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Edunity

Volume 2 Number 7, July 2023

p- ISSN 2963-3648- e-ISSN 2964-8653

Doi: https://doi.org/10.57096/edunity.v2i7.108

https://edunity.publikasikupublisher.com/index.php/Edunity/index

JURIDICAL REVIEW OF IMPOSITION OF DEEDS FOR

GRANTING OF COLLECTIVE RIGHTS IN SHARIA BANKING

IN INDONESIA

Syifa Esthiningtyas Putri Widodo

, Benny Djaja

Master of Notary Affairs, Tarumanagara University, Indonesia

Email: syifa.21[email protected].id

, [email protected]ntar.ac.id

ABSTRACT

Abstract: This study aims to describe and then find out how the granting of Mortgage Deeds

institution Sharia Banking Finance made by Land Deed Officials regulated in the Regulation

of the Head of the National Land Agency Number 8 of 2012 concerning Amendments to the

Regulation of the Minister of Agrarian Affairs/Head of the National Land Agency Number 3

of 1997 concerning Provisions for Implementation of Government Regulation Number 24 of

1997 concerning Registration Land As well as affiliated provisions. By using the Normative

Juridical research method with the conclusions: 1. The granting of Mortgage Guarantees for

financing contracts in Islamic banking is guided by the Mortgage Law which proves the

occurrence of a mixture of two principles in the implementation of mortgage guarantees in

Indonesia; 2. Formulation of the Mortgage Deed Institution Islamic Banking Finance uses the

same formulation as Conventional Banking Financial Institutions, so it needs to be designed

separately for the Formulation of the Deed of Imposing Sharia Mortgage on several Sharia

terminologies

Keywords: Mortgage; Sharia Principles; Financial Institutions; Islamic Banking

Introduction

Basic human needs are the fulfillment of clothing, food, and shelter, these three things

require exchange rates. Exchange Rates/exchanges are the role of Financial Institutions

which, among other things, is to expedite, collect and create good facilities for Exchange

Rates to fulfill clothing, food, and human housing (Fadlan, 2022). Another function of

financial institutions in the aspect of raising is collecting funds from the public in the

form of savings and channeling them to the public in the form of loans in other words,

financial institutions collect funds from parties who have excess funds and distribute

them to those who lack funds(Hermawan & Sulastri, 2023). Activities channeling funds

to parties in need are required for security for the availability of a supply of funds and a

revolving refund in the form of a guarantee. Financial institutions in Indonesia include

Conventional Banking and Sharia Banking, Conventional Banking in channeling funds

to the public is called providing credit and Islamic Banking is called providing financing.

The difference in the facility for providing funds to the public occurs due to differences

in the principles of profit that apply to the two banks.

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Conventional Banking is known as interest-based banking (Interest-based) and Islamic

Banking is known for financing based on the desired real profit (margin) or profit

sharing (Profit Sharing) (Mustofa & Muhson, 2014) There is a series of positive laws

regarding banking after issuing various statutory provisions including laws,

government regulations, Bank Indonesia Regulations, and other implementing

regulations, all of these laws and regulations in the banking sector are strung together

as a system bound by certain legal principles (Usman, 2003) Lending and Financing in

Indonesia is regulated by separate laws, starting from the analysis stage,

recommendation stage, decision stage, stage negotiation, agreement stage, and the

credit/financing disbursement procedure stage, the granting of credit is regulated in Law

Number 10 of 1998 concerning Amendments to Law Number 7 of 1992 concerning

Banking and Provision of Funding is regulated in Law Number 21 of 2008 concerning

Islamic Banking (Indonesia, 2008). The equation stipulated in the Act is that both provide

guarantees for giving with the intention of channeling funds called Debts in

Conventional Banks and Financing in Islamic Banks, both of which are required to

provide guarantees because considering all the risks that will occur during the credit

agreement or financing is in progress (Iska, 2018).

One of the guarantees that is legal or regulated in Indonesian law is the provision of

guarantees in the form of certificates Land rights, hereinafter referred to as Mortgage

Rights, are regulated in Law Number 4 of 1996 Concerning Mortgage Rights The

Mortgage Law applies to Conventional Banks and Islamic Banks, meaning that the

nature of the Mortgage guarantee in Indonesia is still one door or there is no difference

in the application and its derivatives which will impact the mixing of interest principles

with sharia principles in the application of Mortgage guarantees. Other guidelines are

regulated in the Regulation of the Head of the National Land Agency of the Republic of

Indonesia Number 8 of 2012 concerning Amendments to the Regulation of the Minister

of Agrarian Affairs/Head of the National Land Agency Number 3 of 1997 concerning the

provisions for the Implementation of Government Regulation Number 24 of 1997

concerning Land Registration in the appendix stipulates the Formulation of Deed of

Granting Mortgage Rights.

