Readiness and Role of Notaries in Making Electronic Deeds towards

the Industrial Revolution

Felicia, Heriyanti, Yanti Agustina, and Elvira Fitriyani Pakpahan

Masgister of Notary, Universitas Prima Indonesia, Jl. Sekip simpang Sikambing, Medan, Indonesia

Keywords: Notaries Roles, Electronic Deeds, and Industrial Revolution.

Abstract: In the era of the industrial revolution 4.0 it is predicted that the role of the notary will erode. So it is

important to create a notary with quality in the future, especially in the midst of the invasion of technology

and information. In the development of abilities. The purpose of this study is to analyze the readiness and

role and legal provisions of notaries in the 4.0 era. Type of research using a comparison of the rule of law

with primary and secondary material sources. With research techniques using literature study and

interviews. The data analysis was done qualitatively. The results of the research are the legal provisions

regarding electronic validity, namely the legal requirements of an agreement itself listed in the Civil Code,

Law No. 2 of 2014 concerning notary officials and Law No. 19 of 2016 concerning amendments to law

number 11 of 2008 concerning electronic information and transactions. The readiness of notaries in facing

the 4.0 industrial revolution, namely having the ability to socialize, cognitive abilities, creative abilities,

having knowledge of corporate law, data protection and liability. Regarding the role of a notary in the era of

the industrial revolution 4.0, it is hoped that he will have a more responsive ability as a notary in exercising

his authority.

1 INTRODUCTION

In this era of industrial revolution 4.0, people no

longer recognize agreements based on mutual trust.

Every agreement made by the community will

inevitably lead to a notary as a means of the validity

of the agreement they do. For this reason, the

position of a Notary is becoming increasingly

important in times like now (Saputro 2018). In

carrying out his position, the Notary plays an

important role in every legal relationship in

community life which includes various business

relationships, banking, land affairs, social activities

and others (Samsaimun 2018).

Changes in technology are getting more

advanced, triggering the notary to grow well in the

openness of the methods that have also developed.

People find it difficult to use existing technology if

they don't have existing knowledge. The notary

participates in developing existing human resources

to increase the community's needs for legal services.

The development of technology and science is

developing rapidly, so that notaries are far behind

the use of current technology. For this reason, the

Notary makes changes in legal services in the

community to keep up with existing technology.

Based on the laws and regulations regarding the

position of a notary in Indonesia, it can be seen that

the notary's duty is not only as the legality of the

transaction but also as a witness and also the

enforcer of the transactions carried out (Makarim

2014). However, in a notary position, it is only

regulated according to the provisions of the law

where every agreement made by a notary must be

made before a notary because it has been regulated

by law so it is not yet known how the handling or

arrangement of online deeds may occur. The notary

has the authority to only do or work according to his

position, namely in a regency or city that is within a

province where he is domiciled. The state gives the

notary public to exercise their authority very much

related to and influenced by information technology

at this time. The central question to be discussed is

whether by the use of constitutional rights in

contract law something substantially new can be

gained for the protection of the weaker contractual

party in comparison with the well-established

contract law concepts such as duties to inform. The

answer to this question will become crystallized in

Felicia, ., Heriyanti, ., Agustina, Y. and Pakpahan, E.

Readiness and Role of Notaries in Making Electronic Deeds towards the Industrial Revolution.

DOI: 10.5220/0010304100003051

In Proceedings of the International Conference on Culture Heritage, Education, Sustainable Tourism, and Innovation Technologies (CESIT 2020), pages 105-112

ISBN: 978-989-758-501-2

105

the course of analysing three cases which arose in

three different legal systems at the beginning of the

1990s and in which the same results were attained,

though in different ways (Cherednychenko, 2004).

Article 18 paragraph (1) of the Law on

Information and Electronic Transactions states that

the transaction of any electronic agreement that

occurs is binding on the parties, this is in accordance

with the clause in the Civil Code which must be in

accordance with the valid terms of the agreement as

well as the principle of Post Servanda. So that the

agreement that occurs in an online agreement or

contract is actually very clear binding to the parties.

