Within the scope of the agrarian, land is part of the Earth is called the Earth's surface. The land was meant here is not set up in all its aspects, but only set up one of its aspects, the soil in the sense of juridical called rights. The land as part of the Earth as mentioned in article 4 paragraph 1 BAL, i.e.:
"On the basis of the rights of the master of the State as referred to in article 2 defined the existence of various rights to the surface of the Earth, called a ground which can be granted to and belongs to the people, either alone or together with others as well as legal bodies ". [1]
In Indonesia itself in agrarian systems adhere to the principle of nationalism which States that:
"Only Indonesia Citizens who had property rights over land or who may have a connection with the Earth and space by not differentiating between men with women as well as fellow citizens of Indonesia both native or a descendant".
The principle of Nationality is one of the principle in the BAL. The principle of Nationality in this case equal to the basis only of citizens of Indonesia who have ownership rights over the land. (Section 21 subsection (1), jo. Article 26 paragraph (2), BAL). Property rights can not belongs to foreigners and the transfer of property rights to strangers is forbidden under threat of annulled by law. In this principle affirmed that foreigners cannot own land in Indonesia and Indonesia citizens only who can own land in Indonesia. So the land was reserved for nationals of the countries concerned. The principle of nationalism is in Year 5 Number BAL 1960 article 1 paragraph (1) (2) and (3). Article 1 paragraph (1) BAL, stating that "the entire territory of Indonesia is the unity of the homeland of the people of a United Indonesia as a nation Indonesia." Whereas in article 1 paragraph (2) BAL, stating that "the whole earth, water and space of natural wealth including rang contained therein in the territory of the Republic of Indonesia as a gift of God the Almighty is Earth, water, and space nation Indonesia and is a national wealth ". This means that Earth, water, and space in the territory of the Republic of Indonesia became the right for the people of Indonesia, so cannot solely be right than their owners only. Similarly, the lands in the area and not solely be the native people's rights from the region or the island in question only. In article 1 paragraph (3) BAL, stated that "ties between Indonesia and the Nations of the Earth, water and space are included in paragraph (2) of this article is the relationship that is immortal".
Thus foreign nationals or foreign business entities do not have ownership rights over land in Indonesia. but foreigners can own land in Indonesia with use rights effort (HGU), Building use rights (HGB), usage rights (HP) and the right To lease the building. All of the rights granted to foreign citizens by the Government stated was enough to give the role to foreign nationals to participate in the development in Indonesia. These rights granted to foreigners to promote the economy in Indonesia without injuring the basis of nationality and the nationality of the asa embraced in the BAL. This outline has been regulated in article 41 Article 42 & statute Staple Agrarian (BAL) and regulated further in PP No. 40 of the year 1996 about Building use rights (HGB), the right To attempt (HGU) and (mobile) usage rights over the land. However, a law that no product is perfect, there's just a loophole for foreign nationals to be able to have land in Indonesia, one of them with an agreement of nominee.
1.2 outline of the Problem
 |
| Picture From Kreditgogo.com |
How the nominee agreement Validity made by foreign nationals and citizens of Indonesia?
CHAPTER II
The VALIDITY of the COVENANT NOMINEE COMMITTED by FOREIGN CITIZENS and an INDONESIAN CITIZEN Nominee Agreement
The Covenant of the nominee is a person or entity that has legal (legal owner) of a property or the income for the benefit of or on the basis of the mandate of the party that actually becomes the owner of the property or the parties who actually enjoy the benefits of earnings. The development of this nominee agreement occurs due to the desire of foreigners to have ownership rights over land in Indonesia generally.
However, expectations that cannot be fulfilled because of a rule prohibiting foreign nationals to have land rights in Indonesia, also betentangan with the nationality principle embraced in legislation Indonesia. This eventually leading to a nominee agreement allowing foreign citizens to buy and control plots of land with property rights.
In practice on Court nominee used for foreign nationals to acquire land by borrowing the name of the citizens of Indonesia and Congressional Nominee agreement with the deed under the hand between the citizens of Indonesia and Foreign Nationals , where by using the Treaty foreign citizens can own land with property rights by way of registering the land on behalf of the citizens of Indonesia are designated as Nominee [2].
The Covenant of the nominee or the nominee agreement can be interpreted as a statement of agreement and power. Born WNImenyatakan that land that is not hers and she had given the power of the kepadaWNA to be able to sell and in that case the binding through the letter of the agreement under the hand that became fastener. The agreement with the nominee, the stranger simply borrow the identity of a citizen of Indonesia to be listed by name in a certificate of land and foreign citizens argued that the agreement was much more practical and profitable to both sides.
