Responsibility
of Land Deed Officials: Implications of Legal Convergence on the Harmonization and
Integration of Collateral Law and Telematics Law
Nelly Azwarni Sinaga1, Ida
Nurlinda2, Muhammad Yamin3, Zaidar4
Universitas Sumatera Utara, Indonesia
Email: [email protected]1*,
[email protected]2, [email protected]3, [email protected]4
ABSTRACT
Digitalization in the national
legal system, especially related to mortgage rights, has experienced
significant dynamics through Regulation of the Minister of Agrarian and Spatial
Planning/Head of the National Land Agency Number 5 of 2020. One of the impacts
of this land digitization is the change in the process of registering mortgage
rights from a manual system to an electronic system. Although it is done
virtually, electronic mortgage registration still involves real legal actions
with clear legal consequences. The Land Deed Official (PPAT) also plays a
direct role in the implementation of electronic mortgage rights in accordance
with these regulations. This research aims to examine the impact of convergence
between the Mortgage Law and the Telecommunications Law in the establishment of
a digital-based mortgage registration system, known as the Electronic Mortgage
System. It also explores the roles and obligations of PPAT in this context. The
method used is prescriptive with a normative juridical approach. The results
show that the change in the mortgage registration system from a manual system
to a digital system is influenced by the convergence of telematics legislation
and property security law. The incompatibility between the Mortgage Rights Law,
the Electronic Information and Transaction Law, and PPAT regulations has an
impact on the status and legal obligations of PPATs, making the principle of
justice difficult to realize. This research provides important implications
regarding the need for regulatory adjustments to create legal harmony in the
mortgage digitalization system.
Keywords: Legal
convergence, Land Deed Officials' Position and Responsibilities, Guarantee Law
of Mortgage Rights, Telematics Law.
INTRODUCTION
Global digitization is both sustainable and inevitable. Information
technology is used and exploited so dynamically that it permeates nearly every
human activity on the planet (Mondejar et al. 2021). According to George Pattison, one feature
of contemporary technology is its particular approach to expressing nature (Pattison-Williams et al. 2018). This means that nature is exploited as a
resource for technological advancement while also being opened up, altered,
stored, distributed, and redistributed�all within a "frame," or the
constraints imposed by utility demands.�
Because technology and framing are not intrinsically bad, it is
necessary to keep a distance from them when challenging the essence of
technology. This is because the entirety of technology and framing is incorrect,
and it permeates every aspect of existence. In this sense, Heidegger challenges
people to rise to the status of true beings in the face of technological
advancement.
Even though they are virtual, cyber activities fall under the same legal
categories as actual legal actions and deeds (Farshid et al. 2018). Electronic transactions are the most common
use in cyber operations, making online transactions the most pressing problem
at the moment (Bendovschi 2015). Since the introduction of electronic
transactions, this has actually become a legal issue in addition to the
security concern with the information system itself. Information technology
progress does not fully benefit society when stringent and sophisticated
security measures are not in place. Since digital technology makes it simple
for information to be misused, information system security is a crucial
concern.
Law Number 11 of 2008 concerning Information and Electronic
Transactions, which has been amended by Law Number 1 of 2024 concerning the
Second Amendment to Law Number 11 of 2008 on Information and Electronic
Transactions, is one example of how the government has attempted to regulate
the use of technology in the utilization of information and electronic
transactions. The government is attempting to expedite the advantages and
functions of law within the confines of legal certainty by enacting the Electronic
Information and Transactions Law (Melcarne et al. 2021). The legal basis for digital-based services,
such as land rights registration, is provided by this legislation (da Silva Neto et al. 2021).
The Minister of Agrarian Affairs and Spatial Planning / Head of the
National Land Agency Regulation No. 5 of 2020 concerning Integrated Electronic
Mortgage Services is the result of the convergence of the Telecommunication Law
through the Electronic Information and Transactions Law with the Law on
Mortgage Rights based on Law No. 4 of 1996 on Mortgages in the field of Land
Affairs (Fuseini et al. 2015). The Minister of Agrarian Affairs and
Spatial Planning / Head of the National Land Agency Regulation No. 5 of 2020
has emerged thanks to the convergence of Telecommunication Law and Mortgage
Rights Law, which also serves as its legal underpinning.
The Law on Security Rights and the Information and Electronic
Transaction Law are convergent, which means that the Security Rights
registration system�which was formerly based on a traditional system but is
currently digital and is called the Electronic Security Rights Registration
System�will undergo modifications (Sullivan 2019). The ramifications of this legal convergence
not only modify the Security Rights registration system but also have an impact
on the Land Deed Official's (PPAT) legal obligations and responsibilities when
it comes to electronically encumbering Security Rights (Rodrigues 2020).
