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KEDUDUKAN KUASA MENJUAL ATAS DASAR SURAT KETERANGAN NOTARIS TENTANG PEMBAYARAN LUNAS DALAM PEMBUATAN AKTA JUAL BELI BALIK NAMA

, SH, Sumardi

Acta Comitas Acta Comitas Vol. 1 April 2016
Publisher : Acta Comitas

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Abstract

Agreement Cordage Deed of Sale-Buy and Sell Attorney basically represent evidence appliance showing tied of the parties in an agreement about goods and price / object as sales contract. Meanwhile by normatif, problem to existence of sell attorney which was utilized in registration of land right switchover did not be arrangement in Government Regulation No. 24 Year 1997 about Land Registry. The blankness of the Norm had caused the happening of solving of registration of land right switchover which different each other between PPAT according to knowledge had and its bravery strive invention of law. Based of the situation, hence problem of this research is how to exsitance Notary letter statement which is power with sell as base making of sale act buy to return the name of made by and/or before PPAT and do attorney Sell following Notary letter statement can be conceived as an absolute power and sale-buy to name return can be made by appliance to registration of land right switchover at Land Office. Based on the blankness of norm in the Government Regulation No. 24 Year 1997 for the existence of Agreement Cordage Deed of Sale-Buy and Sell Attorney, hence this research was be classified into normative legal research with appproached by conceptual and statute appproach. The legal materials of this research were based on primary, secondary and tertiary legal materials. The legal materials was be descripted henceforth to be interpreted, systematization, analysed, evaluated and also given argument to get conclusion of the problems. Result of the research indicate that dimiciling Notary statement letter with attorney sell was as aid agreement and act underhand as a mean to protect buyer position as well as to help the Notary/PPAT work in making sale-buy act along with registration of land right switchover becoming sales object. Meanwhile, have the sell attorney following Notary  statement letter non as absolute attorney, but as a help deed from antecedent agreement (aid agreement) functioning and have a purpose to draw up, to affirming, strengthening, arranging, altering or finishing its sales contractual terms before notary/PPAT come up with registration of land right switchover becoming sales object.

ANALISIS KEKUATAN PERJANJIAN NOMINEE SAHAM DALAM PERSEROAN TERBATAS PENANAMAN MODAL ASING (PT.PMA)

Triwis, Sigit Teteki ( Program Studi Magister Kenotariatan Universitas Udayana )

Acta Comitas Acta Comitas Vol. 1 April 2016
Publisher : Acta Comitas

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Abstract

The use of nominee shares through nominee shares agreement has grown and developed well in the investing world, especially within the investors who establish PT. PMA. In short, the concept of nominee shares are done by both localand foreign investors. One of the causes of the nominee shares usageis because there is no rules in the Company Law that regulate, prohibit, and unequivocally ban the nominee shares by making the stock agreement. The law of prohibition to make nominee shares agreement or stock statement can only be found in the Capital Market Law, Article 33 paragraph (1) and paragraph (2). This research is a normative legal research that moves from the void norm within our laws. The approach used in this study is the legislation and analytic approach. The legal materials in this study are taken from the primary materials, secondary legal materials, and tertiary legal materials. The results of this study indicate the cause of the nominee shares usage by making nominee stock agreement, has already stated in the Company Law. However, it only explainsthe requirement that the PT has to be founded by two (2) or more persons, it does not give any detail requirements of how to be the shareholders. Other than to fill the Company Law, by filling the requirement of the PT establishment,the use of nominee agreement is due to the restriction of the line business for PT. PMA. The void of the norm has resulted in the violation within the limited liability company, in which one of the shareholders in PT. PMA is not the actual owner or nominee, but only the registered owner from certain number of shares. The law of prohibition of nominee shares in UUPM is considered inefficient because there is no strict regulations and prohibitions in the Company Law, thus, in practice, the use of nominee shares by making the nominee shares agreementgrows and develops through the simulation or indirect agreement, known as the arrangement agreement.

