RECONSTRUCTION OF THE OPTIMAL NOTARY SUPERVISION

SYSTEM TO PREVENT DEED DEGRADATION

ABSTRACT

A notary is not a job, but a professional in the field of law, and thus a notary

profession is a noble job (noble official) because it is closely related to humanity.

A deed made by a notary may be the legal basis of a person's property, rights, and

duties. The mistake of a notarial deed may result in the deprivation of a person's

right or a person's burden of liability. Article 1869 of the Civil Code clearly states

that a Notary must be a Professional: A deed which cannot be treated as an authentic

deed, either because it is not authorized or incapable of the public official in

question or because of a defect in its form, has the power of writing under the hand

when signed by the parties. Mentioned that a notary must be proficient, and have

authority in making deed, because if not competent and do not have authority then

deed to be made can become the not authentic deed.

Keywords: Notary supervision, prevent deed degradation

A. INTRODUCTION

Notaries have a very unique role because notaries are1 :

1) Public officials but not civil officials;

2) Promoted, transferred, fired, retired, and dismissed by the government and

sworn not to be paid before conducting the duties;

Dr. Sjaifurrachman SH MH & Dr Habib Adjie SH MHum, Aspek Pertanggungjawaban Notaris

1

Dalam Pembuatan Akta,, Publisher: CV Mandar Maju, Bandung, 2011, p 11.

 3) Conducting an authority derived from the government's authority;

4) Bound to special rules;

5) Trustworthy by the parties.

For some people, a notary appears as a figure who has a public authority,

extension services, and advisers. To assist the community in the form of making

authentic deeds. The public authority granted by the public to the notary gives the

impression that the notary is the "ruler”.2

The essence of national development is the development of the Indonesian

people as a whole, which includes material and spiritual development. Spiritual

development includes moral development which will greatly affect the life of the

nation and state. Another example of spiritual development is the development of

national law.

The 1945 Constitution of the Republic of Indonesia expressly stipulates

that the Republic of Indonesia is a state of law. The principle of the rule of law

guarantees certainty, order, and legal protection which is based on truth and justice.

Certainty, order, and legal protection require evidence that determines a person's

rights and obligations as a legal subject in society.

Authentic deeds as the strongest evidence have an important role in every

legal relationship of people's lives, in various business relationships, in activities

related to banking, real estate, social activities, and others. The need for written

evidence in the form of authentic deeds is increasing in line with the growing

2
Dr. Herlien Budiono, S.H., Kumpulan Tulisan Hukum Perdata di Bidang Kenotariatan, PT Citra
Aditya Bakti. Publisher, 2013, p. 281.
demands for legal certainty in various economic and social relations, at regional,

national, and global levels. Through authentic deeds that clearly define rights and

obligations, guarantee legal certainty, and are expected to avoid disputes. Although

the dispute is unavoidable, in the process of resolving the dispute, the authentic

deed which is the strongest written evidence provides a real contribution to the

settlement of cases cheaply and quickly.

A notary is a public official who is authorized to make an authentic deed as

long as the making of a certain authentic deed is not reserved for other public

officials. In addition to authentic deeds made by or before a notary, it is required

for legal reasons as well as the desire of interested parties to assure the rights and

duties of the parties for the sake of certainty, order, and legal protection for

interested parties and the community as a whole.

Therefore, the community's demand for services provided by a notary is

also getting stronger. The services provided by notaries are not only carried out by

those who have been educated and completed their lessons in notarial education and

complete all training requirements to be appointed as a notary but also cannot be

separated from these notaries having professional skills in carrying out their duties

to assist people who need their services.

When talking about the professional skills of notaries, it will inevitably talk

about the problem of legal services provided by notaries to the public. The more

professional abilities of notaries in carrying out their duties as public officials who

have the function of regulating legal relations between the parties in writing and

authentically, the better the legal services that will be received by the community.
A person's professional ability shows his expertise which is supported by high

mastery of knowledge, experience, and skills. Despite having a high level of

professional skill, a notary who conducts his duties without upholding moral

integrity, nobility of dignity, and professional ethics endangers not only the interests

of the larger community but also the reputation of the Indonesian Notary

Association (INI) as a reputable organization.

A professional person, especially those who run for the position of a notary, must

have the responsibility:

a. To clients and society;

b. To fellow professionals and their professional groups or association

organizations and;

c. To the government and the state or legally.

Along with the times and the era of globalization, the legal awareness of

citizens is also increasing. Therefore, it needs to be followed by the enforcement of

discipline and law enforcement in the professional environment. This is because the

social stigma against the profession is not only detrimental to professional

organizations but also to society, the state, and the parties concerned. In this

connection, the roles, functions, and responsibilities of the legal apparatus and those

in the legal profession are significant and important to maintain and uphold the

image of the rule of law.

A notary as a public official whose duties serve the community is expected

to contribute to the development of national law and is required to have high morals.

Because of the existence of high morals, the notary will not abuse the authority he
has, the notary will be able to maintain his dignity as a public official who

participates in carrying out the authority of the government. As for every notary to

have sufficiently broad and in-depth knowledge and skills which are the mainstay

of the community in designing, compiling, and making various authentic deeds, so

that the composition of language and juridical technicalities is neat, good, and

correct. Because in addition to those skills, objectivity and honesty are also

necessary.

Notaries play a significant role in providing a legal basis and commitment

to legal principles in national development. In general, notary service seekers do

not understand the law and rely exclusively on the notary to formulate their will,

which is required by the law.

The currents of modernization and the era of globalization that have

disrupted our country have an impact on the development of new legal institutions

in the field of economy and trade so that notaries are expected to be able to

anticipate this situation and be able to make deeds that meet or follow needs and

developments in society. It is expected that in carrying out their duties, notaries

always hold fast and uphold the dignity and nobility of their profession as positions

of trust and respect. As a trusted public official, his deeds must be strong evidence

if there is a legal dispute in the future in court.

