Business Law Paper

Business Law
by : Bahri
        Sri Kartika Afanty
        Andi Ardianzah 
        Alfaega
        Rafidah Saleh

CHAPTER I

INTRODUCTION

1.1      BACKGROUND

Blank cheque is debate lately. Not because it can and can not allow, but especially because of changes in this legislation, which is still continuing.

The use of cheque as a medium of payment transaction has been known since the time before World War II. At that time Indonesia as major trade destination countries see cheque as a payment instrument that is easy to use. According to the Presidential Decree number 470 of 1961 payment of voice like that money Kartal, such as coins and paper money, and demand deposits, such as cheque. The existence of a blank cheque it because the parties did not want to be responsible reap huge profits from their fraudulent results.

In writing a blank cheque sum of money to be paid by the bank, but owned the account balance that issued the cheque is not enough to pay for it. Cheque was cashed inability to inhibit economic growth. Imagine, billions of dollars transactions can disappear just because a blank cheque. This is detrimental not only businessmen but also state.

Increasingly aware of the rampant cases of bad cheque, the government passed legislation to minimize this fraud. Law No. 17 on the prohibition of withdrawal tahun1964 blank cheque was issued. In the law states that whoever draw a cheque when she learned that balance in the account is insufficient to withdraw as much as it will be written in cheque was sentenced to prison for a maximum of 20 years and a fine of four times the amount of money stated in the cheque.

This rule applies to the individual, foundation, organization, corporation, union, and company. Losses party receiving bad cheque can exceed the sanctions provided for in the legislation.

Because it is considered less able to solve problems of bad cheque in 1971 it issued legislation to repeal Act No. 17 of 1964. Having revised the Act No. 1 of 1971 concerning the revocation of Act 17 of 1964 was replaced by Act No. 12 of 1971 which makes it a permanent law.

I Knowledge Law No. 12 of 1971 was passed legislation repeal of Act 17 of 1964, in the sense that the withdrawal of a blank cheque isn’t be forbidden, there is no sanction for it.

From the sources that I have found, Act 17 of 1964, this is not supposed to be aimed at the first pull on the cheque but the cheque signer. Because it is the pullers cheque were harmed in the transaction.

In accordance with the economic development and information technology, there are the demands of the business community to be able to trade in a certain amount more effectively, efficiently and safely. These include triggered due to the use of currency (cash / cash), especially for transactions with a relatively large nominal, felt less efficiently and safely. The tendency of the use of payment instruments such as cheque and bank draft as a means of payment in trade in general is caused partly because the instruments mentioned several advantages compared to other payment instruments, among other factors the effectiveness, efficiency, and safety.

In some countries, the use of non-cash payment instruments, whether paper based, card-based and electronic based company has grown so fast. In fact, each of these instruments has been providing various facilities for a variety of derivative interest payments with increasingly sophisticated methods of settlement. The existence of non-cash payment instruments developed so rapidly in some developed countries has been supported by the existence of an adequate system of payment, settlement mechanisms that support and strong legal framework.

In Indonesia alone, the growing use of non-cash payment instruments has increased significantly. Various aspects of the constraints in the development of non-cash instruments of this type, among others, in terms of supporting infrastructure, lack of understanding bank officer and / or economic actors in the rules and regulations prevailing perudang, readiness and transaction patterns of Indonesian society to the legal issues.

1.2      PROBLEM FORMULATION

1.      Why Oichida still a witness, but did not rule out the possibility, oichida soon be named as a suspect?

2.      Why director of the Legal Aid Institute (LBH) Makassar Makassar Polrestabes urged to immediately establish Fany Director of PT Mitra works Oichida Lashara as suspects related to the case kosomg cheque?

1.3      PURPOSE OF WRITING

1.     To find out why Oichida still a witness, but did not rule out the possibility, oichida soon be named as a suspect;

2.      To find out why the Director of Legal Aid Institute (LBH) Makassar Makassar Polrestabes urged to immediately establish Fany Director of PT Mitra works Oichida Lashara as suspects relating to the case of a blank cheque.

CHAPTER II

DISCUSSION

2.1   LITERATURE REVIEW

2.1.1    Understanding And Cheque Blank Cheque

Definition of a warrant cheque is a bank customer to manage the customer's chequeing account, to pay a sum of money to the parties mentioned therein or to the holder of the cheque.

