THE LEGAL PROTECTION ON THE VICTIMS OF THE AGREEMENT

OF ONLINE MONEY LOANS

Written by:

Amara Diva Abigail

Email: Abigail_090399@yahoo.com

Fauziyah
Email: fauziyah@unmuhjember.ac.id

ABSTRACT
The Indonesia Government through Financial Service Authority (FSA) has issued the Regulation
Number 1/POJK.07/2013 concerning Consumer’s Protection on the sector of Financial Service
(POJK of Consumer Protection). This regulation manages at least 5 principles or right that the
consumer of financial service institution should obtain as related to Chapter 1 Article 2, which is
about the right to obtain the information as clear as possible (transparency), the right to get a fair
treatment, the right to get a reliable service (reliability), the right to gain the protection of data
security (confidentiality and the security of data or consumer’s information), and the right to
tattle a complaint if some problems arise (handling complaints and solving the consumer’s
dispute through a simple, fast and affordable cost). The Law Number 8 of 1999 regarding the
Consumer Protection, article 45 paragraph (1), declares that: “Every harmed consumer is able to
sue the business actor through the institution whose job is solving the dispute between the
consumer and business actor or at the court under the general court.” The Law Number 11 of
2008 concerning the Electronic Information and Transaction, Article 38 Paragraph (1), states
that: “Every person is able to file a lawsuit againts the party who is carrying out the electornic
system and/or using the information technology which causes loss.” Juncto on Article 29, states
that: “Every person who are intentionally and without having any rights send the electronic
information intentianally and/or electronic documents containing the violence threats or
intimidation which was pointed out.”

Keyword : Fintech, Online Loans Consumer’s Right, Consumer protection

1
INTRODUCTION
The unlimited development of technology in today's digital era has brought drastic
and fundamental changes to the lives of people.1 The information technology also changes
the way of transaction and opens the opportunities for transaction.2 The presence of Fintech
makes it more complete. Fintech is defined as a technology-based financial service which
make the transaction easier at anywhere and anytime. This new financial model, fintech was
first carried out in 2004 by Zopa, a financial institution in the UK that ran money loan
services. Then it was proceed with Bitcoin, initiated by Satoshi Nakamoto in 2008.3
Nowadays, the internet-based online loan or technology-based finance (fintech) has
been more popular among the community. The legal relation of fintech came up through an
agreement.4 So that, as the development of cyber technology or internet in Indonesia is
increasing, the organizer of fintech as service business is also spreading out. It is also
supported by the price of smartphones which are more affordable and it does not become a
luxury item for people with low incomes anymore.
Fintech appeared along with the changes on people's lifestyles which currently are
dominated by the users of information technology who demand fast-paced life. Global
economic which are now in polemic situation was caused by the monetary policy in the
United States, covering the interest rate in the United States was risen and the liquidity of
US dollar was reduced or restricted, these two certainly affected the economy in developing
countries, including Indonesia. People with low income are the ones who get most of these
economic impact. As a result, they try to get loans to survive.
People who have completed their data as a requirement in applying for a loan will
find it easier to get a loan. But, for the ones who have not completed their data, online loan

becomes a very effective, efficient, and very helpful solution for people who are
experiencing financial difficulties without having to spend their time, money, and energy,
complicated requirements and a quick loan disbursement process. In general, the
segmentation of internet-based online loan is for people who do not fulfil the terms and
conditions by Financial Services Authority (FSA) or the ones who live in remote areas.
There are also a number of business pioneers in big cities who find some obstacles since
their businesses have not yet met the proper criteria for credit determined by OJK/FSA.