E-commerce has given a new dimension to the

business practices that are no longer bound by any

limitations of territorial boundaries and requirement

of physical presence at the same place. E-commerce

activities in the last 10 years have become a part of

day-to-day lives of Internet users. Thanks to e-

commerce that e-contracts have risen to ubiquity and

Internet users entering into e-contracts are fast

growing in number. Contracts have become so

common in daily life that most of the time we do not

even realize that we have entered into one. Right

from hiring a taxi to buying airline tickets online,

innumerable things in our daily lives are governed

by contracts. (Jain, 2016). Electronic documents can

be used as material for the preparation of authentic

deeds by a notary on the condition that these

documents have been proven as valid. Verification

of the validity of these documents can be carried out

through verification processes by parties who have

the authority based on the type of document. If the

electronic document is a copy or derivative of an

authentic document that has been processed

electronically, for example by means of a scan,

digital photo, or the like, the verification can be done

by presenting the original document.

Then find the ideal model of electronic contracts

as a form of e-commerce legal dispute resolution.

This study uses normative legal research methods,

with a legal approach and a conceptual approach.

Based on the research that has been done, the

influence of electronic contracts in electronic

transactions (e-commerce) in Indonesia has brought

about major changes by changing the model of non-

electronic (conventional) commercial transactions

into electronic (modern) transactions and inspiring

online dispute resolution. Then the ideal model of

electronic contracts as a form of e-commerce legal

dispute resolution in Indonesia, must contain 10

important things in the e-contract clause namely: 1.

Freedom of Contract; 2). Offers and Receipts; 3).

Good intention; 4). Use of Terms; 5). Risk Transfer;

6). Please Loss; (7). Emergencies; 8). Changing

Contracts; 9). Termination reasons; 10). Choice of

Law and Dispute Resolution online, as stated in the

e-contract of Indonesian Home Credits (Ilmih,

2019).

Likewise, in the light of the nature of internet

and websites there can be multiple locations

involved when acceptance takes place. Therefore,

determination of place of contract formation is

problematic. Precise place of formation of contract

cannot be determined. There is lack of rule which

can indicate specific place of formation of electronic

contracts under both the Uniform Electronic

Transactions Act 1999 and the Electronic

Transaction legislation of Australia. However, the

Australian legislation provides more precise criteria

and appears to be better. Traditional paper based

documents or even the documents saved on the

desktop are confined to a specific place they are not

scattered and stored over various servers as in the

case of cloud computing technology. Therefore

cloud infrastructure raises security concerns in

relation to writing and signature requirement.

Further, by means of new technologies such as mash

up, documents can be linked together raising

concerns regarding scope of the document. Both the

UETA and electronic transaction legislation has side

stepped these aspects while addressing the criteria

dealing with writing and signature (Tasneem, 2014).

Documenting digitally (storage media) and CCTV as

supporting documents for legal actions in the signing

of the contract agreement and as a Notary Protocol

can be done by using computer devices / devices and

/ or with a computerized system or using the

Internet. Computers are human tools in completing

daily work, both private work, in government and

private offices. Storage media tools / equipment to

declare archives that have been and are still used in

the form of diskettes, laser disks, CDs, DVDs, HD-

DVDs and BluRays, memory cards, memory cards,

flash drives. USB Flash Drive, Hard Disk, External

Hard Disk, and online archive data / document

storage known as Cloud Storage. CCTV can be used

as a supporting document for legal actions in signing

a contract agreement and as a Notary Protocol,

because CCTV can record activities that are being

carried out in the form of a video record, can store

documents electronically and can connect objects

with one another (Syamsi, 2019).

Technological developments are in line with

changes in the law which are quite rapid. Especially

it can be seen through the development of electronic

evidence as well as proof which is regulated in

positive law. Even now, the increasing number of

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106

evidence from electronic media is valid evidence in

court. Both in social life and habits that have begun

to change so that they become part of evidence

which is considered important enough in court. Of

course in Indonesia itself is quite affected by these

things, one of which is in the civil sector. With this

happening, it is quite important to examine how

what happened in the era of 4.0 to a notary and the

existing obstacles so that they have readiness,

especially notaries and for the legal rules that apply

to the notary's own performance.

The need for an Indonesian notary association in

the implementation of responsibility for electronic

certification in order to guarantee security and legal

certainty for notaries because it maintains and opens

a way for electronic transactions to be carried out.