It is regrettable if there are notary deeds whose contents are disputed, their

veracity is doubtful, they are considered contrary to law and justice, and are felt to

be detrimental to their clients because of the actions of irresponsible notaries,

unintentional or lack of mastery in carrying out their duties and contradicting with
the professional ethics of a notary where this can lead to malpractice acts committed

by a notary. Malpractice acts committed by notaries can be in the form of denial or

deviation or lack of ability to carry out their duties and responsibilities to them to

carry out their professional obligations based on the trust given to them.

Concerning the problem of malpractice, several things have happened in the

practice of notaries in Indonesia, including:

1) Allegations of falsification of letters made by a notary. In practice, a notary in

court was charged by the public prosecutor based on Article 263 of the

Criminal Code concerning falsification of letters in general.

2) A practicing notary who is made a defendant in court. This is the result of the

notary's negligence in carrying out his duties and an error that he committed on

purpose.

In several examples of malpractice cases committed by notaries, among

others: "Forgery of Authentic Deeds and Use of False Deeds" that happened to

notary Lucy Mulyani which was decided by the Ujung Pandang District Court on

May 5, 1986 No. 90. Pid /B/1985 and the case has been decided up to the level of

the Supreme Court. Medan District Court Decision dated 20-7-1987 No. 274/Pid-

B/1987 against the notary Ria in the case of "Placing False Information in an

Authentic Deed" and the case of "Cutting Cancellation of Deed" involving notary

Angelique Tedjajuwono which was decided by the Semarang District Court in case

No. 197/Pdt.G/1986.

Additionally, notaries are signing documents outside of their designated

work zones, which is a violation of the office and particularly the work area. This
will be extremely harmful, not only to the community where the authentic deed

made by the concerned notary will become a private deed (Article 41 UUJN) but

also to the notary who issues perfect verifiable proof of an authentic deed and where

he is required to always act professionally in the execution of duties. The number

of cases that are being filed in both courts and police departments is related to

notaries conducting their duties.

Furthermore, due to unequal distribution of notaries, the appointment of

new notaries has been declared closed in several major cities, such as the Special

Capital Region of Jakarta, Bandung, Semarang, Surabaya, and Medan, except for

moving notaries. This problem has caused many notaries to be tempted to practice

unfair competition with other fellow notaries by "slashing rates" even though there

are provisions from each local administrator (PENGDA INI) regarding the cost of

the type of deed to be made by the interested parties. The consequence is the

widespread abuse of authority or deviation of the notary's duties which increases

unlawful acts in the form of a new regulation crime that is closely related to the

interests of the wider community. It is predicted that the position of a notary is

considered a source for digging wealth, which people are currently started pursuing

by placing integrity, good name, and dignity as number two, and notaries did not

escape these symptoms. The notary profession has recently experienced a crisis

since it has been frequently highlighted by the public. There is frequently news of

violations committed by a notary in carrying out his duties, both violations of the

provisions of the Notary Office Act (UUJN) and other violations of notary

professional ethics (Notary Code of Ethics). The Notary Position Act, which
contains more articles regulating and providing sanctions for violations committed

by a notary in carrying out his duties, does not also become a warning sign for a

notary, and some notaries violate it. The problem is what factors prompted the

notary to commit unscrupulous acts such as malpractice.

Notaries should be more careful in carrying out their duties objectively and

correctly, always remember the oath of office and professional ethics, act following

the nobility of the profession which is an honorable position and a position of trust,

and carry out their independent profession with a strong sense of responsibility.

The position and profession of a notary in providing legal services to people

in need clearly cannot be separated from the significant role and responsibility. A

notary must always try to continue to explore and follow the developments of the

law in force in the community so that he can practice his profession based on the

Law on Notary Positions and the Notary Code of Ethics well. Therefore, the public

considers the notary profession to be able to solve all legal problems.

Concerning the notary as a public official appointed by the state, he does

not work for the notary's interest but for the benefit of the community served.

Concerning the notary as a public official appointed by the state, he does not work

for the notary's interest but for the benefit of the community served. Therefore, the

law places a tremendous deal of trust in a notary. In general, it can be said that every

giving of trust to a person puts the responsibility on his shoulders either under the

law or based on the law or morals. Because the task carried out by a notary is a task

that should be the duty of the government and therefore it can be said that the task

of a notary is to carry out public services (Public Server) in the field of deed-making
services and other tasks assigned to him which are attached to the title as a public

official within the scope of notary services field.

The function of a notary is not only to record and make evidence regarding

the legal actions of certain parties but also to strive so that the affairs entrusted to

him can run following applicable law. Although in one case or another, it is possible

to find a notary who commits a violation in carrying out his professional duties.

Therefore, a notary is required to always maintain his dignity and honor, carry out

the Notary Code of Ethics that has been set in carrying out his daily duties, improve

his skills and master new legal products to improve notary services. Sometimes a

notary forgets that the position he holds is a professional position that is different

from other professional jobs because besides being regulated by laws and

regulations, a notary must also carry out his professional ethical standards.

Therefore, becoming a notary is a difficult job. Many notaries are currently

being sued by their clients. Because the notary's employment falls within civil law

but he is frequently pulled to criminal law difficulties, this phenomenon has violated

the rules that are in place. The consequences of these actions are very detrimental

to the notary concerning his duties as a public official. Therefore, it is necessary to

guarantee a sense of security and calm for the notary in carrying out his profession.

The law as a protective umbrella should protect notaries as public officials in

carrying out their daily duties.

B. RESEARCH QUESTIONS

Based on this background, three problems can be taken, namely:

1. What causes the deed made by a notary causing its degradation to become

a private deed?

2. How is the role of notary professionalism required to prevent deed

degradation?

3. What is the role of the Supervisory Council, MKN, and INI Organization so

that Notaries are capable of creating quality deeds without breaking the law

or the code of ethics?

C. DISCUSSION:

1. Causes of Deed of Notary Degradation

a. Definition of Notary:

Linguistically, notary comes from the word notorius for singular and notarii

for plural. The notary is a term used by the Romans to name those who did writing

work. However, the function of a notary then was different from the function of a

notary now. There is another opinion saying that the name notarius originally came

from nota literia which means to state a word.

