Tugas Hukum Perbankan No.

2 -- KKI
Adara Zalikha Setiawan
Urutan No. 14
1906423845

Q1 Jelaskan bagaimanakah tugas dan peranan OJK dalam Perlindungan Konsumen

Perbankan?

During banking transaction, done online or in-person, consumers can experience risks that varies
from technology risk (security system of the medium being used), reputational risk (when
consumers are weary of using a bank), outsourcing risk (when banks use internet service providers
to operate and keep data), legal risk (especially for cross border issues in internet banking) and
transaction risk.

To mitigate and combat these risks, Otoritas Jasa Keuangan (“OJK”) has the function, role and
authority to regulate and supervise monetary services in the banking sector. In the law itself, it can
be seen that OJK provides consumer protection through: (1) supervision, examination,
investigation, consumer protection and other actions against monetary service institutions,
perpetrators and insurers as regulated by Article 9(c) UU 21/20011 (“UU OJK”), (2) and pursuant
to Art. 28 (a) UU OJK, have the authority to prevent consumer loss, which can come from
providing information and education to the people regarding the monetary sector, services and
producers. In another law, Undang Undang Nomor 10 Tahun 1998 tentang Perubahan atas
Undang Undang Nomor 7 Tahun 1992 tentang Perbankan, Article 29(4) obligates banks to
provide education and information regarding the risks in a bank transaction, however in reality,
this education by the banks is still very much under OJK’s supervision.

To provide an example. To protect consumers from falling as victims in skimming, OJK can
conduct efforts that heightens management operational risk such as skimming. By doing so, OJK
has the responsibility to supervise banks and coordinate with Bank Indonesia to anticipate
skimming by ensuring that banks are routinely examining their ATM machines.

In reference to disputes, OJK can play a role in both internal and external dispute resolutions
between a consumer and a bank. In internal dispute resolutions, consumers and bank will try to
resolve their dispute internally. Pursuant to Article 29 UU OJK, one of the forms of intenral
dispute resolutions is Pelayanan Pengaduan Nasabah where a request can be made to the Financial
Customer Care of OJK. This is for consumers who have suffered or will potentially suffer a loss
from a monetary service, which banks will respond to. In this stage, consumers have the right to
accept or reject the resolutions from the bank and submit their dispute to ADR in the form of
arbitration, etc.
 After this does not work, they will then continue to external dispute resolution by filing a request
for facilitation from OJK and choosing to either use litigation or non-litigation. During non-
litigation, OJK can play a role as pendamping hukum, counsel, or provide recommendations. In
Article 30 UU OJK, this law obligates for OJK to play an active role during the external dispute
resolution. If an alternative dispute resolution also does not reach a solution, OJK will file a lawsuit
for compensation for the consumer. During this litigation process, OJK can only play a role to
accompany during the proceedings. If the case has been decided upon in Court, OJK does not
have the authority in the decision’s execution.
Q2 Bagaimanakah peran dan tugas Bank Indonesia dalam mengatur dan mengawasi
perbankan di era OJK?

The transfer of roles and responsibilities from BI to OJK applies to Article 8c, Article 24, Article
25, Article 26, Article 27, Article 28, Article 29, Article 30, Article 31, Article 32 and Article 33 of
UU BI and its amendments.

Inferring from the law, Bank Indonesia’s role to banks with the existence of OJK is very much
policy-based instead of through direct action. Based on Article 17(2) UU BI, BI has the
responsibility and role to conduct monetary policies that are continuing, consistent, transparent
and with consideration of the general economic policy from the government. This is applicable in
the era post-OJK’s establishment. Alongside this, BI can conduct their function in the banking
sector through regulation and supervision towards banks so long as there has not been an
establishment of a monetary service supervision sector. This is due to the fact that Article 55(2)
UU OJK regulates that the responsibility of supervision and regulation of banks should transfer
from BI to OJK. Furthermore, during this transition, documents and fortune that is owned or
used by BI to conduct their role of Bank supervision and regulation should transfer to OJK as
regulated by Article 65 UU OJK.