As well as the notary association as an

organizational forum which plays an important role

in improving the quality of human resources of

notaries so as not to be left behind by increasingly

advanced technological developments (Bahri, 2019).

Along with globalization, legal relationships

between parties are not exclusively domestic since it

also involves foreign element. As the result, it

affects the usage of different legal systems in

establishing a contract. Unlike commercial contracts

in which the position between parties is equal,

consumer contracts place the consumers unequally

resulting in lameness and disproportion among

consumers in terms of conveying a common will to

choose the clauses of contract. The existence of

injustice causes a key paradigm shift on contractual

freedom from” both-sided autonomy” to “one-sided

autonomy.” Additionally, legal uncertainty will also

appear particularly on the tug-of-use of the sea point

based on whether unilateral, multilateral, or

substantive choices of law. Such condition requires

harmonization as necessity along with the legal

context increasingly global (Ali, 2017). The rapid

progress of the industrial world in this era has made

notaries have to be prepared for progress in the legal

field with provision to be ready for existing

technological developments.Bringing up a notary

who is able to compete for abilities in the 4.0 era,

which is a new technological and industrial

development that is predicted to erode the role of the

Notary. In order to continue to have a good role and

opportunities, a notary must also have the ability to

search for information and so on. Notary is the

spearhead of the business world, the importance of a

quality notary to continue to maintain the role of a

notary in the midst of the invasion of technology and

information in the 4.0 revolution. With the

convenience, technological developments and data.

In accordance with the existing problem, it raises

several questions, namely how the legal provisions

regarding the validity of electronic deeds, how are

notaries prepared to face the development of

industry 4.0, and what is the role of the Notary for

the development of industrial technology 4.0.

This paper see a notary work that diference from

another paper was with interview with the notary.

And get some new point that not just with how

should do.

2 RESEARCH METHODS

The research method used in this study is to use

normative juridical, where comparing the source of

legal materials and the rules occur. And in this

study, we do not forget to conduct interviews in

order to add information that will be strengthened to

test how ready the notary's role is for the 4.0

industrial revolution. This research was make some

interviews with nortary at Medan, North Sumatera at

Indonesia. That be relate that Indonesia Notary Laws

with some of the interviews words. So on this

research that get new info and how notary at

Indonesia thinking of new methods about electronic

deeds in this new 4.0 era.

3 RESEARCH RESULTS AND

ANALYSIS

3.1 Legal Provisions Regarding the

Validity of Electronic Deeds

The validity of law has a very big importance in the

approach in this research which is very close to the

positivist that is held by Indonesia. Whereas existing

laws have legal force and must be followed, in this

case written or regulated in writing in the Law, even

though there are unwritten rules such as customary

regulations. In the legality of the laws and

regulations, self-proof should be felt in order to have

power over belief by the community even if it is not

visible or invisible to the eye. The legal validity of

the existing rules must be real. Most of them are

written in the rules. Such as statutory regulations and

circular letters.

In the provisions of Article 1868 of the Civil

Code, contains a rule that makes notary's authentic

deed cannot be done electronically. This is because

there are preconditions that cannot be met. The

drawing up of a deed of the parties explains their

Readiness and Role of Notaries in Making Electronic Deeds towards the Industrial Revolution

107

wishes in front of a notary public then the contents

of the agreement are set forth in a notary deed. And

approved by then signed in front of as well as by a

notary along with the witnesses in order to have the

power of proof (Swandewi. 2015). Article 44

paragraph (1) of Law No. 2 of 2014 concerning the

Position of Notary Public, the parties must sign a

signature after completing the reading of the deed by

the notary. Furthermore, all incidents are listed at the

end of the deed (Sulihandari and Rifiani 2013).

The obligation to affix a thumbprint of the thumb

of his left hand on the authentic deed which is

regulated in Article 44 paragraph (1) of Law No. 2

of 2014 concerning the Position of Notary Public

can be interpreted that the use of a thumbprint as a

signature in the authentic deed in UUJN, the

existence of the thumbprint is actually not

recognized (Suwignyo.2012). Actually, the existence

of this thumbprint is a way to dissect and be of

concern so that notarial deeds can be arbitrary

(Mertokusumo 2009).

