Proposing Notaries’ Deed Digitalization in Indonesia: A Legal Perspective
Along with emerging technology, a notary public’s role should adjust this changing development, mainly dealing with a deed. Technological development inevitably impacts the role of a notary public and the future digitization of notarial deeds. To date, notaries in Indonesia remain implementing laws and regulations that have not been changed. Unlike other studies, this study aimed to identify the challenges of implementing notaries’ deed digitalization by taking into account rapid technological development.
The Notary Law defines a notary as an authorized public official who establishes authentic deeds and holds other authorities based on the Notary Law and other relevant legislation. The need for authentic deed related to the legal status, rights, and obligations of a person in law that serves as the perfect evidence in court. The form of notarial deed is outlined in Article 38 of the Notary Law. A notarial deed is an authentic deed during the deed fulfilling the elements in Article 15(1) of the Notary Law also meet the elements of the validity of an agreement as contained in Article 1320 of the Civil Code.
Currently, information and communication technology is inevitable. This technology plays an essential role and contributes to economic, social, and cultural development. It supports transformations and evokes industrial revolution 4.0. In this context, electronic-based notary or cyber notary has been introduced in some countries. A cyber notary refers to implementing notarial functions through information technology, particularly to the establishment of deeds.
Notaries in Japan (called kooshoonin) have implemented their functions through the electronic system since 2000. It follows Japan’s Notarial Function 53/1908. Kooshoonin also authorized to establish digital-based deeds through Electronic Notarial System. It will be saved and managed by the Japan National Notary Association (JNNA). Furthermore, Dutch has already begun to use electronic-based signatures, and it is regulated under richtlijnen elektronische handtekeningen 1999. The United States has also established the e-signature regulation as the basis of electronic-based signatures, whose legality is equal to a manual one.
In Indonesia, Article 15(3) of the Notary Law mentions that notaries have another authority regulated by law. What is meant by “another authority regulated by law” includes certifying electronic-based transactions (cyber notary). A notary public may implement cyber notary, such as implementing the General Meeting of Shareholders of Limited Liability Companies where the deed is voluntary, in accordance with the Article 77 of the Limited Liability Companies.
The term cyber notary is used to describe a combination of the conventional notary-public function and its application in electronic transactions. The working principle of a cyber notary is not much different from an ordinary notary in which the parties keep coming and dealing with the notaries. The parties immediately read the draft deed on their respective computers. After agreeing, the parties immediately signed the deed electronically at the notary’s office. Thus, the notes are not made remotely using a webcam, but the parties physically meet the notary.
However, there are some overlapping regulations related to cyber notary that inhibit the application of cyber notary in Indonesia. A cyber notary for digital deed is currently unable to apply because it needs consistent legal protection. Mainly, it deals with the part of notarial regulation to make them able to serve people in both conventional and digital ways, especially in establishing electronic-based authentic deeds. As an alternative, Indonesia as civil law state may independently define a cyber notary and apply several borders of using technology for the deed legality and keep it consistent with the notary’s essential spirit as a public official.
This study was legal research that aimed to find laws and regulations, legal principles, and doctrines to address current legal issues. This study used statutory and comparative approaches, carried out by reviewing all laws and regulations with further relevant comparisons related to the legal issues.
As many online-based professions grow, a cyber notary in Indonesia should be well prepared by considering several matters such as working system, technical procedures, infrastructure, and resources as legal protection that should be consistent with the other ones. Then, the use of authentic deeds requires a digital way, which needs to be the government’s concern. Based on the existing regulations, any authentic deed established by a notary cannot be applied through an electronic-based document due to the clash of stipulations among the Civil Code, the ITE Law, and the Notary Law.
Writer: Ika Yuli Agustin, S.H. dan Dr. Ghansham Anand, S.H., M.Kn.
Detailed information from this research can be found in our article on:
https://jurnal.unej.ac.id/index.php/eJLH/article/view/21375
Agustin, Ika Yuli & Ghansam Anand, “Proposing Notaries’ Deed Digitalization in Indonesia: Legal Perspective” (2021) 8:1 Lentera Hukum 49-72.
