ProdukHukum Perdagangan

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ELUCIDATION ON LAW NO. 8/1999

ON

CONSUMERS' PROTECTION GENERAL

The upbuilding and development of the economy in general and particularly in the national industrial and trade sectors have produces a great variety of goods and/or services which may be used. In addition, globalization and free trade supported by technological progress in telecommunications and informatics have expanded the room for the flow of the transactions of goods and/or services across the boundaries of the territory of a country so that there is a variety of the goods and/or services offered, produced either abroad or domestically.

Such a condition, on the one hand, is beneficial to consumers because the need for goods and/or services desired can be fulfilled and there is even more freedom to choose various kinds and qualities of goods and/or services in accordance with the desire and capability of consumers.

On the other hand, the condition and phenomenon referred to above can result in the imbalance in the position of business agents and consumers with the consumers being in a weak position. Consumers will be the objects of business activities of business agents to make the biggest profits through promotional arts, methods of selling, and the application of standard agreements which will disadvantage consumers.

The main factor that becomes the weakness of consumers it the low level of consumers' awareness of their rights. This is especially attributable to consumers' low education. Therefore, the Law on Consumers' Protection is intended to serve as a strong legal foundation for the government and non-governmental institutes for consumers' protection to make efforts to empower consumers by means of fostering and educating consumers.

This empowerment effort is important because it is not easy to expect business agents to be aware of this fact because basically the economic principle adopted by a business agent is to make the maximum profit with the minimum capital. It is highly potential that this principle will harm the interests of consumers, either directly or indirectly.

On the basis of the condition as described above, it is necessary to make an effort to empower consumers through the establishment of the law which can protect consumers' interests in an integrated and comprehensive manner and which can be effectively enforced in the community.

Legal instruments which protect consumers are not intended to put business agents out their business but on the other hand consumers' protection can bolster a sound business climate which in its turn will encourage the emergence of companies which are strong in facing competition through the supplies of quality goods and/or services.

Besides, the Law on Consumers' Protection, in its enforcement, shall continue to pay special attention to small-and-medium scale business agents. This shall be done through fostering efforts and the imposition of sanctions on the violators.

This Law on Consumers' Protection is formulated with reference to the national development philosophy that national development, including legal development which shall provide protection to consumers, shall be undertaken in the framework of totally building up Indonesians on the basis of the philosophy the state of the Republic of Indonesia, namely the state's principle of Pancasila and the state's constitution, the 1 945 Constitution.

In addition, the Law on Consumers' Protection is basically not the alpha and omega of the law regulating consumers' protection because when this Law on Consumers' Protection came to be established, there were already a number of laws the substance of which sought to protect consumers' interest such as:

a. Law No. 10/1 961 on the Stipulation into Law of Government Regulation in lieu of Law No. 1/1 961 on Goods; b. Law No. 2/1966 on Hygiene;

c. Law No. 5/1974 on the Principles of Regional Administration; d. Law No. 2/1981 on Legal Metrology;

e. Law No. 3/1982 an Compulsory Corporate Registration; f. Law No. 5/1984 on Industry;

g. Law No. 15/1985 on Electricity;

h. Law No. 1/1987 on the Chamber of Commerce and Industry; i. Law No. 23/1992 on Health;

j. Law No. 7/1984 on the Agreement Establishing the World Trade Organisation; k. Law No. 1/1995 on Limited Liability Companies;

l. Law No. 9/1995 on Small-Scale Businesses; m. Law No. 7/1996 on Food;

n. Law No. 12/1997 on the Amendment to the Law on Copyrights as already amended by Law No. 7/1987; o. Law No. 13/1997 on the Amendment to Law No. 6/1989 on Patents:

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q. Law No. 23/1997 on Environmental Management; r. Law No. 24/1 997 on Broadcasting;

s. Law No. 25/1997 on Manpower;

t. Law No. 10/1 998 on the Amendment to Law No. 7/1992 on Banking.

Consumers' Protection in the event of a business agent violat.ng the rights over intellectual property (HAKI) is not regulated in this Law on Consumers' Protection because it is already regulated in Law No. 12/1997 on Copyrights, Law No. 13/1997 on Patents, an Law No. 14/1997 on Trademarks, which prohibit the production or trading of goods and/or service in violation of the provisions on HAKI.

Likewise, consumers' protection in the environment sector is not regulated in this Law on Consumers' Protection because it is already regulated in Law No. 23/1997 on environmental management regarding the obligation of everybody to maintain the sustainability of the functions of the environment and prevent and overcome environmental pollution and damage.

