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Daerah Ikatan Notaris Indonesia Kabupaten Bantul
American Journal of Humanities and Social Sciences Research (AJHSSR) 2022
A notary must comply with orders to fulfill all obligations written in the laws and regulations valid in his area. The obligations that have been determined must be carried out so that the notarial deed can be enforced so that it is realized as an authentic deed. As a public official, a Notary must tasked with serving the community who need their services to make an authentic deed in writing that can be evidenced in civil law. The existence of a notary is very necessary because it is part of the law of proof.2 A notary who functions in a society that is still respected today. Many people think that the notary profession is an official who becomes a place for someone to tell stories and get reliable advice. Everything that he stipulates in a written document is the right thing, so that a notary is a reliable document creator for the applicable legal process.3 The purpose of making a written deed face to face with a notary directly has the aim of being able to be used as perfect evidence, if in the future there will be clashes between the two parties which in the future can lead to criminal charges or civil lawsuits. If there are lawsuits and demands originating from these parties, the notary has a great possibility to interfere with the disputing parties or question the deed made by the notary. The position of a Notary is regulated in Indonesian law written in the Act, namely Law Number 2 of 2014 concerning Amendments to Law Number 30 of 2004 concerning the Position of a Notary, which will hereafter be referred to as UUJN-P serve the public who need authentic evidence in writing regarding the occurrence of legal actions that have direct involvement with the applicant for the deed. A deed issued by a notary deed serves a very important role in society. A person is required to prove the existence of a right they have in an event if they say that they have rights, or decide on their own rights so that they have the courage to dispute rights other than themselves.4 Evidence is valid and recognized by law as written in Article 1866 of the Civil Code (KUHPerdata), namely: 1. Oath; 2. Allegations; 3. Written evidence; 4. Confession; and 5. Evidence with witnesses An authentic deed affixed under the signature can be written evidence. According to the provisions written in Article 1870 of the Civil Code, an authentic deed can be perfect and strong evidence for various parties, as well as the heirs who receive rights. A deed that is the strongest can be used as evidence needed by the community.5 The classification of notarial deed consists of:6 1. The deed made by a notary because he is authorized as an official or ambtenaar, includes a statement from the Notary on the things that are shown to him and known to the notary based on the information stated by the party and proven by the available evidence, which in the end the notary can make determination based on applicable legal rules, such as for example: deed of determination of inheritance, official deed or what can be called an ambtelijk act. 2. Called a partij act or party deed, is a deed made by a person and brought before a notary. Deed made by a person or parties before a notary. For example: deed of witness statement, deed of statement of actual incident, deed of lease, deed of chartering, deed of marriage, and other deeds that include information from the appearers and have the desire to be made in the form of a notarial deed. A notary can cancel by law when making a partij acte, if afterwards it is not in accordance with the applicable law, not in accordance with decency and public order. According to Subekti,7 it is obligatory to distinguish between subjective and objective conditions in a contract. For objective conditions, the agreement will be null and void by applicable law if the conditions cannot be fulfilled. So, from the beginning of an engagement there is no such thing. In subjective terms, if a condition cannot be fulfilled, then one of the parties has the right to request the cancellation of the agreement. The party who is incompetent and therefore unable to give consent freely is the party that can request the cancellation.8 A deed issued by a notary is a tool to prove a perfect case, has a guarantee of legal certainty, so that it also functions to avoid disputes. However, in reality, the existence of a notarial deed is the cause of disputes
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2 Herlin Budiono, 2013, Kumpulan Tulisan Hukum Perdata di Bidang Kenotariatan Buku Kedua. 3 Tan Thong Kie, 2011, op.cit., p. 449. 4 R. Subekti dan R. Tjitrosudibio, 2001, Kitab Undang-Undang Hukum Perdata, Cetakan Ketiga Puluh Satu, Jakarta: PT Pradnya Paramita, p. 475. 5 Herlin Budiono, 2013, Dasar Teknik Pembuatan Akta Notaris, Cetakan ke I, Bandung: PT Citra Aditya Bakti, p. 1. 6 Mustofa, 21 Desember 2016, Eksistensi Ambtelijk Acte Notaris Dalam Perspektif UUJN dan Pasal 1868 KUH Perdata, Makalah ini disampaikan pada Seminar Revitalisasi Organisasi “Dari Kita, Oleh Kita, Untuk Kita”, Pengurus Daerah Ikatan Notaris Indonesia Kabupaten Bantul, p. 2-3. 7 Subekti, 1996, Hukum Perjanjian, PT. Jakarta: Intermasa, p. 20. 8 Herry Susanto, 2010, Peranan Notaris Dalam Menciptakan Kepatutan Dalam Kontrak, Cetakan Pertama, Yogyakarta: FHUII Press, p. 9.