National laws that are just and orderly can be a definite measure in society, but in reality,

the above legal events are still not accommodated and are far behind the development

of Islamic banking in Indonesia which must comply with Sharia Compliance or Sharia

Compliance, thus causing confusion or chaos in cross-systems. application of Sharia

principles to Sharia banking in Indonesia. The importance of implementing appropriate

rules to maintain legal certainty that is stable and flexible and able to keep abreast of

developments without eliminating noble national values by the basic principles of the

formation/implementation of provisions (Mitendra, 2018)

In connection with the explanation above regarding the legal vacuum governing

Mortgage Rights over Sharia banking which is still guided by the Mortgage Law and

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also applies to conventional banking, the authors hypothesize that there is a

mixing/merging of two principles that are contradictory in their implementation, with

that the author conducted a study with the title "Juridical Review in the Imposition of

Deeds for Granting Mortgage Rights in Islamic Banking in Indonesia". The formulation

of the problem which is the limitation of this research are:

1. What is the Procedure for Providing Financing with Guaranteed Mortgage Rights in

Islamic Banking;

2. How to formulate the Grant of Dependent Rights Act that meets Sharia compliance.

Research Method

This study uses a juridical-normative research method that emphasizes the science

of law, with an approach made to literature studies of library research. This research

is descriptive-analytical, namely by describing the state of the research object and

then connecting the problems found with the object study with the Law or positive

law in force.

Result And Discussion

Procedures for Provision of Financing with Mortgage Guarantees in Islamic

Banking

Banks in providing financing must notice this prudential principle is regulated in Article

2 of Law Number 21 of 2008 Concerning Sharia Banking 2008 which will hereinafter be

referred to as the Sharia Banking Law "The precautionary principle is a guideline for

managing a Bank that must be adhered to to create healthy, strong and efficient banking.

by the provisions of the legislation". The precautionary principle or prudent banking

principle is a principle or principle which states that a bank in carrying out its functions

and business activities must be prudent(prudent) to protect public funds entrusted to

him (Disemadi, 2019).

The procedure for providing financing to Islamic banking must meet legal aspects,

including (Rachmadi Usman, 2022a):

1. In the initial process of granting financing, attention is paid to the identity of the

prospective debtor where identity is an important factor for early identification both

from a personal perspective and from a business activity perspective, including 1)

Legal Aspects of Personal Identification regarding Indonesian Citizen/Foreign

Documents, skills of prospective debtors; 2) Legal Aspects of identification The

reputation of the prospective debtor is seen from the history of relations with financial

institutions from BI blacklist data, debtor information systems, bank information, and

internal blacklists; 3) Legal aspects of the identification of business/professional

licenses for potential borrowers for business licenses and professional licenses; 4) The

legal aspect of identifying the form of business of the prospective debtor, including

an individual company or partnership company.

2. The process of legal aspects in the realization of financing, as stated in Article 1320 of

the Civil Code, must meet objective and subjective legal requirements and this is a

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Syifa Esthiningtyas Putri Widodo, Benny Djaja

Bank Indonesia mandate so that the requirements are fulfilled by valid law in the

making of financing agreements which are also about the principles or principles of

agreement law regarding the consensual basis, freedom of contract, personality, and

optionality.

3. Process Legal Aspects of Guarantees, binding guarantees can be given in the form of

material Guarantees, one of which is the Guarantee of Dependency Rights.

Financing provided by Islamic banks in channeling activities funds to the community in

Article 21 of the Syariah Banking Law in the form of:

a. Lag Mudharabah and Covenant Musyarakah which is profit-sharing financing;

b. Lagsmurabahah, greetingsoristishna';

c. Lag Qard, Ijarah Agreement, Agreement Vomit bite-sized, and Covenant Hawalah.

Financing agreement on contract murabahah, greeting soristishna carried out with a

buying and selling system and using a buying and selling legal structure while Akad

mudharabah and Covenants Musyarakah Carried out with a profit-sharing system that

uses a partnership or partnership legal structure (Harmoko, 2018). It is contained in

Article 23 of the Sharia Banking Law in assessing the belief in will and the ability of the

prospective customer receiving the facility to pay off all obligations for the distribution

of funds to be provided by the Bank is carried out by assessing the collateral or collateral

provided. Etymologically, collateral means collateral for loans received and regulated in

Article 1131 BW "All property belonging to owe, both movable and immovable, both

those that already exist and those that will exist in the future, are the responsibility for

all engagements individuals”.