Pengesahan Akta Notaris Bagi Penghadap Yang Mengalami Cacat Fisik

Swandewi, Ida Ayu Putu

Acta Comitas Acta Comitas Vol. 1 April 2016
Publisher : Acta Comitas

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Abstract

The article 44 paragraph (1) of Law Number 2 of 2014 on the Amendment of the Law on the Position of Notary Public (hereinafter referred UUJN-P) provision a duty for the appearer to sign the notarial deed after having been read by the notary public, with the exception when the appearer is unable to put his or her signature then the appearer should mention the reason and it will be stated explicitly at the end part of the notarial deed. On the other hand, there is a difference in the arrangement of Article 16 paragraph (1) letter c of the UUJN-P namely the existence of an obligation that the notary public must affix the letters and documents as well as the fingerprint of the appearer on the minutes of the deed. The problem that arises is what if the appearer is illiterate, having handicapped or paralyzed hand so that he or she could not put his or her signature on the notarial deed, whether he or she is required to put his or her fingerprints on the minutes of the notarial deed as a form of his/her personal authentication on the notarial deed or as a form of his/her approval, weather the fingerprint can replace a signature, whereas what is meant by the fingerprint here also raises different interpretations. The study is a normative legal research, it is as a result of a vacuum of norm about the signing of notarial deed when the appearer have physical disabilities that he or she cannot sign a notarial deed and to perform validation on an authentic notarial deed that he/she made. In addition, there is a duty of the notary to affix the fingerprint of the appearer on the minutes of the notarial deed, whether this provision also applies to the appearer who cannot sign the notarial deed because of his/her disability. The materials used are the primary, secondary and tertiary legal materials. The results of the study indicate that the legal arrangements for the legalization of the notarial deed for the appearer who has a physical disability, especially in his or her hands, as well as the obligation to attach fingerprints on the minutes of the notarial deed has not been expressly stipulated in the Law Number 30 of 2004 (UUJN) and the UUJN-P. In particular to Article 44 paragraph (1), (2) and Article 16 Paragraph (1) c. that stipulate the appearer who has a physical disability condition can authenticate the notary deed, on condition that, the deed is eligible and conforms to the rules in Article 1320 of the Civil Code, Article 1868 of the Civil Code of the authentic deed and the Law Number 30 of 2004 of the Law on Notary Position in conjunction with the Law Number 2 of 2014 on the Amendment of the Law on the Position of Notary Public.

Penggunaan Blanko Akta Pejabat Pembuat Akta Tanah Dengan Diterbitkannya Peraturan Kepala Badan Pertanahan Nasional Nomor 8 Tahun 2012

Swandewi,SH, Ni Luh Putu

Acta Comitas Acta Comitas Vol. 1 April 2016
Publisher : Acta Comitas

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Abstract

One action of realizing the objective of the enactment of the Basic Agrarian Law is the implementation of land registration by using a Land Deed Official certificates as proof of registration of land. The existence of the certificate forms of the Land Deed Official regulated by the Regulation of the Head of National Land Agency Number 3 of 1997 which was then amended by the Regulation of the Head of National Land Agency Number 8 of 2012, both of them regulate about the Land Deed Official certificate using the land certificate forms. The legal consequences of the abovementioned fact raises questions of the followings: What is the legal standing of the land certificate forms issued by a Land Deed Official under the Regulation of the Head of National Land Agency Number 3 of 1997 which has been used by a Land Deed Official as an evidence of transfer of registration of land rights in the Land Affairs Office after the date of March 31, 2013 by the enactment of the Regulation of the Head of National Land Agency Number 8 of 2012 and what efforts should be taken by the Land Deed Officials in the event that the certificate forms of the Land Deed Official issued under the Regulation of the Head of National Land Agency Number 3 of 1997 is not acceptable as an evidence of transfer of registration of land rights after the enactment of the Regulation of the Head of National Land Agency Number 8 of 2012. The study is an empirical legal research, examining the gap between the theories (das solen) with the practices (das sein) in which in the Head of National Land Agency Regulation Number 8 of 2012 Article II point 1 letter a, stipulates that a land certificate form of the National Land Agency (BPN) can still be used. Whereas, in the letter b states that the land certificate forms of the National Land Agency which are no longer being used, shall be returned. In practice, in the Land Deed Official office, the use of a land certificate form of the Land Deed Official issued under the Regulation of the Head of National Land Agency Number 3 of 1997 cannot be accepted in the Agrarian Office. The data and the data sources of this empirical legal research are primary, secondary and tertiary data. The findings of the study indicate the legal standing of the certificate forms of the Land Deed Official issued under the Regulation of the Head of National Land Agency Number 3 of 1997 after the date of 31 March 2013 by law (de jure) is no longer considered as the certificate of the Land Deed Official, but as the evidence of the legal acts set forth therein as the perfect evidence. On the other hand, in practice, the certificate cannot be used as registration evidence by the Agrarian Office, and the solution is to summon the parties to re-sign.