To avoid contradicting laws and authorities between OJK and BI, Article 39 and 40 UU OJK
regulates that there should be smooth coordination and collective work between BI and OJK.
This push towards working together will prevent the contradiction between the two institutions,
with OJK’s laws being the lex posterior derogate legi priori.

Q3 Jelaskan Bagaimana persyaratan dan proses pendirian:

a. Bank Umum Konvensional

Banks can only be established and conduct their business activities with approval from the OJK.
To establish a conventional bank, the requirements are a minimum capital of 3 trillion and can
only be owned by WNI natural persons/legal entities, or WNI persons/legal entities partnered
with a foreign legal entity.

When establishing a commercial bank, there must be permission beforehand for the parties who
will establish the commercial bank. Before, the authority to give approval was Bank Indonesia as
the monetary institution. However, with UU 21/2011, this authority was transferred to the Otoritas
Jasa Keuangan. Based on Article 16(2) UU Perbankan, this approval requires: organization (central,
 assisting, franchise offices) and management (pemegang saham pengendali, board of directors and
board of commissioners) structure, capital (minimum of Rp. 3 trillion for first-time
establishment, and Rp. 100 million for established banks), ownership (Indonesian and foreign
citizens and legal bodies), expertise of the directors, commissioners and PSP, and feasibility of
work plan (which must have good corporate governance, executive summary, management
policy, management risk, projection of budget, ratio and post, budget and capital plans, human
resources and organizational development, product launch, and other information).

b. Bank Umum Syariah

The requirements of a Syariah Commercial Bank is that there must be capital of Rp.
1.000.000.000,00, ownership from an area’s government, Indonesian bodies or natural persons,
with an option of partnership with foreign entities and citizens. The approval will be done in two
stages: the principle approval that connotates to the approval of plans to establish a bank and
approval for business activities.

Pursuant to Article 5(1) and (2) UU 21/2008 tentang Perbankan Syariah, the approval to conduct
business activities can only be done to Syariah commercial Banks that has an organizational and
managerial structure, capital, ownership, expertise in the Syariah field and business feasibility.

The process to the establishment itself can be found in PBI No. 11/10/PBI/2009 tentang Bank
Umum Syariah. Keeping in mind Article 7 (a) (1) UU OJK, the process includes and is regulated
from Article 8 to Article 12: filing a request to Bank Indonesia (transferred to OJK) with a
minimum of at least 30% from the minimum capital, Bank Indonesia (now OJK) will then provide
an answer within 60 days for the principal approval, then a request for approval to conduct
business activities, Bank Indonesia (now OJK) will give their approval/rejection within 60 days
and once approved, the bank is obligated to conduct their activities within 60 days of the approval.

c. Unit Umum Syariah

Commercial Syariah Unit is a section of a Commercial Bank, where this section will conduct
activities based on Syariah as pursuant to Article 1 no. 10 UU Perbankan Syariah. The
requirements of this type of unit is that the establishment is done with the approval of Bank
Indonesia to conduct business activities (Art. 3(1) PBI 11/10/PBI/2009), and the capital for the
unit should be a minimum of Rp. 100.000.000.000.00 in cash pursuant to Article 4(1) and (2) PBI
11/10/PBI/2009. Due to Article 1 (a) (1) UU OJK, the approval should be conducted to OJK
not Bank Indonesia.

Based on PBI No. 11/10/PBI/2009 amended by PBI 14/14/PBI/2013, the procedure to

establish a Commercial Syariah Unit are as follows: commercial bank files a request that consists
of plan to change articles of association, the identity and documents of directors, members of the
DPS and executive officials, feasibility study, and business plan for the first year. Once approved,
the UUS is obligated to conduct business activities within 6o days.
Q4 Jelaskan mengenai proses Merger Bank secara singkat?