"Mortgage rights over land and objects related to land, hereinafter referred to as

mortgage rights, are security rights that are imposed on land rights as referred to in Law

Number 5 of 1960 concerning Basic Agrarian Regulations, as follows: whether or not

along with other objects that are an integral part of the land, for the settlement of certain

debts, which give priority to the creditor against other creditors” from the provisions of

Article 1 point 1 of the Mortgage Law, several elements inherent in the mortgage can be

seen, including (Sjahdeini, 1996):

1. One of the guarantee institutions in the context of paying off debt/financing can be in

the form of a mortgage right;

2. Whichcan to be the object of dependent rights over land that refers to the Agrarian

Tree Law;

3. The imposition of mortgage rights is not only on land which refers to the BAL, but

can also be imposed on other objects that are an integral part of the land;

4. The guarantor must be in the form of a certain debt/financing;

5. The priority position is given to creditors holding mortgage rights that are not held

by ordinary creditors (concurrent creditors).

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Sharia banking in the State of Indonesia legally began to exist after the issuance of the

October 1988 Policy Package), while institutionally it began with the establishment of

Bank Muamalat Indonesia (BMI) in 1991 as the only bank at that time that purely applied

Sharia principles in implementing business activities (Anshori, 2018)

Sharia Banking is a developed banking system whose sources are from Islamic Law, this

business is based on Islamic prohibitions to collect or borrow at the same time.

calculation interest (usury) (Rachmadi Usman, 2022b). As stated in Article 1 Number 13

of the Banking Law "Sharia Principles is an agreement based on Islamic law between a

bank and another party to deposit funds and or finance business activities, or other

activities which are stated by sharia, among others financing based on the principle of

profit sharing (mudharabah), financing based on the principle of equity participation

(musyarakah), the principle of buying and selling goods by making a profit (Murabaha)

or financing of capital goods based on the principle of the pure lease without choice

(ijarah) or with the option of transferring ownership of the leased goods from the bank

by another party (ijarah wa Latina)”, whereas, in the Sharia Banking Law, Article 1

number 12 regulates "Sharia principles are Islamic legal principles in banking activities

based on fatwas issued by institutions that have the authority to issue fatwas in the field

of Sharia”. The principles that are adhered to or must be obeyed by banks with a Sharia

principle system are the main provisions that must be followed due to violation of Sharia

principles causing the prohibition of all bank transactions or activities.

Grant of Rights Dependency on financing provided by Sharia banking is a trust from the

concept of Rahn easily which is regulated in the Fatwa of the Indonesian Ulema Council

No. 68. DSN-MUI/III 2008 concerning Rahn Tasjili. The provisions of the MUI Fatwa

stated that Rahn Tasjili is collateral in the form of goods for debt where the collateral

remains in the possession of the owner of the goods or the customer (I scratched), but

the proof of ownership is submitted to the lender (curtain) and delivery of collateral in

the form of legal evidence does not transfer ownership from womb to curtain (Wahid,

2016)

Draft tasjili is almost the same as the concept of mortgage rights which makes proof of

ownership an object of guarantee for the facilities that have been received but the fatwa

does not clearly state the process of implementing guarantees so it is very dangerous for

both the bank and the customer, considering that collateral is a benchmark used by

banks in providing facilities to customers (Fauzi et al., 2021)

The provisions regarding guarantees for mortgages in Sharia banking are guided by the

same guidelines as conventional banking, whereas if they are studied further with

developments in the emergence of the existence of Sharia principles in the Indonesian

economy according to hypothesis the author is irrelevant or there is a legal vacuum. The

validation Hypothesis author that a new draft of Sharia Mortgage is needed (Rosyadi,

2017) in his book entitled "Material Collateral Based on Sharia Contracts'' gives the

understanding that Sharia Mortgage Rights are objects that have been placed Mortgage

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rights based on or born from Sharia contracts, the addition of the word "syariah" is

intended to distinguish between the imposition of mortgage rights born from

conventional contracts and the imposition of mortgage rights born from sharia contracts.

This difference is unavoidable due to differences in litigation settlement when disputes

occur, where disputes born from conventional contracts become the authority of the

judiciary, on the contrary, those born from sharia contracts become the authority of the

religious courts.