In order to produce a Deed of Mortgage and encumber a Mortgage Right,
the Land Deed Official (PPAT) is required to adhere to the rules governing
Mortgage Rights (Aiello 2022). The Law on Mortgage Rights, Number 4 of
1996, and the Minister of Agrarian Affairs and Spatial Planning/Head of the
National Land Agency Regulation, Number 5 of 2020, must both be followed by the
PPAT.� Nonetheless, there is a
significant lack of cohesion and disintegration between these two regulations,
which have distinct hierarchies, especially with regard to the PPAT's tasks and
obligations (De Maio et al. 2021). While electronic registration of mortgage
rights is already required by the Regulation of the Minister of Agrarian
Affairs and Spatial Planning / Head of the National Land Agency Number 5 of
2020, which acts as the implementing regulation of the Mortgage Rights Law,
conventional mortgage rights registration under Law Number 4 of 1996 on
Mortgage Rights has not been amended to include electronic registration.
One of the legal justifications for the two Mortgage Rights regulations'
discord and disintegration is the aforementioned (Yang et al. 2020). In order to describe the various other
provisions that have not yet been harmonized and integrated between these two
regulations of different levels, normative studies on the harmonization and
substantial integration between Law Number 4 of 1996 concerning Mortgage Rights
and the Minister of Agrarian Affairs and Spatial Planning / Head of the
National Land Agency Regulation Number 5 of 2020 must be conducted (Kush et al. 2020).
In relation to the authorities and responsibilities mandated by
legislation in the imposition of Mortgage Rights, the enactment of Law Number 4
of 1996 concerning Mortgage Rights and the Regulation of the Minister of
Agrarian Affairs and Spatial Planning/Head of the National Land Agency Number 5
of 2020 have implications for the position and responsibilities of PPAT (Dagher et al. 2016). Therefore, it is necessary to conduct a
study on the implications of legal convergence on the harmonization and
integration of mortgage law and telematics law related to the position and
responsibilities of the Land Deed Official.
Based on the above background, the purpose of this study is to analyze
the implications of legal convergence between the Mortgage Law and the
Telecommunications Law, as well as how the harmonization between these two
regulations affects the implementation of electronic mortgages. This research
also aims to explore the legal implications of this convergence on the roles
and responsibilities of the Land Deed Official (PPAT) in carrying out its
obligations in accordance with applicable regulations. In addition, this
research is expected to provide benefits in the form of clear recommendations
for policy makers regarding efforts to harmonize regulations in the field of
mortgage rights. By clarifying the disharmony between Law Number 4 of 1996 on
Mortgage Rights and Regulation of the Minister of Agrarian and Spatial
Planning/Head of the National Land Agency Number 5 of 2020, this research is
expected to contribute to the preparation of more coherent and synchronous
regulations in the future, so as to create legal certainty for the parties
involved, including the PPAT and the community.
RESEARCH METHOD
The research methodology is a kind of normative legal research (Benzm�ller et al. 2020). Primary, secondary, and tertiary legal
materials are the sources of secondary data used to create the data source. The
purpose of this prescriptive analytical research is to examine the goals of the
law, justice values, the legitimacy of the law, legal concepts, and legal norms (Sivarajah et al. 2017). A statutory approach is the methodological
strategy applied in this study (Statute Approach).
RESULT
AND DISCUSSION
In
order to unify land law, Article 51 of Law Number 5 of 1960 respecting the
Principles of Agrarian Law was manifested as the National Guarantee Law, or Hak
Tanggungan. The lengthy 36-year wait was finally over when Law Number 4 of 1996
on Mortgage Rights was passed.
Since
the enactment of the Electronic Mortgage Rights regulation by the Minister of
Agrarian Affairs and Spatial Planning/Head of the National Land Agency
Regulation number 5 of 2020, which has essentially been in force since 2021,
the government has changed the Mortgage Rights to Electronic Mortgage Rights as
a result of developments that have required humans to adapt to the
globalization of electronic transactions and in the interest of effectiveness
and efficiency in serving the community.
One
of the factual ramifications of the convergence of land guarantee law with
telematics law is the Regulation of the Minister of Agrarian Affairs and
Spatial Planning / Head of the National Land Agency number 5 of 2020. This has
led to the digitization of land management, resulting in a change in the
concept of the registration of Mortgage Rights from a conventional system to a
digital or electronic systeThe Electronic Mortgage Rights System is a
registration service for Mortgage Rights that utilizes electronic devices
through an application service launched by the Ministry of Agrarian Affairs and
Spatial Planning / National Land Agency, in accordance with the Regulation of
the Minister of Agrarian Affairs and Spatial Planning / Head of the National
Land Agency number 5 of 2020 concerning Integrated Electronic Mortgage Rights
Services. The electronic Mortgage Rights service is known as the Electronic
Mortgage Rights System (Sistem HT-el).
According
to the Regulation of the Minister of Agrarian Affairs and Spatial Planning/Head
of the National Land Agency Number 5 of 2020, the Electronic Mortgage Rights
System (HT-el System) is an integrated electronic system that facilitates a
number of processes for the service of mortgage rights with the goal of
maintaining land registration data. This Electronic Mortgage System offers a
number of services, such as mortgage registration, mortgage transfer, creditor
name changes, and mortgage cancellation (Roya).