All mergers should be done with the approval of the OJK, as pursuant to Article 28 UU 10/1992
tentang Perbankan jo. Article 69(b) UU 11/2021 tentang OJK. When conducting the merger,
banks must adhere to Peraturan Otoritas Jasa Keuangan Nomor 41/POJK.03/2019 tentang
Penggabungan, Peleburan, Pengambilalihan, Integrasi dan Konversi Bank Umum (“POJK
41/POJK.03/2019”). Based on this law, this is the procedure of bank mergers:

Mergers are done by prioritizing the interest of the Bank, people, healthy business competition
and the insurance of rights of all parties. This merger must be based on a plan that has been
approved by each bank’s board of commissioner, this plan must also include the outlines and
clarifications of the banks regarding the merger. The directors will then announce a summarized
plan to the people in Bahasa Indonesia, by latest 2 days after the approval from the commissioner
board. The Bank will then report to the OJK of evidence of announcement, document plans,
concept of merger act and the administrative documents.

After this, the Banks will conduct a RUPS and the approval from the RUPS must be made with a
notary where the Directors of the Banks will request for merger approval from the OJK within 3
days of RUPS. The waiting period of the approval is 14 days after the request has been filed to
the OJK. Once approved, the Bank will then file an amended articles of association to the Minister.
The Minister will then provide an approval, which will be in power since the date it was
announced. After this approval has been achieved, the banks will then each report their funds in
light of the mergers, report the merging in their bank website, and provide OJK with the execution
report within 5 days.

The report of execution of the merger must be attached with a photocopy of the amended articles
of association, approved by the Minister, photocopy of act of bank establishment approved by
the Minister and the evidence that the merging has been announced.

Q5 Jelaskan apa yang menjadi tugas dan tanggung jawab dari masing-masing profesi
penunjang yang terlibat dalam proses merger Bank?

The supporting professions included in the merging of banks are financial advisors, public
accountants, appraisal companies, notaries, legal consultants and tax consultants.

Financial advisors are in charge of assisting in choosing which businesses a bank should merge
with, provide target for the next three years, strategic advice, accommodate finance to do the
merging transaction, structure the transaction and coordinate with the legal and tax consults.
Often, the ones who do due diligence (research) towards the prospective targets are the financial
advisors. This due diligence is extremely important as it provides the businesses with information
that can determine whether they choose to proceed with the merging or not.

Public accountants are another essential supporting profession, they provide analysis and advice
regarding the financial information of prospective businesses. They can also provide the
banks/businesses with the monetary report that includes profit and loss once the merger has been
successfully done. Next, appraisal companies, who will value and calculate the fortune that each
bank has that are party to the merger. This will provide each of the banks with necessary
information regarding another. While notaries will work to create the merging act, assist in the
conduct of RUPS, announce the RUPS, call into session the RUPS and conduct/facilitate the
RUPS. From this, it can be seen that a notary’s role is to ensure that all documentary acts of the
merging are valid and signed accordingly.

Then comes a few consultants. Legal consultants are those who provide legal assistance during
the merging transaction, this can come from providing legal documents and ensuring the validity
of the bank’s property. When it comes to it, legal consultants play a major role in drafting terms
and conditions of the merger transaction after due diligence has been done. On the other hand,
tax consultants, provide assistance for the merging businesses to prevent them from
experiencing loss due to miscalculation of the tax of businesses that will be party to the merge.
 SURAT PERNYATAAN

Dengan ini saya yang membuat pernyataan:

Nama: Adara Zalikha Setiawan
NPM: 1906423845
menyatakan adalah benar tulisan saya sampaikan untuk tugas hukum perbankan merupakan tulisan
saya sendiri, memenuhi persyaratan anti plagiarism dan dapat dipertanggungjawabkan apabila
terdapat kesamaan tulisan saya dengan orang lain.

Jakarta, 24 Februari 2022

Adara Zalikha