Bentuk Surat Kuasa Membebankan Hak Tanggungan Setelah Dikeluarkannya Peraturan Kepala Badan Pertanahan Nasional Nomor 8 Tahun 2012 Tentang Ketentuan Pelaksana Peraturan Pemerintah Nomor 24 Tahun 1997 Tentang Pendaftaran Tanah

Selvyana Putri Pratamikha, Ni Putu

Acta Comitas Acta Comitas Vol. 1 April 2016
Publisher : Acta Comitas

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Abstract

The Power of Attorney of the Encumbrance Rights (SKMHT) is a special power of attorney which includes the power to impose the provision of encumbrance by the encumbrance grantor to the recipient of the encumbrance or other person authorized to it. The Power of Attorney of the Encumbrance Rights (SKMHT) must be made in two forms namely the notarial deed or the deed of the land deed official (PPAT) as stipulated by the provisions of Article 15 paragraph (1) of the Law Number 4 of 1996 on the Encumbrance Rights of the Land Along with Bodies Relating to Land. The enactment of the National Land Agency Regulation Number 8 of 2012 requires that the SKMHT shall be made ??in accordance with the format of the attachment of the Regulation. . While the SKMHT in the form of notarial deed shall be made ??in accordance with the provisions of Article 1868 of the Civil Code, the Article 38 of the Revised Law on the Position of the Land Deed Official (UUJNP), and the Article 15 of the Law on The Encumbrance Rights (UUHT). This results in the different arrangements resulting in the lack of uniformity of the SKMHT forms made ??by a notary or the land deed official (PPAT) which giving rise to the legal uncertainty of the form of the SKMHT and the legal effect of the SKMHT made in the form of a notarial deed. The study is a normative legal research, intended to examine the differences in the SKMHT arrangement between the provisions of Article 15 paragraph (1) of The Encumbrance Rights (UUHT) with the Regulation of the Head of National Land Agency (Perkaban) Number 8 of 2012. The study uses the statutory approach that is supported by the literature, legal theory, the opinions of the scholars, as well as the legal dictionaries, as its legal materials. The findings of the study show that the Regulation of the Head of National Land Agency (Perkaban) Number 8 of 2012 does not abolish the SKMHT  in the form of a notarial deed as provided in Article 15 paragraph (1) of The Encumbrance Rights (UUHT). the SKMHT in the form of a notarial deed shall be made ??in accordance with the provisions of Article 1868 of the Civil Code, the Article 38 of the Revised Law on the Position of the Land Deed Official (UUJNP), and the Article 15 of the Law on The Encumbrance Rights (UUHT), while the SKMHT in the form of the land deed official (PPAT) shall be made in accordance with the provisions of the Regulation of the Head of National Land Agency (Perkaban) Number 8 of 2012 along with its attachments. It is expected that the firm provisions which regulate the SKMHT in the forms of the notarial deed should be enacted in order to create its legal certainty.

Kesaksian Notaris Mengenai Akta Perjanjian Kredit Berkaitan Dengan Rahasia Jabatan Notaris Dalam Peradilan Pidana

Ayu Made Semilir Susila, I Gusti

Acta Comitas Acta Comitas Vol. 1 April 2016
Publisher : Acta Comitas

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Abstract

Notary in performing his position must be able to keep the trust given by the parties in the form of notary position secret as set out in Law Number 30 Year 2004 and Law Number 2 Year 2014. Notary gives his service in many fields of civil law, including in banking field. Banking institution in performing its business activity is also obliged to keep its customer secret in the form of bank secret, as set out in Law Number 10 year 1998. Notary’s position in the case of giving his service to make bank credit agreement deed does not set clearly in Banking Law. Later this also causes unclear thing in limiting notary’s responsibility in giving evidence regarding credit agreement deed in the case that the bank has been excluded for the interest of criminal judicature. The type of this research is normative law research which starts from the existence of haziness regarding notary position in Banking Law and its amendment, and norm haziness regarding notary responsibility in giving evidence about credit agreement deed in criminal judicature. This research uses law, conceptual, and historical approach. The law material used in this research is primary law material, secondary law material, and tertiary law material. The law material collection technique used is literature study. The result shows that notary in giving his service to make bank credit agreement deed has position as affiliated party. It brings consequence that notary responsible to keep the things set as bank secret. In his position as witness in criminal judicature, notary responsible and shall to give evidence related to the things set in the beginning or head of the deed and the things related to the making process of a bank credit agreement deed to be able to be said as authentic deed that has perfect verification authority, but notary does not responsible in giving evidence in accordance with the things including bank secret category.