In future there is still an opportunity for the establishment of a new law which shall basically contain provisions protecting consumers. Therefore, this Law on Consumers' Protection shall constitute an umbrella which-shall integrate and reinforce law enforcement in consumers' protection.

II. ARTICLE BY ARTICLE Article 1

Figure 1

Sufficiently clear Figure 2.

In economic literature there are terms

known as end consumers and interim consumers. End consumers are end users of a product while interim consumers are consumers using a product as part of a production process of another product. In this law consumers are defined as end consumers.

Figure 3

Business agents included in this definition shall be companies, corporations, state-owned enterprises, cooperatives, importers, traders, distributors and so forth.

Figures 4 up to 8

Sufficiently clear. Figure 9

This institute is set up to promote the participation of the community in efforts to protect consumers and show that consumers' protection is the common responsibility of the government and the community.

Figure 1 0

Sufficiently clear. Figure 11

This agency is set up to handle the settlement of consumers' disputes in an efficient, speedy, cheap and professional manner.

Figure 1 3

Sufficiently clear. Article 2

Consumers' protection shall be provided as a common effort on the basis of 5 (five) principles relevant to national development, namely:

1. The principle of benefit is aimed at ensuring that every effort in providing consumers' protection must give the maximum benefit to the interest of consumers and business agents as a whole.

2. The principle of justice is aimed at ensuring that the participation of the entire people can be realized to the maximum and give an opportunity to consumers and business agents to enjoy their rights and perform their obligations actively.

3. The principle of balance is aimed at providing balance between the interests of consumers, business agents and the government in the material or spiritual sense.

4. The principle of security and safety of consumers is aimed at providing a guarantee of security and safety to consumes in using and utilization of goods and/or services consumed or used.

5. The principle of legal certainty is aimed at ensuring that both business agents and consumers shall comply with the law and obtain justice in the provision of consumers' protection while the state shall guarantee legal certainty.

Article 3

Letters a up to f

Sufficiently clear. Letter g

The right to be treated or served correctly and honestly without discrimination based on ethnicity, religion, culture, region, education, being rich or poor and other forms of social status.

Letters h up to i

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Article 7 Letters a up to b

Sufficiently clear. Letter c

Business agents shall be prohibited to distinguish consumes in providing services to them. Business agents shall be prohibited to discriminate the quality of services to consumers.

Letter d

Sufficiently clear. Letter e

Referred to as certain goods and/or services shall e goods which can be tested and tried out without resulting damage or losses.

Letters f up to g

Sub-article (1) Letters a up to f Sufficiently clear. Letter g

The best period of use/utilization shall be the translation of the words best before, which is usually used in the label of food products.

Letters h up to j Sufficiently clear. Sub-article (2)

The goods referred to shall be the goods which shall not harm consumers and conform to the prevailing laws.

Sub-article (3)

Pharmaceutical preparations and foods referred to shall be those harming consumers pursuant to the prevailing laws.

Sub-article (4)

The Minister and technically authorized ministers shall withdraw the goods and/or services from distribution.

Article 9

Sub-articles (1) up to (3) Sufficiently clear. Article 1 0 Sufficiently clear. Article 11 Letters a up to c Sufficiently clear. Letter d

Referred to as certain quantity and a sufficient quantity shall be an adequate quantity in accordance with the anticipated demand of consumers. Letters e up to f

Sufficiently clear. Article 12 Sufficiently clear. Article 13

Sub-articles (1) and (2) Sufficiently clear. Article 14 Sufficiently clear.

Article 15 Sufficiently clear. Article 16 Sufficiently clear. Article 1 7

Sub-articles (1) and (2) Sufficiently clear. Article 1 8 Sub-article (1)

This prohibition is intended to ensure that consumers shall have equal position to business agents on the basis of the principle of the freedom to make a contract.

Letters a up to h Sufficiently clear. Sub-articles (2) up to (4) Sufficiently clear. Article 19

Sub-articles (1) up to (5) Sufficiently clear. Article 20 Sufficiently clear. Article 21

Sub-articles (1) and (2) Sufficiently clear. Article 22

This provision is aimed at applying the system of reversal evidencing burden.

Article 23 Sufficiently clear. Article 24

Sub-articles (1) and (2) Sufficiently clear. Article 25

Sub-articles (1) and (2) Sufficiently clear. Article 26 Sufficiently clear. Article 27 Letter a

Sufficiently clear. Letter b

Disability arising in future shall mean that it arises after the date given the guarantee by a business agent as agreed upon, either in writing or orally. Letter c

Referred to as the qualification of goods shall be the provision on standardization already stipulated by the government on the basis of the agreement made by all parties.