Article 1868 of the Civil Code, that notaries are

currently unable to participate in activities or the

ability to keep up with technological developments.

Thus, online deeds still cannot be done.

There are differences in the position of the rule

of law under the current circumstances. Notaries

have the obligation to be in their environment or

area of office. Where the situation for making this

electronic deed knows no boundaries because

everything is connected to the electronic media

itself.

This situation occurs by business actors but, it

creates confusion on how to carry out the obligations

of the business actor's wishes which are currently

getting easier. The truth of signatures has legal force

as long as it follows the norms stipulated in Article

11 of Law No. 19 of 2016 concerning Electronic

Information and Transactions (hereinafter referred to

as UUITE). That is, are blind; be careful, proper

when signing the deed or electronic agreement.

Legality Electronic signatures have legal force

and legal consequences as long as they meet the

following requirements based on Article 11 U of

Law No. 19 of 2016 concerning Electronic

Information and Transactions, namely:

a. The electronic signature creation data relates

to the signer only.

b. The data for the creation of an electronic

signature during the electronic signing process

is only in the power of the signer.

c. Any changes to the electronic signature that

occur after the time of signing can be known.

d. Any changes to electronic information related

to the electronic signature after the time of

signing can be known.

e. There are certain methods used to identify

who the signatories are.

f. There are certain ways to show that the signer

has given consent to the related electronic

information.

The legal substance in making electronic deeds

has not been fully accommodated in Law No. 2 of

2014 concerning the Position of Notary Public and

UUITE which are the legal basis for Notaries in

seizing the opportunity to make deeds electronically

in accordance with the demands and developments

of modern society that occur today. However, even

though it is in Law No. 2/2014 concerning the

Position of Notary Public, Civil Code and UUITE,

making electronic deeds is not yet possible for

notaries to do so, but the opportunity for electronic

deeds is still open with the arrangement of electronic

deeds. Only in its implementation it cannot be

implemented, considering the juridical obstacles that

are still faced by the Notary.

3.2 Readiness of Notaries in Facing the

Industrial Revolution 4.0

The industrial revolution 4.0 is the fourth phase in

the historical journey of the revolution which began

in the 18th century (Kusnadi 2019). The extremely

fast Industrial Revolution 4.0 has had an impact on

technological and social change so it would be a

mistake to ensure the right results if it relies solely

on legislation and incentives from the government /

regulators. Society must understand the

opportunities and strengths they have to shape the

Industrial Revolution 4.0 and direct it towards a

future that reflects their shared goals and values as

humans.18 As technological innovation develops,

this fourth revolution is not just a discourse, but has

happened in front of our eyes. The industrial

revolution 4.0 is seen as a vantithesis of the previous

industrial revolution (Danrivantro Budhijanto 2019).

Changes in the world are now in the

development of industry 4.0 in information

technology that has become the basis of human life.

The Indonesian state must have prepared people or

human resources who are able to compete with

current technological developments because this is

an interest that must be prioritized for the future or

the position of the country in the future (Ayu 2019).

The development of the industrial revolution 4.0,

which has occurred to date, is marked by the era of

disruption, namely the emergence of online / digital

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108

based industries. It's not just computers, mobile

technology is endemic and almost everyone is

connected online. In this revolution, the role of

innovation is the competitiveness of a product in the

market and it turns out that there is a deliberation

between industries that depend on innovation and

the readiness of labor (Wicaksono 2019).

For example, if the data is faked, can the

computer know because the computer works like a

robot, then it cannot think that there is something

suspicious so that it cannot be used, also to make

contracts by lawyers or lawyers and making

evidence by a notary is not possible to just enter

data. The task of the Notary is to make written

evidence, namely authentic deeds and other

authorities as referred to by the Law (Article 1

paragraph 1 of Law Number 2 of 2014) to guarantee

certainty, order and protection of the law regarding

the act of agreement, stipulation and legal events

made in the presence or by an authorized official. A

Notary is an honorable position because it adheres to

laws and regulations, is professional because it is

based on knowledge and professional ethics because

it is based on morals.

