International Journal of Engineering Business

and Social Science

Vol. 1 No. 04, April 2023, pages: 295-299

e-ISSN: 2980-4108, p-ISSN: 2980-4272

https://ijebss.ph/index.php/ijebss

295

Efforts To Prevent Unfair Competition Bank Notary

Ninda Fatmawati Octarina

, Yulianti Buring Nababan

1,2

Faculty of Law, Narotama University, Surabaya

E-mail:nynda_f@yahoo.com, yulinababan99@gmail.com

Submitted: 08-04-2023 Revised: 12-04-2023, Publication: 23-04-2023

Keywords

Abstract

Bank, Notary, Unfair

competition

In the world of banking several times encountered the problem of unfair

competition for bank notaries. Banks only want to use the services of certain

notaries, so that other notaries find it difficult and are not given the opportunity

to provide their services. The purpose of this research is to find out the efforts

made to prevent unhealthy competition from bank notaries. This research is a

normative research using statutory and conceptual approaches. Data collection

was carried out by means of a literature study. Data analysis was carried out

using the deductive method. The results of the study stated that preventing

unhealthy competition from notaries could be done by opening up

opportunities and information for notaries to get clients who make agreements

with banks. In addition, supervision is needed from the Indonesian Notary

Association organization, as well as strict law enforcement regarding violations

of notary ethics who are proven to have monopolized the service of making

agreement deeds in the banking sector.

for possible open access publication

under the terms and conditions of the Creative Commons Attribution (CC BY SA)

license (https://creativecommons.org/licenses/by-sa/4.0/).

1. Introduction

The legal basis of the notary profession in the Notary Office Law and its amendments, which explains

the meaning of a notary as follows:

"Notary is a public official authorized to make authentic deeds and has other authorities as referred to

in this law or based on other laws."

The role of a notary is very much needed by banks, this is related to legal risk of assets pledged as

collateral by the debtor as credit collateral, if the credit provided becomes bad, the sale of collateral will not

cause problems for the bank in the future. Therefore, notary services are needed in the banking world, because

banking activities involve a lot of transactions with customers, where these transactions are made in an

agreement/contract. To avoid unwanted things, for example denial, the bank does not want to take risks, for that,

the agreement must be made in the form of an authentic deed (Adjie, 2015).

Notary services as a Public Official who makes authentic deeds are needed in banking business

activities, one of which is in making banking credit agreement deeds involving the Customer and the Bank, in

order to guarantee the truth of the contents set forth in the banking credit agreement, so that the truth is publicly

no doubt. The role of a notary in carrying out banking functions is very strategic, especially in making authentic

deeds in every agreement (Yanuarsi, n.d.). In fact, the role of a notary not only has the authority to authenticate

the making of deeds, but also other agreements made between Islamic banks and customers or partners to get

more guarantees of legal certainty.

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However, the importance of the role of a notary in the banking world sometimes triggers unhealthy

competition between notaries. Banks that require a notary tend to cooperate with certain notaries because they

feel that there has been good or satisfactory cooperation before. The bank only uses the services of certain

notaries, so that other notaries find it difficult and are not given the opportunity to provide their services. The

bank may provide criteria as long as it does not rule out other notaries (Putri & Prananingtyas, 2019). For

example, a notary can guarantee service performance, timeliness, or service fees. However, in practice, banks

usually maintain document secrecy, so banks only appoint notaries who have good relations with the bank

concerned (Soleh et al., 2022). So that it is difficult for other notaries to get access because they do not have

connections with banks, including in the context of business competition. Therefore, researchers are trying to

find solutions to prevent unhealthy competition from bank notaries (Nurlaela, 2020).

2. Materials and Methods

The type of research used in this research is a type of research that is in accordance with the character

and characteristics of the science of law, namely normative juridical research through library research, namely

research on legal materials related to existing problems. The approach to the problem in this study uses a

conceptual approach and a statutory approach. The Conceptual Approach is a study of expert opinions and

theories from legal experts in the literature as a supporting basis. The Statute Approach is carried out by

reviewing and researching legal norms contained in statutory provisions related to the theme being discussed.

Data collection is done by literature study. Data analysis using deductive method.

3. Results and Discussions

Bank Notary Competition Conditions

Currently there are many monopolistic practices of the notary profession. For example, for mortgage

transactions at a bank, the bank usually determines which notary is used. In addition, if there is a notary who has

a close relationship with officials, then he can complete difficult work quickly but of course at a high cost. The

phenomenon of difficulty accessing a notary because they do not have a 'good relationship' or 'connection' with

the bank is an incident that many other notaries have complained about (Annisaa & Nurdin, 2019). This

phenomenon is included in the context of unfair business competition as stipulated in Law 5/1999, because there

is an element of injustice or unfairness among notaries.