Tanggung Jawab Pejabat Pembuat Akta Tanah (PPAT) Terhadap Pendaftaran Peralihan Hak Atas Tanah Yang Menjadi Objek Sengketa

Ayu Wulan Rismayanthi, Ida

Acta Comitas Acta Comitas Vol. 1 April 2016
Publisher : Acta Comitas

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Abstract

The Land Deed Official (the PPAT) is a public official who is granted part of the authorities by the State in the implementation of land registration, by making the land certificate as the basis for land registration. The Agrarian Office may turn down the registration of the land rights in the event of any recording in the land registry books of the land rights which become the object of dispute. Based on Article 45 of the Government Regulation Number 24 of 1997 that there is a legal ambiguity on the return of the files in the form of certificate, title deed and other related documents. According to Article 55 of the Head of National Land Agency number 1 of 2006, the PPAT is personally responsible for the execution of the task and his/her authority, in every act making. There is no clear arrangement regarding the responsibility of PPAT on the registration of the conveyance of the land which becomes the object of dispute. Such provisions result in legal issues about the legal consequences and the responsibility of PPAT on the registration of the conveyance of the land which becomes the object of dispute The type of research used in this thesis is a normative legal research as the result of the presence of the ambiguity and the vacuum of norms. The legal materials were collected by the techniques of library research and the card system. The descriptive, interpretative and argumentative theories as well as associated with laws that relevant to the issues were used to analyze the legal materials. The results showed that the Agrarian Office turns down and returns the documents to the PPAT as the legal consequence of the conveyance of land which becomes the object of dispute. The legal consequences of the deed made ??before the PPAT remains authentic during a blocking of certificate. The responsibility of the PPAT is in accordance with his/her position, in keeping the deed, certificate along with the relevant documents at the time of the restitution by the Agrarian Office. PPAT shall be mandatory as an intermediary to keep the documents that are being returned at the time of confiscation by a court or at the revocation of blocking by the applicant.

Implementasi Pasal 39 Ayat (1) Huruf d Peraturan Pemerintah Nomor 24 Tahun 1997 Tentang Pendaftaran Tanah Terkait Jual Beli Dengan Kuasa Mutlak Oleh Pejabat Pembuat Akta Tanah Di Kabupaten Klungkung

Wika saptia dewi, Luh

Acta Comitas Acta Comitas Vol. 1 April 2016
Publisher : Acta Comitas

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Abstract

The Land Deed official (the PPAT) is a public official given the authority to make an authentic document related to the conveyance of land. In the land conveyance, many parties employ a power of attorney or a proxy to represent him or herself in committing an act of law, one of which is the act of buying and selling of land. The problem formulation of this thesis is how the implementation of the provisions of article 39 paragraph (1) letter d of the Government Regulation Number 24 of 1997 about the practices of making the land sale deeds by the PPAT in the Klungkung Regency, and what the responsibilities of the PPAT in carrying out their duties as officials who make the land sale deed based on an absolute power of attorney. The research methodology used in the study is juridical empirical research. It can be seen from the scope of discussion namely on what is written in the legislation (das sollen) and the deviations found in the practices of making the land sale deeds made by the PPAT (das Sein). This thesis uses the nullification, the legal affectivity, the responsibility, and the law enforcement theories. The findings of the research showed that there were some irregularities of the implementation of Article 39 paragraph (1) letter d related to the land sale deed by an absolute power of attorney found in the Regency of Klungkung, for instance, there was an indication that a PPAT accepted a privately-made absolute power of attorney to make a land conveyance certificate. This was made because of the creditors debt agreements. Other irregularities found, that there was a land conveyance certificate made under a stand-alone power of attorney that irrelevant to the land deed of sale. The accountability of a PPAT who accepts an absolute power of attorney in making the land conveyance certificate lies exclusively on his/her own discretion because the PPAT is not under a government agency. It is always possible that those who feel harmed by the malpractice shall be entitled to a civil action for redress. By the routine monitoring and guidance, it is expected that no violations shall be committed by the PPAT otherwise, he or she may be exposed to a lawsuits in the future.