The granting of mortgage rights is regulated in CHAPTER IV of the Rights Law

Dependency regarding the Chapter on Procedures for Granting, Registration, Transfer,

and Deletion of Mortgage Rights Article 10 to Article 15. The procedures for granting

Mortgage Rights are carried out in two stages, Imposition of Mortgage through two

stages, Granting of Mortgage Rights, and Registration of Mortgage Rights. The stage of

granting the Mortgage must be preceded by a promise to provide the Mortgage as a

guarantee of repayment facility for the agreed financing and not an integral part of the

loan agreement and this agreement can be made in a private agreement or an authentic

form (Article 10 paragraph (1) of the Mortgage Law). Provisions of Article 10 paragraph

(2) of the Mortgage Law "The granting of Mortgage Rights is carried out by making a

Deed of Granting Rights Dependency by the Land Deed Making Officer by the

applicable laws and regulations''.

Financing provided by Islamic banks and then charged with Mortgage is also

strengthened by the principle or characteristics of the Mortgage itself, which is an

accessory or follows the principal agreement (Rahmawati, 2021) Land Deed Making

Officer or abbreviated as PPAT is an official authorized to make Mortgage Deeds as

stipulated in the Government Regulation of the Republic of Indonesia Number 24 of

2016 concerning Amendments to Government Regulation Number 37 of 1998 concerning

Position Regulations for Land Deed Making Officials. As an official authorized to make

binding agreements in the form of Deeds of Encumbrance of Mortgage Rights in the

Mortgage Law Article 1 paragraph (4) also regulates this matter. After the stage of

encumbering the Mortgage with the making of the APHT by the PPAT, the PPAT is then

obliged to register the granting of the Mortgage Right to the Land Office no later than 7

(seven) working days after signing the APHT (Articles 13 to 14 of the Mortgage Law).

Formulation of the Deed of Granting Mortgage Rights in Sharia Banking on Sharia

Compliance

The Land Deed Making Officer in their competence to make Deeds for Granting

Mortgage rights is guided by the Regulation of the Head of the National Land Agency

Number 8 of 2012 concerning Amendments to the Regulation of the Minister of Agrarian

Affairs/Head of the National Land Agency Number 3 of 1997 concerning Provisions for

Implementing Government Regulation Number 24 of 1997 concerning Registration

Land. Article 96 number (1) Letter mandates that "the form of the deed used in making

the deed is made by Attachment number XXI (twenty-one) This regulation includes

among others the "Deed of Granting Mortgage Rights '. APHT is a PPAT deed that

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contains the granting of Mortgage Rights to certain creditors as collateral for the

settlement of their receivables, APHT is an agreement accessory or additional which is

the main agreement is a financing agreement or other that gives rise to debts (Mustofa

& Muhson, 2014). Other legal provisions used by the PPAT in its authority to make the

Mortgage Deed, among others:

1. Law Number 4 of 1996 concerning Mortgage Rights on Land and Objects related to

Land:

a. Article 1 Paragraph (5) regulates the definition of APHT;

b. Article 1 paragraph (6) regulates the definition of a PPAT as an official authorized

to make APHT;

c. Article 10 paragraph (2) regulates that the granting of Mortgage Rights must be

carried out by binding APHT;

d. Article 11 regulates the elements that must be included in the APHT.

2. Government Regulation of the Republic of Indonesia Number 37 of 1998 concerning

Regulations for the Position of Officials for Making Land Deeds (State Gazette of the

Republic of Indonesia of 1998 Number 52, Supplement to the State Gazette of the

Republic of Indonesia Number 3746, regulates the authority of PPATs in making

APHT.

The formulation of the Mortgage Granting Deed regulates or includes several clauses,

among others, what must be included are:

1. name and identity of the holder and giver of the Mortgage:

2. the domicile of the parties referred to in letter a, and if one of them is domiciled

outside Indonesia, a preferred domicile in Indonesia must also be stated for him, and

if the preferred domicile is not stated, the PPAT office where the Deed of Granting

Mortgage is made is considered as the chosen domicile;

3. clear designation of debt or guaranteed debts as referred to in Article 3 and Article 10

paragraph (1);

4. dependent value;

5. a clear description of the object of the Mortgage Right.

In addition to the above, in APHT clauses can be included that are optional and have no

effect on the validity of the deed made, in this case, the parties are free to decide whether

to mention or not mention these promises in the deed. (Rosyadi, 2017)

Based on what has been explained above, the difference in the guidelines for making a

Mortgage Deed in Islamic banking and conventional banking is in the clause on the

selection of dispute resolution. Islamic banking in the dispute resolution clause can

resolve through litigation and non-litigation channels covering the Agency Arbitration

Sharia and Religious Courts (Saudi 2019). This statement is guided by Article 55

paragraph (1) of the Sharia Banking Law "Sharia banking dispute resolution is carried

out by courts within the religious courts''.