The provisions on unfair business competition in Law 5/1999 are further explained as follows:

"Unfair business competition is competition between business actors in carrying out production and or

marketing activities of goods or services that are carried out in a dishonest or unlawful manner or impede

business competition."

According to Article 1 point 5 of Law 5/1999, the business actors referred to in the above article are:

"Business actor is every individual or business entity, whether in the form of a legal entity or not a legal

entity that is established and domiciled or carries out activities within the jurisdiction of the Republic of

Indonesia, both individually and jointly through agreements, carrying out various business activities in the

economic sector.”

Related to a bank that only wants to use the services of certain notaries so that other notaries find it

difficult and are not given the opportunity to provide their services, it can be stated that there has been injustice

or unfairness. The bank may provide criteria as long as it does not rule out other notaries. For example, a notary

can guarantee service performance, timeliness, or service fees (BINTANG, 2021).

However, in practice, banks usually maintain the confidentiality of documents, so banks only appoint

notaries who have a 'good relationship' with the bank concerned. So that it can be concluded, the difficulty of

accessing a notary public because they do not have a connection with a bank is included in the context of

business competition (Pandamdari, 2018). Regarding the phenomenon that many notaries complain about, it is

recommended that banks have an open catalog system, where customers/clients can choose which notary will use

their services. For example, customers can choose the closest notary office to their domicile, service fees, and

other considerations.

It is possible that many notaries will enter as service providers for banks and their customers and this

will result in supervision difficulties (Lestari, 2014). Banks must be able to answer this possibility, but for the

sake of fair business competition this still needs to be done.

There is a tendency for banks to choose notaries for clients. The client is not given a position to choose a

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notary himself. Notaries and banks establish mutually beneficial relationships and certain commitments. This

condition ultimately makes it difficult for other notaries who do not have a special relationship to be used as

parties to draw up the deed of agreement (Nisa, 2020).

In addition, related to the determination of the price of notary services. It is common knowledge, the

first thing that comes to mind before dealing with a notary public is how much the notary costs to process a deed.

Because, one of the things that can be taken into consideration for a cooperation between the bank and the notary

is the price. Notaries may not offer higher prices or even commissions to banks or third parties to be entrusted

with making a deed of agreement.

Role of Notaries in Bank Agreements

The strength of proving an authentic deed in this case is that there are 3 (three) aspects that must be

considered when the deed is drawn up, these aspects relate to the value of the proof, namely: First, Outward

Strength (uitwendige bewijskracht). The outward ability of a Notary deed is the ability of the deed itself to

provide proof of validity as an authentic deed. If viewed from the outside (birth) as an authentic deed and based

on the legal rules that have been stipulated regarding the requirements for an authentic deed, therefore the deed is

an authentic deed, until proven otherwise, meaning that someone provides evidence that the deed is not an

outwardly/outwardly authentic deed (Putriana, 2019). Second, Formil (formele bewijskracht). Formally in order

to provide proof of truth and certainty regarding the day, date, month, year, time of day facing, as well as the

parties appearing, the initials and signatures of the parties/appearers, witnesses and Notaries, as well as providing

evidence of what he saw , witnessed, and heard by the Notary (in the official deed/minutes), and recorded the

statements or statements of the parties/appearers (in the parties' deed). Third, Material Strength (materiele

bewijskracht). Certainty regarding the material of a deed is vital, that what is stated in the deed is valid proof of

the parties making the deed or those who get the rights and apply to the public, unless there is evidence to the

contrary (tegenbewijs). Information or statements included in the official deed (or minutes), or statements of the

parties stated before the Notary and the parties must be considered correct (Batubara et al., 2022).

Honorary Notary

Currently, the amount of honorarium or notary fees is based on the economic value and sociological

value of each deed made as stated in Article 36 paragraph (2) of the Notary Office Law.

Based on Article 36 paragraph (3) of the Notary Office Law, the economic value of the notary's

honorarium is determined from the object of each deed as follows:

a. up to IDR 100 million or the equivalent of a gram of gold at that time, the maximum honorarium

received was 2.5%;

b. above IDR 100 million up to IDR 1 billion, the maximum honorarium received is 1.5%; or

c. above Rp. 1 billion honorarium received is based on an agreement between the Notary and the

parties, but does not exceed 1% of the object for which the deed is made.

Then for the sociological value of notary fee determination is determined based on the social function of

the object of each deed with the maximum honorarium received Rp. 5 million.

Factors that cause Unfair Competition

There are several factors that cause unfair competition between notaries in the banking world. One of

the factors is the bank, which wants to be familiar with the notary, including knowing their competence, so that a

monopoly occurs. There is a fact that when the parties change Notaries there will be a possibility that there will

be different communications and results. So that the bank is safer with a Notary whose ability is clear and easy to

communicate.