It is known that in the fifth and sixth centuries, the title notary was given to

a writer or secretary to the king. Meanwhile, at the end of the fifth century, the title

notary was given to courtiers who carried out administrative work. Notaries are
officials who carry out duties for the government and do not serve the public in

general.

Then it was noted that only in the thirteenth century was a notarial deed like

a recognized general deed, and in the fifteenth century a notarial deed had the power

of proof, but this was never publicly acknowledged. At that time the notarial deed

could not be accepted as absolute evidence regarding its contents and could be

denied if there was evidence to the contrary with witness evidence. A notarial deed

can be set aside if the evidence is obtained from witness testimony that what is

described in the deed is wrong. Since then the notary deed was made not only to

recall events that had occurred but also for the sake of the strength of the evidence.3

Notaries have a very unique role, because Notaries are4 :

1) Public officials but not civil officials;

2) Promoted, transferred, fired, retired, and dismissed by the government and

sworn not to be paid before conducting the duties;

3) Conducting an authority derived from the government's authority;

4) Bound to special rules;

5) Trustworthy by the parties.

For some people, a notary appears as a figure who has a public authority,

extension services, and advisers. To assist the community in the form of making

authentic deeds. The public authority granted by the public to the notary gives the

3
Prof. Dr. Abdul Ghofur Anshori SH MH, Indonesian Notary Institute, UII Press Yogya
Publisher, 2016, page 9.
4
Dr Sjaifurrachman SH MH & Dr Habib Adjie SH MHum, Aspek Pertanggungjawaban Notaris
Dalam Pembuatan Akta, Publisher: CV Mandar Maju, Bandung, 2011, p 11.
impression that the notary is the "ruler".5 The authority granted or obtained by a

notary based on Law No. 2 of 2014 concerning Amendments to Law No. 30 of 2004

concerning the Position of a Notary (hence referred to "UUJN").

This impression is not the case. The position of a notary has two essential

characteristics, they are impartiality and independence in assisting his

clients/community.6

Article 1 of the UUJN states that "a notary is a public official who is

authorized to make an authentic deed and has other authorities as referred to in this

Law or based on other laws". If we look at the article, our understanding, among

others, is that the position of a notary is a position desired by the state concerning

realizing legal certainty in the traffic of civil interactions, which reflects the values

of legal certainty. And has the understanding, that a notary is a public official, a

person who is appointed and dismissed by the government to serve, among others,

carrying out his position in the public interest. Notaries are not part of Civil

Officials but are appointed, sworn in, and dismissed by the government through a

Decree of the Minister of Law and Human Rights of the Republic of Indonesia. It

is following Article 2 paragraph 1 of the Regulation of the Minister of Law and

Human Rights of the Republic of Indonesia Number 27 of 2016 concerning Notary

Formation and Position and Regional Category Determination, it is stated that the

Minister determines the Notary Position Formation after receiving consideration

5
Dr. Herlien Budiono, S.H., Kumpulan Tulisan Hukum Perdata di Bidang Kenotariatan, PT Citra
Aditya Bakti Publisher, 2013, page 281.
6
Loc. Cit
from the Notary Organization. With the government appointing a notary as a public

official, the state places a notary as an instrument of the state, which gives partial

authority to make an authentic deed so that it can be used by the government for the

sake of proof as strong evidence.

According to the article, a Notary is a public authority who is authorized

to create an authentic deed. Based on article 1868 of the Civil Code (hence referred

to as "KUHPer"), the definition of an authentic deed is stated that "an authentic

deed is a deed made in a form defined by law by or before a public authority

authorized for so at the place where the deed was made." If we look at Article 1

point 7 of the UUJN, it is stated that an authentic deed is a Notary Deed, hence

referred to as a Deed, is an authentic deed made by or before a Notary according to

the form and procedure stipulated in this Law.

The provisions of the article only explain what is called an authentic deed,

but not what is called a public official, so to implement article 1868 of the KUHPer

and explain public officials, the government creates a Law on Notary Positions, as

defined in article 1 UUJN, which is the implementation of Article 1868 of the

Criminal Code. The government clearly stated in point 2 that the UUJN was

properly considered, and that to ensure clarity, order, and legal protection authentic

written evidence is required regarding acts, agreements, stipulations, and legal

events made before or by authorized officials.

b. The Authority of Notaries:

The authority of the Notary is mentioned in Article 15 paragraph (1) of the

UUJN: "Notary is authorized to make authentic Deeds regarding all acts,

agreements, and stipulations required by legislation and/or required by the

interested parties to be stated in the authentic deed, guaranteeing the date of

manufacture deed, keeping the deed, providing grosse, copies, and collections of

the deed, all of which are also not assigned or exempted throughout the making of

the deed."

There are at least 3 (three) notary authorities in carrying out their duties: 7

a. The main/general authority is in Article 15 paragraph (1);

b. Certain powers in article 15 paragraph (2);

In addition to the authority as referred to in paragraph (1), a Notary is also

authorized to:

1) ratify the signature and determine the date of the letter under the hand by

registering it in a particular book;

2) record the letter under the hand by registering it in a particular book;

3) make a copy of the original underhand letter in the form of a duplicate

containing the description as written and described in the letter concerned;

4) validate the compatibility of the photocopy with the original letter;

5) provide legal counseling in connection with the making of the Deed;

6) create a deed related to land;

7) create a deed of minutes of an auction.

c. Other authority in article 15 paragraph (3)

7
Dr. Sjaifurrachman SH MH & Dr Habib Adjie SH MHum, Op. Cit., page 78
 In addition to the authority mentioned in paragraphs (1) and (2), a notary

has additional authority as defined by laws and regulations.

A notary is an official who makes deeds for parties who come before him,

whether in the form of a deed before a notary/partij (i.e., a deed made before a

notary contains a description of what is explained or told by the parties who appear

before a notary, such as a credit agreement and so on), as well as a deed made by a

notary/relaas (i.e., a deed made by a notary contains an authentic description from

a notary regarding an activity conducted or a situation seen by a notary, such as a

deed of minutes/minutes of the GMS meeting of a company limited, budget

registration deed, etc.)