Letter d

Sufficiently clear. Letter e

The period of time agreed upon shall be the period of guarantee.

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Sub-articles (1) and (2) Sufficiently clear. Article 30 Sub-articles (1) Sufficiently clear. Sub-article (2)

Referred to as a technically relevant minister shall be the minister technically responsible in accordance with his scope of duty.

Sub-article (3)

Supervision conducted by the community and non-governmental institutes for consumers protection shall be exercised on goods and/or services distributing in the market by means of researches, testing and/or surveys.

The aspect of supervision shall encompass the placement of information about the risk of using the goods if this is required, labeling, advertising and so forth as required on the basis of the laws and normal business practices.

Sub-articles (4) up to (6) Sufficiently clear. Article 31 Sufficiently clear. Article 32 Sufficiently clear. Article 33 Sufficiently clear. Article 34 Sub-article (1) Letters a up to d Sufficiently clear. Letter e

Taking sides with consumers is aimed at promoting a high sense of care for consumers (wise consumerism).

Letters f and g Sufficiently clear. Sub-article (2) Sufficiently clear. Article 35 Sub-article (1)

The number of representatives of each element does not necessarily be the same

Sub-articles (2) up to (4) Sufficiently clear. Article 36 Letters a up to c Sufficiently clear. Letter d

Academicians shall be those with high education and members of universities.

Letter e

Experts shall be those experienced in consumers'

protection. Article 37

Article 38 Letters a up to c Sufficiently clear. Letter d

Being continuously ill so that one shall not be capable of carrying out one's duty.

Letters e and f Sufficiently clear. Article 39

Sub-articles (1) up to (3) Sufficiently clear. Article 40 Sub-article (1) Sufficiently clear. Sub-article (2)

Referred to as a decision of the chairman of the National Agency for Consumers' Protection shall be a decision stipulated on the basis of the deliberation among the members.

Article 41

Referred to as a decision of the chairman of the National Agency for Consumers' Protection shall be a decision stipulated on the basis of the deliberation among members.

Article 42 Sufficiently clear. Article 43 Sufficiently clear. Article 44 Sub-article (1)

Referred to as fulfilling the requirements shall be. among others, being registered and recognized and making activities in the consumers' protection area. Sub-articles (2) up to (4)

Sufficiently clear. Article 45 Sub-article (1) Sufficiently clear. Sub-article (2)

The settlement of consumes' disputes as meant in this sub-article shall always be undertaken through an amicable settlement by all disputing parties. At each stage, efforts shall be made to resort to the amicable settlement by both disputing parties.

Referred to as an amicable settlement shall be a settlement made by both disputing parties (business agents and consumers) without going through the court or an agency for the settlement of consumers' disputes and shall not contradict this law.

Sub-articles (3) and (4) Sufficiently clear. Article 46 Sub-article (1) Letter a

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A class action must be conducted by consumers who have really been disadvantaged and that this fact must be able to be proven legally, among other things by the availability of an evidence of transaction.

Letter c

Sufficiently clear. Letter d

The yardstick used for huge material losses andior quite a big number of victims shall be the extent of the impact on the consumers.

Sub-articles (2) and (3) Sufficiently clear.

Article 47

The form of the guarantee referred to in this respect shall be in the form of a written statement certifying that the act harming the consumers shall not recur.

Article 48 Sufficiently clear. Article 49

Sub-articles i 1 ) and (2) Sufficiently clear. Sub-article (3)

The element of consumers shall be the non governmental institutes for consumers' protection or a group of consumers.

Sub-articles (4) and (5) Sufficiently clear. Article 50 Sufficiently clear. Article 51

Sub-articles (1 ) up to (3) Sufficiently clear. Article 52 Sufficiently clear. Article 53 Sufficiently clear. Article 54

Sub-articles (1) and (2) Sufficiently clear. Sub-article (3)

Referred to as the final ruling or decision of the council shall be that there shall not be any effort to file an appealand cessation to the agency for the settlement of consumes' disputes.

Sub-article (4) Sufficiently clear. Article 55 Sufficiently clear. Article 56

Sub-articles (1) up to (5) Sufficiently clear. Article 57

Sub-articles (1) up to (3) Sufficiently clear. Article 61 Sufficiently clear. Article 62

Sub-articles (1) up to (3) Sufficiently clear. Article 63 Sufficiently clear. Article 64 Sufficiently clear. Article 65

Sufficiently clear.