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There is a legal void above provision sharia mortgage rights in Indonesia is a situation

in which the formulation of legal norms of mortgage rights that have been set shows

ambiguity and multiple interpretations that are applied by the principle like-like (rules

of law applied to the same matter) (Atmadja & Budiartha, 2018)

The theory has also been validated that in practice the Profession of Making Land Deeds

is still using APHT formulations or clauses guided by the old rules, and these provisions

are no longer relevant to reality. practice making APHT in the field and having to apply

the format to the Sharia contract because the financing agreement banking Sharia is

different from debts in the conventional banking credit system (Yuriandhan et al., 2022).

It is expected that there will be changes in the future by incorporating a standard format

adapted to Sharia terminology, for example in binding mortgage rights on financing

several terms adapted to Sharia terminology include others (Yuriandhan et al., 2022):

1. “Debts” becomes “Akad ……”.

2. “Debtor” becomes “RecipientPayment or the Customer".

3. “Creditor” becomes “Financing Provider/Bank”.

4. "Repayment of debt/Debtor/Customer financing facility" becomes "Repayment of the

Recipient of Financing's obligations".

5. "Determination of the Chairperson of the District Court" becomes "Determination of

the Chairperson of the Religious Court".

6. "District Court Office" becomes "Determination of the Chairperson of the Religious

Court".

The existence of Islamic banks is intended to meet the needs of the Muslim community

for the implementation of Islamic teachings as a whole including in the distribution of

funds, public trust and confidence in Islamic banks are based more on the

implementation of the principles of Islamic law adopted in the operational rules of

institutions, so that compliance with these principles is required. sharia. Without

compliance with Sharia principles, it can affect people's decisions to utilize the services

provided by Islamic banks.

From this point of view, Sharia compliance is at the core of the integrity and credibility

of Islamic banks (Waluyo, 2016).

In the 1945 Constitution Article 1 Paragraph 3 also states that "The State of Indonesia is

a state of law”, then in realizing the ideals of a rule of law state institutions or

governments have the responsibility to issue legal provisions to ensure the needs of

society by engineering something conditions of laws and regulations, compliance and

fairness are implemented and enforced in each provision (Indonesia, 2002).

Efforts to preventative action from the legal situation of sharia mortgage rights that have

not been formulated, bank guarantees to comply with applicable laws and regulations

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through the Compliance Work Unit (SKK) are carried out in several ways according to

Waluyo 2016, namely (Waluyo, 2016):

1. Compliance studies namely every banking regulation issued by the regulator is

socialized to the management of Islamic banks. Carried out by SKK to the Compliance

Director then forwarded to work units related to joint internalization through making

or drafting system and procedure activities with the main points of new regulations

or changes to regulations issued by Bank Indonesia;

2. Testing of compliance studies through the Decision of the System and Procedure

Committee (KKS);

3. Make follow-up efforts that in every policy draft, provisions and internal guidelines

must be approved by the Committee before being decided by the directors who will

then be socialized through various bank internal media;

4. Compliance opinion, giving opinion or opinion conducted by director compliance

through SKK to the board of directors regarding product release plans or

implemented developments and certain strategic policies that require opinions or

input on aspects of compliance with the precautionary principle.

Sharia compliance is an effort or form of management of Islamic banking in fulfilling

Sharia principles that have not been filled out in legal provisions in Indonesia.

Fulfillment of Sharia principles is also an effort to maintain and maintain the soundness

level of Sharia banks.

Conclusion

First, Giving Financing, the imposition of mortgage rights, and their implementation in

the banking system with Sharia principles must be fulfilled and become the main

guideline so that what is carried out is legal, legal, and lawful for the parties. However,

the legal provisions of laws, government regulations, and fatwas still do not clearly state

the process of implementing friendly mortgages that comply with Sharia principles.

Second, it is necessary to draft provisions for the addition of Sharia terminology in the

Clause or Formulation of the Deed of Granting Mortgage Rights so that there is no

mixing of terms for Sharia principles with the interest/debt principles in conventional

banking.

Efforts to review, formulate, and then issue provisions and socialize friendly provisions

on Sharia principles are efforts to fulfill that the Indonesian state is a legal state capable

of Sharia compliance in economic development

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