The authority of the Notary to make a deed related to land (article 15

paragraph 2 point 6), as long as it is not or not, legal action in the form of authority

carried out by PPAT such as a deed of sale and purchase, deed of exchange, deed

of grant, deed of imbreng, deed of distribution joint rights, deed of granting HT,

deed of granting HGB/Hak use on land with property rights (article 95 of

Regulation of the State Minister of Agrarian Affairs/Head of BPN Number 03 of

1997 in conjunction with article 2 paragraph (2) of PP No. 37 of 1998 on PPAT

position regulations). The Notary has the authority to create a deed whose object is

land in a narrow sense, which is not included in the PPAT authority based on PP

Number 37 of 1998.
 In the explanation of concurrent positions, article 17 letter g of the UUJN has

the meaning: 8

a That a Notary may concurrently serve as a PPAT as long as the position of

the PPAT he holds concurrently is still within the notary's area of the office;

b With the recognition of this dual position, the Notary and PPAT have

different powers over the notary's authority;

While the Notary is related to the office of the auctioneer, there are two views as

follows: 9

a First, every notary is automatically authorized to make a deed of minutes of an

auction, once he becomes a notary, he automatically becomes a notary;

b Second, not all notaries have the authority to make minutes of an auction, only

notaries who have been legalized and designated as class II auction officials

are authorized to make the deed of auction minutes.

Various deeds that are usually or often made before or by a notary in carrying out

his duties are as follows: 10

1. Deeds concerning Individual Law (KUHPer, Book I) include:

a. Various marriage licenses from parents/grandparents (article 71 of the

Civil Code/Burgelick Wetboek);

8
Ibid, page 84
9
Ibid, page 85
10
Prof. Dr. Abdul Ghofur Anshori SH MH, Op. Cit, pp. 23-25
 b. Revocation of marriage prevention (article 70 BW)

c. Marriage agreement with amendments (147, 148 BW)

d. Power of attorney to marry (79 BW)

e. Marriage-related grants (176, 177 BW)

f. Recognition of children out of wedlock (281 BW)

g. And others: articles 108, 139, 191, 132, 133, 196, 237, 248, 249, 253, 256,

281, 355, 412 of the Criminal Code)

2. Deeds concerning Material Law (KUHPer, Book II) include:

a. Various kinds of wills and estate management (874 onwards);

b. Various powers concerning inheritance (1023, 1044, and so on);

c. Various deeds of separation and distribution of inheritance/inheritance

(1066 onwards);

d. Registration of inheritance (1073);

e. Collateral pawn (1150 onwards);

f. Mortgage property collateral (1162 onwards. 1171, 1195, 1196 in juncto

with agrarian regulations).

3. Deeds concerning the Law of the Alliance (KUHPer, Book III) among others:

a. Various types of sale and purchase (article 1457 onwards) for land with

PPAT;

b. Different types of converters (1541 and beyond);

c. Various types of rentals (1548 onwards);

 d. Types of labor agreements/employment relationships (1601 onwards);

e. Job wholesale agreements (1064 onwards);

f. Various associations/companies (maatschap) (1618 onwards);

g. Various types of groupings (1653 onwards);

h. And others such as articles: 1666, 1682, 1694, 1740, 1754, 1792, 1820,

1851, and others.

4. Deeds relating to commercial/company law (wetboek van Koophandel and

others) include:

a. Various companies (Maatschap, Firm, CV, PT, and others);

b. Non-payment/acceptance protest (132, 143 WvK);

c. Various trade intermediaries, such as trade agencies and labor contracts, and

others;

d. Deeds concerning social and humanitarian bodies (associations,

foundations, and waqf).

Although the authority of a notary looks broad and countless, a notary must

also know that in agreeing, its contents must pay attention to other rules or laws that

regulate the substance of the contents of the deed which is prohibited because it

violates the law, for example, Law Number 05 of 1999 concerning Prohibition of

Monopolistic Practices and Unfair Business Competition, because if they are

violated, they have violated articles 1320 and 1338 of the Criminal Code concerning

the conditions for the validity of an agreement.

c. Power of Notary Deed Proof

Article 1867 of the Criminal Code states the term authentic deed as follows:

"Proof in writing is carried out in authentic writing or in writing under the hand."

Additionally, according to Criminal Code Article 1868, "An authentic deed is a

deed made in the form prescribed by law or before a public official authorized for

that at the location the deed was made. Provide limits in terms of what is meant by

an authentic deed, namely: 11

1) The deed must be made by (door) or in the presence (ten overstrain) of a public

official;

2) The deed must be made in the form prescribed by Law;

3) The Public Official (or Public Employee) by or before whom the deed is made,

must have the authority to make the deed;

4) Another condition that must be added is that the authentic deed has perfect

proof because the authentic deed has met all the elements, for proof or can be

used as evidence:

a. Writing;

b. Witnesses;

c. Suspicions;

d. Confession and

e. Oath.

Dr Sjaifurrachman SH MH & Dr Habib Adjie SH MHum, Aspek Pertanggungjawaban Notaris

11

Dalam Pembuatan Akta, Publisher: CV Mandar Maju, Bandung, 2011, p 11.

 The meaning of an authentic deed having perfect evidentiary power can also

be determined that anyone is bound by the deed, as long as there is no evidence to

the contrary, based on a court decision that has permanent legal force.

According to R. Subekti in an authentic deed, there are three kinds of

power, namely:12

1) Proving between the parties: that they have explained what was written in the

deed earlier (the authority of formal proof);

2) Proving between the parties concerned, that the events mentioned in the deed

have occurred (the authority of material evidence or what we call the power of

proof "binding");

3) Proving not only between the parties concerned but also to third parties, that

on that date, in the deed both parties have appeared before a public official

(Notary) and explained what is written in the deed (this third authority is called

the power of outward evidence, meaning that it is against a third party or the

outside world).

Deed or agreement must be "valid"13 : meaning that it must be following the

rule of law and is binding, as stated in Article 1338 of the Criminal Code, which

reads as follows: "All agreements made are valid as law for those who make them.