Technical problems will arise in the land will be transferable while nominee died, disappeared or unknown address, but those problems have been anticipated by the stranger who concerned with the making of a Covenant, which are enforced by outline as follows:
A statement that the land was purchased with money of the stranger in question and the nominee just borrowed its name to wear over the name in the certificate. All costs arising from the purchase of the land was taken away by aliens (e.g. charges/, IMB).
The agreement made between foreigners with the nominee a tenancy agreement without time limit and with the cost of the rent that was fabricated, so it seems legaldan does not violate regulations.
Made the absolute power of Attorney from the Balinese (nominee) to a stranger whose contents may sell and rent to anyone and the power of Attorney cannot be revoked again.
Nominee agreement binds all the heirs of both parties from both the foreigners nor the party's nominee.
Nominee agreement could be said of the agreement or Covenant simulation ostensibly made by several parties in this case Indonesia Citizens with foreign nationals that they come out shows as if going on an agreement between them, but in secret they agree that the agreement appears to [3].
The Validity Of The Treaty Of Nominee
Nominee agreement is one way to reverse the rules set forth in the Principal Agrarian Act No. 5 of the year 1960. In the making of the Covenant nominee had violated principles in the agreement or principle contained in the BAL, as for the infringing the principle of the existence of this nominee agreement in case of ownership rights in Indonesia by foreign citizens, namely:
The principle of Goodwill (article 1338 KUHPdt paragraph (3))
The principle of goodwill in this case because the agreement is made to mislead the article 9 and article 21 BAL in order to have ownership rights over land in Indonesia. It is listed in article 1338 KUHPdt paragraph (3) which reads: "the agreement should be implemented in good faith." This is the basic principle that the parties, namely, the borrower and the debtor must carry out the substance of the contract based on trust or confidence or unwavering willingness from both of the parties. The principle of good faith is divided into two kinds, namely [4]:
In good faith the relational (relative)
In the relational i.e. Goodwill Goodwill considering the attitude and behavior of the real subject.
Faith baikmutlak.
The assessment is located on reason and justice as well as made the size of the objective to assess the State of (impartial scoring) according to the norms that objective.
The basis of the Nationality or the nationality Principle (article 21 Para (1) jo. Article 26 paragraph (2), BAL).
In principle, there is the national BAL which States "in accordance with the principle of nationality in article 1, then according to article 9 jo chapter 21 subsection (1) only citizens of Indonesia can have ownership rights over the land. Property rights can not belongs to foreigners and the transfer of property rights to foreigners is prohibited (article 26 paragraph 2). Foreigners can have a ground with a breadth of limited usage rights. So too are essentially legal agencies cannot have property rights (article 21 paragraph 2). As for consideration for (basically) prohibit the agencies have legal ownership rights over the land, is that legal agencies need not have property rights but other rights are enough, if only there were assurances that enough for keperluan-keperluannya special (guna-usaha rights, use rights, buildings usage rights according to article 28, 35 and 41) ".
In addition to adhering to the conception of komunalistik religious land ownership that allows individually, BAL also embraced the principle of nationality. Where only the CITIZENS can have a relationship with the land as part of the Earth as contained in the provisions of article 9 paragraph (1) and article 21 paragraph BAL (1) BAL, who then corporate governance is an attempt to manifest the phrase contained in the provisions of article 33 paragraph (3) Amendment IV Constitution of 1945. The specified relationship for this is the existence of property rights [5].
In principle, only citizens of Indonesia which can have ownership rights over the land under section 21 subsection (1), BAL. For foreign citizens or foreign legal entity shall use can not obtain ownership rights over the land. The stranger (based in Indonesia) can only have the right to wear, the right of rental and building use rights, and the right to business according to BAL.
c. Cause causa halal (article 1320 KUHPdt)
Because causa is halal in article 1320 KUHPdt is not a reason within the meaning of the content of the Treaty itself that illustrates the objectives will be reached by the parties. The legislation does not ignore what the cause of the people holding the agreement. Who cared for or overseen by unang Bill is the contents of the Covenant, which describe the goal was about to be reached by the parties, is prohibited by law unadng or not, whether betentangan with public order or not (article 1337 KUHPdt) .
Legal consequences of the agreement which contains the causa which is not kosher is "annulled by law" (nietig, void). Thus there is no basis to demand the fulfillment of the Covenant of the law, because upfront from the beginning there has never been agreement. Likewise, when the agreement was made without a causa (because) he diangggap never existed (article KUHPdt 1335).