A blank cheque is a cheque drawn on an account, the funds are not sufficient to pay the cheque. It is often encountered in day-to-day business transactions. A blank cheque is very detrimental to businesses in the market, either when ordering raw materials to distribution of finished goods. Regulation has never actually applied to a / foundation / organization / company. When in fact the legislation has been established for a long time.

2.1.2    Cheque traits

Cheque stipulated in Law Commercial Law Article 178 up to 229. Under the terms of Article 178 Commercial code, cheque any have characteristics which are:

1.      Name cheque loaded in the text itself and termed the cheque was written language;

2.      Unconditional orders to pay a certain amount of money;

3.      Names of people who have to pay (interest);

4.      Determination of the place where payment is to be dilakaukan;

5.      Date and place a cheque withdrawal;

6.      Signature of the person issuing the cheque (towing).

Personnel involved in the letter is a cheque issuer (person of interest); caught (ie Bank); carrier (designated person); holders (those who were given the right); replacement (which replaces the holder or the endorsement. Cheque should be made by snagged on the orders of the publisher for the cheque is not canceled by the publisher. Though these cheque can be canceled but still have to wait for the offer period ends 70 days after the juice has not been taken for a cheque to the bank or redeemable by the holder.

Cheque in its development is increasingly being used as a means of payment. Demand for human needs in the push toward trade complexity of the original shape Cheque only serves solely as a means of payment in the form of raw expanded its development into specific forms as intended and purpose the publisher.

2.1.3    Various Kinds of Cheque

As for the kinds of content include:

1.      The substitute cheque, which also acts as the publisher of the first holder;

2.      Cheque the issuer itself that orders addressed to the publisher's own pay;

3.      Cheque for the calculation of other people that cheque can be issued at the request of a third person;

4.      Incaso cheque or also called cheque the power of attorney or for the bill;

5.      Domicile cheque which can designate where the cheque should be paid or domicile in the letter was a cheque issuer only;

6.      Blank Cheque is empty or cheque that funds are not available in the chequeing account. For example, Mr. Rahman. Rahman Hakim drawing a cheque for 60 million dollars which the cheque is written in, but the funds available in the account there are only 50 million dollars. This means that lack of funds amounting to 10 million dollars, if the customer drawing. So clear the cheque is less in number compared to the number of existing funds;

7.      Traveler's cheque a cheque is a cheque on the way for people who are traveling;

8.      Backward cheque is a cheque that is dated back from the current date, eg today on May 1, 2002. As an example. Tn. Roy intends to disburse a cheque Akase and where the cheque is written, dated May 5, 2002. type of cheque is called the post-dated cheque or cheque that have not matured, this usually happens because there is an agreement between the donor cheque the cheque recipient, such as does not have the funds at that time.

2.1.4    Benefits Cheque

A.    Benefit cheque for the account owner (customer):

a.                As a means of recording and bookkeeping transactions on bank withdrawals;

b.               As a means of monitoring the amount of funds available in the bank;

c.                As a means of towing funds from the bank;

d.               As a means of payment to another party.

B.     Benefit cheque for banks:

a.                As a means of payment;

b.               As a means of transfer from one account to another;

c.                As bookkeeping documents.

C.     Benefit cheque for third parties, namely those who hold cheque:

a.                As a tool to settle accounts payable to other parties;

b.               As a means of payment, substitute legal tender.

2.1.5    Factors Supporting the use of Blank Cheque

In principle, any publisher who publishes a background cheque should act as a basis on which issuer Bank customers who have savings accounts have sufficient funds before issuing a cheque as payment. But often in practice the use of cheque is often misused as a fraudulent act that is a blank cheque.

Factor that into practice advocates the use of blank cheque is confidential Bank. Banks will not give information on the number of client accounts. So, if it turns out the letter was a cheque or blank insufficient funds, the cheque recipients may not know it. Only cheque the recipients believe that by the time he is shown to obtain payment. For the issuer cheque is speculating, this is an opportunity to get pleasure with issuing bad cheque or pay with bad cheque in commercial transactions.