In the speed of development in globalization

over challenges in the era of the industrial revolution

4.0, graduates of notary must be able to adapt to

information technology and at the same time for

future learning patterns. Technological

developments currently affect many professions, one

of which is the legal profession which requires

creativity in the Industrial Revolution 4.0 which is a

challenge to respond to future problems. Legal

professions such as lawyers and notaries are human

beings with the possibility of being irreplaceable

because they have experience and education that

may only enter data on computers and computers

can complete.

The opportunity for a notary in the industrial

revolution 4.0 actually exists if there are clear rules

regarding this cyber notary, there is adequate

infrastructure, the expertise of a notary in the field of

technology continues to develop. The challenge may

be on the quality of Notary's expertise in the use of

technology, not all are experts in technology. Notary

Dessy Hamrina, SH, MKn explained: "that the

readiness of notaries in the application of

information and communication technology in

making deeds, technically can be said to be

adequate, where in every notary office currently

available computer, printer, scan facilities. , fax, and

also the internet network ”(interview with Notary

Dessy Hamrina, SH, MKn, 2019). Notary Syafitri

Yanti, SH, MKn stated: "The readiness of notaries in

making electronic deeds is technically adequate, this

can be seen from the ability to use internet

applications, such as social media, email and others.

Most of the notaries currently available are able to

use internet applications” (interview with Notary

Syafitri Yanti, SH, MKn, 2019).

Human resources as profession bearers must

have expertise that is pleasing to their knowledge,

especially in their fields, because every professional

must independently fulfill the needs of professional

services in their field and have a personality that is

fully responsible for their professional services.

Thus, the quality of professionals is reflected in an

attitude that upholds honesty, truth and justice, is

clean and respectful and is responsible for

exemplary behavior.

The presence of legal professionals (legal

consultants / lawyers) is needed by a new generation

for those who deal with all legal matters. During its

development, in the field of law, the availability of

artificial intelligence which accommodates all legal

algorithms to provide opinions on various legal

issues, for example: the availability of artificial

itellegencia, which is capable of compiling a

complete contract design by processing data input,

the terms and conditions of the parties; the

availability of access to legal material information,

even the diversity of legal systems in the world that

exist increasingly joining the large legal family

which increasingly consistently equates the

principles to the normative model, thus facilitating

communication to reach an understanding of various

legal matters or issues that occur across

jurisdictions. This makes service users look for

efficiency in their costs, so using the services of a

legal consultant / lawyer is no longer attractive

because it can be taken over by artificial

intelligence, only complex legal services still require

a 'human touch' (lawyers) .

Looking at the development of the digital era

which is increasingly increasing its penetration. It is

fitting for all countries in the world, especially

Indonesia to prepare various strategies in facing the

challenges this era will pose. It must be admitted,

Indonesia is currently not strong enough to be able

to follow the flow of industry 4.0 because Indonesia

is still struggling with the problem of the lack of

quality of existing human resources. Indonesia

actually has the potential to be able to make industry

4.0 successful (interview with Notary Yola Ardiza,

SH, MKn.)

Thus the authors conclude some notaries'

opinions about the readiness of notaries in facing the

industrial revolution 4.0 is that notaries are not ready

Readiness and Role of Notaries in Making Electronic Deeds towards the Industrial Revolution

109

in the development of information technology or the

rules in government are not sufficient so that

notaries have not been able to face the industrial

revolution 4.0. Therefore, the participation of the

government as policy makers and regulators must

also ensure the competence of human resources

whether it is in accordance with the needs of the

labor market with technology-based industries or

not. Therefore, government cooperation with

Notaries is very important and needed to maintain

and improve good service

3.3 The Role of the Notary in Facing

the Industrial Revolution 4.0

The task of the notary is to control the legal

relationship between the parties in a written form

and a certain format, so that it is an authentic deed

that he can make a strong document in a legal

process (Kie 2000). The main task of a notary is to

make authentic deeds, both those determined by

laws and regulations and by the wishes of certain

people and legal entities who need them (Supriadi

2006). Notaries have the burden of their position,

namely as an extension of the hands in the

government in order to make the community attain

legal certainty (Muhammad Adam 1995). The role

of the notary is in accordance with the procedure

according to Law No. 2 of 2014 concerning the

Position of Notary (interview with Notary Shandy

Izhandri SH., M.Kn, 2019).