From the provisions of article 9 paragraph (1) and section 21 subsection (1) BAL already clearly and emphatically stated that foreign citizens cannot be controlled the land in all regions of Indonesia by using property rights. When FOREIGNERS buy, hold, receive grants, exchanges or obtaining inheritance over a piece of land owned by property rights, then the deeds of the law underlying the onset's displacement of the ownership rights null and void because the law and land became State land (article 26 paragraph (2), BAL).
In addition, when FOREIGNERS acquire ownership rights with the result of the mixture of property, then the harusdilepaskan property rights for a period of 1 year since getting those rights. If it is not implemented, the land property rights became clear because of the law and the land became State land (article 21 paragraph (3) BAL).
Nominee agreement categorized as one form of perjanjianInnominaat because there is no settings are specifically about him and not expressly referred to in articles KUHPerdata. Nominee is a person who acts for the name of the other party as a representative in the sense of a limited narrow. Sometimes the term is used to designate as agent or trustee [6].
In the obvious nominee agreement Validity can not be justified, and this Treaty has not been considered for violating laws and the basic agreement as well as the principle of nationality contained in the BAL. According to article 1320 (4) paragraph KUHPerdata concerning the terms of the agreement, that there is legitimately a halal reason, something that causes a person to make the Treaty is not meant by halal and cause something that causes a person to make the Treaty in effect not be ignored by the law. The legal action was noticed by people in the community. So in this case, because kosher is that of the object or purpose of the content and achievements embodied in the Treaty itself, not about the cause that became the background he had made an agreement [7].
CHAPTER III
COVER
Conclusion
Nominee Agreement committed by foreign nationals with an Indonesia Citizen is not valid according to the law in force in Indonesia. Nominee agreement continued due to a lack of understanding of the people against the substance of the agreement. Lay community at large considers that anything has been written has the power of a strong and binding evidence so that the community felt it difficult to sue if the agreement is carried out by cheating.
Advice
The Government made a legislation governing in particular nominee agreement.
BIBLIOGRAPHY
The Constitution of the Republic of Indonesia Year Union 1945
Principal Agrarian Law No. 5 of the year 1960 about the basic rules of principal – Agrarian subject matter.
Yosep Aliyin. 2012, "principles of civil law",
http://yosepaliyinsh.blogspot.com/2012/09/asas-asas-hukum-perdata.html, Accessible hours 19.15 BST, on 1 July 2013
Djaja, Ida Bagus Gede Wdhi Wiratama Rai. "The arrangements Regarding their validity and Nominee Agreements (Review Of BAL)". Business Law. Udayana University.
Garner, Bryant a. 1999, Black's Law Dictionnary With Guide To Pronunciation. St. Paul: West Publishing.
A son, g. Agus Solanki. 2010, "Tort In the use of the Nominee On the agreement Made Under the hand of related to land ownership in Bali". Masters thesis, Univesitas Diponegoro
The Ancient, Natalia Christine. 2006, "Kesbsahan Innominaat Agreement in the form of Nominee Agreement (Analysis of land ownership By foreign citizens)". Faculty Of Law, University Of Jakarta, Indonesia.
Urip Santoso,. 2008, Agrarian Law and land rights, Jakarta. Kencana
Subekti. 2002, legal agreement. Jakarta, PT. Intermasa, Mold 19th
[1] Urip Santoso,. 2008, Agrarian Law and land rights, Jakarta. Kencana, PG. 10
[2] A son, g. Agus Solanki. 2010, "Tort In the use of the Nominee On the agreement Made Under the hand of related to land ownership in Bali". Masters thesis, Univesitas Diponegoro
[3] Subekti. 2002, legal agreement. Jakarta, PT Intermasa, 19, PG. 1
[4] Yosep Aliyin. 2012, "principles of civil law", http://yosepaliyinsh.blogspot.com/2012/09/asas-asas-hukum-perdata.html Accessed 19.15 hours GMT, 20 April 2014
[5] Djaja, Ida Bagus Gede Wdhi Wiratama Rai. "The arrangements Regarding their validity and Nominee Agreements (Review Of BAL)". Business Law. Udayana University.
[6] Garner, Bryant a. 1999, Black's Law Dictionnary With Guide To Pronunciation. St. Paul: West Publishing, p. 1072
[7] The Ancient, Natalia Christine. 2006, "Kesbsahan Innominaat Agreement in the form of Nominee Agreement (Analysis of land ownership By foreign citizens)". Faculty of law, University of Jakarta, Indonesia, 34-35 pp.
0 Response to "OWNERSHIP RIGHTS TO THE LAND BY THE FOREIGN CITIZENS THROUGH THE TREATY OF NOMINEE"
Posting Komentar