Miranti Malik,* Prof. Dr. Rodliyah, SH., MH, ** Dr. Kurniawan, SH., M.Hum***Postgraduate program Legal Study and Notaries, Mataram
University, Indonesia **Lecture of Law Faculty Mataram University, Indonesia Email correspondence: [email protected]
Abstract: One of the many legal issues that arise in relation to e-commerce is whether an electronic deed or electronic document can be used as authentic proof of an authentic letter or deed which has the same binding power as the written document on paper stipulated in the Civil Code. This study aims to analyze the power of binding the electronic deed in the proof of civil case, Theory used is the theory of legal positivism. The type of this research is normative law research, approach method used is approach of Law and Conceptual Approach. The types and sources of legal materials used are Primary legal materials, secondary legal materials and tertiary legal materials. The technique of collecting legal materials in this research is done through documentation study and literature study, analyzed by interpretation. Based on the result of research that binding power of electronic deed has binding legal force with document written on paper and can be used as evidence in civil case.
Keywords: electronic deed and E-commerce
5888 INTRODUCTION
The development of science and technology has brought change and convenience to human life. One of the most rapid technological developments today is the development of digital technology, which has brought many changes to the lifestyle of most people, including the Indonesian people who are part of the world community.1
As more and more people use digital technology tools, including interacting with each other, the longer the stronger the pressure on the law, including the law of evidence, to face the realities of such a society's development.2
The law of evidence in litigation is a very complex part of the litigation process. The complexity will be more complicated because the proof is related to the ability to reconstruct the
23 Dian Mega Erianti Renouw, Perlindungan Hukum E-Commerce, Pramuka Grafita, Jakarta, 2017, p. 4.
24 Ibid
The Power of Binding an Electronic Deed in the Proof of Civil Procedure
event or past event as a truth. Although the truth sought in the civil justice process is not ultimate truth, it is a relative or even probable truth, but to find such truth still faces difficulties.3
A social reality shows that Information technology is developing much more rapidly and has changed the pattern and behavior of society, for example in business transactions from conventional patterns by face-to-face or offline contracts, shifting to the age of electronic contracts through computers by way of online contracts.4
The development of the internet creates the formation of a new world called cyber space, where each individual one with another can relate without restriction and no need to meet face to face.5 With the technology of the Internet to change the lifestyle and behavior of the world community that usually information and communication is done by using paper (paper), turned into electronic.6
In cyberspace, communities carry out various activities in various fields, including transactions that carry certain legal consequences. The Transaction is an activity that creates rights and obligations for the parties involved in such activities in accordance with applicable legal rules. Activities in the field of law in cyberspace include all areas of law, such as, civil, criminal, and business.7
In the virtual world, there are many transactions in the field of business law. One of the most frequent activities is trading activities.8 With that background, a process of trade transactions made in cyberspace, namely electronic commerce transactions or electronic commerce transactions and hereinafter referred to as e-commerce. With that background, a process of trade transactions made in cyberspace, namely electronic commerce transactions or electronic commerce transactions and hereinafter referred to as e-commerce.9 According to Mariam Darus Badrulzaman other terms used for e-commerce include electronic trading contracts, electronic trading transactions, and web contracts.10
Analysis of the rationale of electronic deed as evidence in the proof of civilization in commerce by using e-commerce shows a complex picture.11 This is so because it is virtual nature of electronic transactions so that the network system does not recognize the boundaries of regions or countries and paperless and global. On the other hand, the law of credibility in Indonesia provides restrictions on the evidence.12
The Law of Proof (listed in the fourth book of the Civil Code (hereinafter referred to as the Civil Code), contains all the basic rules of evidence in civil.13 The evidence in the Civil Code is solely related to the case only. There are several definitions put forward by jurists that can be used as a reference. According to Pitlo, Proof is a way done by a party to the facts and rights
23 Hari Sasangka, Hukum Pembuktian Dalam Perkara Perdata, Mandar Maju, Bandung, 2009, p. 11.
24 Immawan Anshari, Analisis Yuridis Model Pengaturan Jasa Kenotariatan Secara Elektronik (Cyber Notary), Tesis pada Program Studi Kenotariatan Program Pascasarjana Universitas Mataram, 2015, p. 11.