2
 Some providers of fintech service even have applied for loans without guarantee in which
it is risky to do regarding the late payment or even failure to pay debt.5 It remains a general and
public thing that among the providers of fintech service, they are free to trade customer data.
Personal data which are sold freely cover names, ages, telephone numbers, home addresses, jobs,
and a number of other sensitive data. In fact, Kompas Daily wrote an article about selling
personal data, promoting itself, selling deposit customer data openly and earnt Rp 50,000,000
(fifty million) and above, as well as the customer’s financial data of credit card holder.
Based on the results of case identification at National Police Headquarter, the Association
of Indonesian Internet Service Provider (APJII) and the survey results in the United States, it can
be seen that there was a similarity on cybercrime category both in Indonesia and the United
States. Its similarity is from a computer which was used as a tool for committing crime (for
example fraud, falsification, data theft) and a computer as a target of crime (for example DoS
Attack).
According to Widodo, the types of cybercrime in Indonesia can be linked to the
provisions of criminal law in Indonesia, both the provisions of National Criminal Code (KUHP)
as well as other laws out of the Criminal Code. However, some provisions of criminal law in
Indonesia are difficult to apply as there are some differences in the conceptions between
Indonesian criminal law which is currently in line with the characteristics of cybercrime. Some
terminologies of Criminal Code are difficult to use as a basis for prosecuting the cybercrime, for
instance is the term of "in public" which was made equal to the equated with the term of "in the
internet", the term of "entering the yard" regulated in the Criminal Code is applied to adjudicate
the cases of entering the other’s space on the internet illegally (illegal access). Cybercrime is
defined as a new information technology-based crime through the use of computer or
smartphone.7
Based on the above description, the researcher was interested in conducting a research
about the legal protection on the victims of the agreement of online money loan, to find out the
legal protection on the victims of the agreement of online money loan, the researcher
combined several related legal aspects concerning the legal procedures in conducting the legal
protection against the victims of online money loan (Fintech).

3
RESEARCH METHOD

1. The Type of Research

The type of this research was normative juridical which examined The Legal
Protection on the Victims of the Agreement of Online Money Loan critically and
comprehensively. The research of normative law is a law research whose main objects are the
systems of norms or laws. According to the context of legal positivism perspective, the object
is the positive law. In this case, what is seen and is written in the law become the rules of
behavior, thus its priorities are on the aspect of ideality and doctrinal-normplogic nature. The
system of norm in the simplest sense refers to the system of principles or rules.8
2. The Problem Approach
The problem approach used in this research was through several approaches including
the approaches of statue and conceptual. The law and regulation approach (statute approach)
was used since the legal rules which reated to this research was also examined. This approach
was done by examining all statutory regulations in relation to the Legal Protection on the
Victims of the Agreement of Online Money Loan. On the law and regulation approach, the
researcher needed to understand the hierarchy and principles of legislation. This approach was
also used to find the answers to the legal content formulated in this research. This law and
regulation approach was the one which should examine, study the consistency and
compatibility of the law and regulation from one to another, as it was in line with the problem
formulated in this research.
The theoretical and conceptual approaches became the research approach as opposed to
the viewpoint and doctrines developed in the science of law. Regarding to the viewpoint and
doctrines, the legal understandings legal concepts were found as it was in relation to the issues
or legal content material which wer already eexamined. The conceptual approach was done
when the researcher did not want to move from the existing legal rules. This conceptual
approach was expected to be able to make legal arguments to answer the legal content material
which turned out to be the starting point of this research. 10
3. The Sources of Legal Material
The primary legal material, the secondary legal materuals and tertiary legal material
were used in this research as follows: Legal Material (primary).

4
DISCUSSION
Online loan service has been more popular among the people on lower-middle class.
The large number of requests from consumers made new online loan services increase rapidly.
The ease of doing transactions now made people more tempted by this fast and easy loan. By
completing the personal data and some other requirements, then the loan funds were disbursed
in less than 24 hours. 11
On the other hand, this method is quite risky for consumers. There are many reports from
the community about the violations made by this unsecured online loan provider, ranging from
billing terrorism, scams, unprofessional ways of billing, misuse of identity, and etc.12

Online Loan
Online loan is money loan facilities given by online financial service providers. Online
loan, which is directly granted without any collateral, is an alternative solution for people who
need cash with no direct face-to-face application. This loan provider is financial service provider
that operates online with the help of information technology. Therefore, from the explanation
above, the definition of online loan is a loan of fund through an online application by utilizing
smartphone which connected to internet without any collateral and direct face to face application
but specific requirements proposed by each online loan financial service providers must be
fulfilled.13
The legal basis for this online loan already existed, namely POJK Number 77 / POJK.01 /
2016 concerning Information Technology-based Financial Services.14 The OJK regulation
governs online loan articles, online loan procedures, what categories of illegal online loans
include OJK sanctions against online loans.15 Thus, it is better if, in this case, the community,
firstly, take time to understand the rules related to Information Technology-based Financial
Services as stipulated in the regulations of the FSA before using online money loans. Therefore,
there is no understanding and appropriate use of the application is beneficial.16

The civil aspect of online loan agreement

In a State’s civil law, there is a regulation that governs each of its citizens. In studying
civil law, it would be better if we know in advance what civil law is. The following are some
definitions of civil law formulated by experts and legal experts. Online money loan agreement is
a legal aspect of civil law.