Resolution of issues that arise in practice the use of a blank cheque as payment in Indonesia is that the cheque can be charged later in the day before the expiration of the 70 day pengunjukannya. But if the period of 70 days pengunjukkan cheque have passed and cheque are still rejected because of the unavailability of funds, then the funds can still be requested until the time for 6 months starting from the day of its original publication. After 6 months have passed (expired), the holder of the cheque can still do Recourse Rights.

Regress rights is a right granted by law to the letter beharga holders in the event of non-acceptance or non-payment. Regress rights or rights of recourse in the dictionary Bank Indonesia is the Right Paper Holders Bills / cheque / promissory notes to collect towing / endosan / AVALIS in order to get a payment if the interested party refuses to pay (recht van regress) and Recourse is also defined rights over pay. Regress rights set out in Article 142 to Article 153 to businesses.

As for doing the right regres can be done in 2 ways:

1.      By protesting, which can be done in 2 ways, namely with an authentic certificate and with a simple protest.

a.       With the authentic certificate holder dilakaukan action in the event of non-payment or non-acceptance made before notary or bailiff who diikiuti by 2 witnesses. The deed is a deed of non-payment or non akseptsasi (section 143 (b) and (c));

b.      With a simple protest, do not wear means certain formalities have to be made in the deed itself. This protest is done in case there is no simple klausuka prohibiting protests, the holder does not want to do an authentic protest, protesting party is willing to provide assistance with writing the statement in the letter that the acceptance and valuable reject payment.

2.      By doing notification is a notification from the holder to the issuer and to the previous endosan about the penolongan acceptances and payment within 4 working days after the protests. Endosan receiving endosan notice shall notify the other within a period of 2 working days from the time he received the notice. However, this notification does not constitute an absolute element in doing the right regress and the Constitution does not assert how to interpreted freely notification, either orally or in writing.

In the world of banking practice what is called the right of regress in the implementation turned out to be avoided olehpihak-parties involved in the circulation of draft. This is because:

1.      From the publisher (the Customer), the banks (interest), the holder (buyer) the right not to know what regress;

2.      Diprasyaratkan procedures in implementing the right regred not / does not meet the desires / hopes;

3.      Agreement (although not made directly / nayata) that the concerned parties together to avoid regress rights;

4.      That the implementation of disability rights mengurantgi can regress to the names of certain parties.

But basically, after it reached the right regress, but still have not made the payment, the holder of the beharga can return to the main treaty. Where if we associate with the case of the purchase contract agreement crude palm oil (CPO) between Siti and PT PHA is valued at USD 3.2 billion. In the contract of sale and purchase agreements, Siti Faridah who is a Malaysian citizen is obliged to pay USD 3.2 billion for the purchase of crude palm oil (CPO) against Asri PT Green Island (PHA).

2.1.6    Legal treatment for offenders blank cheque

Considerations:

A.       Banking that in practice it often happens that a cheque is filed on behalf of the bank the cheque is drawn in order to request payment was not assured with sufficient funds in the bank (commonly called a blank cheque);

B.        That acts withdrawal blank cheque it has been done in such a way that the manipulations that can disrupt and thwart the efforts of the government at the present time in carrying out the stability / improvements in the monetary sector and the economy in general;

C.        That in addition to the matters mentioned in paragraph b above, withdrawal of blank cheque, it can also lead to loss of public confidence in the payment by cheque traffic in particular and banking in general;

D.       That in order to achieve stabilization / improvements in the field of monetary as well as to prevent the loss of public confidence in the traffic payment by cheque and banking in general, need to set provisions for the withdrawal of a blank cheque;

E.        This setting is also in the context of efforts to achieve security objectives revolution;

F.         That in connection with the things mentioned above it is also necessary to change the law no.7 drt. 1955 as amended and supplemented, the latest by law no.1 prp 1960.