25 Josua Sitompul, Cyberspace, Cybercrime, Cyberlaw, Tatanusa, Jakarta, 2012, p.22
26 Didik M. Arief Mansur and Elisatris Gultom, Cyber law Aspek Hukum Teknologi Informasi, PT. Refika Aditama, Bandung, 2005, p. 4
27 Ibid
28 Munir fuady, Pengantar Hukum Bisnis, Citra Aditya Bakti, Bandung, 2012, p.407 29 Ibid
30Mariam Darus Badrulzaman, Aneka Hukum Bisnis, Alumni, Bandung, 2005, p.26
31R.Eko Indrajit, Manajemen Sistem Informasi dan Teknologi Informasi, PT. Elex Media Komputindo, Jakarta, 2011, p. 259
32Sarwono, Hukum Acara Perdata Teori Dan Praktek, Sinar Grafika, Jakarta, 2016, p.126
33Ibid
The Power of Binding an Electronic Deed in the Proof of Civil Procedure
related to his interests. According to Subekti meant to 'prove' is to convince the judge of the truth of the proposition or the arguments presented in a dispute.14
A conventional proof is only done when there is a dispute. A dispute shall be settled in the Indonesian judiciary, if it has been agreed upon by both parties or has existed in a contract in which there is a clause stating that any disputes arising will be settled under Indonesian law and held in the Indonesian Courts.15
Contracts or agreements made in e-commerce transactions are not contracts or agreements made in writing on paper, but in the form of electronic documents.16 In general buying and selling transactions, in the event of a dispute the parties may use the contract or agreement written on paper to be used as evidence of the existence of a sale and purchase agreement between the parties. If the agreement in the form of electronic documents is difficult to serve as evidence in case of dispute.17
Based on Article 1866 Civil Code, the evidence consists of:
23 Proof of writing (letter);
24 Evidence with witnesses;
25 Suspects;
26 Recognition;
27 Oath;
When viewed from the understanding of any such evidence, the electronic deed shall not be included in the means of such evidence. When viewed from the five kinds of evidence, electronic documents can only be entered in the category of written evidence. This electronic document is written in an electronic mail and the purpose of this paper is to realize an event that has occurred and declare a legal act to be done by someone.18
The main evidence in the law of proof of civilization is written evidence that for commerce through e-commerce becomes a complicated problem because e-commerce uses electronic information.19 It appears that through the analysis of the articles of written evidence used to be the basis of the binding power of the electronic deed is not easy because there are multiple interpretations.
An electronic deed or electronic document signed with a digital signature may be categorized as written proof. However, there is a legal principle that causes the difficulty of developing the use of electronic deed or electronic documents, i.e. the requirement that the document be visible, transmitted and stored in paper.20 Problems will arise when a person wants to make a transaction such as purchase of goods, then the parties have begun to face various legal issues such as the validity of documents made, digital signatures made when the person agreed to transact, the binding force of the contract and transaction cancellation and so on.21
5888 Subekti, Hukum Pembuktian, Pradaya Paramita, Jakarta, 2010, p. 87
5889 M. Yahya Harahap, Hukum Acara Perdata Indonesia, Sinar Grafika, Jakarta, 2012, p. 78
5890 Aloina Sembiring Meliala, Analisis Yuridis Terhadap Legalitas Dokumen Elektronik Sebagai Alat Bukti Dalam Penyelesaian Sengketa, Jurnal Wawasan Hukum, Vol. 32, No. 1, (Februari 2015): p. 4-5
5891 Ramli, Ahmad M., Menuju Kepastian Hukum Dibidang Informasi Dan Transaksi Elektronik, Departemen Komunikasi Dan Informasi, Jakarta, 2013, p. 53
5892 Ibid, p.56
5893 Edmon Makarim, Notaris dan Transaksi Elektronik, Rajawali Pers, Jakarta, 2013, p. 93 5894 Ibid, p. 100
5895 Ramli, Ahmad M., Op.Cit, p.46
The Power of Binding an Electronic Deed in the Proof of Civil Procedure