An agreement cannot be withdrawn, other than with the agreement of both parties

12
R. Subekti, Hukum Pembuktian, PT. Prandnya Paramita, Jakarta, 2001, page 26.
Mariam Darus Badrulzaman, Hukum Perikatan dan Penjelasan, Publisher : Alumni, Bandung,
13

1983, page 107.

or for reasons which are stated to be sufficient by law. An agreement must be

executed in good faith.

An authentic deed is a designation given to certain officials who are

qualified as public officials, such as authentic deeds not only made by a Notary but

also by Land Deed Making Officials (PPAT), Auction Officials, and Civil Registry

Office Officials.

If we look at the Civil Code, then in the articles in the Law Book, many

mentions about authentic deeds are found in the following articles (approximately

36 articles) namely: 70, 71, 79, 191, 196, 237 , 281, 411, 439, 617, 619, 620, 934,

945, 1086, 1171, 1172, 1186, 1187, 1188, 1189, 1196, 1203, 1377, 1401, 1863,

1867, 1868, 1869, 1870, 1871 , 1872, 1875,1879, 1889, and 1945.

In Civil Procedure Law, valid or legally recognized evidence consists of:

a. Written Evidence;

b. Witnesses;

c. Suspicions;

d. Confession and

e. Oath.

Written evidence is carried out in authentic writing/deed (the form has been

determined by law, made before the authorized public official/employee, and the

place where the deed was made) and written underhand. Both authentic deeds and

private deeds are made to be used as evidence.

 The important differences between the two types of a deed are in the value

of proof, authentic deed, and perfect proof. The perfection of a notary deed as

evidence, then the deed must be seen as it is, no need to be assessed or interpreted

differently, other than what is written in the deed.

An underhand deed has evidentiary authority, as long as the parties admit

it or there is no denial from one of the parties. If the parties allow it, then the private

deed has perfect evidentiary authority as an authentic deed, if one of the parties does

not admit it, the burden of evidence is handed over to the party who denies the deed,

and the assessment of the denial of the evidence is submitted to the judge. 14

Both private deed evidence and authentic deed must meet the formulation

regarding the validity of an agreement based on Article 1320 of the Criminal Code,

namely: For a valid agreement to occur, four conditions need to be fulfilled: 1. the

agreement of those who bind themselves, 2. the ability to make an engagement, 3.

a certain subject matter, 4. a cause that is not prohibited.

It is called a notarial deed because the deed is an authentic deed made

before or by a notary who meets the requirements of the UUJN. A notarial deed is

definitely an authentic deed, but an authentic deed is not necessarily a notary

product, it could be the product of PPAT, Auction Minutes Officer, and Civil

Registry Officer.

14
Dr. Habib Adjie SH Mhum, Kebatalan dan Pembatalan Akta Notaris, Publisher : PT Refika
Aditama, Bandung, 2015, page 8.
 Article 15 (1) of the UUJN states that "Notaries are authorized to make

authentic Deeds regarding all actions, agreements, and stipulations required by laws

and/or desired by the interested parties to be stated in an authentic Deed,

guaranteeing the certainty of the date of making the Deed. , keep the deed, provide

grosse, copies, and quotations of the deed, all of that as long as the making of the

deed is not assigned or excluded to other officials or other people stipulated by law".

In this article, it is emphasized that one of the powers of a Notary is to make

a deed in general, with limitations as long as 15 :

1) Not exempt from other offices prescribed by law;

2) Concerning the deed that must be made or the authority to make an authentic

deed regarding all deeds, agreements, and regulations required by law or

required by the person concerned;

3) On the subject of law (person or legal entity) for the benefit of whom the act

was made or required by the interested party;

4) Authority regarding the place, where the deed is made, this is following the

place of position and territory of the notary;

5) Regarding the time of making the deed, in this case, the notary must ensure the

certainty of the time facing the witnesses listed in the deed.

15
ibid, page 9.
 Article 1868 of the Civil Code is a source of authenticity for a notary deed, as

well as the legal basis for the existence of a notarial deed, with the following

conditions:

a The deed must be made by (door) or in the presence (ten overstrain) of a

public official;

b The deed must be made in the form prescribed by Law;

c The Public Official (or Public Employee) by or before whom the deed is

made, must have the authority to make the deed.

Notaries in carrying out their duties are bound by all the rules in the Law on

Notary Positions (UUJN). In producing an authentic deed, a notary must truly

understand and master the rules governing the form and formality of a deed, to

qualify as an authentic deed in UUJN especially in articles 38 to 53 UUJN, because

if the provisions contained in UUJN are not fulfilled, then a deed can lose its

authenticity and become a deed under the hand.

In court, especially in civil cases, one written piece of evidence takes

precedence over other evidence. In terms of written evidence, an authentic deed is

something valuable for proof. The significance of a Notary's profession relies on

the fact that, under the law, the state has granted him the authority to develop

absolute or perfect evidence, meaning that the contents of the deed are considered

true.

An authentic deed as a deed made by a notary is theoretically a letter or

deed that from the beginning was intentionally officially made for proof. It was
clear from the beginning that the letter's primary goal was to serve as proof in the

case of a dispute. 16

Whether or not a deed is authentic is insufficient if it is only made by or in

the presence of an official (notary). However, the method of creating the authentic

deed must adhere to the legal requirements. A deed made by an official without any

authority and ability to make it or does not meet the requirements, cannot be

considered an authentic deed but has the power as an underhand deed if it is signed

by the parties concerned. An authentic deed is a perfect evidence for both parties,

the heirs and the people who have rights because of it. Against third parties, an

authentic deed is an evidence with the power of independent evidence, namely that

the assessment is left to the judge's consideration. Therefore, regarding the

cancellation of an authentic deed made by a Notary, the judge basically cannot

cancel it ex officio if it is not requested for cancellation because the judge is not

authorized to decide what is not being sued by the party. However, if the parties ask

for cancellation, the judge can cancel the notarial deed if there is evidence against

it. A notarial deed is an authentic deed that is written evidence with perfect proving

power. However, it is still possible to be crippled by opposing evidence so that the

judge has the authority to overturn it. 17

16
Prof Dr Abdul Ghofur Anshori SH MH, Op. Cit., Page 18.

17
Sudikno Mertokusumo, Hukum Acara Perdata Indonesa, Publisher: Liberty Yogya, 1998,
page 149.
 In the general explanation of the UUJN, it is stated that a notary deed which

is an authentic deed has the power as the strongest and most complete written

evidence. Thus, what is stated in the notarial deed must be acceptable, unless the

interested party can prove the opposite satisfactorily before a court trial.