5
 According to Sri Sudewi Masjchoen Sofwan, civil law is a law that regulates the interests
of individual citizens with one another. Whereas, according to R. Subekti, civil law is all rights
that include material private law governing individual interests.
The definition of an agreement is regulated in Article 1338 of the Civil Code, which
reads:
"All agreements that are legally made apply as a law for those who make them. An
agreement cannot be withdrawn except by agreement between the two parties, or for
reasons stated by law that is sufficient for that. An agreement must be carried out in good
faith. "
While the credit agreement, according to Mariam Darus Badrulzaman, is:
"Provision of money or bill which can be equivalent with that, based on loan agreement
between bank and other parties that require the loaner to repay the debt after a certain period of
time along with the amount of interest, compensation or profit sharing.17
The legal conditions for an agreement are regulated in Article 1320 of the Civil Code for the
validity of an agreement, 4 (four) conditions are required:
1. Agreement of those who bind themselves to,
2. The ability to make an engagement
3. A certain thing, and
4. A lawful cause.
A valid agreement is deemed to be absent if the agreement occurred because of coercion
(dwang), oversight (dwaling) or fraud (bedrog). Due to agreement consists of a series of
sentences, then making an agreement requires advance interpretation to determine the contents of
the agreement so the intention of each party is clearly known when making an agreement.
The law provides several guidelines for interpreting agreement:
1. If the words of the agreement are clear, it must be obeyed.
2. Matters of custom during the agreement are considered to be included in the agreement,
although implicitly stated.
3. All promises made in the agreement must be interpreted as relation to each other. All
promises must be interpreted in full agreement;
4. If there is doubt, the agreement must be interpreted for the loss of the person who asked
for an agreement and for the benefit of the person who committed himself to it, and

6
 5. Despite the broad meaning of the words stated in the agreement, the agreement only
covers tangible things intended by both parties when the agreement is made.
Mariam Darus Badrulzaman said that "In the development of treaty law in Indonesia,
there are a number of issues that need to be considered concerning legal protection for
consumers and legal certainty in society.18 The problems include the existence of standard
agreement. The use of standard agreement shows seriously harmful development to the
community interest. Online loan and lend agreement is a standard agreement. The characteristics
of standard agreement are:
1. The contents are determined unilaterally by a party whose position (economic) is strong.
2. The community (debtor) does not participate in determining the contents of the
agreement.
3. Encouraged by their needs, the debtor is forced to accept the agreement;
4. Certain form (written), and
5. It has been prepared in a mass and collective manner firstly.
With these characteristics, Mariam Darus Badrulzaman said that "the agreement remove
consensual basis, and does not distinguish the condition of the debtor, because this
agreement does not meet the required elements of Article 1320 juncto 1338 Civil Code. The
principle of consensualism has a close relationship with the principle of freedom of contract
(contractvrijheid) and the principle of binding force. In the context of standard agreement, this
provision tends to be distorted by stating that the consensual principle is removed and no
distinction to the condition of the debtor. The basis used is the different position of the parties.
When the standard agreement is made, the debtor's position is weaker than the agreement maker,
so he cannot do real bargaining with the party who makes the standard agreement.19
As a consequence, all agreements arise from the agreement preceded by an equal will.
This is the same as online loan, which can be interpreted across regions; this activity provides a
gap by unscrupulous elements. From the various cases occurred, referring to the Financial
Services Authority Regulation No.77 / POJK.01 / 2016 regarding information technology-based
financial services. The rapid development of digital technology has a great impact on the growth
of the financial technology industry. The adequate mastery of infrastructure encourage the
financial technology service provider to collaborate and synergize with other financial industries,