In Indonesia's positive legal system, the provisions on electronic documents are regulated in Law Number 19 Year 2016 on Amendment to Law Number 11 Year 2008 on Information and Electronic Transactions (hereinafter referred to as the ITE Law). One of the sociological background of the formation of the Law of ITE because of information globalization or information revolution that has placed Indonesia as part of the world information society so that requires the establishment of arrangements on the management of information and electronic transactions at the national level so that the development of information technology can be done optimally, evenly and spread to the entire community in order to educate the nation's life.22
Under the ITE Act Article 1 point 4 reads:
"Electronic documents are any electronic information created, forwarded, transmitted, received or stored in analog, digital, electromagnetic, optical or the like, which may be viewed, displayed and / or heard through a computer or electronic system, including but not limited to writings, sounds, drawings, maps, designs, photographs or the like, letters, signs, or numbers, access codes, symbols or perforations that have meaning or meaning or are understandable to those who are able to understand them.
One of the many legal issues that arise in relation to e-commerce is whether an electronic deed or electronic document can be used as authentic proof of an authentic letter or deed which has the same binding power as the written document on paper stipulated in the Civil Code.
Based on this background the author wants to raise the title of the Power of Electronic Binding Deed in the Proof of Civil Case.
23 METHOD
This type of research is normative legal research, namely legal research conducted by examining library materials or secondary data. The approach method used is: Statute Approach and Conceptual Approach. The types and sources of legal materials used are Primary legal materials, namely legal materials that bind and in accordance with the issues raised are the Law, Secondary law materials, namely the explanation of the primary legal material, and tertiary law material is a legal dictionary, the encyclopedia. Technique of collecting legal materials in this research is done through two ways, namely Collection of library materials through inventory procedures and identification of legislation. All legal materials are analyzed using interpretation.
5888 RESULT AND DISCUSSION
3.1 The power of binding electronic deeds as evidence in the provision of civil cases
The agreement as provided in article 1313 of the Civil Code (Civil Code) is an act by which one or more persons commit themselves to one or more persons. Unlike the standard agreement which is a written contract made only by one of the parties, often the contract has been printed in the form of certain forms, in which case when the contract is signed generally the parties only fill in certain data information with little or no change in its clauses, where the other party in the contract has no opportunity or little chance to negotiate or change the clauses already made by either party.
22 Adami Chazawi and Ardi ferdian, Tindak Pidana Informasi dan Transaksi elektronik, Media Nusa Creative, Malang, 2015, p. 4
The Power of Binding an Electronic Deed in the Proof of Civil Procedure
Sjahdeni emphasized that what is standardized in this agreement is not the agreement form, but the clauses.23 However, the inclusion of the standard clause has been regulated as stated in Article 18 of the Consumer Protection Law Number 8 Year 1999 (UUPK).
According to Law No. 11 of 2008 on Electronic Information and Transactions (ITU Law), electronic information and/or electronic documents, and / or prints are legitimately considered to be evidence, when generated from electronic systems. Agreement in electronic transaction in the form of standard contract, the condition is based on the "open system legal concept" as regulated in Article 1338 paragraph (1) of the Criminal Code or better known as the principle of freedom of contract, which in the article stated that "all agreements which is made legally valid as the law for those who make it ". The principle implies that people have the freedom to make arrangements according to their will or interest. Such freedoms include:24 23 The freedom of each person to decide whether he will make an agreement or not make an
appointment.
