JRSSEM 2023, Vol. 02 No. 9, 2109 – 2115

E-ISSN: 2807 - 6311, P-ISSN: 2807 - 6494

DOI : 10.59141/jrssem.v2i09.422 https://jrssem.publikasiindonesia.id/index.php/jrssem/index

EFFORTS TO PREVENT UNFAIR COMPETITION AMONG

BANK NOTARIES

Nynda Fatmawati Octarina

Yulianti Buring Nababan

1.2

Master of Notarial Affairs, Faculty of Law, Narotama University, Surabaya, Indonesia

Email: nynda_f@yahoo.com, yulinababan99@gmail.com

*Correspondence: nynda_f@yahoo.com

Submitted

: April 05

th,

2023

Revised

: April 17

2023

Accepted

: April 25

2023

Abstract: In the world of banking several times, there has been unfair competition for bank notaries.

Banks only want to use the services of certain notaries, so other notaries find it difficult and are not

allowed to provide their services. This research aims to discover the efforts made to prevent

unhealthy competition from bank notaries. This research is normative research using statutory and

conceptual approaches. Data collection was carried out using 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.

Keywords: bank; notary; unfair competition.

Nynda Fatmawati Octarina

Yulianti Buring Nababan

| 2110

INTRODUCTION

The legal basis of the notary profession

in the Notary Position Law and its

amendments, which explains the definition

of the notary as follows:

"Notary is a public official who is

authorized to make authentic deeds and

has other powers as referred to in this Law

or under other laws."

The role of Notaries is needed by

banks, this is related to legal risks on assets

collateralized by debtors as credit

collateral, if the credit provided becomes

bad, the sale of the collateral does not

cause problems for banks in the future.

Therefore, notary services are needed in

the banking world, because banking

activities make many transactions with

customers, where the transaction is made

in an agreement/contract. To avoid the

occurrence of unwanted things, such as

denial, the bank does not want to take risks,

for that, the agreement must be made in

the form of an authentic deed (Aswan and

Susi Yanuarsi, 2022).

Notary Services as General Officials

who make authentic deeds are needed in

banking business activities, one of which is

in making bank credit agreement deeds

involving Customers and Banks, to

guarantee the truth of the contents stated

in the banking credit agreement, so that the

truth is publicly beyond doubt (Aswan and

Susi Yanuarsi, 2022).

The role of notaries in carrying out

banking functions is very strategic,

especially in making deeds that are

attentive to each agreement. The role of

notaries is not only to have the authority to

authenticate deed making but also other

agreements made between Islamic banks

and customers or partners to better obtain

legal certainty (Muhammad Soleh, 2021).

However, the importance of the role of

notaries in the banking world sometimes

triggers unhealthy competition between

notaries. Banks that need 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

other notaries find it difficult and are not

allowed to provide their services. The bank

may provide criteria as long as it does not

close the opportunity from other notaries.

For example, notaries can guarantee

service performance, punctuality, or service

fees. But in practice, banks usually maintain

the confidentiality of documents, so the

bank only appoints notaries who already

have a good relationship with the bank

concerned. So that other notaries are

difficult 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 unfair competition

among bank notaries.

MATERIALS AND METHODS

The type of research used in this study

is the type of research that is by the

character and characteristics of legal

science, namely normative juridical

research through literature research,

namely research on legal materials

associated with existing problems. The

problem approach in this study uses a

concept approach (Conceptual Approach)

and a Law approach (Statute Approach).

2111 | Efforts To Prevent Unfair Competition of Bank Notaries

The conceptual Approach is the 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 examining the legal

norms contained in the statutory provisions

related to the theme being discussed. Data

collection is carried out by a literature

study. Data analysis using deductive

methods.

RESULTS AND DISCUSSION

Notary Bank Competition Conditions

Today there are many monopolistic

practices of the notary profession. For

example, for mortgage transactions at

banks, usually, the bank determines which

notary to use. In addition, if there is a

notary who has a close relationship with

officials, then he can complete difficult

work quickly but certainly at a high cost.

The phenomenon of difficult access to

notaries, because they do not have a 'good

relationship' or 'connection' with the bank,

is an incident that many other notaries

complain about. This phenomenon

includes the context of unfair business

competition as stipulated in Law 5/1999,

due to the element of unfairness among

notaries.

The provisions for unfair business

competition in Law 5/1999 are further

explained as follows:

"Unfair business competition is

competition between business actors

in carrying out production activities

and/or marketing of goods or services

carried out dishonestly or unlawfully or

hindering business competition."

The business actors referred to in

the article mentioned above according

to Article 1 number 5 of Law 5/1999

are:

"Business actor is any individual or

business entity, whether in the form of

a legal entity or non-legal entity

established and domiciled or carrying

out activities in the jurisdiction of the

Republic of Indonesia, either alone or

jointly through agreements, carrying

out various business activities in the

economic sector."