7
so they can complement each other to meet the needs of the community, which can increase
inclusion national finance as a return.20

Criminal Provision in Online Loan Agreement

The need for legal protection for the community members due to online loan agreement
cases can be reviewed from 2 (two) legal aspects, namely civil law aspect, as explained above,
and criminal law aspect. S.R. Sianturi in his book entitled Criminal Principles in Indonesia and
its Application, emphasized that "Criminal law is a number of provisions which are part of legal
ruling that regulates a set of prohibitions and requirements established by the State or other
authorities to determine the rule of the provision requirements. The prohibition or obligation is
accompanied by criminal threats. If the provisions are violated, then the right of authority from
the State to make claim and carry out criminal acts will arise.21
The term criminal law in the field of information technology is a juridical term, which
means that the term has been stated in the law and regulation, that is article 43 paragraph (1),
Law Number 11 Year 2008 concerning information and Electronic Transaction as amended by
Law Number 19 of 2016 concerning information and electronic transaction. The article 43
paragraph (1) of the ITE Law said "in addition to investigating officers of the Republic of
Indonesia State police, certain civil servant in the government whose scope of duties and
responsibilities are in information technology and electronic transaction, special authority as
investigators as referred to in law - law on criminal procedure law to conduct criminal
investigations in the field of information technology and electronic transactions is given."
The term criminal law in the field of technology is "a combination of terms," namely
"criminal law" and "information technology". Simply put, the definition of criminal law in the
field of information technology is the legal provision governing criminal aspects in information
technology in cyberspace activities, which include material legal aspect and formal legal aspect,
as well as the legal aspect of the committee.22

Consumer Protection Law

One of the characteristics and objectives of the law is to provide protection to the
community.23 Law is the latest means of controlling various changes in the community so that
the changes exist are able to realize the positive development of the nation and the State. 24 In the
context of financial technology, one of the purposes of the law is to protect consumers. Legal

8
protection is providing protection for human rights that are harmed by others and the protection
is given to the community so that they can get all the rights provided by law. If consumer is the
community, in other words protecting consumer means protecting the community. One form of
legal protection for fintech consumers is the protection of personal data security.25
Consumer protection is any effort guarantees legal certainty to provide protection for
consumers.26 Agus Brotosusilo who is an expert in international trade law also believes that he
will not doubt the existence of consumer protection law as reflected in these words: "The need
for an integral consumer protection law in Indonesia is not need to be questioned anymore. The
purpose of this kind of law is directly to increase the dignity and awareness of consumers.
Indirectly, this law will also encourage producers to do business responsibly.”27
According to Victor Purba, 14 (fourteen) months before the enactment of the Consumer
Protection Regulations, they already used the term "consumer protection law." Az Nasution and
Hadi Evianto were Indonesian legal experts who first used the term "consumer protection law" in
Indonesian law journals. Three of them are not positivists. The use of the word "law" does not
depend on the presence or absence of positive laws that govern it. Their thought provided
inspiration for the development of consumer protection laws in Indonesia.28

Financial Technology (Fintech)

Financial Technology, in Indonesian language is teknologi keuangan.29 Financial
Technology (Fintech) is the result of a combination of financial services and technology that
eventually changes the business model from conventional to moderate, which initially face-to-
face payment and carried a sum of cash, now we can make long-distance transactions by doing
payments that can be done in just seconds. Fintech appeared along with changes in people's
lifestyles which are currently dominated by users of information technology that demands fast-
paced life. With fintech, problems in buying and selling transactions and also payments such as
not having time to look for goods to a shopping place, to a bank/ATM to transfer funds,
reluctance to visit a place because of the unpleasant service can be minimized. Financial
transactions through fintech include payments, investments, money loan, transfers, financial
plans and comparison of financial products.30 So that fintech helps transactions and payment
systems become more efficient and economical but still effective.
The legal basis in implementing fintech in the payment system in Indonesia are31:

9
 1. Bank Indonesia Regulation No. 18/40/ PBI/2016 concerning the Implementation of
Payment Transaction Processing,
2. Bank Indonesia Circular Letter No. 18/22/DKSP regarding the implementation of
digital financial services, and
3. Bank Indonesia Regulation No. 18/17/ PBI/2016 about Electronic Money.32
While the advantages of fintech according to the principle of justice for consumers,
fintech players and for the country are, for consumers, fintech gives advantages from getting
better services, more choices, and lower prices. For fintech players (product or service
merchant), fintech provides the benefits to simplify the transaction chain, reducing operational
costs and capital costs, and freezing the flow of information. For a country, fintech provides the
benefits of encouraging the transmission of economic policies, increasing the velocity of money
so as to improve the community economy, fintech also encourages the National Inclusive
Financial Strategy/SKNI in Indonesia.33
As explained above, only need to include personal data and several other requirements,
the loan will be disbursed in less than 24 hours. However, on the other hand this method is quite
risky for consumers. To avoid things that are not wanted, we should first understand a few things
to look out for before deciding to borrow money from a fintech service.
Quoted from The Jakarta Post, a group of financial technology lenders (fintech) wanted
to help growing a healthier loan industry in Indonesia. They wanted to protect consumers by
establishing strict loan screening for their members. The Indonesian Joint Funding Fintech
Association (AFPI) will help to stimulate the P2P financial industry in Indonesia. “Instead of
competing against each other, banks and financial technology (fintech) companies are joining
hands and combining their resources to tap into the country’s growing financial services
market.”34

Government Recognition
This P2P Lending type of Fintech received recognition from Indonesian government 3
(three) years ago. The proofs of the recognition were risk management certificate, public
education socialization and mandatory code of ethics, which must be immediately uploaded to
the AFPI website. AFPI also helps to protect consumers to provide security for consumers who
take loans at P2P Lending. With regard to the P2P Lending code of ethics, AFPI deputy
chairman Sunu Widyatmoko urged consumers to pay attention to stipulations about lenders'

10
interest rates. There are rules state that fintech lenders cannot exceed the average interest rate of
0.8 percent a day. While the sentence cannot exceed 100 percent of the principal. Lenders who
oppose this rule can be accused of predatory loans. AFPI also built a database of problematic
loaners. If the loaners do not repay the loan within 90 days, they will be blacklisted. Recently,
there are many new online loan service providers that provide these services (online money
loans), and which have been officially registered and supervised by OJK, there are only 161 (one
hundred sixty-one) new providers.35 Some of them are:
Table 1. The List of Fintech Registered OJK in 2019

Source: www.ojk.go.i

CONCLUSION
Protection of consumer rights in online loans is still vulnerable. The Consumer Protection
Regulation No. 9 of 1999, which has been implemented since 2000, regulates rights and
obligations for producers and consumers, but it is not appropriate for online loans. The different
characteristics in the trading system via the internet are not sufficiently equipped in the
Consumer Protection Regulation. For this reason, it is necessary to adjust legal regulations
regarding online loans, so that the rights of consumers as internet users, especially in making
loans or other transactions can be guaranteed. Online money loan agreement can be concluded
based on aspects of civil and criminal laws, ITE Law and OJK regulations, as follows:

11
 1. An online loan agreement must meet the conditions in civil law. However, an online loan
agreement is a standard agreement, which is binding unilaterally made by a creditor. So
that the agreement does not meet the elements in articles 1320, 1338, and 1131 of the
Code of Civil Law.
2. Criminal penalties exist in the articles of the ITE Law, and penalties must be in the form
of punishment/fines and compensation.
3. Administrative penalties are determined based on OJK regulations Number
77/POJK.01/2016, and
4. Penalties can be done on individuals and legal entities or cooperatives or other business
sectors that violate them.

SUGGESTION
In the practice of online money loan agreement from the structure, process, until the
substance tend to be forced on consumers and the contents of the material and the interpretation
is arranged and explained unilaterally, so the main purpose is only to explain the interests and
position of the lender and ignore the consumer. There are many online loan providers, but only
161 are registered in OJK.
Therefore it is expected that the community must be more careful in choosing services.
There are a few tips on choosing fintech services. They are, choosing fintech with the lowest
interest; keeping in mind the due date; If the disbursement process is too easy, consumers should
be alert; and before borrowing, please do a review of consumers who have used the fintech
services (the service is not necessarily satisfying the consumers).

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