KEKUATAN PEMBUKTIAN AKTA PEMBIAYAAN SYARIAH DALAM BENTUK AKTA NOTARIIL YANG BERDASARKAN PRINSIP SYARIAH

Alfan Thoriq, Muhammad (2021) KEKUATAN PEMBUKTIAN AKTA PEMBIAYAAN SYARIAH DALAM BENTUK AKTA NOTARIIL YANG BERDASARKAN PRINSIP SYARIAH. Magister thesis, Universitas Brawijaya.

Abstract

"Muhammad Alfan Thoriq, Evidentiary Power of a Notarial Deed concerning Sharia Lending based on Sharia Principle, Dr. Reka Dewanatara, S.H., MH., Dr. Diah Aju Wisnuwardhani, S.H., M.Hum. The inception of sharia banking has led further to sharia-based agreements with characteristics different from those of civil law. This research aims to analyze the evidentiary power of a sharia lending agreement in the form of a notarial deed and the regulatory conceptualization of the notarial deed concerning sharia lending with legal certainty. The research methods constituted juridical and normative methods, statutory and conceptual approaches. The research results reveal that the evidentiary power of the notarial deed discussed in this paper lies in the addition of the Arabic word ‘basmalah’ and an excerpt of verses from the Koran. The notarial deed issued by notaries is deemed to be an authentic deed with its evidentiary power. Moreover, the regulatory reconceptualization regarding the agreement concerning sharia lending also involves legislative review by lawmakers, or through policymaking (beleidregels) that is intended to inform by the minister in charge of notarial matters. Civil Code/Burgelijk Wetboek (BW), Staadblad 1847 Number 23 of law Number 30 of 2004 concerning Notarial Position, amended to Law Number 2 of 2014 concerning Amendment to Law Number 30 of 2004 concerning Notarial Position, and Law Number 21 of 2008 concerning Sharia Banking are some of the colonial legacies, and they represent the implementation of concordance principle to fill the legal loopholes. Regulatory provisions regarding pieces of evidence are outlined in Article 100 of Law Number 5 of 1986 concerning State Administrative Law stating that pieces of evidence include: a. A letter or a piece of writing; b. Testimonies from an expert; c. Testimonies from a witness; d. Confession of parties involved; e. Judges’ knowledge. The authority of a notary is outlined in Article 15 paragraph (1) of Law concerning Notarial Position: “A notary is authorized to issue an authentic deed as regards all actions, agreements, and decisions that are mandated by law and/or expected by the parties concerned, in which all matters involved must be outlined in an authentic deed. The date the deed is signed must be stated on the deed; the deed must be kept; Grosse, copies, and excerpts of the deed must all be kept as long as the deed issuance is not delegated or exempted to another official or individual as governed by law.” The evidentiary power reinforced by adding the Arabic word ‘basmalah’ and the excerpts from Koran involve the following three aspects: evidentiary power in a physical, formal, and material form. A notarial deed must convince judges and must be deemed true for as long as the falsification cannot be proven."

Item Type:	Thesis (Magister)
Identification Number:	042101
Subjects:	300 Social sciences > 340 Law
Divisions:	S2/S3 > Magister Kenotariatan, Fakultas Hukum
Depositing User:	Unnamed user with username santoso
Date Deposited:	23 Oct 2021 03:45
Last Modified:	30 Sep 2024 01:31
URI:	http://repository.ub.ac.id/id/eprint/185285

Text MUHAMMAD ALFAN THORIQ_.pdf Download (2MB)

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