24 The freedom of each person to choose who will make an agreement.
25 Freedom of the parties to determine the form of the agreement.
26 Freedom of the parties to determine the contents of the agreement.
27 Freedom of the parties to determine how to make the agreement.
Furthermore, all e-commerce transactions that qualifies the validity of an agreement, namely Article 1320 Civil Code recognized as an agreement and binding for the parties. The Importance of Article 1320 of the Civil Code is caused in that Article is stipulated on the validity of a contract, namely: (1) an agreement; (2) the existence of a skill; (3) there are certain objects and (4) there is a halal cause. These conditions are of two kinds, the first of which concerns the subject (the one making the covenant) and the second which concerns the object, i.e. what is promised by each, which is the content of the agreement or what the parties intend by making the agreement.
In e-commerce transactions, transactions are done without paper and parties do not meet in person. In such transactions, documents are not stored in paper, but in electronic documents.
With transactions based on electronic documents, there are changes to the various pre-existing instruments of evidence used to prove the existence of a legal act and in the law of evidence in Indonesia has not regulated the electronic documents as evidence.
The main requirement that electronic documents can be expressed as valid evidence is the use of electronic systems that have been certified electronic from the government as set forth in Article 15-16 UU ITE. Another requirement, must be an electronic signature, and put it in a standard electronic contract.
The written evidence is divided into authentic deeds and deeds under the hand. When viewed from the definition of an authentic deed pursuant to article 1868 the Civil Code explains an authentic deed is a deed created in a form prescribed by law or in the presence of an authorized public official for it in place of the deed is drawn up. From these explanations, electronic documents cannot be regarded as authentic deeds.
23Sutan Remy Sjahdeini, Kebebasan Berkontrak dan Perlindungan yang Seimbang Bagi ParaPihak dalam Perjanjian Kredit Bank di Indonesia, Institut Bankir Indonesia, Jakarta, 2002, p. 66.
24 Sukarmi,“Tanggung Jawab Pelaku Usaha Atas Kerugian Konsumen Yang DisebabkanOleh Perjanjian Baku (Standard Contract) Dalam Transaksi Elektronik”, Dissertation of Law Faculty of Padjadjaran University, Bandung, 2005, p. 241.
The Power of Binding an Electronic Deed in the Proof of Civil Procedure
Electronic documents can be categorized as legally written evidence of a deed under the hand. The contents of electronic documents explain the legal acts committed by the parties and the purpose of the manufacture of electronic documents itself are to be used as evidence by the parties who make the electronic documents. Regarding the requirement that the deed under the hand should be signed, the electronic document does not use a signature like a document on paper.
IV. CONCLUSION AND RECOMMENDATION 4.1 Conclusion
Based on what has been described about the discussion of the above issues, it can be concluded that the open legal system in Article 1338 paragraph (1) Criminal Code, hereinafter referred to as the principle of freedom of contract, has provided a legal basis for electronic transactions. In the electronic document used is a digital signature (digital signature). So as to have the same legal force with documents written on paper and can be used as evidence when there is a dispute between the parties in the case of the existence of an agreement.
4.2 Recommendation
The government in issuing a law should look at the other Laws that are interrelated, so that between one Act and another law can support one another.
REFERENCE Books
Achmad Ali. 2014. Menguak Teori Hukum (Legal Theory) Dan Teori Peradilan (Judicialprudence) Termasuk Interpretasi Undang-Undang (Legisprudence). Kencana Prenada Media Group, Jakarta.
__________, and Wiwie Heryani. 2015. Asas-Asas Hukum Pembuktian Perdata. Kencana, Jakarta.
___________, 2015. Menguak Tabir Hukum. Kencana, Jakarta.
Adami Chazawi and Ardi ferdian. 2015. Tindak Pidana Informasi dan Transaksi elektronik.
Media Nusa Creative, Malang.
Amiruddin and Zainal Asikin. 2012. Pengantar Metode Penelitian Hukum. Raja Grafindo, Jakarta.
Cst Kansil, Christine. S.T Kansil, Engelien R, Palandeng dan Godlieb N Mamahit. 2009.Kamus Istilah Hukum. Jakarta.