The
Minister of Agrarian Affairs and Spatial Planning's and the National Land���� Agency Regulation Number 5 of 2020's
discord and disintegration with the Mortgage Law Number 4 of 1996
The
Law Number 4 of 1996 and the Regulation of the Minister of Agrarian Affairs and
Spatial Planning / Head of the National Land Agency number 5 of 2020 are still
not entirely consistent and integrated. In the meantime, the Minister of
Agrarian Affairs and Spatial Planning / Head of the National Land Agency number
5 of 2020 established the Regulation using the Mortgage Law number 4 of 1996 as
the legal foundation.
The
Mortgage Law No. 4 of 1996 does not recognize the electronic mortgage system in
any way, nor does it acknowledge the use of electronic documents in mortgage
services as mentioned in the Regulation of the Minister of Agrarian Affairs and
Spatial Planning / Head of the National Land Agency No. 5 of 2020. This is one
of the reasons for the disharmony and disintegration of land regulation at
different levels. The Mortgage Law number 4 of 1996 still governs the manual
process of imposing mortgages and stipulates that the Deed of Granting
Mortgage, which is filed directly to the Land Office, must be full in order to
receive physical paper deeds. As a result, it is legally verifiable that the
two legal regulations are not in harmony or synchronization, even though they
ought to be.
The
position, responsibilities, and duties of the Land Deed Official are affected
by the significant distinctions between the Law on Mortgage Number 4 of 1996
concerning mortgages and the Regulation of the Minister of Agrarian Affairs and
Spatial Planning/Head of the National Land Agency Number 5 of 2020 regarding
the registration of electronic mortgages. The Land Deed Official drafts the
first and second copies of the mortgage deed and sends them to the Land Office,
together with all necessary papers for the registration of the mortgage rights,
in accordance with Law on Mortgage Rights number 4 of 1996. The initial copy of
the mortgage deed is then kept by the land deed official as a minute along with
all of the supporting paperwork at the land deed official's officeThis is
further highlighted in Government Regulation Number 37 of 1998, Article 21,
Paragraph 3 regarding the Regulations for Land Deed Officials, which was
modified by Government Regulation Number 24 of 2016, which states that the Land
Deed Official's deed is made in two copies, with the second sheet being
submitted to the Land Office along with the supporting documents, and the first
sheet being kept as a minute at the Office of the Land Deed Official.
According
to the Minister of Agrarian Affairs and Spatial Planning's Regulation Number 5
of 2020, the original Deed of Granting Mortgage is retained at the Land Deed
Official's office, and the Deed of Granting Mortgage and its supporting
documentation are electronically submitted to the Land Office. According to
Minister of Agrarian Affairs and Spatial Planning / Head of the National Land
Agency Regulation number 5 of 2020, it can be stated that the Land Deed
Official's duties and responsibilities are expanding. In the meantime,
Government Regulation Number 24 of 2016 has modified the terms of Article 21
paragraph (3) of Government Regulation Number 37 of 1998 on the Regulations for
the Position of Land Deed Officials, remained unchanged with regard to the Land
Deed Official's duty to retain the first copy of the mortgage deed and to turn
in the second copy to the Land Office.
The
legal facts pertaining to the delivery and registration of Mortgage Rights,
therefore, demonstrate variations in the obligations and liabilities of the
Land Deed Official with respect to the registration procedure and the filing of
the Deed of Granting Mortgage Rights to the Land Office, together with its
requisite documentation. Prior to the release of Minister of Agrarian Affairs
and Spatial Planning / Head of the National Land Agency Regulation number 5 of
2020, the Land Deed Official was tasked with delivering the Deed of Granting
Mortgage Rights and the necessary paperwork, as well as registering the
Mortgage Rights. The Land Deed Official is now required to electronically
submit the Deed of Granting Mortgage that they have created and the supporting
documents in accordance with the deadline stated in article 10 of the Minister
of Agrarian Affairs and Spatial Planning / Head of the National Land Agency
Regulation number 5 of 2020, following the issuance of the Minister of Agrarian
Affairs and Spatial Planning / Head of the National Land Agency Regulation
number 5 of 2020.� Next, as users of the
Electronic Mortgage Rights service, the Ministry of Agrarian Affairs and
Spatial Planning/Land Agency furnish the Creditor/Bank with their separate
banking accounts via which they register their mortgage rights electronically.
CONCLUSION
The Law Number 4 of 1996 concerning Mortgage
Rights and the Regulation of the Minister of Agrarian Affairs and Spatial
Planning / Head of the National Land Agency Number 5 of 2020 are in conflict
and misaligned with each other due to the lack of regulation in the Mortgage
Rights Law regarding the duties and responsibilities of the Land Deed Official.
This creates a legal gap, as several provisions governing the obligations and
responsibilities of Land Deed Officials, which are clearly defined in the Minister's
regulation, are not addressed in the Mortgage Rights Law. The inconsistency in
these regulations leads to confusion and a lack of legal certainty. To address
this issue and provide clear legal certainty for all parties involved�debtors,
creditors, and Land Deed Officials�the Mortgage Rights Law should be revised to
align with the demands of digital globalization. It must be reorganized to
match the Ministerial Regulation, ensuring consistency in regulating the duties
and responsibilities of Land Deed Officials. Harmonizing and integrating these
two legal frameworks by amending the conflicting sections will enhance legal
clarity and coherence.
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