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American Journal of Humanities and Social Sciences Research (AJHSSR) 2022
between parties. It is precisely a criminal case that causes a Notary to become a suspect because of the Notary deed he made. People often provide wrong information and it is not in accordance with real events when making a deed before a notary must carry out an investigation to prove what happened to that party. Notaries have no role and authority in investigating incidents to prove the material truth of the information that has been heard from the parties. However, this authority can have a bad impact if there is a problem in the future for the deed that has been made by the Notary, so that it can cause liability problems for the Notary deed from the process of making the authentic deed which was made based on information that turned out to be false from the parties. To carry out the law enforcement process, it is necessary to explain to law enforcers regarding the elements of offenses in the Criminal Code in the context of law enforcement, so that they can be applied in accordance with the intent of the Act because the elements of offenses regulated in the Criminal Code are still abstract. Positive recommendations for the application of laws that have good and correct explanations for actions that are not allowed in the Criminal Code are to maintain the authority of law in people's lives. Forgery of letters is one of the offenses regulated in the Criminal Code. Although the discussion of letter falsification offenses is still rarely discussed in writing, letter falsification is a classic offense regulated in the Draft Law (RUU)9 of the Criminal Code and other laws other than the Criminal Code.10 In addition, the crime rate in Indonesia shows that letter falsification offenses are still common. The administrative system established by the government and agreements in the community still require written documents in the form of letters so that the offense of forgery of letters always has the potential for crime. Seeing the crime regarding the offense of forgery, so that an understanding of this is very important for law enforcers to be able to properly implement the article material that affixes the offense of letter forgery. However, explanations regarding the offense of forgery of letters still have differences of opinion among law enforcers, so that it has the potential to be less effective in the application of criminal law because it has a meaning that is far from its real meaning. The case of dragging a Notary into the realm of criminal law occurred in the Lhokseumawe State Court Decision Number 40/Pid.B/2013/PN.Lsm, giving a criminal sentence to Notary Imran Zubir Daoed, S.H in Lhokseumawe City for 2 months, legally proven guilty of falsifying an authentic deed regulated in Article 263 of the Criminal Code. The notary made a fake authentic deed, by falsifying the data on the Authentic Deed number: 01 dated November 2, 2012, making an authentic deed as an appearance before the defendant, including the name of Mr. Edi Fadhil, making the name of Mr. Edi Fadhil stated in the making of the Notary Deed number: 01 dated November 2 2012, even though what happened was that Mr. Edi Fadhil did not appear before the defendant to make a notarial deed because on that date Mr. Edi Fadhil was not in Aceh City. Based on the description that has been written, the following problems arise, namely: 1. What are the Formal and Material Requirements in the making of a Notary Deed. And 2. How is the Notary's Criminal Liability for Deeds made based on False Letters.
II. RESEARCH METHODS
The research method of normative law was chosen by the researcher to complete this research. Normative law is research based on library research or researching existing secondary data. The steps taken by researchers to complete the writing of this law are: 1. Research Specification
In the form of a descriptive analysis specification, the research specification is written by the researcher with a description of the laws and regulations that have been in effect. The regulation is related to legal theory and the problem here is also related to the implementation of positive law,11 namely the Notary's Criminal
Liability for Deeds made based on False Letters. 2. Approach Method
Using a normative juridical approach, researchers use materials for study through library materials.
Researchers also use secondary data sources, namely the opinions of scholars who are analyzed and concluded so that they become secondary data, and primary data in the form of legal theory, the Book of the
Criminal Law Act, Law Number 2 of 2014 concerning Amendments to Law Number 30 2004 concerning the
Position of Notary, legal theories. All of this data becomes a source for reviewing the Notary's Criminal
Liability for the Deed made based on the False Letter. 3. Research Stage
The stages of research carried out by researchers to collect data are: Collecting data that is published as a reference from library books of various laws and regulations to literature that has a relationship with research
9 Dalam RUU KUHP tanggal 28 Agustus 2019 diatur dalam Bab XIII Tindak Pidana Pemalsuan Surat Pasal397-406. 10 Pemalsuan surat diatur dalam UU ITE, UU Tipikor, UU Mata Uang, UU Pemilu, dan sebagainya. 11 Ronny Hanitijo Soemitro, 1990, Metodologi Penelitian Hukum dan Jurimetri, Jakarta: PT. Ghalia Indonesia, Jakarta, p. 97-98.
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