Related to banks that only want to use

the services of certain notaries so that other

notaries find it difficult and are not allowed

to provide their services, it can be declared

that there is injustice or unfairness. The

bank may provide criteria as long as it does

not close the opportunity from other

notaries. For example, notaries can

guarantee service performance,

punctuality, or service fees (Law Online,

2023).

But in practice, banks usually maintain

the confidentiality of documents, so banks

only appoint notaries who already have a

'good relationship' with the bank

concerned. So it can be concluded, the

difficulty of notary access because it does

not have a connection with banks is

included in the context of business

competition. For this phenomenon that

many notaries complain about, it is

recommended that banks have an open

catalog system, where customers/clients

can choose which notary to use their

services. For example, customers can

choose the nearest notary office to their

domicile, service fees, and other

considerations.

Nynda Fatmawati Octarina

Yulianti Buring Nababan

| 2112

There is a possibility that many

notaries may enter as service providers for

banks and their customers and cause

supervisory difficulties. Banks must be able

to answer this possibility, but for the sake of

healthy business competition, this still

needs to be done.

There is a tendency for banks to

choose notaries for clients. The client is not

given the position to choose a notary on his

own. Notaries and banks establish mutual

relationships, and certain commitments are

mutually beneficial. This condition

ultimately makes other notaries who do not

have a special relationship will be difficult

to be use as parties who will make the deed

of agreement.

In addition, it is related to the

determination of the price of notary

services. It is common knowledge, the first

thing that is in the minds of the public

before dealing with notaries is how much

notary costs need to be incurred to process

a deed. Because one of the things that can

be taken into consideration for cooperation

between banks and notaries is the price.

Notaries may not offer more prices or even

commissions to banks or third parties to be

entrusted with making the deed of

agreement (Law Online, 2023).

The Role of Notaries in Bank Agreements

The evidentiary power of an authentic

deed for this matter 3 (three) aspects must

be considered when the deed is prepared,

these aspects are related to the evidentiary

value, namely: First, External Power

(uitwendige bewijskracht). A Notary Deed's

outward ability is the deed's ability to

provide proof of validity as an authentic

deed. If viewed from the outside (born) as

an authentic deed and based on the legal

rules that have been established regarding

the requirements of an authentic deed, the

deed as an authentic deed, until proven

otherwise, means until someone provides

evidence that the deed is not authentic

externally / outwardly. Secondly, Formil

(formele bewijskracht). Formally to provide

evidence of truth and certainty regarding

the day, date, month, year, time (time)

facing, as well as the parties facing,

paragraphs and signatures of the

parties/faces, witnesses, and Notaries, and

provide evidence of what he saw,

witnessed, and heard by the Notary (on the

deed of official/minutes of procedure), and

recorded the statements or statements of

the parties/faces (on the deed of parties).

Third, Material Power (materiele

bewijskracht). Certainty about the material

of a deed is very vital, what is mentioned in

the deed is valid proof of the parties who

made the deed or those who get rights and

apply to the public, unless there is evidence

to the contrary (tegenbewijs). Statements

or statements entered in official deeds (or

minutes), or statements of the parties

stated before a Notary Public and the

parties must be considered correct (Adjie,

2011).

Notary's fee

Currently, the honorarium or notary

fee amount is based on the economic and

sociological value of each deed it makes as

per Article 36 paragraph (2) of the Notary

Position Law.

Based on Article 36 paragraph (3) of

the Notary Office Law, the economic value

of a notary honorarium is determined from

the object of each deed as follows:

a. up to Rp100 million or equivalent

grams of gold at that time, the

2113 | Efforts To Prevent Unfair Competition of Bank Notaries

highest honorarium received was

2.5%;

b. above IDR 100 million to IDR 1

billion honoraria received at most

1.5%; or

c. above IDR 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, the

determination of notary fees is determined

based on the social function of the object

of each deed with an honorarium received

of at most Rp. 5 million (Rully Desthian

Pahlepi, 2022).

Factors that Lead to Unfair Competition

Several factors cause unfair

competition between notaries in the

banking world. One of them is the factor of

banks, who want to be familiar with

notaries, including knowing their

competence so that there is a monopoly.

There is the fact that when parties change

Notaries there will be different

communication as well as results. So that

the bank is safer with a Notary who is

capable and easy to cooperate with.

There is no room and opportunity for

notaries to be introduced to bank clients, so

there are clients who do not have notary

alternatives to choose from. The Client is in

a position to accept and comply with the

recommendation or choice of the bank. The

bank in this case has directed the client to

a certain Notary to make a deed of

agreement. The bank limits the choice of

Notaries that can be chosen by clients. The

bank does not want a change of Notary

Public that has not guaranteed its ability

and communication with the bank.

Another factor is that the Notary Public

actively approaches the bank and binds him

psychologically to always use his services in

making the deed of agreement. To establish

good relations, Notaries can use relatively

low rates compared to the general rate or

also provide commissions to bank

employees.