Regarding the strength of proof of a notary deed as evidence, it can generally

be said that in general, a notarial deed is divided into 3 (three) kinds of evidence,

namely: 18

a. The Power of Outward Evidence:

It is the power of proof in terms of the ability of the deed itself to prove itself

as an authentic deed. This ability is based on Article 1875 of the Criminal Code (A

written underhand which is acknowledged to be true by the person who is brought

before him or is legally deemed to have been justified by him, giving rise to

complete evidence such as an authentic deed for the people who signed it, their

heirs and those who received it). rights of them; the provisions of Article 1871 apply

to the writing). cannot be given to a deed made under the hand. A deed made under

the new hand is valid, i.e., as it comes from the party itself, against whom the deed

is used, if the person who signs it acknowledges the truth of the signature or if in a

legal way it has been recognized by the person concerned. Meanwhile, the authentic

deed proves its validity.

b. Power of Formal Evidence:

18
Prof Dr. Abdul Ghofur Anshori SH MH, Op. Cit., Page 19.
 It is the certainty that an incident and fact stated in the deed was carried out

by a notary or explained by the parties who appear. This means that the official in

question has stated in his writing as stated in the deed and apart from that the truth

of what is described by the official in the deed is what he did and witnessed in his

position. In a formal sense, as far as the official deed is concerned, the deed proves

the truth of what is witnessed, namely what is seen, heard, and also carried out by

the notary as a public official in carrying out his office.

In a private deed, the power of evidence only includes the fact that the

information was given if the signature on the document is acknowledged by the

signer or is deemed to have been acknowledged by law. In a formal sense, it

guarantees the truth/certainty of the date of the deed, the identity of the people

present, as well as the place where the deed was made. As far as the acte partij is

concerned, the existing parties explain as described in the deed, while the truth of

the information itself is only certain between the parties themselves.

c. The Power of Material Proving

It is the certainty that what is stated in the deed is valid evidence against the

parties who made the deed or those who have rights and apply to the public unless

there is evidence to the contrary. This means that it is not only the fact that is proven

by an authentic deed but the contents of the deed are considered to be proven as

true against everyone who ordered the making/making of the deed as evidence

against him. Thus, the authentic deed regarding the contents it contains applies as

true, has certainty, as a matter of fact, then it becomes legally proven between the
parties. Therefore, if it is used before the court, it is sufficient, and the judge is not

allowed to request authentic evidence because otherwise, it can be questioned what

the use of the law appointing officials assigned to make an authentic deed as

evidence if the judge can only override the deed made by the official.

2. The role of notary skills (professionalism) is needed to prevent deed

degradation

A profession is part of the job, but not every job is a profession. For

example, an administrative staff (notary) is not included in the professional class

because to work as an admin staff one can come from various educational

backgrounds, knowledge, and experience, but this is not the case with accountants,

lawyers, doctors, and notaries, they need special education following the field and

must meet the requirements that have been regulated in the professional code of

ethics or law. The profession requires at least three aspects, namely having certain

knowledge, certain skills relating to the public interest, and having to improve their

knowledge and skills following the times. More importantly for the work

(profession), the results of his work can affect the lives of many people and is a job

(noble profession), which places a lot of emphasis on devotion. 19 So it is clear that

the difference between a profession and a job, in general, is that the profession has

specific expertise, emphasizes service (community/other people), and is usually

19
Sukamto MM Mpd et al, Etika Profesi Berbagai Bidang, Publisher: PT Pustaka Mandiri,
Tangerang, 2013, p. 52.
regulated by law for the work, such as work as a notary, so more precisely, the

person is called notary profession.

While the meaning of professional is a person who has a profession or

work by relying on high skill and ability above average. To become a professional,

someone who carries out his profession is required to have the following attitudes:20

a. Have a higher work commitment;

b. Have higher responsibilities;

c. Able to think systematically;

d. Good mastery of the work material;

e. Become part of a professional society (entering a professional organization)

that has a code of ethics

According to the author of the five characteristics, the attitude that needs to

be added is having competence and work standards above the average with his

professional colleagues, and this work is regulated by law because it involves the

livelihood of many people.

A notary is a profession in the field of law, and thus the notary profession

is a noble profession (Nobile officium) because it is closely related to humanity.

The deed made by a notary can be the legal basis for a person's property, rights, and

Sukamto MM Mpd et al, Op. Cit., p. 64

20
obligations. Mistakes on a notarial deed can cause a person's rights to be revoked

or someone's obligations to be burdened 21

Article 1869 of the Civil Code clearly states that a Notary must be

Professional, namely: A deed that cannot be treated as an authentic deed, either

because it is not authorized or incompetent of the public official concerned or

because of a defect in its form, has the power as a handwritten if signed by the

parties.

It is stated that the notary is required to be qualified and authorized to create a deed

because, in the lack of these qualifications, the deed could end up becoming a

private deed.

Ismail Saleh stated that 4 main things must be considered: 22

1. Have high integrity; In carrying out his professional duties, a notary must

have solid moral integrity, in this case, all moral considerations must

underlie the implementation of his professional duties. Although it will get

a high reward for services, something that is contrary to good morals must

be avoided;

Prof. Dr. Abdul Ghofur Anshori SH MH, Op. Cit., page 25.
21

Ibid p. 32.
22
 2. Must be honest with clients and themselves (intellectual honesty), he must

know his limits and not make promises to please his clients, so that clients

want to use his services.

3. Be aware of the limits of their authority; the notary must comply with the

provisions of the applicable law regarding how far he can act and what may

or may not be;

4. Not solely based on money;

Even though the expertise of a notary can be used as an effort to get money, in

carrying out his profession he is not only driven by considerations of money, he

must hold fast to an essential sense of justice, not be affected by the amount of

money. However, according to Article 36 of the UUJN, the honorarium for notary

services has been regulated.