Ban blank cheque withdrawal:

A.       Whoever draw a cheque, while he knows or should suspect, that since the withdrawal of the cheque is not available sufficient funds in the bank on behalf of the cheque is drawn (bad cheque) shall be sentenced to death, life imprisonment or imprisonment for a while- duration of twenty years imprisonment and a maximum fine of four times the amount banyaknsya written in blank cheque in question;

B.        If the blank cheque withdrawal mentioned in Article 1 made by or on behalf of a legal entity, a company, a trust or a foundation person, the criminal charges were dropped well done and the criminal legal entity, company, association or foundation, both for those who it drew a blank cheque, or to both of them;

C.        The criminal acts in points A and B is a crime. With the rapid progress of the Indonesian economy, the customs in the trade circles in Indonesia also experienced changes in accordance with the rapid progress of the economy. Institutions trade in the days before World War II, only used by large traders who were mostly from foreign nations in Indonesia, is now rapidly once used also by Indonesians nation merchant. Trade organization it, among others, are commonly used by the merchants of Indonesia at this time is the way of payment by cheque.

How important is payment by cheque we know all of the passion that the Government of Indonesia established banks as much as possible in order to, among others, serve the payment method.

To order and the smooth banking business from the use of the cheque that the Government has issued Government Regulation No.1 of 1955 regarding Supervision of Credit Affairs (State Gazette of 1955 2) In order to supervise the affairs of credit (bank) that can now be note the emergence of practices that are so unhealthy that the outline revolves around the use of agency cheque for the purposes of manipulation is the way with drawals provide a cheque without sufficient funds in the bank on which the cheque drawn since the moment he pulled the cheque. In this connection it should be explained as follows.

Given that the Book of the Law of Commercial Law (Wetboekvan koophandel) in the field of civil law only requires that a person who draw cheque to provide sufficient funds in the bank on which the cheque drawn on the day the cheque was presented to the bank for payment, the person feels no need to provide used the funds before the cheque was presented to the bank to request payment.

Given the considerable lapse of time between when the cheque was drawn and when the cheque was presented to the bank to request payment, within which cheque that can move from hand to hand as a means of payment, there arose the desire irresponsible to use the opportunity The goals for manipulation.

People who are not responsible for this then draw cheque at will in amounts so large with only providing partial funding (small) just from the amount of the cheque that the withdrawal of the bank concerned, because he calculated the amount of funds most (small) provision that was enough to accommodate, the payments if the cheque presented to banks.

This means that people who are not responsible for it have created the tools in the payment amounts are very large in order to interest himself in the practice has increased the number of payment instruments outstanding to billions of dollars, which it actually cause chaos in the monetary field in itself, affect the level of prices of goods.

In addition, the calculation of manipulan-manipulan referred to above can be shot, so that when the bank filed cekceknya not available the necessary funds and the cheque were rejected by the banks as blank cheque. Such practices if allowed to drag will be too:

A.             Overt resistance to the Government's intention to develop the habit of making payments by cheque in the society at large and among particular trade, where the intent was also confirmed by PYM The president himself in 1961 with the decision 470 dated August 23, 1961 about the changing traffic Kartal payments primarily with traffic primarily Giral payment;

B.              The factors leading to a reduction / loss of public confidence in institutions in general and banking cheque khususnyal;

C.              Inhibition of the Development Plan Planning Universe defined by MPR with its provisions 11 in 1960 and the progress of Indonesia's economy in particular;

D.             Although by the Monetary Board has issued Decree # 53 of the Monetary Board which also means preventing a blank cheque as a business in Public Law, then Bank Indonesia sets are also provisions to prevent the withdrawal of the blank cheque as action in the field of Law.

Administrative, but all efforts and actions have not been able to prevent the withdrawal of cheque kosong.Guna curb the situation over the measures that need to be hard enough to prevent the loss of public confidence in the payment by cheque traffic in particular and banking in general.

2.2   ANALYSIS PROBLEM

2.2.1    Oichida still a witness, but did not rule out the possibility, Oichida will soon be established as a suspect.

 Director of PT Mitra Karya Fany Oichida Nazara is tripped in case of alleged fraud offenses valued at USD 1.3 billion, which happened to Nelly Nyampa one seroang Makassar businessmen threatened status of the witness would be diverted to the suspect.

It is delivered directly Deputy Chief of the Criminal Investigation Unit and Polrestabes Makassar Police Commissioner (Commissioner) Anwar, in his office on Monday (28/7) during the inspection process Oichida developer who is mafia businessman in fraud case which is not only detrimental but Assistant Vice Nelly Rector III Indonesian Muslim University (UMI) Zakir Sabara also defrauded worth USD 80 million over some time ago in a land purchase.