There is no space and opportunity for notaries to be introduced to bank clients, so some clients do not

have an alternative notary to choose from. The client is in a position to accept and comply with recommendations

or choices from the bank. The bank in this case has directed the client to go to a certain Notary to make a deed of

agreement. Banks actually limit the choice of Notaries that can be chosen by clients. The bank does not want a

change of Notary whose ability and communication with the bank are not guaranteed.

Another factor is, the Notary actively approaches the bank and binds him psychologically to always use

his services in making a deed of agreement. In an effort to establish good relations, notaries can use relatively

low rates compared to general rates or also provide commissions to bank employees

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Efforts to Prevent Unfair Competition of Bank Notaries

Efforts are being made to prevent unhealthy competition from bank notaries, namely by opening the

widest opportunity and information for notaries to get clients who enter into agreements with banks. Notaries

may not be secretive and bind themselves with a special relationship with a bank which results in other notaries

not having the opportunity to get clients from the bank.

The Indonesian Notary Association (I.N.I) can prevent competition between Notaries from becoming

unhealthy through tariff setting which can be carried out in several steps, namely: Guidance by related

institutions, Coordination and cooperation between Notaries and the Indonesian Notary Association (I.N.I), and

ongoing supervision.

Enforcement efforts are not only carried out by the Indonesian Notary Association (I.N.I), but Notaries

need to pay attention to what is called professional behavior which has the following elements: Have solid moral

integrity, must be honest with clients and oneself (intellectual honesty), be aware regarding the limits of his

authority, not solely based on monetary considerations.

In carrying out his work, a Notary must follow the signs so as not to deviate and result in violations of

the Notary Office Law. Control from the government over the Notary profession is carried out by the Notary

Supervisory Board which is at the provincial and central district levels. a supervisory mechanism is urgently

needed so that the implementation of the legal norms and code of ethics of the notary profession goes as

expected, while the supervision of the implementation of the notary's code of ethics is carried out by the Notary

Honorary Council which is under the Indonesian Notary Association.

In Article 7 of the Notary Code of Ethics it is explained that Supervision of the implementation of the

Code of Ethics is carried out in the following manner:

a. At the first level by the Regional Management of the Indonesian Notary Association and the

Regional Honor Council;

b. At the appeal level by the Regional Management of the Indonesian Notary Association and the

Regional Honor Council;

c. At the final level by the Central Management of the Notary Association. Indonesia and the Central

Honorary Council.

Supervision is an act or process of activity to find out the results of implementation, errors, failures to

then be corrected and prevent the recurrence of these mistakes, as well as to ensure that the implementation does

not differ from the established plan.

Supervision of a notary public leads to the enforcement of legal rules that limit the scope of a notary's

position. The purpose of supervising notaries is to ensure that notaries comply as much as possible with the

requirements stipulated by the Law and the Notary Code of Ethics for the benefit of the general public they serve.

Notary Supervision is distinguished between the behavior and actions taken by a Notary in carrying out

his position by the Supervisory Board, while the behavior and actions carried out by a Notary outside of carrying

out his position are overseen by the Notary Honorary Council. Supervision is basically a form of legal protection

for the Notary himself because with an oversight, every Notary in his behavior and actions both in carrying out

his position and outside his position is always in the corridor of law.

Oversight mechanisms for the Notary profession are ideally regulated in laws and regulations and

become an inseparable part of the social reality of the legal community that is directly related to this profession.

Supervision is one aspect of law enforcement that must always be considered and carried out within the law

enforcement environment, including supervision of Notaries.

Law enforcement always involves humans in it, thereby involving human behavior too, therefore new

laws can be implemented effectively if followed by strong supervision or control mechanisms from parties

appointed based on statutory regulations, thus the legal profession which is carried out in the corridors of

professional ethics and in accordance with the implementation of his position, so that public trust as users of

Notary services will be maintained.

Supervision is intended as preventive and curative activities. Preventive in nature implies a coaching

process, while curative implies imposing sanctions on a Notary in the exercise of his office if it is proven that he

has violated Law Number 30 of 2004 concerning the Office of a Notary and Amendments to Law Number 2 of

2014 and violations of the Notary Code of Ethics . The scope of this supervision is wider than the scope of

supervision of Notaries carried out by the Regional Supervisory Council as clearly and strictly regulated in the

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Notary Office Law.

4. Conclusion

The results of the study stated that preventing unhealthy competition from notaries could be done by

opening up opportunities and information for notaries to get clients who make agreements with banks. All

Notaries must have the same opportunity to get clients from banks. In addition, it needs supervision from the

Indonesian Notary Association organization, as well as strict law enforcement regarding violations of notary

ethics who are proven to have monopolized the services of making agreement deeds in the banking sector.

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