As explained above, one of the characteristics of a job considered a

profession is the existence of a Code of Ethics. Likewise, notaries have a Notary

Code of Ethics (KEN), based on the provisions of article 83 paragraph 1 of the

UUJN, the Indonesian Notary Association as a Notary organization at the

extraordinary congress in Bandung on January 27, 2005, established a Code of

Ethics. This code of ethics only applies to the members of the notary concerned.

A code of ethics is a moral code that is required to follow by every member

of the association to maintain the honor and nobility of the position of a notary. The

Honorary Council works with the Supervisory Council to enforce the notary code

of ethics, and this council also participates in the enforcement process.

 A code of ethics in a material sense is a practical norm or regulation, both

written and unwritten, regarding ethics relating to attitudes and decision making on

fundamental matters of the standard values of the behavior of people who are

considered good or bad in carrying out their profession which is independently

formulated and enforced by professional organizations.

The Notary Code of Ethics is a moral code determined by the Association of

Indonesian Notaries based on the Decree of the Congress of Notary Members,

which must be obeyed by members of the Notary Association.

The code of ethics that is made in writing has the following reasons and

objectives:23

1. As a social control;

2. To prevent interference from other parties;

3. To prevent misunderstandings or conflicts among members of the

association;

3. The role of the Supervisory Council, MKN, and INI Organization so that

Notaries can create quality deeds and do not violate the code of ethics and

applicable laws

Legal protection contains two aspects, namely preventive and repressive.

Preventive legal protection aims to prevent disputes or legal problems, by

Ibid, page 164.

23
monitoring the activities carried out by Notaries following applicable laws or

regulations will have a very positive impact on the Notary profession.

Good supervision can support the implementation of the notary's duties so

that it is always following the rules of law, morals, and professional ethics (notary

code of ethics), to avoid abuse of authority that has been given by law.

Meanwhile, the repressive aspect relates to the imposition of sanctions for

notaries who have committed violations. By knowing the importance of preventive

aspects for a notary who carries out his profession, the supervisory role that can be

carried out by a notary:

a. Supervisory Council article 67 paragraph (2) UUJN

It states that in carrying out the supervision as referred to in paragraph (1), the

Minister shall form a Supervisory Council.

b. Notary Honorary Council (MKN) article 66A paragraph (1) UUJN

It states that in conducting the guidance, the Minister forms an honorary board

of notaries.

c. The Notary Association, as a forum for members of the notary profession Article

82 of the UUJN, namely:

1) Notaries gather in one container Organization of Notaries.

2) The forum for the Notary Organization, as referred to in paragraph (1), is

the Indonesian Notary Association.

 3) The Notary Organization, as referred to in paragraph (1), is the only free

and independent Notary professional forum established with the intent and

purpose to improve the quality of the Notary profession.

Supervision can be distinguished into internal and external supervision.

Internal supervision is carried out by supervisory officers within the organization

or work unit itself (INI), while external supervision is conducted by people or

institutions outside the organization in this case MKN (Regulation of the Minister

of Law and Human Rights of the Republic of Indonesia Number: 07 of 2016

concerning MKN) and the Supervisory Council (Regulation of the Minister of Law

and Human Rights of the Republic of Indonesia Number: 40 of 2015 concerning

Organizational Structure of Procedures for Appointing Members, Dismissing

Members, and Working Procedures of the Supervisory Council, Regulation of the

Minister of Law and Human Rights Number M.02.PR.08.10 of 2004 concerning

Procedures for Appointment Members, Dismissal of Members, Organizational

Structure, Work Procedures and Procedures for Examination of the Notary

Supervisory Council are declared to remain in effect, except for Articles 1 to 19,

38, and 39).

Through supervision, it can be known whether it can go according to plan.

According to predetermined instructions or rules, the difficulties and weaknesses in

work can then be corrected and it is also known whether something has been

running and is effective. Supervision can be conducted in various ways, namely:24

1. Internal control, which is supervision carried out by a unit formed within

the organization (INI);

2. Supervision from outside the organization (external control), namely

supervision carried out by people or units from outside the organization

(MKN, Supervisory Council);

3. Preventive supervision is supervision carried out as an effort before the plan

is conducted;

4. Repressive supervision is supervision carried out after the implementation

of work

The notary profession is a profession that seems to be surrounded by sanctions,

be it sanctions due to lawsuits, demands, or sanctions due to violations of the code

of ethics. As explained above, if the notary is incompetent or he violates the UUJN,

he may or may have a lawsuit/claims, namely:25

1. Notary Legal Efforts Against Civil Sanctions:

Handayaningrat, Pengawasan Aparatur Pemerintah, Publisher : Erlangga, Surabaya, 1982,

24

page 144

Dr. Habib Adjie SH Mhum, Majelis Pengawas Notaris, PT Refika Aditama, Bandung, 2015, pp
25

50-55
 Civil sanctions are sanctions imposed on errors that occur due to default, or

unlawful acts, sanctions that can be sued are in the form of reimbursement of costs,

compensation, and interest (Article 1365 of the Civil Code: every act that violates

the law and causes harm to others, requires people which caused the loss because

of his mistake to replace the loss), is the result received from the lawsuit of the

plaintiffs if the deed in question only has proof as a private deed or is null and void

(Article 1869 of the Criminal Code reads: a deed that cannot be treated as an

authentic deed, either because of the incompetence or incompetence of the public

official concerned or because of a defect in its form, which has the power to be

written under the hand if it is signed by the parties).

A notary deed has perfect evidentiary power, but if it violates certain

provisions, the value of the proof will be degraded to have the power of evidence

as an underhand deed.

If the parties consider that the notary has violated Article 84 of the UUJN (it

reads: acts of violation committed by the notary against the provisions as referred

to in Article 16 paragraph (1) letter i, Article 16 paragraph (1) letter k, Article 41,

Article 44, Article 48, Article 49, Article 50, Article 51, or Article 52 which results

in a deed only having the power of proof as an underhand deed or a deed being null

and void by law can be a reason for the party suffering the loss to demand

reimbursement of costs, compensation, and interest to the notary). As a result, the

deed is degraded from a deed that should be authentic to a private deed, then the

parties giving such an assessment must be able to prove it through a court process

(lawsuit), for that the notary must perform or provide resistance or explanation. If
the parties file a lawsuit, it is stated that: 1). There are losses that arise 2). There is

a causal relationship or cause and effect between the occurrence of losses and

actions that violate the norms carried out by the parties.

