa perjanjian tersebut telah sesuai dengan asas kebebasan berkontrak apabila tidak terdapat klausula eksonerasi di dalamnya.<br />Kata Kunci: Endorsement; Perjanjian Endorsement; Perjanjian Baku; Asas Kebebasan Berkontrak;

scholarly journals Kewenangan Badan Penyelesaian Sengketa Konsumen (BPSK) dalam Menyelesaikan Sengketa Asuransi Pasca Keluarnya Peraturan Otoritas Jasa Keuangan (OJK) Nomor 1/POJK.07/2014

2019 ◽  
Vol 12 (2) ◽  
pp. 102
Author(s):  
Wisnu Kumala ◽  
Yaswirman Yaswirman ◽  
Ulfanora Ulfanora
Keyword(s):  
Dispute Resolution ◽  
Consumer Protection ◽  
Financial Services ◽  
Alternative Dispute Resolution ◽  
Dispute Settlement ◽  
Legal Research ◽  
Research Results ◽  
Consumer Protection Act ◽  
Legal Effect ◽  
Legal Consequences

There is a tug of authority in resolving insurance disputes outside the court between the Consumer Dispute Settlement Agency (BPSK) based on Law Nomor 8 of 1999 concerning Consumer Protection with Alternative Dispute Resolution Institutions (LAPS) based on Financial Services Authority Regulation Number 1/POJK.07/2014. This encourages the author to conduct legal research in order to determine the authority of BPSK in resolving insurance disputes as well as the legal consequences of the decision after the issuance of the Financial Services Authority Regulation Number 1/POJK.07/2014 using the statutory approach. This legal research results in the finding that BPSK is still authorized to settle insurance disputes following the issuance of the Financial Services Authority Regulation Number 1/POJK.07/2014, this is based on the provisions of the Lex superior derogat legi inferiori principle. Then there is no legal effect on the BPSK decision after the issuance of the Financial Services Authority Regulation. This is because BPSK's decision has been based on Law Number 8 of 1999 concerning Consumer Protection, whose position is higher than the Regulation of the Financial Services Authority. So there is no need for BPSK to follow the provisions of the regulations whose hierarchy of legislation is lower than the Consumer Protection Act. Therefore BPSK's decision is "final and binding" as explained in Article 54 paragraph 3 of the Consumer Protection Act.

scholarly journals Juridical Review Of Nominee Agreement In Land Of Tenure Property Rights Under The Book Of Civil Law And Agraria

Jurnal Akta ◽  
2018 ◽  
Vol 5 (2) ◽  
pp. 441
Author(s):  
Indah Esti Cahyani ◽  
Aryani Witasari
Keyword(s):  
Property Rights ◽  
Legal System ◽  
Civil Law ◽  
Civil Code ◽  
Good Faith ◽  
Freedom Of Contract ◽  
Related Statement ◽  
The Subject ◽  
The Law ◽  
Legal Consequences

Nominee agreement is an agreement made between someone who by law can not be the subject of rights to certain lands (property rights), in this case that foreigners (WNA) and Indonesian Citizen (citizen), with the intention that the foreigners can master land de facto property rights, but legal-formal (de jure) land property rights are assigned to his Indonesian citizen. The purpose of this paper isto assess the position of the nominee agreement in Indonesia's legal system and the legal consequences arising in terms of the draft Civil Code and the Law on Agrarian. Agreement is an agreement unnamed nominee made based on the principle of freedom of contract and good faith of the parties. However, it should be noted that the law prohibits foreigners make agreements / related statement stock wealth / property (land) for and on behalf of others, sehingga the legal consequences of the agreement is the nominee of the agreement is not legally enforceable because the agreement was made on a false causa.Keywords: Nominee Agreement; Property Rights; Foreigners.

scholarly journals PERLINDUNGAN HUKUM BAGI KREDITUR PEMEGANG HAK TANGGUNGAN TERHADAP SENGKETA AGUNAN YANG MENGAKIBATKAN BATALNYA PERJANJIAN KREDIT

2018 ◽  
Vol 1 (1) ◽  
pp. 26
Author(s):  
Fransisca Kusuma Aryani ◽  
Gunawan Djajaputra
Keyword(s):  
Legal Protection ◽  
Civil Code ◽  
The Other ◽  
Third Party ◽  
District Court ◽  
Good People ◽  
Warning Letter ◽  
The Law ◽  
Debt Repayment ◽  
Credit Agreement

The process of granting credit with the guarantee of Mortgage Rights experienced many obstacles, one of which is the cancellation of credit agreement due to a lawsuit from a third party. Examples of problems that will researchers take is a case between PT PNM as creditor and Erlinawati as a debtor. Erlinawati applied for credit to PT PNM and pledged SHM No. 1716 without her husband's agreement, Bagus Satriya. As time went by, Erlinawati could not fulfill its obligations as stipulated in the credit agreement, and then PT PNM sent a warning letter to Erlinawati. Good people who know the land and buildings of his property are used as a direct guarantee to file a lawsuit to the Blora District Court. The Blora District Court ruled that credit agreements and Deed of Mortgage Rights (APHT) are invalid and null and void. So far the legal protection for debtors who have sued from the other party on the guarantee given by the creditor has not been regulated specially in the legislation. The law only regulates bad debts and debt repayment through the execution process stipulated in the Law on Banking and Insurance Rights Act. Legal protection that creditor can use when obtaining a lawsuit from a third party is by using the general guarantees provided for in Articles 1131 and 1132 of the Civil Code.

scholarly journals KEWENANGAN BADAN PENYELESAIAN SENGKETA KONSUMEN DALAM MENANGANI SENGKETA ANTARA PT. SINAR MENARA DELI DENGAN SARI ALAMSYAH

2019 ◽  
Vol 2 (2) ◽  
pp. 392
Author(s):  
Samuel Samuel ◽  
Siti Nurbaiti
Keyword(s):  
Dispute Resolution ◽  
Consumer Protection ◽  
Dispute Settlement ◽  
Secondary Data ◽  
District Court ◽  
Primary Data ◽  
Legal Research ◽  
Consumer Protection Act ◽  
The Law ◽  
The Republic

In principle, the resolution of consumer disputes can be pursued peacefully. through an alternative mediation dispute resolution. In Law Number 8 of 1999 concerning Consumer Protection and Regulation of the Minister of Trade of the Republic of Indonesia Number 6 / M-DAG / PER / 2017 concerning the Consumer Dispute Settlement Body does not impose limits on the authority of BPSK in handling and adjudicating a consumer dispute. However, in reality many times the decisions of the Consumer Dispute Settlement Body (BPSK) are submitted to the district court and stated that BPSK is not authorized to handle such disputes. How is the authority of the Consumer Dispute Resolution Board in handling disputes between PT. Sinar Menara Deli and Sari Alamsyah are the issues discussed. The method used in this research is descriptive normative legal research, using secondary data and primary data as supporting data with the law approach. The results of the study illustrate that BPSK is not authorized to handle disputes between PT. Sinar Menara Deli with Sari Alamsyah, because the business actors in this dispute have submitted a refusal to be resolved through BPSK and not achieving the requirements for consumer disputes. It is recommended that BPSK members pay more attention to the provisions in the Consumer Protection Act and other regulations concerning the Consumer Dispute Settlement Body.

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