Efforts to Prevent Unfair Competition of

Notary Banks

Efforts made to prevent unhealthy

competition among bank notaries are by

opening the widest possible opportunity

and information to notaries to get clients

who make agreements with banks. Notaries

must not be closed and bind themselves to

a special relationship with the 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 unfair through

tariff determination can be done with

several steps, namely: Guidance by related

institutions, coordination and cooperation

between Notaries and the Indonesian

Notary Association (I.N.I), and continuous

supervision (Nindy Putri and Paramita

Prananingtyas, 2019).

Enforcement efforts are not only

carried out by the Indonesian Notary

Association (I.N.I), but Notaries need to pay

attention to what is referred to as

professional behavior which has the

following elements: Have steady moral

integrity, must be honest with clients and

oneself (intellectual honesty), aware of the

limits of their authority, not solely based on

money considerations (Nindy Putri and

Paramita Prananingtyas, 2019).

In carrying out his work, a Notary

Nynda Fatmawati Octarina

Yulianti Buring Nababan

| 2114

Public 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

Council located at the provincial and

central levels. A supervisory mechanism is

needed so that the implementation of legal

norms and the notary professional code of

ethics runs as expected, while supervision

of the implementation of the Notary code

of ethics is carried out by the Notary Honor

Board 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 ways:

a. At the first level by the Regional

Board of the Indonesian Notary

Association and the Regional Honor

Council;

b. At the level of appeal by the

Regional Board of the Indonesian

Notary Association and the

Regional Honor Council;

c. At the final level by the Central

Board of the Notary Association.

Indonesia and the Central Honor

Council.

Supervision is an action or process of

activities to find out the results of

implementation, errors, and failures to then

be corrected and prevent the recurrence of

these mistakes, as well as keep the

implementation no different, from the

established plan.

Supervision of Notaries leads to the

enforcement of legal rules that limit the

scope of the office of a Notary. The purpose

of supervision of Notaries is so that

Notaries as much as possible fulfill the

requirements set by the Law and the Notary

Code of Ethics for the benefit of the general

public they serve (Nindy Putri and Paramita

Prananingtyas, 2019).

Notary supervision is distinguished

between behavior and actions carried out

by Notaries in carrying out their positions

by the Supervisory Panel, while behaviors

and actions carried out by Notaries outside

of carrying out their positions are

supervised by the Notary Honor Council.

This supervision is a form of legal

protection for the Notary itself because,

with supervision, every Notary in his

behavior and actions both in carrying out

his position and outside his position is

always within the corridors of the law.

The mechanism of supervision of the

Notary profession is ideally regulated in

laws and regulations and becomes an

inseparable part of the social reality of the

legal community directly related to this

profession. Supervision is one aspect of law

enforcement that must always be

considered and carried out in a law

enforcement environment, including the

supervision of Notaries.

Law enforcement always involves

humans in it, thus it will involve human

behavior as well, therefore the law can only

be implemented effectively if it is followed

by supervision or a strong control

mechanism from the party appointed

based on laws and regulations, thus the

legal profession that is carried out remains

in the corridor of professional ethics and

accordance with the implementation of its

position so that public trust as users of

Notary services will stay awake.

2115 | Efforts To Prevent Unfair Competition of Bank Notaries

Supervision is a preventive and

curative activity. Preventive means a

coaching process, while curative means

imposing sanctions on Notaries in the

implementation of their positions if proven

to have violated Law Number 30 of 2004

concerning Notary Positions and its

Amendments to Law Number 2 of 2014 and

violations of the Notary Code of Ethics. The

scope of this supervision is broader than

the scope of supervision to Notaries carried

out by the Regional Supervisory Council as

clearly and unequivocally stipulated in the

Notary Position Law

CONCLUSIONS

The results of the study stated that to

prevent unhealthy competition, notaries

can be done by opening opportunities and

information to notaries to get clients who

make agreements with banks. All Notaries

must have an equal opportunity to get

clients from the bank. In addition, it needs

supervision from the Indonesian Notary

Association organization and strict law

enforcement related to violations of notary

ethics that are proven to have a monopoly

on deed-making services in the banking

sector.

REFERENCES

Adjie, H. (2011).

Indonesian Notary Law.

Third printing.

. Refika Aditama.

Aswan and Susi Yanuarsi. (2022). “Notary

Position Contribution in Bank Credit

Agreement.” The Solution,

(3), 392-

393.

Law Online. (2023).

“Issue of Unfair Business

Competition Notary in Banks.”

Muhammad Soleh, Z. Y. H. Y. (2021).

Implementation of Sharia Compliance

and Notary Position Regulations in

Sharia Financial Institutions in

Indonesia (Case Study on Sharia

Banking in South Tangerang City).

Law

(1).

Nindy Putri and Paramita Prananingtyas.

(2019). The Role of the Indonesian

Notary Association (INI) in Tariff

Determination Among Balikpapan City

Notary.

Notary

(1), 143.

Rully Desthian Pahlepi. (2022).

“Notary is

Duties, Examples, and Costs.”

West

Java Seconds.

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/).