Based  monitoring news alert in Polrestabes, restaurant owners Gogohe located on Boulevard street, District Panakkukang Makassar is still undergoing an intensive inspection process even closed for about seven hours on the second floor common parts Reskrim Polrestabes Makassar.

Oichida wearing a blue striped shirt come in Polrestabes Makassar at around 11.45 pm. Even up to now known developer boss was apparent impunity examined in a confined space through observation Closed Circuit Television (CCTV).

"We have not been able to give a detailed explanation of the results of the examination concerned because in the process of examination. Clearly there are two cases that we ask for information that is pertinent case of fraud affecting Nelly Nyampa worth Rp 1.3 billion and reported cases of fraud related Sabara Zakir Rp 80 million, "Anwar told the media crew.

According to him, in this case Oichida still a witness, but did not rule out the possibility, we will immediately Oichida set as suspects. In fact, it did not hesitate to throw admitted to the bars of the cell reported Polrestabes Makassar if found guilty of fraud.

Admittedly Oichida track record has a lot of fraud in parentheses be some time this year. Among them, cases of fraud against the Regent Enrekang, La Tinro La Tunrung and Chief Gani Otto Zulkifli PWI South Sulawesi.

2.2.2    Director of the Legal Aid Institute (LBH) Makassar Makassar Polrestabes urged to immediately establish Fany director of PT Mitra Karya Oichida Lashara as a suspect.

Meanwhile, the Director of the Legal Aid Institute (LBH) Abdul Azis urged the Makassar Makassar Polrestabes to immediately establish Fany Director of PT Mitra Karya Oichida Lashara as a suspect in the case of fraud related crimes that harm others by way of payment of the remaining debt receivable by giro or a blank cheque.

"There is absolutely no reason not to set Oichida police as a suspect. Actions taken it exist purely criminal," said Abdul Aziz.

Other reasons as well, said Azis is Oichida an old offender who allegedly never touched by deception case against the law though others have often terjadi.Seperti ever experienced Regent Tinro Enrekang La La Tunrung and Chief Gani Otto Zulkifli PWI South Sulawesi.

"They also never cheated in buying and selling land, where Oichida in paying the relevant land use Giro (BG) or a blank cheque," he explained.

Beritasiaga based on police sources, suspected cases often drag name is presumably even Makassar businessmen allegedly protected by the police. So the process is often the case stalled in the middle of the road.

Move quickly and decisively investigator is expected to prevent the next victim of the fraud committed in practice reported.

Responding to the statement of the Director of LBH Makassar, Anwar said, the process of inquiry and investigation is underway. If you've found strong evidence, it will soon turn into a suspect Oichida status even if it proves to be charged under article is concerned with the fraud penalty of four years in prison.

CHAPTER III

CLOSING

3.1 CONCLUSION

1.      It causes Oichida still a witness, but did not rule out the possibility, oichida will soon named as a suspect is Director of PT Mitra Karya Fany Oichida Nazara (Oichida) tripping in case of alleged fraud offenses valued at USD 1.3 billion, which is a mafia businessman Oichida developer in cases of fraud that is not only harmful but Nelly III Assistant Vice Chancellor Indonesian Muslim University (UMI) Zakir Sabara also defrauded worth USD 80 million over some time ago in a land purchase. As well as cases of fraud against the Regent Enrekang, La Tinro La Tunrung and Chief Gani Otto Zulkifli PWI South Sulawesi.

2.       It causes the Director of Legal Aid Institute (LBH) Makassar Makassar Polrestabes urged to immediately establish Fany director of PT Mitra Karya Oichida Lashara as a suspect is Oichida old alleged perpetrator was never touched by deception case against the law though others have often terjadi.Seperti the Regent experienced Tinro Enrekang La Tinro La Tunrung and Chief Gani Otto Zulkifli PWI South Sulawesi. "They also never cheated in buying and selling land, where Oichida in paying the relevant land use Giro (BG) or a blank cheque.

3.2 ADVICE

1.      Requested that the government be more concerned about the issue of securities in order to minimize its misuse problems;

2.      Move quickly and decisively investigator is expected to prevent the next victim;

3.      Requested to the reader to search for sources other readings to further deepen the knowledge about the rights to the brand.