Dian Mega Erianti Renouw. 2017.Perlindungan Hukum E-Commerce. Pramuka Grafita, Jakarta.
Didik M. Arief Mansur and Elisatris Gultom. 2005. Cyber law Aspek Hukum Teknologi Informasi. PT. Refika Aditama, Bandung.
Dominikus Rato. 2010. Filsafat Hukum Mencari Memahami dan Memahami Hukum. Laksbang Pressindo, Yogyakarta.
Edmon Makarim. 2013. Notaris dan Transaksi Elektronik. Rajawali Pers, Jakarta.
The Power of Binding an Electronic Deed in the Proof of Civil Procedure
Efa Laela Fakhriah. 2017. Bukti Elektronik Dalam Sistem Pembuktian Perdata. Refika Aditama, Bandung.
Hari Sasangka. 2009. Hukum Pembuktian Dalam Perkara Perdata. Mandar Maju, Bandung.
Josua Sitompul. 2012. Cyberspace, Cybercrime, Cyberlaw. Tatanusa, Jakarta.
Mariam Darus Badrulzaman. 2005. Aneka Hukum Bisnis. Alumni, Bandung.
Munir fuady. 2012. Pengantar Hukum Bisnis. Citra Aditya Bakti, Bandung.
M. Yahya Harahap. 2012. Hukum Acara Perdata Indonesia. Sinar Grafika, Jakarta.
Peter Mahmud Marzuki. 2015. Pengantar Ilmu Hukum. Kencana Prenada Media Group, Jakarta.
________, 2014. Penelitian Hukum. Kencana, Jakarta, 2009, p. 93. Dikutip dari Salim HS dan Erlis Septiana Nurbani, Penerapan Teori Hukum Pada Penelitian Disertasi Dan Tesis , Rajawali Pers, Jakarta.
Ramli, Ahmad M. 2007. Menuju Kepastian Hukum Dibidang Informasi Dan Transaksi Elektronik. Departemen Komunikasi Dan Informasi, Jakarta,
R.Eko Indrajit. 2001. Manajemen Sistem Informasi dan Teknologi Informasi. PT. Elex Media Komputindo, Jakarta.
Sarwono. 2016. Hukum Acara Perdata Teori Dan Praktek. Sinar Grafika, Jakarta.
Subekti. 2010. Hukum Pembuktian. Pradaya Paramita, Jakarta.
Sudikno Mertokusumo. 2007. Penemuan Hukum Sebuah Pengantar. Liberty, Yogyakarta.
Sutan Remy Sjahdeini. 2002. Kebebasan Berkontrak dan Perlindungan yang Seimbang Bagi ParaPihak dalam Perjanjian Kredit Bank di Indonesia. Institut Bankir Indonesia, Jakarta.
Soerjono Soekanto and Sri Mamuji. 2010. Penelitian Hukum Normatif Suatu Tinjauan Singkat.
Raja Grafindo Persada, Jakarta.
Regulations Code of Civil law.
Indonesia, Law Number 19 Year 2016 on Amendment to Law Number 11 Year 2008 on Information and Electronic Transactions (State Gazette of the Republic of Indonesia Year 2016 Number 251, Supplement to the State Gazette of the Republic of Indonesia Number 5952).
Others
Aloina Sembiring Meliala, Analisis Yuridis Terhadap Legalitas Dokumen Elektronik Sebagai Alat Bukti Dalam Penyelesaian Sengketa, Jurnal Wawasan Hukum, Vol. 32, No. 1, (Februari 2015)
Immawan Anshari, 2015, Analisis Yuridis Model Pengaturan Jasa Kenotariatan Secara Elektronik (Cyber Notary) Thesis on the Program of Study of Notary of Postgraduate Program of University of Mataram.
Sukarmi, 2005, Tanggung Jawab Pelaku Usaha Atas Kerugian Konsumen Yang DisebabkanOleh Perjanjian Baku (Standard Contract) Dalam Transaksi Elektronik, Disertasi Fakultas Hukum Universitas Padjajaran, Bandung.