The notary is authorized to make deeds as long

as the parties want them to or according to legal

regulations which must be made in the form of an

authentic deed. The making of the deed must be

based on legal rules relating to the manufacturing

procedure. A notary in carrying out his duties is

limited by the corridor rules. This restriction is

carried out so that a Notary is not going too far in

carrying out his practice and is responsible for

everything he does. Without any restrictions, a

person tends to act arbitrarily. For the sake of equity,

the government limits the work of a notary

(Koesoemawati and Rijan 2009).

A public official (openbaar Ambtenaar) is

obliged to assist the community in accordance with

the authority possessed by him, in carrying out

services for his obligations must compare his duties

in comparing what is legal and what is not legal.

Both of the obligations are in line with the principle

of order according to the practice that is carried out.

The role of a notary is very important for

people's lives, this is because many people need the

role of a notary for the sake of conducting

transactions in the business world. Among them are

related to the provisions that oblige the notary to

make a deed, and if this is done without a deed made

by the notary, then the transaction is deemed to have

no force in the eyes of the law. This shows that there

is a great relationship between notaries in terms of

civil and economic relations in community life. The

civil relationship of a transaction involving this

Notary Public has a large useful value which is

determined in the Notary's role. Such as data in the

form of documents in electronic form such as the era

of the Industrial Revolution 4.0 which requires an

involvement role for relevant stakeholders, including

the state, notaries and the community itself.

In accordance with technological developments,

Notaries can play a role in the 4.0 industrial

revolution, as can be found in various countries,

both with the Common Law and Civil Law

traditions. Although technology allows the role of a

notary public online and remotely, legally it seems

impossible. Therefore, the function and role of the

Notary in the context of electronic transactions is

very important to be studied in depth, so that

Indonesian Notaries can play a global role.

The role of the notary public places the notary as

part of the component of the legal profession as well

as law enforcers, in accordance with the authorities

and obligations given to him in carrying out his

profession. As the bearer of the service mission, the

Notary profession is bound by a notary code of

ethics which respects the dignity (marwah) of

humans or the professional carer in general and the

dignity of a Notary in particular, therefore the

Notary profession has the characteristics of being

independent and impartial, not driven by self-

interest, always rationality in the sense of referring

to objective truth, functional specialties and

solidarity among fellow professions (Hairus, 2015).

The responsibility of the Notary profession

focuses on the work that is carried out requiring

technical skills and special expertise in the field of

making authentic deeds in a professional manner,

has undoubted quality of knowledge in serving

clients, is able to work independently, the legal

responsibility of Notaries in carrying out their

professional duties is bound by legal rules who set it

up; required to be able to master all applicable legal

rules (Herry 2010).

4 CONCLUSIONS

The legal provisions regarding the validity of

electronic deeds are listed in Article 1868 of the

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Civil Code, Article 15 paragraph (3) of Law Number

2 of 2014 concerning Notary Position states that the

authority to certify transactions carried out

electronically (cybernotary) and Article 5 paragraph

(1) and (2) Law No. 19 of 2016 concerning

Electronic Information and Transactions has stated

that electronic information and / or electronic

documents and / or printed results are valid legal

evidence and electronic information and / or

electronic documents and / or printed results or for

the sake of authenticity and information or electronic

documents so long as the authenticity can be

accounted for, it is considered valid.

The readiness of a notary to face the 4.0

industrial revolution, namely having the ability to

socialize, cognitive, creative abilities, knowledge of

corporate law, tax law, data protection and liability

and being able to brand himself and his law office in

the world of digital technology and continue to learn

and adapt with existing changes (continuous

learning). Do not forget to strengthen the strengths

that you have, or hone your soft skills. A person

continues to upgrade himself in order to take

advantage of the various opportunities that exist.

Changes caused by technology cannot be prevented.

However, it still has to be dealt with and one of them

is by ensuring the development of expertise so that it

can keep up with changes.

Regarding the role in the 4.0 period, the notary in

his position still follows the applicable legal rules,

then it should not be arbitrary according to the

interpretation that other activities and activities are

fast as desired. However, it can be submitted up to

the level of information and training as well as the

prevailing norms so as not to overlap.

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