REFERENCES

Flowers, Aldiena. (2009) Regulation of Blanks Cheque [Internet] June 22. Available fom: http://catatandiatasawan.blogspot.com [Accessed November 14, 2012]

Chan, Kirenai Vita. (2011) Definition of Blank Cheque [Internet] March 16. Available from:http://vitachan.blogspot.com [Accessed November 14, 2012]

Meta. (2011) Use of Blank Cheque For Payment And Solved Practice In Indonesia [internet] May 28. Available from: http://lawmetha.blogspot.com [Accessed November 14, 2012]

Rizani. (2009) As a result of Cheque Law And Giro [internet] 23 April. Available from:http://en.hukumonline.com [Accessed November 14, 2012]

Zoebir, Zuryawan Isvandiar. (2008) Legal Papers [internet] May 21. Available from: http://zuryawan_isvandiar_zoebir 's.blogspot.com [Accessed November 12, 2012]

Oichida Will Be Blank Cheque Fraud Suspects

Sunday, July 29, 2012

 (Beritasiaga.com), Makassar --- Director of PT Mitra Karya Fany Oichida Nazara is tripped in case of alleged fraud offenses valued at USD 1.3 billion, which happened to Nelly Nyampa one seroang Makassar businessmen threatened status of the witness would be diverted to the suspect.

It is delivered directly Deputy Chief of the Criminal Investigation Unit and Polrestabes Makassar Police Commissioner (Commissioner) Anwar, in his office on Monday (28/7) during the inspection process Oichida developer who is mafia businessman in fraud case which is not only detrimental but Assistant Vice Nelly Rector III Indonesian Muslim University (UMI) Zakir Sabara also defrauded worth USD 80 million over some time ago in a land purchase.

Based pantuan beritasiaga in Polrestabes, restaurant owners Gogohe located on Jl Boulevard, District Panakkukang Makassar is still undergoing an intensive inspection process even closed for about seven hours on the second floor common parts Reksirm Polrestabes Makassar.

Oichida wearing a blue striped shirt came Polrestabes Makassar at around 11.45 pm. Even up to now known developer boss was apparent impunity examined in a confined space through observation Televisioan Closed Circuit (CCTV).

"We have not been able to give a detailed explanation of the results of the examination concerned because in the process of examination. Clearly there are two cases that we ask for information that is pertinent case of fraud affecting Nelly Nyampa worth Rp 1.3 billion and reported cases of fraud related Sabara Zakir Rp 80 million, "Anwar told the media crew.

According to him, in this case Oichida still a witness, but did not rule out the possibility, we will immediately Oichida set as suspects. In fact, it did not hesitate to throw admitted to the bars of the cell reported Polrestabes Makassar if found guilty of fraud.

Admittedly Oichida track record has a lot of fraud in parentheses be some time this year. Among them, cases of fraud against the Regent Enrekang, La Tinro La Tunrung and Chief Gani Otto Zulkifli PWI South Sulawesi.

Meanwhile, the Director of the Legal Aid Institute (LBH) Abdul Azis urged the Makassar Makassar Polrestabes to immediately establish Fany Director of PT Mitra Karya Oichida Lashara as a suspect in the case of fraud related crimes that harm others by way of payment of the remaining debt receivable by giro ( BG) or a blank cheque.

"There is absolutely no reason not to set Oichida police as a suspect. Actions taken it exists purely criminal," said Abdul Aziz.

Other reasons as well, said Azis is Oichida an old offender who allegedly never touched by deception case against the law though others have often terjadi.Seperti ever experienced Regent Tinro Enrekang La La Tunrung and Chief Gani Otto Zulkifli PWI South Sulawesi.

"They also never cheated in buying and selling land, where Oichida in paying the relevant land use Giro (BG) or a blank cheque," he explained.

Beritasiaga based on police sources, suspected cases often drag name is presumably even Makassar businessmen allegedly protected by the police. So the process is often the case stalled in the middle of the road.

Move quickly and decisively investigator is expected to prevent the next victim of the fraud committed in practice reported.

Responding to the statement of the Director of LBH Makassar, Anwar said, the process of inquiry and investigation is underway. If you've found strong evidence, it will soon turn into a suspect Oichida status even if it proves to be charged under article is concerned with the fraud penalty of four years in prison. (RGL)