The procedure mentioned above must be carried out so that there is no

unilateral assessment of a notary deed because the notary deed has perfect

evidentiary power, which can be judged from the external, formal, and material

aspects.

Likewise, if it turns out that the lawsuit is not proven, or is rejected, then it is

possible for the Notary concerned to file a lawsuit against them or the party who

has sued it. It is an effort to maintain the rights and obligations of a notary in

carrying out his duties.

2. Notary Legal Efforts against Administrative Sanctions:

The Regional Supervisory Council and the Central Supervisory Council may

impose administrative sanctions against a notary following their authority, both

verbal and written warnings from the Regional Supervisory Council, and sanctions

for temporary suspension of office by the Central Supervisory Council. MPW can

only impose sanctions in the form of a warning, verbal or written (article 73

paragraph 1 UUJN). And the MPP can only impose a temporary suspension (Article

77 letter c of the Law). Thus, such sanctions are the authority of the MPW and

MPD.

Sanctions from MPW or MPP can be in the form of:

1. Verbal reprimand

2. Written warning

3. Temporary stop

4. Dismissal with honor

5. Dismissal without honor

In carrying out legal remedies, a Notary who has been subject to a sanction

can be filed an objection to the agency that imposed the sanction, and if he is not

satisfied, he can file an appeal to a higher institution, in this case, MPW and

continue to the MPP if all these procedures have been complied with still not satisfy

the notary concerned, the notary can file a lawsuit to the State Administrative Court

to challenge the MPP's decision.

D. Closing:

1. Conclusion:

A notary is not a job but a professional in the field of law, and thus the profession

of a notary is a noble job (nobile officium) because it is closely related to humanity.

The deed made by a notary can be the legal basis for a person's property, rights, and

obligations. Mistakes on a notarial deed can cause a person's rights to be revoked

or someone's duties to be burdened.

Article 1869 of the Civil Code clearly states that a Notary must be

Professional, namely: A deed that cannot be treated as an authentic deed, either

because it is not authorized or incompetent of the public official concerned or

because of a defect in its form, has the power as a handwritten if signed by the

parties. It is stated that the notary must be competent and have the authority to make

a deed because if he is not competent and does not have the authority, the deed to

be made may become a private deed. The profession is a part of work, but not every

job is a profession. And what is more important is the work (profession), the results

of its work can affect the lives of many people and it is a job (noble profession) that

places a lot of emphasis on dedication. Thus, the difference between a profession

and a job, in general, is that a profession has a specific skill set, emphasizing service

(to society/others).

2. Suggestions :

Because the Notary profession produces products that affect people's lives

and have civil, criminal, and administrative risks for the Notary himself, a Notary

is required to be more capable and professional. Thus, preventive efforts to protect

the notary profession are crucial. The supervisory function carried out by INI in the

context of implementing the notary code of ethics, the Supervisory Council, and the

Notary Honorary Council (MKN) must be further regulated to optimize their roles.

It is currently considered less than optimal in terms of performing its role as a

preventive institution to stop violations committed by Notaries.

References :

o Handayaningrat, Pengawasan Aparatur Pemerintah, Publisher : Erlangga,

Surabaya, 1982
o Dr. Habib Adjie SH Mhum, Majelis Pengawas Notaris, PT Refika Aditama,

Bandung, 2015

o Prof Dr Abdul Ghofur Anshori SH MH, Lembaga Kenotariatan Indonesia,

Publisher UII Press Yogya, 2016

o Dr Sjaifurrachman SH MH & Dr Habib Adjie SH MHum, Aspek

Pertanggungjawaban Notaris Dalam Pembuatan Akta, Publisher : CV

Mandar Maju, Bandung, 2011

o Dr. Herlien Budiono, S.H., Kumpulan Tulisan Hukum Perdata di Bidang

Kenotariatan, Publisher PT Citra Aditya Bakti, 2013

o Dr Sjaifurrachman SH MH & Dr Habib Adjie SH MHum, Aspek

Pertanggungjawaban Notaris Dalam Pembuatan Akta, Publisher : CV

Mandar Maju, Bandung, 2011

o R. Subekti, Hukum Pembuktian, PT. Prandnya Paramita, Jakarta, 2001

o Mariam Darus Badrulzaman, Hukum Perikatan dan Penjelasan, Publisher :

Alumni, Bandung, 1983

o Dr. Habib Adjie SH Mhum, Kebatalan dan Pembatalan Akta Notaris,

Publisher : PT Refika Aditama, Bandung, 2015

o Sudikno Mertokusumo, Hukum Acara Perdata Indonesa, Publisher : Liberty

Yogya, 1998
o Sukamto MM Mpd dkk, Etika Profesi Berbagai Bidang, Publisher : PT

Pustaka Mandiri, Tanggerang, 2013

Legislation :

o Law No. 1 of 1946 concerning the Criminal Code

o Law No. 08 of 1981 concerning the Criminal Procedure Code

o Law No. 30 of 2004 concerning Notary Positions

o Law No. 02 of 2014 concerning amendments to Law No. 30 of 2004

concerning Notary Positions

o Civil Code

o Regulation of the Minister of Law and Human Rights of the Republic of

Indonesia Number: 07 of 2016 concerning MKN

o Regulation of the Minister of Law and Human Rights of the Republic of

Indonesia Number: 40 of 2015 concerning Organizational Structure,

Procedures for Appointing Members, Dismissing Members, and Working

Procedures of the Supervisory Council

o Regulation of the Minister of Law and Human Rights Number

M.02.PR.08.10 of 2004 concerning Procedures for Appointment of

Members, Dismissal of Members, Organizational Structure, Work

Procedures, and Procedures for Examination of the Notary Supervisory

Board