Tanggung Jawab Notaris Dalam Pembuatan Minuta Yang Dibuat Berdasarkan Keterangan Palsu

Mas Maya Ramanti, Putu

Acta Comitas Acta Comitas Vol. 1 April 2016
Publisher : Acta Comitas

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Abstract

In Article 1 paragraph (1) of laws No.2 of 2014 concerning the amendment to the Laws No. 30 of 2014 concerning the office of a notary states that a notary is a Public Official authorized to make an Aunthentic deed and has other authorities as set up in the legislation or under other laws. Deed made before a notary can be classified in two (2) kinds of certificates, namely partij deed/deed of the parties and the deed of relaas/officials. The problem discussed in this thesis is what is the legal regulation of the production of notarial deed in the legislation in Indonesia, what is the legal effect of a deed made based on false information by the parties involved. The type of research is the study of normative law because there is a conclict norm between the two regulation, the statute approach, the analytical and conceptual approach and the coparative approach. Sources of primary legal materials of legislation, secondary legal materials used in the studies may be in the form of books and articles in electronic format. The data collection was done through library research covering primary legal materials. Data processing and analysis of legal materials were done through descriptions of situationsor events. This technique did not search for or explain relations, did not test hypothesesor make predictions. The conclusion of the study demonstrates that notaries in running his or her office must pay attention to and must be subject to the Laws No. 30 of 2004 concerning the post of a notary which has been amended by the enactment of Laws No 2 of 2014 concerning the amendment to the Laws No 30 of 2004 concerning the office of a notary and ethical codes for a notary which constitutes applicable regulations for moral guidance for a notary profession. A deed that contains false information which is provided by the parties can be cancelled. Deed cancellation can be done by a notary if demanded by the parties who suffer losses.

Pluralisme Pengaturan Umur Kecakapan Dalam Pembebanan Hak Tanggungan

Widana Putra, I Made

Acta Comitas Acta Comitas Vol. 1 April 2016
Publisher : Acta Comitas

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Abstract

SKMHT (Power of Attorney to Grant a Mortgage) shall be concluded through a notarial deed or Land Conveyancer’s deed as regulated in Article 15 paragraph (1) of Law No. 4 of 1996. Article 39 paragraph (1) of Law No. 30 of 2004 in conjunction with Law No. 2 of 2014 stipulate that an appearer before a Notary Public shall be minimum eighteen (18) years old. However, to conclude an SKMHT, PPAT (Land Conveyancer) applies the age requirement of minimum twenty-one (21) years old as regulated in the provision of article 330 of BW (Civil Code of the Republic of Indonesia). As such, there are two (2) contradictive age requirements to conclude an SKMHT, namely horizontal norm conflict (geschijld van normen) between Article 330 of BW and Article 39 paragraph (1) of Law No. 30 of 2004 in conjunction with Law No. 2 of 2004. Apart from the two (2) provisions referred to above, Law No. 1 of 1974 also regulates the age requirement, namely article 47 and article 50. The validity of SKMHT will affect the execution of APHT (Deed of Mortgage Granting) and the registration of mortgage granting. Based on the said backgrounds, the main subject of this study is what the age requirement should be in order to able to conclude an SKMHT, APHT and to register a Mortgage Granting. This study constitutes a normative legal study derived from the existing norm conflict between article 330 of BW and article 39 paragraph (1) of Law No. 30 of 2004 in conjunction with Law No. 2 of 2014, and among article 330 of BW and article 47, article 50 and article 66 of Law No. 1 of 1974. Meanwhile, this study adopts the Statue Approach and Analytical & Conceptual Approach. The legal stuff resources come from primary legal stuff resources and secondary legal stuff resources. The methodology to collect legal stuff resources is the snow ball principle, where the resources were inventoried and identified in order to able to analyze the existing problems in this study. The results of this legal study indicate that normatively, an SKMHT shall be concluded by using the age requirement of eighteen (18) years old. However, Notary Public and PPAT in practice remain to adopt the age requirement of twenty-one (21) years old to conclude an SKMHT. PPAT should also apply the age requirement of eighteen (18) years old to conclude APHT. However, PPAT in practice remain to adopt the age requirement of twenty-one (21) years old. Therefore, the process to conclude an APHT will not be able to be carried out if the subject of notarized SKMHT is eighteen (18) years old. The same also applies to the registration of mortgage granting at the Land Office because the Land Office requires the age requirement of twenty-one (21) years old as regulated in the provision of Article 330 of BW. As a consequence, if the subject has not yet reached the minimum age requirement, the mortgage granting cannot be registered.